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July 13, 2008

Media coverage of Second Amendment effort to dismiss felon-in-possession charges

Last week I posted here a copy of a notable motion to dismiss a federal criminal indictment for felon in possession based on Heller and the Second Amendment.  Today the Pittsburgh Post-Gazette has this story on the motion.  Here are snippets from the story, which notes that a hearing on the motion has been scheduled for later this month:

A Washington County man charged in federal court with being a felon in possession of a handgun has filed a motion asking that the charges be dismissed based on a recent Supreme Court decision.  James F. Barton Jr. argues that the court's opinion lifting the ban on handguns in Washington, D.C. — and the assertion that the possession of guns in the home is an individual right — must be applied to all people.

Senior U.S. District Judge Alan N. Bloch has scheduled a July 31 hearing on the matter....

"Despite having a conviction history, Barton still has a right to free speech.  He still has the right to exercise whatever religion he wants to," Mr. [Barton's lawyer] wrote. "Our Supreme Court has not even come close to saying that, once you are convicted of a federally defined felony, you can not assert a Fourth Amendment right.  Heller holds that 'all Americans' have an 'individual right to use arms for self-defense.'  This right is non existent, however, to Barton because a statute of Congress eliminates his ability to protect himself and his family through the possession and use of firearms in his home."...

Mr. Barton, 48, was convicted in 1995 of receiving stolen property — which was a firearm — and possession of a controlled substance with intent to deliver in Washington County.  In May 2007, investigators searching his home found 15 firearms — seven pistols, three shotguns and five rifles -- as well as ammunition.  Mr. [Barton's lawyer] concedes that his client may not be the most sympathetic defendant to use as a test subject, but his argument remains the same.  "I firmly believe your home is your castle, and you should be allowed to defend yourself if an intruder comes in to do harm to you or your family," he said.  "I think the key dividing line is the home.  What you do in your home is far different from what you do in public."...

In the Western District of Pennsylvania, the number of felon-in-possession charges have gone from 19 in 2003 to 90 in 2007.  US Attorney Mary Beth Buchanan said the people in this district who are charged with being a felon in possession are those who have significant and recent criminal histories.  Though she said the federal law prohibiting felons from possessing firearms doesn't differentiate between offenders, significant and recent criminal histories are just two of the criteria her office uses when meeting with local and state law enforcement to see if a case should be prosecuted federally.  "We've charged offenders with recent convictions or past convictions of a very serious and violent nature," she said.

Though I suppose I should be am pleased to learn that the US Attorney for the Western District of Pennsylvania does not seek to make a federal case out of any and every instance of felon in possession, her apparent concession that she does not bring federal prosecutions in every provable felin-in-possession case raises distinct concerns about disparate enforcement patterns in this broad (and potentially unconstitutional) law.  It is as if the federal government is saying that persons with old, not-too-serious felonies are, though prosecutorial grace, allowed to keep exercising their constitutional gun rights, but more recent or serious felons are out of luck.  Yeah, I think I see that in the text of the Second Amendment when I squint real hard.

Some related posts (written both pre- and post-Heller):

July 13, 2008 at 08:12 PM | Permalink

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Comments

The most interesting part of the excerpted article was this:

"Mr. Barton, 48, was convicted in 1995 of receiving stolen property — which was a firearm — and possession of a controlled substance with intent to deliver....In May 2007, investigators searching his home found 15 firearms — seven pistols, three shotguns and five rifles -- as well as ammunition."

In other words, the guy is a druggie and keeps an arsenal in his house that would make Rambo blush.

This does not prevent his lawyer from an indignant lecture that Barton needs all these weapons for "self defense."

Righto. And I need a tank for self defense. It makes just as much sense.

I actually wonder whether the lawyer is going to be able to keep a straight face while arguing this motion.

Posted by: Bill Otis | Jul 13, 2008 8:52:43 PM

Bill : I will be able to keep a straight face. The constitution does not specify how many adult porn magazines you can have in your house, it just allows you to have them. Like the article said, the client does come to me with cartain "warts". But to those of us who labor in the vineyard of criminal defense, that is always the case.

Posted by: David Chontos | Jul 13, 2008 9:05:23 PM

I'm just hoping the 2nd Amendment is not incorporated to the states.

