Felony possession of a firearm charges can include more than just a felon in possession of a gun. An ineligible person is a broader category. Since these crimes have severe penalties, we should learn more about the law. And you can do that here.
Gun laws have become complex and confusing – even for some lawyers and judges. And that’s a problem. After all, the core principle of due process is fair notice. We should have notice of what we should avoid doing to be on the safe side of the law.
When there are grey areas in the law, the rule of lenity applies. Legal grey areas can cause “reasonable doubt.”
Making the complex simple
To understand to the gun laws, we must simplify. Keep in mind that while we explain simply, there is often a deeper level of analysis possible.
Gun laws in Minnesota include both state and federal laws, interpreted by both Minnesota and federal courts.
Gun laws categorize crimes based upon different factors:
- the object (i.e., type of firearm),
- the person (i.e., “ineligible persons”),
- location or proximity.
Most “ineligible person in possession of a firearm” crimes are state charges. So Minnesota law will be our focus on this page. Similarly, we’ll discuss what makes a person ineligible to possess a firearm in Minnesota. (Go here for our page discussing: the law of possession of a firearm in Minnesota.)
What makes a person “ineligible?”
Certain laws strip away people’s rights based upon either past conduct or the person’s status. Here are the most common categories of ineligibility:
- Age 18, with qualifications and exceptions
- Certain criminal convictions where civil rights have not been restored
- Certain pending criminal charges, fugitives, restraining orders
- Court civil commitments, and some informal admissions for mental health or chemical dependency
- Illegal alien
Criminal law and ineligibility
The most common grounds of ineligibility are:
- a person’s past criminal convictions or
- pending criminal charges or civil restraining orders.
The rights diminished by certain restraining orders are generally temporary, ending when the period of the Order ends. Ineligibility triggered by a criminal charge or conviction will be our focus here.
There are two main bases for lifetime ineligibility based upon a criminal conviction:
- Felony “crimes of violence;” and
- Domestic assault and similar crimes.
Pending felony charge: A criminal charge is “pending” after a prosecutor files a Complaint but before resolution of the case. A person with a pending felony charge may not legally possess “any pistol or semiautomatic military-style assault weapon.” Minn. Stat. § 624.713, Subd. 1a. That applies to people on pretrial diversion of a felony crime of violence, as well. Minn. Stat. § 624.713, Subd. 1 (7).
Felony convictions: We begin with the General Rule. Discharge of conviction generally restores the person’s civil rights and to full citizenship, the same as if the conviction had not taken place. Minn. Stat. § 609.165, Restoration of civil rights; possession of firearms, Subd. 1. Not everyone with a Minnesota felony conviction will be a felon in possession.
Exception: Minn. Stat. § 609.165, Subd. 1a:
“Certain convicted felons ineligible to possess firearms or ammunition. … a person who has been convicted of a crime of violence, as defined in section 624.712, subdivision 5, is not entitled to … possess, … a firearm or ammunition for the remainder of the person’s lifetime. Any person who has received such a discharge … whose ability to possess firearms and ammunition has been restored under subdivision 1d, shall not be subject to the restrictions of this subdivision.“
Exception to the exception: Minn. Stat. § 609.165, Subd 1d:
“Judicial restoration of ability to possess firearms and ammunition by felon. A person prohibited by state law from … possessing … a firearm or ammunition because of a conviction or a delinquency adjudication for committing a crime of violence may petition a court to restore the person’s ability to possess … firearms and … ammunition.
The court may grant the relief sought if the person shows good cause to do so and the person has been released from physical confinement.”
States can take away and restore civil rights
Federal law either recognizes or incorporates state law on gun rights. So Minnesota law controls in this area. Caron v. United States, 524 U.S. 308 (1998); 18 U.S. Code § 921, (a) (20); 27 CFR 478.11 (Meaning of terms. “Crime punishable by imprisonment for a term exceeding 1 year”).
In Minnesota, a person may temporarily lose their gun rights while felony charges are pending, including pretrial diversion. And if convicted of a felony, gun rights are automatically restored upon final discharge from sentence, unless the crime of conviction was on the felony crime of violence list (or certain domestic crimes). The list of felony “crimes of violence” is long, however; and includes many factually non-violent crimes, such as felony possession of marijuana. As a result, many people lose their civil rights to guns on a legal technicality.
A person with a Minnesota felony “crime of violence” conviction loses their civil rights to firearms for life, unless that person has obtained a court Order restoring their civil rights to firearms, a pardon, or otherwise had their rights restored. For example, with civil rights restoration, a prosecutor can no longer convict the person of being a felon in possession.
Some domestic assault and similar Minnesota convictions trigger a loss of civil rights to firearms – both felony and misdemeanor. Most Minnesota domestic felony crimes are on Minnesota’s list of felony “crimes of violence;” and cause a loss of gun rights on that basis. So now we can focus on Minnesota non-felony domestic crimes.
What about loss of civil rights to firearms based upon a Minnesota domestic Gross Misdemeanor or Misdemeanor conviction? We need to look at both Minnesota and federal laws.
When applicable, the Minnesota ban is generally three years from the date of conviction. On the other hand, when applicable the federal ban is a lifetime ban, unless civil rights have been restored.
Which applies? Here you can read our in-depth discussion of: Gun rights after a Minnesota misdemeanor domestic crime conviction.
“What is the penalty for felon in possession in Minnesota?”
The maximum penalty for gun possession by a person with a felony “crime of violence” conviction, is fifteen years. For most other ineligible person in possession of a gun cases the maximum is one year. Minn. Stat. §624.713, subd. 2. Judges almost never sentence to the maximum.
