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Weapons Arrest Violates Felon's Right to Possess a Gun


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#1 mauserme

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Posted 25 November 2017 - 06:40 PM

https://www.columbia...5b55c0d54e.html
 

Attorney says weapons arrest violates felon's right to possess a gun

Brooke Johnson

No guns in the home for felons. No exceptions.

Thats what the federal law banning felons from possessing firearms says. However, Columbia attorney Stephen Wyse has a different opinion.

In June, Wyse was the attorney for Columbia resident Rick Gurley after Gurley fatally shot a man named Cameron Caruthers. Wyse said at the time that Gurley shot Caruthers in self defense after Caruthers had entered the home Gurley shared with Kelsy Poore, assaulted Poore, then turned his threat toward Gurley, according to previous Missourian reporting.
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On Wednesday...Gurley was indicted by a federal grand jury for alleged possession of a firearm by a convicted felon, according to a news release from the U.S. Attorney General for Western District of Missouri.
...
Wyse said he doesn't plan to represent Gurley during his formal arraignment and detention hearing on Tuesday, where Wyse said he's "better than 98 percent sure" that Gurley will plead not guilty.

... it makes more sense for Gurley to use a federal public defender. If that attorney chooses not to argue for Gurleys fundamental right to have a gun in the home for self-defense, however, Wyse said he will step in.

Wyse said that while federal law bans convicted felons from owning a firearm, two Supreme Court cases have upheld the full spectrum of the Second Amendment, which allows people to have guns in their homes. He cited both cases in a Thursday Facebook post:


> In the 2008 District of Columbia v. Heller case, the Court determined that the inherent right of self-defense has been central to the Second Amendment right and the home (is) where the need for defense of self, family, and property is most acute.

> In 2010 the Court upheld that precedent in McDonald v. City of Chicago, stating that the Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home.


Neither of these cases involved felons. Both, however, were in response to overarching decrees that prevented people from having handguns in the home. Because of the precedent set by these two cases, Wyse believes Gurley is within his rights to own a firearm, despite being a convicted felon.

Thats not to say that every felon should be allowed to have a gun in their home, Wyse said, just that the firearm ban is too broad.

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#2 biggun 1

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Posted 25 November 2017 - 07:44 PM

one would think that a lawyer would understand the law,s of the land,i wonder what he is charging his client per hour.



#3 Kaeghl

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Posted 25 November 2017 - 08:24 PM

one would think that a lawyer would understand the law,s of the land,i wonder what he is charging his client per hour.

 

Charging? A lot. Any client dumb enough to keep this lawyer on after trying that defense is dumb enough to buy the Brooklyn bridge on installment plans three times over.



#4 Gamma

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Posted 26 November 2017 - 12:23 AM

Regardless of what that attorney or you or I think, SCOTUS just got done declaring that a lifetime firearms ban for misdemeanor negligence is OK with them. Good luck storming the castle.
Illinois' FCCA is a prime example of the maxim that sufficiently advanced incompetence is indistinguishable from malice.

#5 press1280

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Posted 26 November 2017 - 07:05 AM

I don't think the case you're referring to said that a lifetime ban is constitutional under the 2A, merely it was an interpretation of existing statute, which can be changed by Congress or another case can challenge the felon-in-possession statute.

But you're right that its a tall order, when law abiding citizens can barely own handguns inside their own homes.



#6 dumpnpump

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Posted 26 November 2017 - 10:03 AM

It was my understanding that a felon could posess a firearm on his own property in the state of Texas.  Please correct me if I am wrong.


 


#7 tkroenlein

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Posted 26 November 2017 - 11:23 AM

It was my understanding that a felon could posess a firearm on his own property in the state of Texas.  Please correct me if I am wrong.


The state of Missouri did not press charges, the fed did. Federal law so no guns for felons. The state probably passed on this one because I think in many areas of the free part of the country, this is a loser for the SA.

But if this guy is so dangerous he can't own a gun, why is he out of prison?

#8 Hipshot Percussion

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Posted 26 November 2017 - 02:32 PM

I thought it was okay to break a law in defense of life.  


“I have fought the good fight to the end; I have run the race to the finish: I have kept the faith."  Timothy Chapter 4 verse 7

 

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#9 skinnyb82

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Posted 26 November 2017 - 03:15 PM

I don't believe the categorical lifetime ban on felons owning firearms is at all constitutional. They're essentially saying the guy who got arrested for felony shoplifting is just as dangerous as a murderer. That's preposterous. Non-violent felons should have their rights restored. Even those convicted of forcible felonies like garden variety burglary (not home invasion variety) and have kept their nose clean for some time (10 years, maybe longer?) and have become productive members of society should have their rights reinstated. But it's just a lot easier for the government to say "if you're this then you don't get this."

I thought it was okay to break a law in defense of life.  
It is. But that's only an affirmative defense. One that may be raised at trial and the judge or jury has to decide whether it's a good enough defense. Sent from my VS987 using Tapatalk
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#10 tkroenlein

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Posted 26 November 2017 - 03:42 PM

I don't believe the categorical lifetime ban on felons owning firearms is at all constitutional. They're essentially saying the guy who got arrested for felony shoplifting is just as dangerous as a murderer. That's preposterous. Non-violent felons should have their rights restored. Even those convicted of forcible felonies like garden variety burglary (not home invasion variety) and have kept their nose clean for some time (10 years, maybe longer?) and have become productive members of society should have their rights reinstated. But it's just a lot easier for the government to say "if you're this then you don't get this."
I thought it was okay to break a law in defense of life.  It is. But that's only an affirmative defense. One that may be raised at trial and the judge or jury has to decide whether it's a good enough defense.