Posted by: D | Jul 13, 2008 10:12:07 PM

David Chontos:

It sounds from the article as if the lawyer is going to make self-defense a big part of his pitch. If that is correct, the judge could well wind up asking this: "OK counsel, I hear you on the strict Second Amendment claim. But are you telling me your client needs 15 firearms for 'self-defense'?"

Is there any direct answer to that that won't have the judge rolling his eyeballs toward the ceiling?

Posted by: Bill Otis | Jul 13, 2008 10:17:37 PM

I know nothing about Mr. Barton, but I don't think it matters if a person has 1 or 50 pistols, rifles, or shot guns if owning guns is an individual right. We'll see. The capricious nature of enforcement is troublesome.

Posted by: beth curtis | Jul 13, 2008 11:29:12 PM

"the guy is a druggie"

Mr. Otis,

You have any proof of that other than a 1995 arrest? He completed his sentence and there are no apparent allegations of finding drugs with the guns.

Posted by: George | Jul 14, 2008 12:34:21 AM

beth curtis:

"I know nothing about Mr. Barton, but I don't think it matters if a person has 1 or 50 pistols, rifles, or shot guns if owning guns is an individual right. We'll see. The capricious nature of enforcement is troublesome."

If owning guns is an unqualified individual right, you are correct that it doesn't make any difference whether the owner has 1 or 50.

If, however, the defendant is going to make self-defense a major component of his argument, as it certainly seems from the excerpts of the article that he will, whether he owns 1 or 50 makes a lot of difference.

One gun might be needed for self-defense. If you've got 50, self-defense is not really what you're up to.

Posted by: Bill Otis | Jul 14, 2008 6:14:26 AM

George:

You ask whether I have any proof beyond the defendant's 1995 arrest for possession of drugs with intent to distribute that he's a "druggie."

First, according to the excerpt, it was not just an arrest, and it was not just for drugs. It was a conviction on both a drug charge and on a charge of receiving stolen goods (a firearm). A guy who's mixing guns (much less stolen guns) and drugs is unlikely to be Mr. Nicey. He's up to no good.

Second, why would I need anything beyond his prior drug conviction to say he's a druggie? Benedict Arnold's treason occurred over 200 years ago, but he is still correctly referred to as a traitor (indeed he's hardly referred to as anything BUT a traitor).

More broadly, a guy with 15 firearms is not exercising his Second Amendment rights (such as they turn out to be as a result of this case) merely -- or perhaps at all -- for purposes of self-defense. Are you curious to know what his other purposes might be? I sure am.

Posted by: Bill Otis | Jul 14, 2008 6:31:58 AM

its very nice blog

Posted by: Lorra | Jul 14, 2008 6:44:20 AM

Bill,

I'm not going to challenge your argument that, strictly speaking, one doesn't need numerous guns for self-defense, but that aside, 15 firearms is certainly not an "arsenal." It's actually quite typical for many hunters and sport shooters. My late father, who was an ordained minister for more than 40 years and an avid hunter, had that many firearms of various sorts when he died, both for hunting and self-protection. To be sure, he never had a criminal record, so I'm not comparing him to Mr. Barton. I'm simply pointing out that 15 forearms isn't unusual, especially in rural Pennsylvania.

Posted by: anon | Jul 14, 2008 8:43:43 AM

Oops. 15 "forearms" would be astonishing! I need more coffee.

Posted by: anon | Jul 14, 2008 8:46:11 AM

"a guy with 15 firearms is not exercising his Second Amendment rights"

Bill, you must be squinting even harder than Doug if you see that in the text of the Second Amendment. On what possible basis can you support that assessment?

You really don't think an amendment that specifically references a "militia" would only countenance one gun per person? That's just silly.

Posted by: Gritsforbreakfast | Jul 14, 2008 9:02:17 AM

Does self defense mean "a gun"? I don't know. I do know that gun owners often are gun collectors.
Does Heller mean "a gun" for self defense?

It looks like the conviction was for receiving stolen property and possession of a controlled substance with intent to distribute. It says nothing about being a drug user, or using fire arm in a violent crime.

Posted by: beth curtis | Jul 14, 2008 9:06:53 AM

"the guy is a druggie"

Bill,
If this guy doesn't do drugs and has paid his debt to society shouldn't he be offended by you labeling him a 'druggie". The benedict arnold argument is weak. I have been drug free for 20 years am I still a druggie?

