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I am charged with illegal possession or carrying a firearm. What can you do for me?

In today's world, people often feel the need to carry a concealed firearm at different times and places. Some people who are careful enough to seek a permit to do so, are nevertheless turned down based on an inability to show "need". Well, since when does the Constitution require anyone to show need to exercise their right to keep and bear arms? This issue is being developed in our federal courts, and the trend seems to be answering my hypothetical question with a resounding "Never". But these cases are still being argued, and for some time now, we will not have a definitive answer as to whether law abiding citizens must sacrifice their right to personal security in order to remain law abiding.

Equal to a person's right to keep and bear arms, is a person's right to be secure from unreasonable search and seizure. That includes being felt up (frisked) by police who just want to search a citizen without any warrant or reasonable suspicion to think that you are armed and dangerous. Now, when they do this (and that is quite often) and they find and remove a loaded firearm, unless you have a CCW, you are going to be prosecuted.

But that isn't the end of it.

Today, in such a case, I argued a suppression motion for my client. Basically, it is the prosecutor's burden to prove that the officer who laid hands on you, not only had reasonable suspicion to detain you, but also had grounds to believe that you were armed and dangerous. That wasn't impossible here. But we won anyhow, because the police officer was not asked the right questions, or able to show facts and reasonable inferences that gave him the right to lay his hands upon this citizen, who had only committed a traffic infraction. Evidence (gun) suppressed, case dismissed.

Now, I see many "gun" cases in our practice. Sometimes, the authorities get a search warrant based on the fact that a citizen who is the recorded purchaser of a handgun shows up on their database as having been later convicted of a felony or other disqualifying crime. When this happens, we have to carefully determine whether that information is true. On more than one occasion, we have found that it wasn't all true, which it has to be in order to justify criminal prosecution for felon in possession of a firearm.

Since 2007, California law has been clear that a felony that has been reduced to a misdemeanor is no longer a felony. Recently, Proposition 47 changed that, but only in cases where sentences are recalled under that new law. In other words, we find that people who are accused of being felons in possession, are often not. Why is that? Well, mainly it is because many courts fail to report felony to misdemeanor reductions to the California Department of Justice.

When this happens, we have to go back into the court files, and obtain proof that the reduction occurred. Sometimes, that is easier said than done. Courts nowadays will "purge" old files, keeping only basic history that hurts, rather than helps people who were convicted of felonies. When that happens, we prepare as much proof as we can obtain, and present it to the court in order to get the fact recognized. Then, we insist that the correct information be reported to the Department of Justice and that any new charges, based on the incorrect record will be dismissed.

Without exception, this always seems to work and quite a few of our clients are exonerated of the new charges and can often times retrieve their valuable firearms from the agency that took them. (This is not an opinion about your gun case if you have one. Every case is different, and results can and do vary from case to case.) 

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Schweitzer & Davidian
620 DeWitt Avenue
Suite 102
Clovis, CA 93612

Phone: 559-321-7391
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Schweitzer & Davidian
1600 Mineral King Avenue
Suite A
Visalia, CA 93291

Phone: 559-625-4529
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