THE RIGHT TO BEAR ARMS: CRIMINAL CONSEQUENCES
It’s common knowledge that Americans have many rights and privileges given to us through the United States Constitution and its State’s Legislations. Of particular interest in criminal defense cases is protection of a client’s U. S. Constitution 2nd Amendment Rights, more commonly known as the right to bear arms. This is a hot topic in Georgia cases; it’s no secret that Southerners love their firearms.
Those charged with crimes are often upset to find that their right to own and purchase their firearms may be at stake depending on their charges. They can be equally relieved to hear that many crimes will not subject them to a loss of their privilege to bear arms, especially here in Georgia. However, it’s critical to understand that Federal Law will override Georgia Law in certain circumstances and for a certain category of cases, specifically regarding the right to possess and own firearms. More on that in a minute.
THE RIGHT TO BEAR ARMS: FELONY VS. MISDEMEANOR
Understanding when someone’s right to bear arms is or isn’t at stake starts by assessing the severity of their charge. Generally, it’s a simple assessment; a felony conviction will automatically revoke a person’s right to possess firearms through Federal Law. There are no exceptions to this rule and convicted felons run the risk of additional felony charges in the future if they do not adhere to the removal of their firearms upon conviction. Those facing felony convictions should seriously consider legal assistance and advice in their case in order to minimize the chance of losing their right to bear arms.
Alternatively, misdemeanor charges do not carry the same penalty, EXCEPT for one specific subcategory of misdemeanor offenses. Those facing misdemeanor charges will be happy to hear that your gun rights are safe if you are charged with any misdemeanor not pertaining to domestic violence. This is due to a Federal Statute that states that anyone carrying a domestic violence conviction, misdemeanor or felony, will forfeit their right to possess or own firearms.
This is a big deal, and is often a major reason to consider the assistance of an attorney if facing misdemeanor family violence charges. It’s equally important because very few people facing these charges realize their gun rights are at stake. For reference, the following categories of misdemeanor violence cases can qualify per federal law as domestic violence if the victim of such a crime is the following:
- Spouse of previous spouses
- People who share a mutual child, with or without marriage
- Parents and children
- Step- parents and step- children
- Foster- parents and foster- children
- Roommates and former roommates
Some of these are obvious, and others not so obvious, but the bottom line is that any domestic violence conviction, felony or misdemeanor, that involves one of these categories as the victim will eliminate a person’s right to possess firearms. Please reference our blog on Family Violence for more specific information on this topic.
THE RIGHT TO BEAR ARMS: KEEPING YOUR RIGHTS
There’s a lot of bad news about losing rights in the previous section for those facing felony or domestic violence charges. However, with proper representation and resolution there are several options that would allow for a person facing convictions for these crimes to maintain their right to own and possess their firearms.
The most obvious outcome, excluding outright dismissal, is to negotiate a felony charge down to a misdemeanor charge. This is most often accomplished through a defense attorney’s careful review and negotiation of a case. Reductions of felony charges to misdemeanor charges is often viewed as a very positive outcome, not only regarding retention of gun rights, but also due to being able to maintain a multitude of other rights such as the right to vote, the right to be part of a jury, and other possible conditions based on a specific felony sentence.
Unfortunately, not every felony case can be negotiated to a misdemeanor level. There is still some good news for first time felony offenders. First time offenders can choose to use what is called “first offender’s status” on their first felony conviction. This statute provides the opportunity for a first- time offender to restore all rights temporarily removed by adhering to the strict conditions of their sentence. Upon completion of first- offender sentence, a person’s sentence is considered complete without an adjudication of guilt or a conviction. Simply put, a first- offender status case that is completed without any probation violations nor any new charges during probation will disappear from a person’s record. Naturally, if it’s off your record, the rights you would have lost are also restored.
But what about the misdemeanor family violence cases? Similar to felony reductions, a tactic commonly used by defense attorneys is to negotiate the removal of the family violence tag from a misdemeanor case. Someone pleading to misdemeanor simple assault with no domestic violence tag is not subject to the federal statute preventing their gun rights. Some jurisdictions may allow an individual to plead to a misdemeanor domestic violence case using nolo contendere. Similar to first offender status, a nolo contendere plea is not considered a plea of guilty, and therefore does not disqualify an individual from their gun rights per the federal statute.
THE RIGHT TO BEAR ARMS: SPECIAL CIRCUMSTANCES
There are a few time limited situations where someone may lose their right to possess their firearms temporarily that may have nothing to do with being charged with a crime. The most common scenario where this happens is in situations involving a Temporary Protective Order (TPO).
In Georgia, a TPO may prohibit an individual from possessing firearms for the duration of the order. Generally, these orders are in effect for 12 months. However, there are conditions that must be met in order for an individual to have their gun rights temporarily suspended:
- The Defendant of the TPO must be properly served the TPO and subsequently must have the opportunity to be heard at a scheduled hearing.
- The Petitioner must qualify as an intimate partner of the Defendant. Per Georgia law, “Intimate Partner” is qualified as 1) a spouse or previous spouse of the Defendant 2) A Parent or Child of the Defendant and 3) a cohabitant (roommate) or previous cohabitant of the Defendant.
- The TPO must restrain what is referred to as future conduct. Future conduct is a loose category that includes acts of harassment, threats, or intimidation against the Plaintiff, specifically any acts that may cause the Plaintiff to fear bodily injury to themselves or someone they also hold intimate.
- The TPO finds that the Defendant is deemed a “credible threat”. The credible threat condition would be determined by the preceding judge and would show that there is reason for the judge to believe that the Defendant poses potential threat of violence against the Petitioner.
Defendant’s in a TPO scenario may find it worth their time to consult with an attorney to make certain that their interests and rights are protected as thoroughly as possible.
THE RIGHT TO BEAR ARMS: FINAL THOUGHTS
There’s a lot on the line when facing felony or misdemeanor charges. Of particular interest to Georgians is their right to purchase and possess firearms. Anyone facing criminal charges should seek to consult with criminal defense specialists to be certain their rights are protected as much as possible.
Felony convictions outright eliminate many rights an individual possesses, including the right to bear arms. However, there are avenues that will protect these rights. Proper negotiation in a felony case can result in dismissal, reductions, or conditional sentencing that will protect the individual’s rights to the highest degree possible.
All misdemeanor cases excepting one specific category will not eliminate an individual’s right to bear arms. Misdemeanor family violence convictions can and will prohibit you from owning and purchasing firearms. As with felony cases, misdemeanor domestic violence cases can be navigated properly and confidently with the right legal assistance to be certain that a person’s rights remain intact.
We look forward to working with you to make sure that your rights are protected. Call us today so we can get to work for you.