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Maybe we should reserve the term felon for those who committed a crime of a personal harm against another.

#11 ragsbo

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Posted 26 November 2017 - 05:18 PM

This comes up every few years. So far the courts don't buy it



#12 rmart

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Posted 26 November 2017 - 05:45 PM

My personal feeling is that once an offender has paid his debt to society his rights should be fully restored. Perhaps after a reasonable probationary period, but if the person isn't safe to own a firearm then perhaps he isn't safe to be released in the first place.

 

I think that nobody should be made to pay for eternity for mistakes made in the past. Let the courts decide what an acceptable punishment should be and then when that punishment is fulfilled, a new start is in order.


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#13 cybermgk

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Posted 26 November 2017 - 06:38 PM

My personal feeling is that once an offender has paid his debt to society his rights should be fully restored. Perhaps after a reasonable probationary period, but if the person isn't safe to own a firearm then perhaps he isn't safe to be released in the first place.

 

I think that nobody should be made to pay for eternity for mistakes made in the past. Let the courts decide what an acceptable punishment should be and then when that punishment is fulfilled, a new start is in order.

The problem is, that convicted criminals have a very high rate of Recidivism.  Of all released from prison, %76.6 are rearrested within 5 years, %56.7 within the first year. 

https://www.nij.gov/...es/welcome.aspx

 

Felons rate is %67.

http://www.google.co...c7rFGlfFGUpjSfL

 

Even when you look at the breakdown by type of felony, except for sex related felonies, and manslaughter have very high rates of recidivism.  Even the non violent felonies clumped in Other is almost 3/4 return to crime.

 

Assault             %59

Burglery            %62.2

Drug                  %62.7

Manslaughter    %38.3

Murder              %52.9

Property            %66.4 

Robbery            %65.9

Sex                    %28.4

Other                 %74.2

 

So, it isn't as simple as 'paid their debt to society' and all is well. 


Edited by cybermgk, 26 November 2017 - 06:40 PM.

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#14 rmart

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Posted 26 November 2017 - 07:27 PM

Then require a five year probation and require felons to serve out their entire term. No early release or probation if you want your full rights back.


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While the people are virtuous they cannot be subdued; but once they lose their virtue, they will be ready to surrender their liberties to the first external or internal invader." ~ Samuel Adams 1779 to James Warren

 

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#15 papa

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Posted 26 November 2017 - 09:42 PM

Then require a five year probation and require felons to serve out their entire term. No early release or probation if you want your full rights back.

This. Also if they can't keep their nose clean after release then they shouldn't be returned to society.



#16 chicagoresident

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Posted 26 November 2017 - 11:00 PM

Neil Gorsuch issued a dissenting opinion on a rehearing of a trial where a defendent with a deferred felony judgement was caught with a firearm.

He basically stated the guy should be retried for the firearms conviction because a deferred sentence could very easily be mistaken by the defendent for not a felony. Since if the defendent followed the terms set by the court he wouldn't technically be a felon until the deferred judgement was reached deeming him a felon or a lesser charge.

So maybe this is why this lawyer thinks this case might have a chance in front of the SCOTUS.

I know a lot of you would like to govern by feels, but good judges do support the rights of everyone including felons.

I don't know exactly how this attorney plans to win this case, but a solid case of using a gun to defend life provides a lot of leeway against any other charges that may be added on. Like legally being allowed to shoot, being under the influence of drugs and alcohol, not being licensed to conceal, civil wrongful death lawsuites, felons with armed bodyguards, etc.

It's this legal gray area in these cases that often determine outcome of cases for more law abiding situations. Like what happens if a felony family member uses your CCW gun to defend you if you were somehow disabled?

US vs. Miller was a case involving a felon with a sawed off shotgun that challenged, failed, and has continued to be cited in upholding the National Firearm Act.

Edited by chicagoresident, 26 November 2017 - 11:06 PM.


#17 skinnyb82

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Posted 27 November 2017 - 07:43 AM

Neil Gorsuch issued a dissenting opinion on a rehearing of a trial where a defendent with a deferred felony judgement was caught with a firearm.He basically stated the guy should be retried for the firearms conviction because a deferred sentence could very easily be mistaken by the defendent for not a felony. Since if the defendent followed the terms set by the court he wouldn't technically be a felon until the deferred judgement was reached deeming him a felon or a lesser charge.


That would be United States v. Games-Perez. Binding circuit precedent at the time only required control of the firearm to prove knowledge of one's felon status. Actual knowledge is irrelevant. The catch is that federal law requires knowledge ("...knowingly possess a firearm..." or some verbiage) of one's status as a felon. Can't possess a firearm as an unknowing felon. Gorsuch sat on the original 3 judge panel that affirmed the man's conviction, then dissented to denial of rehearing en banc, stating he was bound by Capps (circuit precedent) but that exceptionally important question. En banc denied, of course. He was ruled to have constructive knowledge of his status as a felon and therefore it satisfied the knowledge requirement.

"Thus, although he acknowledges that our court has expressly held that 'the only knowledge required for a § 922(g) conviction is knowledge that the instrument possessed is a firearm,' United States v. Capps, 77 F.3d 350, 352 (10th Cir. 1996), he argues his case is distinguishable from Capps and/or Capps was simply wrongly decided."

The defendant received deferred prosecution as per a plea agreement. He was told multiple times that he would not be a felon. But the paperwork he signed stated that he would be a convicted felon. His argument was that he had no idea if he was a felon or...not. Court said "You plead guilty and signed your name on a form that says you'd be a convicted felon, so that satisfies the knowledge requirement contained in 922(g)."

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Edited by skinnyb82, 27 November 2017 - 07:45 AM.

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