Charged as a felon in possession of a firearm?  Call Van Severen Law Office, S.C. at (414) 270-0202

Possession of a firearm by a felon is illegal in Wisconsin.  Our criminal defense attorneys have defended hundreds of criminal cases involving firearms.  We’ve certainly defended dozens of felon in possession of a firearm charges.

These charges are serious.  All gun charges are serious.  Being a felon in possession of a firearm carries a maximum penalty of 10 years in prison, a $25,000.00 fine, or both.  That’s a Class G felony.  And your prior convictions may result in mandatory minimum penalties.

Often prosecutors request prison sentences in these cases.  Clearly having competent and aggressive possession of a firearm by felon defense counsel is of the utmost importance.  Hiring a defense attorney like Ben Van Severen may significantly improve your chances at beating your case.  Certainly we have significant experience at trial defending these cases.  Give us a call at (414) 270-0202.  Finally, let’s start working on your case.

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

Section 941.29(1m) of the Wisconsin Statutes prohibits felons from possessing firearms.

The statute 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; or
  • The person is the subject of a Chapter 51 or Chapter 55 commitment.  That person was ordered not to possess a firearm; or
  • The person is subject to an injunction issued under sections 813.22 or 813.122 of the Wisconsin statutes; or finally
  • The person is subject to an order not to possess firearms under sections 813.123(5m) or 813.125(4m).

What are the elements of this crime?

Wisconsin Jury Instruction 1343 provides the elements of being a felon in possession of a firearm.  In order to prove that the defendant committed this crime two things must be shown:

  1. The defendant possessed a firearm; and
  2. The defendant had been convicted of a felony before the date of the offense.

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.

Finally, 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.

Our Milwaukee defense lawyers regularly defend felon in possession of a firearm cases at jury trial.  Juries can be touchy when listening to cases involving guns.  Your defense attorney should understand how to handle juries when defending this issue.  When your life is on the line it’s important that your criminal attorney knows exactly what he is doing.  Hiring skilled attorneys like those at Van Severen Law Office could mean the difference between winning and losing your case.

A felon possesses a firearm.
If you’re a felon, possession of a firearm is a felony. Contact Van Severen Law Office for serious gun crime defense.

Is this law constitutional?

The right to bears arms amendment to the state constitution certainly did not invalidate section 941.29.   State v. Thomas, 2004 WI App 115, 274 Wis.2d 513, 683 N.W.2d 497.  The statute is not unconstitutionally vague or overboard and does not deny the equal protection of laws.  Id.  The Wisconsin Court of Appeals also rejected an “as applied” challenge in State v. Culver , 2018 WI App 55, 384 Wis.2d 222, 918 N.W.2d 103, where the defendant claimed the statute was defective in failing to distinguish between violent and non-violent felonies.

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.

What about the mandatory minimum penalty?

Section 941.29(4m) 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.

Van Severen Law Office provides possession of a firearm by felon defense

If you’re facing this serious crime, hiring a Milwaukee criminal defense lawyer should certainly help your case.  Van Severen Law Office surely aggressively defends all gun crimes.  Our criminal defense firm provides possession of a firearm by felon defense.  If you’re facing this charge, or any other charge, surely contact our law firm at (414) 270-0202 to discuss your case.

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