Firearms Cases Today

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 that they have a "need" to exercise a "right" in a public place? This issue is very complex. It is being developed in our federal courts as this is written, and may ultimately arrive at the United States Supreme Court. So, 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. But in the meantime, certain principles of settled law protect those who are wrongfully accused of various reasons.

I recently had the privilege of representing two innocent citizens accused of carrying without a license. One case has been dismissed and the citizen has won a finding of factual innocence and a court Order for the return of his firearm. The prosecution has agreed to dismiss another case will be dismissed soon, with a similar outcome on the horizon. In the first case, the citizen inadvertently carried a firearm in his bag to the x-ray counter at a local airport where TSA immediately discovered it and he was cited to appear in court to face charges that were filed. Because he had forgotten that there was a loaded firearm in the bag he carried, he had no knowledge and was therefore factually innocent. Under California law, negligence is not an issue in such a case. The federal laws are different. A small civil penalty was negotiated with the federal government as must always be done in such situations. The federal government records around 1800 cases like this one a year nationwide.

In the second case, a person was visiting California from another state where the person had a valid CCW. Pulled over for an expired license plate, the cop decided to tow the car and the person declared the loaded firearm and displayed the out of state permit. The cop called another cop who was unimpressed with the fact and the person was cited for concealed carry without a license. This raised a number of legal issues. For one thing, it is the law that a person who is visiting another state shall enjoy the same "privileges and immunities" as a citizen would enjoy in the state being visited. In this person's home state, one can get a CCW without being a resident. Not so in California. California requires residency as a prerequisite to getting a CCW. That kind of discriminatory policy has recently been struck down by the United States Supreme Court. But, ultimately, the case boiled down to there being a mistake of fact (not of law) in the mind of the person who was knowingly carrying the loaded firearm, but not knowing that the CCW that was issued would not be honored by the authorities here. Once this defense was recognized, it became impossible for the prosecutor to obtain a conviction and they stopped the trial and agreed to dismiss the case in a few months; a promise that they are legally bound to keep.

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.

Recently, 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 detains a citizen without a warrant, not only had reasonable suspicion to do so but also had grounds to believe the person is presently armed and dangerous. That wasn't impossible here. But we won anyhow because the police officer was not asked the right questions, or able 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 purchase 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 that many courts fail to report a felony to misdemeanor reductions to the California Department of Justice.

When this happens, we may 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 the 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 fat 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 have been exonerated of the new charges and can often time retrieve their valuable firearms from the agency that took them.

(The above 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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