Posted by: Felon with no 2A Rights | Jul 14, 2008 10:17:18 AM

Mr. [Barton's lawyer] concedes that his client may not be the most sympathetic defendant to use as a test subject,

- I agree but we are only at the tip of the iceberg. The courts are going to be over run with felon in possession cases. I support non violent felons getting Second Amendment rights.

Posted by: BS | Jul 14, 2008 10:22:04 AM

Mr. Otis, federal law seems to disagree with you. The government, after a period of time and under certain circumstances, thinks a druggie is no longer a druggie.

GGD-92-56 Drug Control: Difficulties in Denying Federal Benefits (pdf).

Do you really suggest a Constitutional right should be denied based on suppositions like yours? Imagine the fun Ann Coulter would have denying First Amendment rights to liberals under that standard.

Posted by: George | Jul 14, 2008 12:26:18 PM

Grits:

You quote me as saying, "a guy with 15 firearms is not exercising his Second Amendment rights"

You then say: "Bill, you must be squinting even harder than Doug if you see that in the text of the Second Amendment. On what possible basis can you support that assessment?"

Nice job, Grits. Only you forgot to put in the rest of my sentence (or give any hint that there WAS a rest of the sentence). The entire sentence reads: "More broadly, a guy with 15 firearms is not exercising his Second Amendment rights (such as they [might] turn out to be as a result of this case) merely -- or perhaps at all -- for purposes of self-defense."

You're able to criticize the sentence as being at odds with the Second Amendment ONLY by leaving out the part that makes it crystal clear that the sentence IS NOT ABOUT THE SECOND AMENDMENT per se, but about the defendant's PURPOSE for having so many guns.

Like I say, nice job.

Is that something you'd try in a brief in court? I don't think it would be advisable.

Grits, consider taking off the ideological blinders for just a moment. Seeing the world from only one perspective doesn't produce a realistic picture. I suppose there is a remote possibility that in some very strange situation, never hinted at by the defendant's lawyer, a person could have 15 firearms for self-defense. But you know as well as I do that a person with that many guns, after having been convicted of a drug felony, and thus under a still-valid prohibition against owning any guns at all, is more likely than not up to no good. At the minimum he has grossly flouted the disability he earned by his prior conviction. Unless we are just to discard the rule of law, he doesn't get to decide for himself that the prohibition doesn't count anymore.

The idea that someone needs 15 firearms for self-defense just doesn't wash. Something else is going on with this guy. What other than ideology makes you want to pretend otherwise?

And for however that may be, when you quote me in the future, please do so in a way that fairly conveys what I have actually said.

Posted by: Bill Otis | Jul 14, 2008 12:49:53 PM

George:

"Mr. Otis, federal law seems to disagree with you. The government, after a period of time and under certain circumstances, thinks a druggie is no longer a druggie."

Wrongo. The feds think that after a period of time and under certain circumstances -- which you don't demonstrate exist in this defendant's case -- a drugie is still a druggie, but on the whole should be able to receive some federal benefits notwithstanding this fact.

"Do you really suggest a Constitutional right should be denied based on suppositions like yours?"

It was the Heller majority, not me, that said the constitutional right to keep and bear arms (long and indignantly denied wherever possible by liberals, who have developed a sudden case of massive amnesia) did not affect the longstanding prohibition on felons possessing firearms.

Whether you think that part of Heller was correct or not, it was still the Court that said it. I didn't have a vote.

Posted by: Bill Otis | Jul 14, 2008 1:11:32 PM

Clearly, statutes that prohibit felons from possessing guns are over simplifications. The risk that gun will be misused is the issue, (risk control) not whether the person in question was a felon. Of course the fact that a person is a criminal offender increases that risk under some circumstances, but how much is too much? This is an area of the law and public policy that needs to grow up.

Posted by: Tom McGee | Jul 14, 2008 1:14:38 PM

A massive surge of subjectivity in application of the law seems to be the topic.

Supposition, innuendo, prejudice, and point of view cloud the air and lead to polemics and loss of respect for the law, and those that enforce it

Posted by: beth curtis | Jul 14, 2008 1:33:39 PM

The federal Gov has long since established a policy that some felons should have the right to own firearms see 18 USC 921 (a)(20). So I don't think it would much of a stretch to go a little further with that law and make a distinction between violent carreer offenders and non violent felons.

Posted by: Paul | Jul 14, 2008 1:59:06 PM

Heller expressly said that the Second Amendment does not impact felon in possession laws. Admittedly, that was dicta, but more clear dicta one would be hard pressed to find.

