Possession of a firearm by felon criminal defense attorneys

What is “felon in possession of a firearm”? (Or “possession of a firearm by felon”?)

Section 941.29(1m) of the Wisconsin Statutes provides us the law prohibiting felons from possessing firearms.  The text of the law indicates:

A person who possesses a firearm is guilty of a Class G felony if any of the following applies:

 

• The person has a felony conviction in Wisconsin; or
• The person a criminal conviction elsewhere that would be a felony if committed in Wisconsin; or
• The person was adjudicated delinquent for an act committed on or after April 21, 1994, that if committed by an adult in Wisconsin would be a felony; or
• The person was found guilty of a felony in Wisconsin by reason of mental disease or defect; or
• The person was found not guilty of or not responsible for a crime elsewhere that would be a felony in Wisconsin, by reason of mental disease or defect; …

The statute makes a few things clear off the bat.  First of all, the prior felony conviction barring the defendant from possession of a firearm doesn’t need to happen in Wisconsin.  Any felony conviction from any state applies.  Even more broadly, this statute makes clear that certain misdemeanor convictions from other states could still result in a felon in possession of a firearm charge.  This only applies when conduct in one state is non-felonious but here in Wisconsin would be a felony.

Secondly, individuals found guilty of felonies by reason of mental disease or defect (the “insanity” defense) are covered by this statute.  It is illegal for them to possess firearms, and this collateral consequence will remain with them for the rest of their lives.  While the mental disease or defect defense could result in avoidance of other penalties, this is not one of them.

What are the elements of this crime?  Wisconsin Criminal Jury Instruction 1343: Possession of a firearm by an adult convicted of a felony.

The Wisconsin Criminal Jury Instructions break offenses down into small parts, called elements.  The government must prove each of the elements beyond a reasonable doubt in order to sustain a conviction against the defendant.  Failure to do so will result in the defendant being acquitted.

Let’s take a look at the standard felon in possession of a firearm (an adult, convicted of a Wisconsin felony) instructions, provided in Wisconsin Criminal Jury Instruction 1343:

• Firstly, the defendant possessed a firearm; and
• Secondly, the defendant had been convicted of a felony before the date of the offense.

Let’s consider a few terms also defined by the jury instruction.  The term firearm refers to a weapon which acts by the force of gunpowder – it isn’t necessary that the firearm be loaded or unloaded.  Possession of the firearm means that the defendant knowingly had actual physical control of a firearm.  Alternatively, possession can be shown when the firearm is found in an area the defendant controls, and the defendant intends to exercise control over that area.  In order to prove possession of the firearm, the State does not need to show that the defendant owned the firearm.

Importantly, more than one person can share possession.  More than one person can exercise control of the item.  It does not matter than both individuals can exercise control over the same item at the same time.

Obviously understanding these issues – the elements, the definitions, and the statutory and case law – is important to defending charges like this.  Our Milwaukee criminal defense lawyers regularly defend felon in possession of a firearm cases at trial.  We’ve provided this information and it might help you in understanding the law better, but we think it’s incredibly important to get a criminal defense attorney involved.

The felon in possession of a firearm privilege.

What if someone attacks me?  Certainly it would seem that the defendant should have the right to protect himself.  Thankfully lawmakers agree.  Wisconsin Jury Instruction Criminal 1343A provides the instruction.  The law allows felons to possess firearms if the following are present:

• The defendant reasonably believed he was under an unlawful threat of imminent death or great bodily harm; and
• The defendant reasonably believed he had no alternative way to avoid the threatened harm other than by possessing a firearm; and
• The defendant did not recklessly or negligently place himself in a situation in which it was probable that he would be forced to possess a firearm; and
• The defendant possessed the firearm only for the time necessary to prevent the threatened harm.

State v. Coleman, 206 Wis.2d 198, 556 N.W.2d 701 (1996) eventually prompted this instruction.  The Wisconsin Supreme Court held that “a narrow defense of privilege exists to a charge of felon in possession of a firearm.”  The court agreed with prosecutors: generally acceptable defenses like coercion, self-defense, defense of others, and defense of others does not apply to this charge.

But let’s consider a few important points.  Firstly, you cannot possess a firearm indefinitely, but only for the time necessary to prevent the threatened harm.  You can’t just live in a dangerous neighborhood and claim that necessitated your possession of the weapon.  Instead, this privilege likely only works in dangerous, frantic situations involving an active attack.  Secondly, there is a duty to retreat, if possible.  This is different than the “stand your ground” type laws, or the castle doctrine.  You must believe that these is truly no way to avoid the threatened harm other than by using a firearm.

What about the mandatory minimum penalty?

Section 941.29(4m) of the Wisconsin Statutes imposes a mandatory minimum penalty for certain offenders.  The law requires courts impose a bifurcated sentence, but that the confinement portion of the sentence be not less than 3 years.  Said another way, the mandatory minimum penalty is 3 years initial confinement.  There’s no mandatory amount of extended supervision.

For the mandatory minimum to apply, any of the following must be true:

1. The defendant has a previous violent felony conviction (or delinquency, or finding of not guilty by reason of mental disease or defect); and any of the following:
   1. The defendant committed the current offense within 5 years after completing his sentence (including any parole or extended supervision) or completing a period of probation related to the previous violent felony or misdemeanor.
   2. The defendant committed the current offense while on probation, extended supervision, or conditional release related to the prior felony or violent misdemeanor; or
   3. The defendant committed the current offense within 5 years of discharge from a Chapter 971 commitment related to a prior felony or violent misdemeanor.

Contact Van Severen Law Office, S.C. and connect with some of Wisconsin’s best criminal defense attorneys.

Being accused of being a felon in possession of a firearm isn’t a pleasant situation to be in.  This is a significant criminal charge that carries with it the distinct possibility of a prison sentence.  Nobody wants to go to prison.  But we all make mistakes, and the criminal defense attorneys at Van Severen Law Office, S.C. recognize that.

Our Milwaukee criminal defense law firm only represents individuals facing criminal charges.  A significant amount of those charges involved firearms.  We’ve represented individuals and filed motions challenging the illegal conduct of prosecutors and police.  We’ve fought for our clients at trial.  And we’ve negotiated for excellent plea deals for our clients simply looking to accept responsibility for their actions.  Whatever your goals are in your case, we’ve represented a client and fought for a similar result.

Contact us at (414) 270-0202 and let’s figure out how we can fight your case together.