Guns and Firearms
If you are a competitive shooter, hunter, collector, or just an occasional plinker, you probably know that gun laws have become more and more complex over the years.
Is it possible to break a law on a “technicality” – in way a normal person might not even guess could be against the law? These days, it happens all the time.
If you are not sure about how to comply with the gun laws, do your best to investigate, and make sure you can and do comply. Basic criminal law in law school teaches that “intent” is a necessary element of every crime. An accident or mistake may mean that there was no “intent” to do the prohibited act. If it is too late now to go back, and fill out that form differently, it may be possible to defend such a case with an intent defense. If it is not too late, avoid shortcuts, be careful – don’t put yourself at risk.
Guns and firearms come up in several different contexts in criminal law work. One could be called criminal “regulation of gun rights.” Another area is enhancement of other crimes (such as robbery) to a more severe punishment, in the event a gun is involved. A third area that comes up is the loss of civil rights or property rights based upon criminal conviction, criminal charge or civil court order.
Regulation of Gun Rights.
Numerous and complex Federal and Minnesota State statutes limit our fundamental rights to and duties of self-defense, guns and firearms. These laws directly address the sale, ownership, possession, and use of firearms both in relation to the status of the person involved, as well as immediate circumstances. This complex web of laws includes both civil and criminal laws relating to guns. Examples of these kind of criminal defense cases Gallagher handles include:
False Statement on Application for Gun Purchase (misunderstood legal terms).
Negligent Storage of Firearm (in relation to access by minor).
Carrying Without a Permit (Handgun). Minnesota Statutes Section 624.714.
This statutory section sets forth the objective “shall issue” criteria limiting municipal discretion to deny a permit; provides that carrying a pistol without a permit is a crime, with certain exceptions such as to keep or carry about the person’s place of business, dwelling, premises or on land possessed by the person; to carry from a place of purchase to the person’s dwelling or place of business, or from the person’s dwelling or place of business to or from a place where repairing is done, to have the pistol repaired; to carry a pistol between the person’s dwelling and place of business; to carry a pistol in the woods or fields or upon the waters of this state for the purpose of hunting or of target shooting in a safe area; or to transport a pistol in a motor vehicle, snowmobile or boat if the pistol is unloaded, contained in a closed and fastened case, gunbox, or securely tied package. It also provides that “False representations” on an application for a permit is a crime – any false material information in applying for a permit to carry, knowing or having reason to know the information is false, is a gross misdemeanor.
Possession of a gun by an “ineligible person” as defined by statute is a crime. The prohibitions are broader for possession of pistols and “semiautomatic military-style assault weapon” [sic] than other firearms. What makes a person “ineligible?” A conviction of just about any crime, just about any juvenile delinquency adjudication for violation of a criminal statute, most persons with a history of mental illness, most persons with a history of chemical dependency, illegal aliens, etc.
Reckless Discharge of a Firearm Within a Municipality, Minnesota Statutes Section 609.66, subd. 1a(a)(3) and Intentional Discharge of a Firearm Under Circumstances that Endanger the Safety of Another, Minnesota Statutes Section 609.66, subd. 1a(a)(2). Both are felony crimes.
Enhancement of Other Crimes to a More Severe Punishment.
Many criminal statutes in Minnesota contain “charge enhancements” and “mandatory minimum” sentencing provisions triggered somehow by a gun or firearm. An example of the latter is in Minnesota Statutes Section 609.11. There are, however, many others scattered throughout the statutes. A “charge enhancement” increases the normal maximumsentence to a more severe one, contingent upon proof of some fact in the case such as a firearm. A “mandatory minimum” sentencing provision, if the predicate fact is deemed proven, tends to tie the hands of the judge, to force a severe prison sentence no matter how unfair or extreme. A common fact pattern here is using or possessing a gun in connection with a crime. Examples of these kind of criminal defense cases Gallagher handles include:
Kidnapping, False imprisonment
Criminal Sexual Conduct
By far the most common of these is a simple illegal drug possession case where the person also happens to possess a gun in the home – certainly not the problem the legislature intended it to address.
Loss of Civil Rights or Property Rights based upon criminal conviction, or during domestic-related civil restraining order (OFP or HRO).
Felony convictions and certain misdemeanor convictions (including misdemeanor domestic crimes) can cause a loss of civil rights to firearms, either temporarily or forever (rendering an “ineligible person”). In some criminal cases, guns can be seized even while presumed innocent before trial or acquittal, in addition to after certain convictions. Most often, there is little or nothing that can be done to remedy these losses after the fact. Sometimes things can be done to help, after the passage of a specified period of time, or petitioning the court for a restoration of civil rights to firearms in Minnesota.
By far the best way to protect your civil rights to guns and firearms is to prevent their loss in the first place. How? By retaining a good defense lawyer like Gallagher to prevent a conviction and otherwise protect your gun rights. All the excuses in the world, as sympathetic and understandable as they may be, are not going to get the job done. The time to enforce the laws to protect yourself from the government and injustice is before any guilty plea or conviction – after that would be too late.
Self-Defense is a recognized Human Right.
A person has the right to defend self or others with reasonable force. The laws of Minnesota recognize this, but regardless, we know that self-defense is a basic Human Right that each of us has.
Did you ever happen upon two people involved in a physical fight, perhaps when you were school age or on the street? When you were a witness to how it started, normally was there not one person who was the aggressor and another who tried to back away? And then after the fight is underway, people come over to see, who did not see how it started. What do they sometimes say? “Why are THOSE TWO fighting?! I wish THEY would stop.”
What about cases where there are no other witnesses, such as a fight in home in a domestic crime case? How do we know what really happened, where is the truth?
Minnesota’s self-defense law, like many others, contains a “duty to retreat” provision. This means that a person facing a threat has a duty to retreat, where practical, before responding with “reasonable force.” Hopefully we all know that we should suffer humiliation rather than get involved in a physical fight. All too often, however, the attack is sudden, without warning, making retreat self-destructive – impossible or at extreme risk of bodily harm. “No one wins a fight.” You’ve heard it and know it’s true. If it is about “winning,” there should not be a fight. If it is about protecting yourself with no alternative, or survival, then there is no reasonable choice.
What is “reasonable force?” There must be thousands of court cases discussing this, in various situations. It should be obvious that shooting a gun at someone who spit on your shoes would not be reasonable force. Police officers are trained to shoot the center of body mass when shooting in self-defense, and, to shoot a person armed with a knife within a certain distance – and wisely so. That could be reasonable force. In the end, no one wants to be in a position where a jury has to decide “was it reasonable?” given the threat presented at the time. But if you are defending yourself or loved ones from a violent attack, deadly force could be reasonable.