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Felon in Possession of a Firearm: Fighting the Charge

California (and the U.S. in general) has incredibly strict firearm laws, especially when concerning individuals with prior felony conviction(s) on the record – from steep fines to lengthy jail time to a lifetime ban on gun ownership. In addition, the complexity of state and federal laws does not make defense any easier. 

For these reasons, individuals facing a “felon in possession of a firearm” charge need personalized and tactical legal guidance by the best criminal attorney San Diego can offer. Today, we’ll be exploring some of the most viable strategies that defense lawyers employ to explore all legal avenues and protect their clients’ rights.

How do you defend against a felon in possession charge?

The defense against a felon in possession charge will largely depend on the specific circumstances of the case, but it typically comes down to one or more of the following strategies:

Lack of knowledge or possession defense

For the conviction under CA PC §29800, the persecution must prove beyond a reasonable doubt that the defendant was knowingly in possession of a firearm. Therefore, the defense must prove that the defendant:

1. Was unaware of the firearm’s presence (e.g., in a borrowed car);
2. Did not have possession of a firearm, actual or constructive:
   1. Actual possession: Having a firearm on one’s person;
   2. Constructive possession: Having immediate access to a firearm (e.g., in a glove compartment of a car).

Momentary possession defense

This strategy applies when the defendant:

1. Admits they were in possession of a firearm, BUT;
2. Only for a brief period AND for the purpose of disposing it (i.e., destroying it or handing it over to law enforcement).

In this instance, the defense essentially must prove that the defendant had no intention of preventing law enforcement from obtaining a firearm.

Justifiable possession defense

In some cases, the possession of a firearm can be justified, even if the defendant has a prior felony conviction. However, for this strategy to be possible, several elements must be proven true:

• The reason for obtaining a firearm must be justified (e.g., the defendant took it from someone who was committing a crime against them or another person);
• The defendant did not possess the firearm longer than necessary to deliver it to law enforcement;
• The defendant has notified law enforcement about obtaining the firearm and the intent to hand it over.

Self-defense

Under limited circumstances, the defense may argue that the possession of a firearm was solely for the purpose of immediate self-defense against a credible and imminent threat of serious bodily harm. This strategy typically boils down to proving that the defendant:

• Had reason to believe that they are in immediate danger of being seriously injured, AND;
• The possession of a firearm was the only available means of defense without a preconceived plan.

Illegal search & seizure defense

If law enforcement obtained the firearm in question through unlawful search and seizure (e.g., without a valid warrant or a recognized exception to a warrant requirement), the defense may argue that the defendant’s Fourth Amendment rights were violated.

In this instance, the defending attorney may file a motion to suppress the evidence. If the motion is granted, the firearm can be excluded from the evidence, and the case can potentially be dismissed.

Who’s the top felon in possession of a firearm criminal attorney near me in San Diego?

The legal implication of carrying a loaded firearm in California can have severe and far-reaching consequences, especially if the person has prior felony convictions. If you are facing such charges, it is imperative that you seek specialized legal counsel immediately – and in San Diego, there’s no one better to entrust your defense to than Monder Criminal Lawyer Group.

We specialize in various aspects of California criminal law and have years of experience handling even the most complex cases. Reach out to us today to schedule your confidential consultation at our office near Horton Plaza Park and ensure you have a partner dedicated to upholding your rights.