The Motion is DOA.

FWIW, incorporation is a non-issue in this case, as the felon in possession charge is brought in federal court under federal law.

Also, this is a very weak disparate enforcement case. A prosecutor doesn't have a duty to bring charges even when a case with proof beyond a reasonable doubt is presented in a case tied up with a ribbon, thus minimizing the resources necessary to bring it. In the U.S., unlike Continental Europe (where there is a duty to prosecute in most cases where there is credible evidence of a crime), near absolute prosecutorial discretion is the norm.

Disparate enforcement cases have to show the an impermissible ground is used to distinguish cases brought from cases not brought. Limiting cases to, for example, people with significant and recent criminal histories, people also facing other federal charges, or to people with large numbers of weapons, is a perfectly legitimate exercise of prosecutorial discretion.

Posted by: ohwilleke | Jul 14, 2008 4:17:16 PM

beth curtis:

I am not as pessimistic as you, but the concerns you voice are not without substance. It was precisely to avoid these problems that the guidelines should have remained mandatory, with serious appellate enforcement. Once the Supreme Court threw those things over the side of the boat, this scattershot subjectivity was inevitable.

Posted by: Bill Otis | Jul 14, 2008 4:30:37 PM

ohwilleke's analysis of the disparate enforcement argument is dead on. Suppose you are cruising down the freeway moving with traffic and going 15 over the limit. Smokey nabs you, the other 300 cars in the vicinity go happily by. Have you suffered an injustice? Hardly - even if some of the cars that went by were snazzy sports cars and you are driving a junker. If the feds are exercising discretion by looking at aggravating factors they are doing their job. If the US Attorney takes some and lets local prosecutors take the rest - where is the disparate enforcement?

The court's holding that it was not calling into question felon in possession laws is technically dicta - it does not answer directly the question presented in the cert petition. HOWEVER, you have the court for the first time recognizing an individual constitutional right to bear arms. The fact that the court responded to the solicitor general's brief which raised this very issue about felon in possession laws is not the kind of dicta that you can just ignore.

Posted by: Alan O | Jul 14, 2008 6:13:32 PM

ohwilleke's analysis of the disparate enforcement argument is dead on. Suppose you are cruising down the freeway moving with traffic and going 15 over the limit. Smokey nabs you, the other 300 cars in the vicinity go happily by. Have you suffered an injustice? Hardly - even if some of the cars that went by were snazzy sports cars and you are driving a junker. If the feds are exercising discretion by looking at aggravating factors they are doing their job. If the US Attorney takes some and lets local prosecutors take the rest - where is the disparate enforcement?

The court's holding that it was not calling into question felon in possession laws is technically dicta - it does not answer directly the question presented in the cert petition. HOWEVER, you have the court for the first time recognizing an individual constitutional right to bear arms. The fact that the court responded to the solicitor general's brief which raised this very issue about felon in possession laws is not the kind of dicta that you can just ignore.

Posted by: Alan O | Jul 14, 2008 6:14:00 PM

"The idea that someone needs 15 firearms for self-defense just doesn't wash."

Only because you say so, Bill, not because it's true. I quoted you quite fairly, you just don't like being shown a fool.

There's simply no textual basis in the amendment for your position. Is it okay if I keep two guns for defense so I can give one to my wife if need be? Three so my daughter can defend herself? Where is the threshold? Where in the text of the Second Amendment does it limit the number of guns I may own for self defense?

Awaiting your textual analysis.

Posted by: Gritsforbreakfast | Jul 14, 2008 8:20:51 PM

GritsForBreakfast:

1. "I quoted you quite fairly, you just don't like being shown a fool."

Since you claim to have quoted me fairly, why not prove it by posting the fragment you quoted, juxtaposed with the actual, full sentence from which you lifted the fragment? Then people can judge for themselves the honesty of what you're doing.

2. An intruder breaks into your house at 3 a.m. Please explain why you need 15 firearms to defend youself. One for you, one for your wife, and one each for your 10 kids, 2 dogs and 1 goldfish?

Talk about foolishness. Good grief.

3. "There's simply no textual basis in the amendment for your position."

I'm glad that at least one person on the extreme left has discovered that the Constitution has a text. There may yet be hope.

Of course there is no TEXTUAL BASIS in the First Amendment that would allow the states to punish the proverbial fellow who shouts "fire" in a crowded theater.

