Being convicted of a felony will greatly limit your civil rights. Aside from the possibility of jail time or probation, having a felony conviction will make it unlawful for you to own or possess a firearm. This is true even if you are convicted of a felony that is non-violent, such as a drug or theft related felony.
Even though many convicted felons are able to avoid having to use firearms to defend themselves, what would happen if a convicted felon were met with deadly force and had to defend himself using a firearm or be forced to forfeit his life? North Carolina has declined to expressly extend the defense of justification for possession of a firearm by a felon in several cases. The Court concluded in each of those cases that the Defendant could not prove an imminent threat of death or serious bodily injury. Let’s first look at the statute for this offense, then a recent case analyzing this issue.
N.C.G.S. 14-415.1(a), states: “It shall be unlawful for any person who has been convicted of a felony to purchase, own, possess, or have in his custody, care, or control any firearm or any weapon of mass death and destruction. This offense is a class G felony.
In State v. Napier, 149 N.C. App. 462 (2002), the Defendant appealed his conviction of felon in possession of a firearm based solely on the trial court’s denial of jury instructions for the defense of justification. The North Carolina Court of Appeals ruled that the Defendant was not entitled to justification as a defense because he could not prove imminent threat of death or serious bodily injury.
The Defendant, James Napier (“Napier”), is a convicted felon who was arguing with his neighbor, Robert Ford (“Robert”), and his neighbor’s son Brandon (“Brad”) Ford. Brad Ford shot a gun over the Defendant’s home over the course of several days, until the Defendant confronted the neighbors on their property with a holstered gun. Neither of the neighbors was armed at the confrontation. Brad went inside his home while the Defendant discussed the conflict with Robert. The discussion soon escalated into a physical altercation, which Brad saw happening and joined. The altercation lasted until somebody called 9-1-1 and law enforcement broke it up. Shortly thereafter, the Defendant shot at Brad from his home, hitting Brad in the arm. The Defendant was subsequently arrested and charged with several criminal offenses. A jury later found the Defendant guilty of only the felon in possession of a firearm charge.
In formulating his appeal, the Defendant argued that the 4th circuit should follow the 11th circuit in allowing an accused to assert the justification defense to possession of a firearm by a felon. The 11th circuit sets out a 4 part test in U.S. v. Deleveaux, 205 F.3d 1292 (11th Cir. 2000), cert. denied, 530 U.S. 1264, 147 L.Ed.2d 988 (2000). This test requires the Defendant to prove:
(1) That the Defendant was under unlawful and present, imminent, and impending threat of death or serious bodily injury;
(2) That the Defendant did not negligently or recklessly place himself in a situation where he would be forced to engage in criminal conduct;
(3) That the Defendant had no reasonable legal alternative to violating the law; and
(4) That there was a direct causal relationship between the criminal action and the avoidance of the threatened harm.
The 4th circuit of appeals has a similar list of elements needed to establish a defense of justification, which is very similar to the 11th circuit, but North Carolina has not expressly ruled whether it will recognize this defense for possession of a firearm by a felon. Rather, the 4th circuit holds that the Defendant must produce evidence that would allow a fact finder to conclude:
(1) That the Defendant was under unlawful and present threat of death or serious bodily injury;
(2) That the Defendant did not recklessly place himself in a situation where he would be forced to engage in criminal conduct;
(3) That the Defendant had no reasonable legal alternative (to both the criminal act and the avoidance of the threatened harm); and
(4) That there was a direct causal relationship between the criminal action and the avoidance of the threatened harm. See U.S. v. Crittendon, 883 F.2d 326 (4th Cir. 1989).
In summary, although the 4th circuit has not expressly extended the defense of justification to possession of a firearm by a felon, it is clear that it has not expressly ruled it out either.
If you have been charged with a possession of a firearm by a felon, any felony, a weapons offense, or any other criminal offense and need an experienced North Carolina criminal lawyer, contact Everett Law Firm, P. A. at 919-942-8002 to protect your constitutional rights, including your right to possess and own a firearm.
Everett Law Firm, P. A. with offices in Chapel Hill and Raleigh, serves criminal defendants in Wake County, Orange County, Chatham County, Alamance County, Caswell County, Person County, and Durham County.