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Mako-Wish
06-07-2012, 12:44 PM
Hey all! Long time lurker, first time poster.

The bottom-line question is: Can a person with a felony from 12 years ago fire my guns with me there? Or is he not allowed anywhere near them? Planning a trip to the desert this weekend and want to be sure up front.

Thanks!
Eric

Glock22Fan
06-07-2012, 12:51 PM
He can be there if you are in actual charge of it. By which I mean that he would have to use some degree of force to take it from you against your will. Unfortunately, if it is in his hand, you are not in charge of it, he is, so he has indeed committed a felony, unless you were more than twelve miles (I think that's the edge of territorial waters these days) out.

Now, if only you had both kept your mouths shut and not incriminated yourselves (how many times have we said "Don't volunteer anything?" then you might just have got away with your brother just being an observer.

The other moral, also repeated often on this forum: "Don't go to Law Enforcement for advice on the law."

Sorry about your problems, but I fear that the serious charge will stick. You might get away with the negligent discharge.

RobG
06-07-2012, 12:52 PM
The requisite answer is, get a lawyer, NOW! For your brother, stop taking bad advice from people who do not know the law. A convicted felon firing a gun is a no-no. Its gonna suck to be him.

unusedusername
06-07-2012, 12:53 PM
You need a lawyer that specializes in gun laws (different then a general criminal lawyer). Call one today. It takes time to set up a proper defense, so do not wait unless you like jail.

1) Delete your post. Press "Edit" under your post and remove all the text. Do not post details of this anywhere public.
2) Call the Calguns Foundation Hotline (http://www.calgunsfoundation.org/resources/cgf-hotline.html). They can put you in contact with the right people to help you.

In Case of Encounter, Detainment or Arrest:
1. Remain Silent - Do Not Answer Questions
2. Do Not Consent to a Search
3. Demand an Attorney
4. Call CGF at (800) 556-2109

Barbarossa
06-07-2012, 12:54 PM
A convicted felon firing a gun is a no-no. Its gonna suck to be him.

Truth

stix213
06-07-2012, 12:57 PM
The "felon in possession of a firearm" charge sounds correct. Not only can a felon not own a gun, but they cannot ever possess one either, which would include even holding one. That is a lifetime ban nationwide. If you were told otherwise by other law enforcement agencies, then you were told incorrectly. If you two already admitted to law enforcement that he even held one of your guns, then I see this charge sticking for sure. An example of why not to talk to police when being investigated, because everyone cannot know the full details of every law and can inadvertently incriminate themselves.

The people that answer the phone at the sheriff's office or local PD are not your lawyer, nor lawyers for anyone, so they aren't necessarily the best people to ask lawyer type advice.

The PC 246.3 violation (negligent discharge) sounds like something that could be beaten with a competent gun attorney, assuming you were firing your guns in a safe manner. The law specifically says "any person who willfully discharges a firearm in a grossly negligent manner which could result in injury or death to a person" which seems like a high bar for the prosecution. If there were people in the direction you were shooting, well.....

If your attorney doesn't specialize in gun issues, you need to bring one on who does immediately. Also you should refrain from giving further details of the incident here without first consulting said gun attorney.

I am not a lawyer

Squid
06-07-2012, 1:04 PM
Hopefully not.

Once, after giving a guy with suspended DL a ride to jail so he could drop off some paper or something for his buddy in jail, the guy I was giving a ride to in his car gets charged with "driving on suspended" like two weeks later.

(we both got checked by deputies at gate and it was 'all good' as his car was legal and I was legal with DL).

Charges got dropped after a few go arounds in court. Obviously, the DA didn't want to go to trial, but they were able to make everyone show up in court a few times.

Plan on a few court dates, and lot of lying from DA, judge and probably your lawyer as well.


My advice, type up case with "just the facts" and email to 30 lawyers and make follow up calls a day later. Out of 30, maybe one or even two will actually know anything and tell you where you stand in 45secs for free, just to show off.


PS-don't tell any other lawyers you already have one, or they can't talk to you.....but it is 'morally' ok for you to lie about that.

OleCuss
06-07-2012, 1:04 PM
I agree with deleting the post don't tell anyone any part of the story unless a lawyer says you should.

Jason Davis is a superb firearms attorney in Southern California.