Nor is there a TEXTUAL BASIS in the Second Amendment for prohibiting lunatics and children from keeping and bearing arms. That being the case, is it your view that they can have all the guns they want? You know, like the 896 or 3742 or whatever you would like us to believe are needed for "self-defense?"

4. "Is it okay if I keep two guns for defense so I can give one to my wife if need be? Three so my daughter can defend herself?"

If your wife is not a convicted felon, she can have her own gun, as can your daughter (if she's of age (sorry, I'm not ready to OK your giving guns to seven year-old's, "textual basis" or not)(and neither is any court, as you full well know)).

5. "Where is the threshold?"

Zero if you're a convicted felon. Do you have a single case saying otherwise?

6. "Where in the text of the Second Amendment does it limit the number of guns I may own for self defense?"

See "shouting 'fire' in a crowded theater," supra. After that, please tell us where in the text of the Fifth Amendment there is a requirement that Miranda warnings -- or any warnings -- be given.

But not to be missing the forest for the trees: Your entire post just breezily assumes that convicted felons want guns ONLY for self-defense. In this fantasy world, none of these felons wants a gun to, uh, you know, go out and commit another felony! Noooooooo, not that!!

Maybe you should start eating something else for breakfast.


Posted by: Bill Otis | Jul 14, 2008 9:28:06 PM

Your entire post just breezily assumes that convicted felons want guns ONLY for self-defense.

Bill as you know I am a fan of reading your post on this blog as I am for gritsfor breakfast. However I do believe the constitution is for everyone. Not all felons can be nor should they be lumped together. I remember when the term felon was spoke that one could rightfully think of rapist,murderer,armed robbery etc.. I don't think that is the case now. I think that is a human right for one to be able to protect ones self from someone who means them harm. I think almost every one would agree we don't want violent people having firearms. All states have different firearm laws most noteably for me is Lousiana who restores firearm rights after a certain amount of time for non violent offenses. Bill would you agree that there needs to be a mechanism in place that allows a convicted non violent felon to apply to have their firearm rights restored?

Posted by: BS | Jul 15, 2008 9:17:48 AM

BS:

"I think that is a human right for one to be able to protect ones self from someone who means them harm."

I agree that a person has the right to defend himself with force from an imminent threat of grave bodily harm or death. I take that from the common law, not from "human rights," a concept that seems gossamer to me.

I believe there is already a self-defense defense to a felon-in-possession charge, although I confess I'm not sure of that. Amazingly enough, in all my years as an AUSA, I don't recall doing a felon-in-possession case. I would think, though, that such a defense would be available in a case like this: The felon is visiting a friend's house, an armed intruder breaks in, the intruder acts in a menacing way, and the felon grabs a rifle off the wall to "persuade" the intruder to get hence. At that point, the felon is "in possession" of a firearm, but in circumstances that establish a legitimate case of self-defense. Or so I would think. Perhaps another commenter could tell us if there is caselaw on this.

"[W]ould you agree that there needs to be a mechanism in place that allows a convicted non violent felon to apply to have their firearm rights restored?"

I would, especially in light of Heller. But the devil is, as they say, in the details. I would want to know exactly what the process is, who's running it, and what substantive standards are going to be applied.

Posted by: Bill Otis | Jul 15, 2008 10:57:37 AM

Bill,
Why do you think that congress cut off the funding allowing the ATF to perform back gound checks enabling certain non felons to regain their firearm rights back? It would seem that this would be the best method to restore 2A rights. Your thoughts.

Posted by: BS | Jul 15, 2008 12:27:56 PM

Sorry Bill I mean certain Non violent felons.

Posted by: BS | Jul 15, 2008 12:29:59 PM

There is an interesting California appellate case that touches on this issue. People v. Rhodes, 129 Cal. App. 4th 1339.

"Rhodes argues the trial court’s instructional errors were prejudicial because
they “removed the issue of whether [Rhodes], a convicted felon, acted in . . . self-defense
because his mere possession of a firearm under the instructions given . . . was unlawful.”
Rhodes also contends the court’s instructions were prejudicial because they allowed the
district attorney to argue Rhodes, a convicted felon, should not have had a gun and
should have retreated, and therefore, he could not claim self-defense. We agree there was
prejudicial error."

Evidently, a felon under California law cannot own or possesses a firearm but can use one in self defense in emergency situations.

