Brother has a felony... can he...?

[Mako-Wish]

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]

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]

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]

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. 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]

A convicted felon firing a gun is a no-no. Its gonna suck to be him.

Truth

[stix213]

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]

did you tell the cops he actually DID hold and fire the gun???

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]

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]

Thanks for all the advice, everyone! Will post back later.

OOHRAH!!!

[OleCuss]

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]

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]

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.

If he's in SoCal, contact Michel & Associates.

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]

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]

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]

See if he can get a 1203.4PC and 17PC and have guns again. Until then, no.