Mako-Wish
06-07-2012, 2:32 PM
Thanks for all the advice, everyone! Will post back later.

OOHRAH!!!

OleCuss
06-07-2012, 2:38 PM
Hey all! Long time lurker, first time poster.

Original post deleted per another member's advice. The bottom-line question is: Can a person with a felony from 12 years ago fire my guns with me there? Or is he not allowed anywhere near them? Planning a trip to the desert this weekend and want to be sure up front.

Thanks!
Eric

Regarding the purely hypothetical question you are currently posting?

No, a person who has previously been convicted of a felony and whose felony has not been expunged must not have any sort of possession of a firearm at any time. That means you can't leave your firearm where he could take possession and he may not hold or fire your firearm.

I'm told that this extends to ammo and firearm parts, but I'm not quite as certain about this.

Mako-Wish
06-07-2012, 2:46 PM
He actually submitted the paperwork to have the felony expunged about a month ago, so we will see what happens with that. It was a non-violent crime, and his lawyer says it should go through. If that clears, then the question is null and void, but for the time being.....

Just cracks me up that the "law enforcement" I have previously spoken with says it is okay for him to go and shoot with us, but aparently the actual law says that's not true? Better to lean on the [safe] majority word here than trust some voice on the end of the phone.

Thanks again for all the replies. Gonna tell him to stay home, hehe.

stix213
06-07-2012, 3:12 PM
He actually submitted the paperwork to have the felony expunged about a month ago, so we will see what happens with that. It was a non-violent crime, and his lawyer says it should go through. If that clears, then the question is null and void, but for the time being.....

Just cracks me up that the "law enforcement" I have previously spoken with says it is okay for him to go and shoot with us, but aparently the actual law says that's not true? Better to lean on the [safe] majority word here than trust some voice on the end of the phone.

Thanks again for all the replies. Gonna tell him to stay home, hehe.

No, it is not null and void. He would need to get his felony reduced to a misdemeanor first before getting it expunged, otherwise the lifetime firearm ban is still in effect even with the expunged felony conviction. If he can't get his felony reduced to a misdemeanor, I believe he is SOL as far as gun rights. There are many other threads on the topic here.

See this relevant comment from another thread:

http://www.calguns.net/calgunforum/showpost.php?p=6431699&postcount=6

If his conviction was a felony wobbler (meaning it could be punished as a felony or a misdemeanor) and he received probation, then he can get the charge reduced to misdemeanor, per PC 17(b)(3). This is all he needs. This is what restores firearms possession rights.

There is also a "dismissal" type of expungement, PC 1203.4, but this does not apply to firearms ownership.

So he needs the 17(b), but he also may as well get the 1203.4 at the same time (for checking "NO" in employment application forms for either felony or misdemeanor). The 1203.4 is guaranteed, but the 17(b) is up to the judge, so get a good attorney to help do it!

And READ THIS (http://paul.net/guns/CDM_Memorandum_on_restoration_of_rights.pdf).

If he's in SoCal, contact Michel & Associates (http://michellawyers.com/).

Now if he doesn't even have a felony record, then he needs to ask the court (the one where this transpired) for the documents, and then get proof to the DOJ that he's good to go. Again, for this it may be a lot easier just to ask for an attorney's help.

ETA: wildhawker's referral to Jason Davis is probably ever better (well maybe more affordable anyway). I mistakenly thought Jason was in the Bay Area, but he's in SoCal.

Glock22Fan
06-07-2012, 3:17 PM
Hey all! Long time lurker, first time poster.

Original post deleted per another member's advice. The bottom-line question is: Can a person with a felony from 12 years ago fire my guns with me there? Or is he not allowed anywhere near them? Planning a trip to the desert this weekend and want to be sure up front.

Thanks!
Eric

Have you learned nothing from this thread?

You should have learned:

1) Felons may not be "in possession" of a firearm, which includes holding it - even without shooting it - with (or without) you being there.
2) Don't self-incriminate yourself by spouting off to LEO's
3) Don't trust LEO's to give you accurate legal advice.
4) Don't post potentially incriminating evidence on the internet
5) Don't go shooting with felons
6) don't shoot at sea unless well offshore with nobody nearby.

Just cracks me up that the "law enforcement" I have previously spoken with says it is okay for him to go and shoot with us, but aparently the actual law says that's not true? Better to lean on the [safe] majority word here than trust some voice on the end of the phone.