Posted by: George | Jul 15, 2008 1:34:38 PM

BS:

I long ago gave up trying to figure out why Congress allocates or refuses to allocate money for very specific projects. Often it's that Congressman X wants the money shifted to build a bridge in his state, and Congressman Y goes along with it in exchange for Congressman X's agreement to call the White House to support the nomination of Joe Schmoe for the Fisheries Commission, Mr. Schmoe having been the college roommate of Congressman Y.

You may think that's all made up. I wish.

Posted by: Bill Otis | Jul 15, 2008 4:27:19 PM

George:

Interesting case. Thanks.

Posted by: Bill Otis | Jul 15, 2008 4:30:23 PM

Categorically making it a crime for felons to posses a weapon strikes me as an example of what happens when people fall for the conjunction fallacy. This happens when people estimate the probability that A belongs to (or originates from) a particular class B by judging the degree to which A is representative or typical of B.

When two sets of circumstances can occur separately or together the conjunction, where they overlap, cannot be more likely then the likelihood of the two individual sets of circumstances.

In other words, “representativeness is about reliance on stereotypes.” (Shefrin 2000)

Posted by: Tom McGee | Jul 15, 2008 6:46:32 PM

Someone asked about some case law on the itnersection of these topics. The 3rd Circuit recently decided United States v. Alston, 526 F.3d 91 (3d Cir. 2008. The facts are : Alston admitted to possessing a firearm but he claimed it was necessary for self-defense. The uncontested facts are these. Alston [**2]was arrested on September 30, 2002, at approximately 10 p.m., as a result of coordinated police efforts involving police helicopter surveillance responding to a report of gunshots in the area of 19th and Tasker Streets in Philadelphia, Pennsylvania. When arrested, Alston was wearing a bulletproof vest. Officers recovered a .32 caliber revolver in a nearby alley where Alston had thrown it a minute earlier. Alston told an arresting officer the gun was his and the gun and vest were necessary for self-defense. Alston was fearful because earlier that day he had seen a man who shot him one year earlier in 2001.

Alston was charged with possession of a firearm by a convicted felon. 18 U.S.C. § 922(g)(1). Before this incident, Alston had been convicted of two violent felony offenses and one serious drug offense as defined in 18 U.S.C. § 924(e)(2)(A)--(B).

The Court's anaylsis begins with the following :

18 U.S.C. § 922(g) does not provide for a justification defense. Although the Supreme Court has questioned "whether federal courts ever have authority to recognize a necessity defense not provided by statute," United States v. Oakland Cannabis Buyers' Coop., 532 U.S. 483, 490, 121 S. Ct. 1711, 149 L. Ed. 2d 722 (2001), n3 several courts of appeals, including our own, have recognized that justification is a valid defense to a felon-in-possession charge under 18 U.S.C. 922(g). n4 See generally Paolello, 951 F.2d at 540--43; United States v. Dodd, 225 F.3d 340 (3d Cir. 2000).

The court later adds :
Crediting his testimony, it is difficult to second guess or to ignore Alston's fear of Bentley, one of the persons who robbed and shot him five times, and against whom he pressed charges that eventually resulted in an acquittal, and who apparently lived in sufficient proximity that total avoidance was impossible or at least unlikely. It may be argued that Alston should have pulled up stakes and moved to a location where he would be unlikely to encounter Bentley. But economic or family circumstances may foreclose such an option. In any event, a victim should not have to relocate because of fear of possible retaliation. And so, crediting his testimony, we cannot find Alston had an unreasonable fear of retaliation from Bentley, perhaps even deadly retaliation. Nor would it appear that riding his bicycle in his neighborhood was reckless action although we see no evidence that would "force[] [him] to engage in criminal conduct." Id.

Although Alston may have been under an unlawful threat of death or serious bodily injury, it is clear that at the time he was arrested, there was no evidence that Alston was under a present threat, that is, it was not an imminent threat. [**11]n7 Furthermore, there was no direct [*96] causal relationship between the criminal action (possession of a firearm) and avoidance of the threatened harm (retaliation by Bentley). The causal relationship in these circumstances is attenuated at best. The avoidance of the threatened harm lacks the requisite imminence. To hold otherwise would immunize a convicted felon from prosecution for carrying a firearm solely based on a legitimate fear for life or limb. Someone in Alston's circumstances must show more than a legitimate fear of life and limb, as possession of a firearm by a convicted felon in the hope of deterring an assault is unlawful.

