March 30, 2020 – Published by Robinson Law Firm
If I am a convicted felon can I still use a gun to defend myself or my family in the event it becomes necessary? The answer: it depends.
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Generally speaking, a person convicted of a felony is prohibited from possessing a firearm under both state and federal law. North Carolina General Statute § 14-415.1 states “[i]t shall be unlawful for any person who has been convicted of a felony to purchase, own, possess, or have in his custody, care or control any firearm or weapon of mass death and destruction as defined in G.S. 14-288.8(c).” 18 U.S.C. § 922(g)(1) is the federal prohibition against possession of a firearm by a convicted felon. Despite these specific prohibitions, the North Carolina Supreme Court recently recognized that in narrow and extraordinary circumstances, a convicted felon may use a weapon in self-defense and assert “justification” as a defense to a prosecution for a violation of G.S. § 14-415.1
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In State v. Mercer, filed 28 February 2020, the Supreme Court considered “[w]hether justification is a common-law defense to the charge of possession of a firearm by a felon under N.C.G.S. § 14-415.1, a question of first impression before the Court. After an altercation outside Mercer’s home, he was charged with possession of a firearm by a felon. Mercer and two friends arrived at his home and were confronted by approximately 15 people who blocked entry into his home and wanted to fight them. As the group approached Mercer they said they we’re “done talking”. Mercer, as well as his mother who had come out of the house, observed that members of the group were armed. Mercer and his two friends continued to back up as the group approached them. Mercer heard the sound of guns cocking. One of Mercer’s friends had a gun, pulled it out, but appeared not to know how to use it or was having difficulty. Upon observing this, Mercer took the gun from his friend, pointed it at the group and told them to “back up”. Both Mercer and his mother heard gun shots, and his mother heard one member of the group tell another to shoot Mercer. As Mercer continued to retreat, he fired the pistol and it jammed thereafter. Mercer was able to get away and the next day turned himself into authorities where he was charged with possession of firearm by a felon.
At trial, Mercer requested the trial court to instruct the jury on “justification” as a defense to the charge of possession of firearm charge. The trial court refused, and the jury convicted Mercer. Ultimately, his case came before the North Carolina Supreme Court. The Supreme Court concluded the trial court erred, that Mercer was entitled to a new trial, and that he was entitled for the jury to consider whether he was justified in the possession and use of the firearm. “Justification” defense serves as an affirmative legal defense against a criminal act. Like any other affirmative defense, the defendant has the burden to prove it to the satisfaction of the jury.
The Supreme Court held that to establish “justification” as a defense to the charge of possession of a firearm by a felon the defendant must prove four things.
- First, that the defendant was under unlawful and present, imminent, and impending threat of death or serious bodily injury.
- Second, that the defendant did not negligently or recklessly place himself in a situation where he would be forced to engage in criminal conduct.
- Third, that the defendant had no reasonable legal alternative to violating the law.
- Fourth, that there was a direct casual relationship between the criminal action and the avoidance of the threatened harm.
While these are the technical legal requirements, I suggest the following as practical advice for a person who is a convicted felon and believes he or she needs to use a firearm to protect themselves.
- First, please understand that as a convicted felon, the use of a firearm by you will be examined without favor and very critically.
- Second, you must be facing an immediate and deadly situation that you did not put yourself in.
- Third, the use of a firearm is the only way to avoid the deadly situation.
- Finally, the firearm is not one that you regularly possessed, controlled or owned.
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“Justification” as a defense would seem to apply to self-defense as well as defense of others if the requirements can be met. Keep in mind that “justification” is a defense and generally, does not automatically bar prosecution for possession of firearm by a felon. It is up to the jury to decide if the defendant is not guilty because of the defense of justification.
If you have any questions about this topic, any gun-related crime or other criminal offense, contact Les Robinson today at The Robinson Law Firm, P.A., 252.758.4100. We offer free consultations to answer your legal questions.
Mr. Robinson was the first in the State to obtain pretrial immunity from civil and criminal prosecution through he use of the “Castle Doctrine”.
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