So, if a cop says that something you are doing is illegal, such as (for example) having a loaded magazine in the same locked case as an unloaded firearm, would you calmly go off to jail, even though it isn't? Cops are not lawyers, and even lawyers get things wrong sometimes.

OleCuss
06-07-2012, 3:18 PM
No offense to LEOs, but unless you know that the LEO is both knowledgeable and committed to keeping you out of trouble - don't trust what they say about firearms laws.

Given the choice they'll likely enforce the law as they explained it to you. But your actual encounter may be with a different LEO who enforces differently. And in any case, the information may be reviewed by the DA who may wish to prosecute cases which the LEOs involved think are a miscarriage of justice and a waste of resources (while not prosecuting cases which the LEOs think the DA should be all over).

So you do exactly what the LEO (and maybe even the DA) says is perfectly fine and then you get hauled into court anyway. . .

So you check the Calguns Foundation Wiki page. If you don't feel confident you fully understand the law after reviewing the Wiki, feel free to ask on the CGN forum but the info can be a little spotty at times. After a while, however, you start to get an idea as to who the best might be at firearms laws - and generally anything a CGF board member says is going to be quite reliable but will not replace your getting actual legal advice from a lawyer.

But the CGF Wiki is the best place to start. Most of that cites the relevant law and has been crafted to make the ramifications as clear as they can be.

And you never get into the particulars of a real criminal case on the forum unless your lawyer tells you it is OK. And if the case has not yet been fully adjudicated when your lawyer tells you it is fine to discuss the case on this forum in a criminal case - fire the lawyer and get another.

If a purely hypothetical case which might purely coincidentally address similar aspects of the law as a real case were to be posted, that might be OK. But if it is a case in which you are a witness or a defendant even that could be iffy.

The problem with a real case is that the prosecutor can read the forum and there are ways to pierce any confidentiality on the forum and use the posted particulars against the defendants.

So it pleases me that all you have posted is what has been contemplated and will not happen.

Edit: Just wanted to endorse the point stix213 has made. Expungement will only work on the firearms bit if the felony was a "wobbler" and is first reduced to a misdemeanor and then expunged.

winnre
06-07-2012, 3:22 PM
See if he can get a 1203.4PC and 17PC and have guns again. Until then, no.

Farrier-1
06-07-2012, 4:27 PM
I think you and your bro could make it legal if you pull a Dutch Rudder.

If you don't know what that is, watch this movie clip http://www.youtube.com/watch?v=g0VRvey8Egg to find out how you and your bro can shoot together.

Mako-Wish
06-08-2012, 10:23 PM
I think you and your bro could make it legal if you pull a Dutch Rudder.

If you don't know what that is, watch this movie clip http://www.youtube.com/watch?v=g0VRvey8Egg to find out how you and your bro can shoot together.

ROFL!!!

Yeah, until any reduction happens, we will just have to tell him he can't join us. Bummer for him, but you pay the future consequences of your past actions. Yeah, he effed up when he was younger, and he knows it, but he can't exactly erase his past. I will have him look into the reduction before the expungement. I think his court date for the expungement is actually next week. I will have him talk to his lawyer about the 17(b) before the court date. Thanks for all the info!

He actually just called before I hit submit, and I talked with him a bit about this. He said the 17(b) is what he is already going for. Guess his lawyer had that in the works from the beginning. So, he can't go shooting with us THIS weekend, but maybe our next trip! :D Cross your fingers... I know I am!

fizux
06-09-2012, 7:35 AM
PS-don't tell any other lawyers you already have one, or they can't talk to you.....but it is 'morally' ok for you to lie about that.

Not true. Rule of Professional Conduct 2-100(C)(2) specifically excepts a represented party seeking advice of independent counsel.

http://rules.calbar.ca.gov/Rules/RulesofProfessionalConduct/CurrentRules.aspx

Although it is probably morally ok to lie to a lawyer in all circumstances, I can't think of an instance where lying to your own lawyer is helpful. Lying to your lawyer is like walking through a minefield while blindfolded, and telling your guide that there are no mines.

pHredd9mm
06-09-2012, 7:42 AM
What happens if a felon goes to a gun range and rents a firearm for practice? Does local/state/federal LE check the rental records? Is the range in trouble for loaning/renting a firearm to a felon?