Alston faced no immediate danger. Bentley was speaking to a third party when he said he was going to "get" Alston, and Alston was able to safely ride away. Alston obtained the firearm from his mother's house based on a generalized threat of future danger. The immediacy of the threat is also undermined by Alston's actions in the months prior to his arrest. Alston testified that he would often carry the same firearm whenever he went to an area where Bentley or the other acquitted suspect might frequent. His possession of the firearm on the night in question appears to be another [**14]instance of his reliance on the weapon when faced with the possibility of danger. "We must take care not to transform the narrow, non-statutory justification exception to the federal anti-felon law into something permitting a felon to possess a weapon for extended periods of time in reliance on some vague 'fear' of street violence." Butler, 485 F.3d at 575. [*97] The defendants who have been granted the defense faced split-second decisions where their lives, or the lives of others, were clearly at risk. Alston did not face such a situation.

Alston did not face such extraordinary circumstances. Alston has not presented evidence that he was under a present threat of death or bodily harm, that there was a direct causal relationship between the criminal act and the avoidance of the threatened harm, or that he had no reasonable legal alternative.

III.

Accordingly, we will affirm the judgment of conviction and sentence.

Posted by: David Chontos | Jul 15, 2008 9:36:55 PM

David Chontos:

I was the one who asked about precedent on the question of self-defense as a defense to a felon-in-possession charge.

Thank you for your response.

Posted by: Bill Otis | Jul 15, 2008 11:44:04 PM

Bill, I'm not Mr. Chantos (good luck with your motion, looks like your going to have an uphill battle but as anyone who has ever worked in criminal defense knows you are stuck with the client you got) but I have a feeling that self defense is going to be a very tough sell to go against possession of a firearm by a convicted felon charges.

I just happened to be looking something up in the Virginia criminal code today and happened to open up to the possession of firearm by a convicted felon statute in Virginia which shows something rather interesting. Felons in Virginia are allowed to possess non-lethal "stun weapons" in their homes and on their property Va Code 18.2-308.2 - that would seem in Virginia to totally preclude any self defense claim for possession of firearms (obviously self defense will always be available for charges relating to the use of firearms).

It would seem to me that the government is going to easily be able to defeat such claims simply by pointing out that non-lethal methods are available for convicted felons to defend their homes other than guns. Not sure if this is typical among other states, but it would seem to me if Virginia's law is typical combined with the dicta in Heller, motions based on the Second Amendment by convicted felons are DOA.

Also interesting - person's adjudicated a juvenile offender for what would be a felon as an adult in Virginia get their fire arm rights back at age 29 unless they committed murder, armed robbery, kidnapping, or rape.

Obviously there is always the legislature.

Posted by: Zack | Jul 16, 2008 1:16:09 PM


Can anyone give me a citation to the 9th's decision the other day that talks about Heller and felon in possession. I think it was Gilbert, but I could not find it on their website for the day that I thought it was handed down.

Posted by: David Chontos | Jul 17, 2008 2:53:25 PM

It would seem to me that the government is going to easily be able to defeat such claims simply by pointing out that non-lethal methods are available for convicted felons to defend their homes other than guns.

- I am guesiing you are not very familar with firearms. Multiple intruders break into home (which happens across the US) you think that anyone is going to ward them off with a stun gun? Gimmee a break. You might as well give them a water gun to ward off these violent criminals. A very weak argument not to give 2A rights to non violent felons.

Posted by: Marine 1 | Jul 19, 2008 6:42:47 PM

This is Mr. Barton's wife. First of all, once you are a felon, you are a felon for life. These offenses occurred over a decade ago before our kids were even born. Does it matter - NO! This man was a Marine. Tell a marine he can't have his guns. Remember Full Metal Jacket? This is my rifle there are many like it but this one is mine. (Look up the rest, but it ends with - without my rifle, I am useless). The government who brainwashed him to never surrendering his guns is the same entity punishing him for doing that very thing. Ironic? Maybe. Twisted? Yes. Second, once you live with a felon you lose your second amendment rights too. Yes, they took my guns and informed our lawyer that if I tried to get them back I would be charged also. I have no criminal record, I am not a druggie. I am an Accountant and most importantly a Mom. I can collect as many guns as I choose. This is America, isn't it? Hard to tell with so many Socialists running the country. Just wanted to clear the air.

Posted by: Kimberly Christensen | Oct 6, 2010 4:34:05 PM

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