But probation can’t normally be longer than the statutory maximum. And the difference between a felony and a gross misdemeanor matters when it comes to a criminal record.
Mandatory minimums: Mandatory minimum sentencing laws are controversial. Public skepticism of them continues to grow. They tend to force judges to execute unjust, long prison terms. We do have several in Minnesota for gun crimes.
When do mandatory minimum sentencing laws apply in a felony possession of a firearm case? We have two categories in Minnesota:
- Non-gun crimes but where the defendant had a gun (i.e., possession of marijuana)
- Gun crimes (i.e., felon in possession of firearm)
The mandatory minimum sentence in Minn. Stat. §609.11, subds. 5 & 9 is three years. But it’s five years if the defendant has a prior conviction with a gun. That usually means a sentence of prison commitment. No probation.
As a result, when a client faces a felony possession of a firearm charge, Attorney Gallagher works to avoid the mandatory minimum.
FAQ: “Is it illegal for a felon to be around a gun?”
Gun Crimes Defense Attorney Thomas Gallagher hears this question a lot. First we must know exactly what the conviction was, and the sentence. The public court record should show this. You can easily find it online with the court file number.
Another way of asking this question is “have the person’s civil rights to firearms been restored?” Remember, the general rule. A person convicted of a Minnesota felony has civil rights restored when they complete their sentence and are “off paper.”
However, we have an exception to that general rule for a “felony crime of violence” conviction. The felony crime of violence conviction triggers the default lifetime ban. A prosecutor can charge a person in this category as a felon in possession.
And then we have the exception to that exception. A person with the lifetime ban for felony crime of violence can ask a judge to restore their civil rights.
When it comes to non-felony domestic assault convictions, it’s a bit more complicated. See our article digging into that situation: How to Restore Civil Rights to Firearms After a Misdemeanor Domestic Crime Conviction in Minnesota.
What about a person who never lost their civil rights in the first place, or got them back? That adult can be around firearms without worry of prosecution as an ineligible person. If you have a question about that, call Gun Crimes Defense Attorney Thomas Gallagher.
If a person loses their civil rights to firearms, then they’re an “ineligible person.” Or they are a “prohibited person.” They can’t legally possess guns.
What if your spouse or family member is an ineligible person? That’s a common problem. Your rights should not be diminished just because you live with someone who is “ineligible.” And technically, they’re not. But what if something happens and a prosecutor charges your family member as felon in possession, even though it’s not their gun?
In this situation, you should learn more about the law of possession, starting on our possession of a firearm page. The most safe plan would be to keep any guns out of the house. Some people go with a gun safe with zero access to the “prohibited person.”
Defending Ineligible Person in Possession of a Firearm cases
Gun Crime Defense Attorney Thomas Gallagher looks at defenses for felony possession of a firearm cases. Defenses that apply to any criminal case, can apply here too. But we have more defenses specific to these cases.
Not in Possession
The basic ingredients of criminal possession are:
- threshold minimum: knowledge of the item and its location
- dominion and control
- ownership is not the same as possession
If the prosecutor lacks enough evidence to prove possession, the verdict is not-guilty. Possession cases can be quite fact specific. Each case is different. For more on defending the possession charge, see our page possession of a firearm.
If the prosecutor lacks enough evidence to prove that the person is “ineligible,” the verdict is not-guilty. If the person does have their civil rights to firearms, they are not ineligible.
Given widespread confusion about gun laws, a prosecutor could charge someone despite their having their civil rights restored. An example could be a person with a felony conviction, not on the designated offense list of Minn. Stat. §624.712, subd. 5 “felony crimes of violence.” After such a person completes their sentence, their civil rights are back.
What if the government told you that you can legally possess a gun? Is it fair that they then prosecute you for that? Of course not. This can be a defense in the right case.
The jury is the conscience of the community. Where the government would urge the jury to evil, the jury may refuse. The jury has the power to bring a not-guilty verdict, regardless of the facts and the law. The last defense of democracy and the Constitution is the jury. Felon in possession cases sometimes result in jury nullification.
Judges feel the conflict between the law and justice. We tell them to enforce both. But when the law conflicts with justice, what then?
Sometimes judges enforce the law, unjustly. Other times judges, find a way to do the right thing, even when the law pushes them to do wrong.
Gun-related pages on Liberty-Lawyer.com
Gun Crimes Defense Attorney
Self-defense Law in Minnesota
Ineligible Person in Possession of a Firearm (this page)
What is firearm possession?
Restoration of civil rights to firearms
Minnesota Carry Permit Law
Carrying under the influence
The Defense Attorney
People rarely ask “do I need a good defense attorney?” in felony possession of a firearm cases. They know they do.
With long mandatory minimum prison sentences, the need is clear.
But because gun laws are complex, you should have a defense attorney who is an expert on gun laws, too.
Recognized expert on gun laws
Thomas Gallagher is not only one of the best defense attorneys in Minnesota, he’s a recognized expert on gun laws.
Take a look at all of the Continuing Legal Education courses Gallagher’s taught lawyers and judges, like this recent Minnesota Gun Law CLE. For every one, his peers invited Gallagher to speak as a recognized legal expert on gun laws.
These are important cases. You need the best gun crimes defense attorney. Call Attorney Thomas Gallagher about your case.
Question about a Minnesota felony possession of a firearm case? Call Minnesota Defense Attorney Thomas C Gallagher at 612 333-1500