HK4113
06-09-2012, 10:13 AM
What happens if a felon goes to a gun range and rents a firearm for practice? Does local/state/federal LE check the rental records? Is the range in trouble for loaning/renting a firearm to a felon?

LE randomly will check the records if they feel like it. On the range waiver it asks if you have ever committed a crime or misdemeanor, so if you lie on the form and say no then it is on you not the range. If you tell the range you have a felony and they still let you shoot, the range could possibly get in trouble as well.

dantodd
06-09-2012, 10:40 AM
What happens if a felon goes to a gun range and rents a firearm for practice? Does local/state/federal LE check the rental records? Is the range in trouble for loaning/renting a firearm to a felon?

Has happened. I recall a case discussed here at great length where an off-duty cop was working at a range and had someone "suspicious" rent a gun. He called the guy's DL into his department and found out he was prohibited. The police showed up and arrested the felon in possession. So yes, it is possible that renting a gun will get your prohibited status checked.

wildhawker
06-09-2012, 11:41 AM
The Hotline is for emergencies. Please email inquiries and see the list of gun lawyers and their contact info at www.calgunsfoundation.org/hotline.

-Brandon

ClarenceBoddicker
06-09-2012, 4:51 PM
Hey all! Long time lurker, first time poster.

The bottom-line question is: Can a person with a felony from 12 years ago fire my guns with me there? Or is he not allowed anywhere near them? Planning a trip to the desert this weekend and want to be sure up front.

Thanks!
Eric

Before you make up your mind by what some people on the net say, you should do some serious research about the 1968 Gun Control Act & the 1934 National Firearms Act. Then you should study how the ATF defines possession when it comes to NFA weapons. The magazine: The Small Arms Review, has some excellent articles about Federal gun legalities & court cases. ATF will send you copies of their rule books for free. They have some good Q&A sections, that covers a lot of stuff.

In general most CA anti-gun laws mimic Federal anti-gun laws. CA tends to follow the ATF guidelines when it comes to definitions such as: possession. For example, it is illegal in CA to sell or give someone a high capacity (10+ rounds) magazine, yet it is legal to lend or let them use one. It is illegal in CA to sell of give someone a registered assault weapon (ROW), yet it is legal to let someone shoot it while you are there.

People on here tend to expand upon what anti-gun laws really covers or prohibits. Many times it is quite comical how much some people read into what a law prohibits. Make your own decision or pay a competent lawyer who is a gun law expert (good luck in finding one that is) for an opinion. You can also write a letter to ATF asking about Federal law. Your brother could ask ATF if he is allowed to accompany you to a shooting range & handle/shoot your weapons. ATF, unlike CA DOJ is very accommodating when it comes to answering citizens questions. Be advised that any letter received from ATF with an opinion only covers the person who wrote the letter. Only rulings covers everyone. Unlike what most here erroneously believe, ATF opinions and letters do hold a lot of weight in CA courts, if a defendants counsel is competent enough to use them effectively.

Read the header on top that says: all advice given is not legal counsel. IMO, it is fully legal under Federal & CA law for a felon to hold & even fire a gun as long as the owner of the gun is nearby. There is no law Federal or CA that states it's illegal for a felon to: touch or hold or fire a gun, touch or hold ammo. There is no defined exclusion zone around guns & ammo for felons, like there is with sex offenders & kids or places kids gather. Oddly enough though, sex offenders are still allowed to posses their own kids. Felons can lawfully shop in stores that sells guns & ammo. Check out the recent "can I date a female felon & still own guns" thread.

There is a lot of paranoia when it comes to anti-gun laws in CA. That is the result of CA's unethical DOJ, DA's, Judges, LE agencies & their policies/statements. Their collective intent is to drive lawful gun owners out of CA. If you want to take your brother shooting, you may want to do it in a legal but remote area. Wear the same type and color of clothes, as you may be watched from a distance. Keep an eye out so you won't get surprised if a vehicle rolls up to your shooting spot. Maybe put up a screen or use your vehicle to block a direct view of your shooting area. Have your brother wear gloves & long sleeves to avoid getting GSR. If questioned, don't talk. Only give your required ID info. Your open mouth is your worst enemy & law enforcement's best ally.

OleCuss
06-09-2012, 5:15 PM
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Read the header on top that says: all advice given is not legal counsel. IMO, it is fully legal under Federal & CA law for a felon to hold & even fire a gun as long as the owner of the gun is nearby.
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Are you kidding? I'm not going to try to put together all the code and the case law, but here are some attorneys talking and they point out that you as a felon could have a problem even if your spouse has a firearm which they keep locked up: http://www.shouselaw.com/felon-firearm.html


There is a lot of paranoia when it comes to anti-gun laws in CA. That is the result of CA's unethical DOJ, DA's, Judges, LE agencies & their policies/statements. Their collective intent is to drive lawful gun owners out of CA. If you want to take your brother shooting, you may want to do it in a legal but remote area. Wear the same type and color of clothes, as you may be watched from a distance. Keep an eye out so you won't get surprised if a vehicle rolls up to your shooting spot. Maybe put up a screen or use your vehicle to block a direct view of your shooting area. Have your brother wear gloves & long sleeves to avoid getting GSR. If questioned, don't talk. Only give your required ID info. Your open mouth is your worst enemy & law enforcement's best ally.

I think that is very bad advice. You're effectively suggesting someone do something which is considered illegal by the state and could get several people arrested.

It might be interesting to see if there is code which could be used to convict someone for conspiring to have a felon in possession of a firearm. I don't know enough to know that there is, but it would not surprise me if doing what you suggested could get even the non-felon hauled into court with tens of thousands of dollars of court and attorney fees even if they were to finally beat the rap in the end.

But IANAL so feel free to ignore what I say.

But I'd recommend that before anyone do what you suggest they go and talk to a lawyer who has special competence in firearms law. I'd be stunned if they thought that what you are suggesting is anything other than a Very Bad Idea - (well, other than the not talking to the cops part).

Librarian
06-09-2012, 5:36 PM
Read the header on top that says: all advice given is not legal counsel. IMO, it is fully legal under Federal & CA law for a felon to hold & even fire a gun as long as the owner of the gun is nearby. There is no law Federal or CA that states it's illegal for a felon to: touch or hold or fire a gun, touch or hold ammo.



I'm sorry, Clarence, but you are not only wrong, but entirely out of your depth.

PC 29800 (http://law.onecle.com/california/penal/29800.html) (a) (1) Any person who has been convicted of a felony under
the laws of the United States, the State of California, or any other
state, government, or country, or of an offense enumerated in
subdivision (a), (b), or (d) of Section 23515, or who is addicted to
the use of any narcotic drug, and who owns, purchases, receives, or
has in possession or under custody or control any firearm is guilty
of a felony.
PC 30305 (http://law.onecle.com/california/penal/30305.html) (a) (1) No person prohibited from owning or possessing a
firearm under Chapter 2 (commencing with Section 29800) or Chapter 3
(commencing with Section 29900) of Division 9 of this title, or
Section 8100 or 8103 of the Welfare and Institutions Code, shall own,
possess, or have under custody or control, any ammunition or
reloaded ammunition.
(2) A violation of this subdivision is punishable by imprisonment
in a county jail not to exceed one year or in the state prison, by a
fine not to exceed one thousand dollars ($1,000), or by both the fine
and imprisonment. and PC 16150 (http://law.onecle.com/california/penal/16150.html) (a) As used in Section 30300, "ammunition" means handgun
ammunition as defined in Section 16650.
(b) As used in subdivision (a) of Section 30305 and in Section
30306, "ammunition" includes, but is not limited to, any bullet,
cartridge, magazine, clip, speed loader, autoloader, or projectile
capable of being fired from a firearm with a deadly consequence.
"Ammunition" does not include blanks.

jimx
06-09-2012, 5:37 PM
There is a lot of paranoia

It is not paranoia if they really out to get you.

Lugiahua
06-09-2012, 6:59 PM
Have you learned nothing from this thread?
Cops are not lawyers, and even lawyers get things wrong sometimes.

Cops sometime can't even get simply fact straight, it is very dangerous to trust them on firearm laws.

True story: Once a local cop claimed that I was an "under aged foreigner" thus prohibited from owning firearms despite I am actually a born US citizen passed several DROS/background checks with spotless record.

Even today, I still can't believe how wrong cops sometime could get...