Attorney Question of the Month
Network Affiliated Attorney Steven Harris, while watching Henderson v. United States, which he discusses at length in his column at Modern Service Weapons with the Court decision detailed in a later MSW column, asked our Network Affiliated Attorneys the following question:
What are your recommendations or protocols for a person who may be or is charged with a crime in a situation alleged to be justified use of force in preparation for the possibility that either to be granted bail pending trial, or in the event of conviction, he/she will no longer be permitted to “possess” firearms under state and/or federal law?
C. Dennis Brislawn, Jr., J.D.
Oseran Hahn, P.S.–Private Client Law Group
1430 Skyline Tower, 10900 NE 4th, Bellevue, WA 98004
Under the facts presented, where justifiable use of force is involved whether charges have been brought or not, an estate planning solution appears to be attractive. Best of all it will provide protective benefits for any gun owner’s collection and will help preserve firearms rights whether a criminal issue ever arises or not.
Preserving personal firearms and ammunition is first and foremost an estate issue at all times, and a criminal one perhaps rarely. A gun owner concerned with preservation of firearms should at least consider creation of a revocable or even an irrevocable gun trust as part of his or her estate plan.
Given that firearms are important to many of us and most of us want to control what might happen to them if something happens to us, planning is important. If no planning was done but a self-defense issue arises, a person could still consider creation of a gun trust to help protect firearms possession at that time. In this context this should be done well in advance of case disposition in order to have the most options. And, if done properly, an estate planning approach can be seen in a proactive and positive light even during pendency of a criminal case.
A gun trust is a purpose-built living trust designed expressly for lawful possession and enjoyment of firearms and accessories. Since design is quite flexible, provisions can and are commonly included that specify what occurs should a trust grantor (client) suffer a legal disability such as a criminal conviction.
Proper design addresses who can possess, who can enjoy, and who takes over if the client cannot legally possess for any reason, due to criminal incapacity or more commonly legal incapacity due to health, age, illness, etc. Trusts are commonly intended to own assets for the benefit of the client or others, and anticipate appointment of a successor trustee to serve during the client’s legal disability. Again, incapacity is commonly due to health reasons but would also include criminal incapacity to possess as a result of criminal conviction, probation, etc.
The key in using a trust solution is to address proper limitation of the trust grantor’s or ANY trust beneficiary’s right to possess firearms or ammunition to remain consistent with the law, but also to take into account the possible restoration of rights. A quality gun trust can and should spell out how the trust provides benefits to the grantor or other beneficiaries, including the right to possess firearms by others during the client’s legal disability versus economic benefit (i.e. sale of firearms, ammo and application of the resulting trust assets and sale proceeds) for client benefit. Since a trustee possesses trust property for the benefit of others, trustee succession is an issue in this fact pattern, too. Note that by using a gun trust, the inability to possess a firearm does not mean that a client cannot receive economic benefits from the trust or that others cannot possess and enjoy firearms even though the client is prohibited from doing so or serving as a trustee.
In a business setting, where the defendant gun owner may be the business owner or employee involving a firearms business, things become more complex. Creating a firewall between possession (actual or constructive) of firearms/ammunition can be problematic and will require careful consideration of the risks involved.
Navigating firearms and ammunition possession where criminal charges have been or will be brought can be a complex issue to solve. Negotiating the solution, i.e. transferring firearms to a non-prohibited person (spouse, friend) for lawful possession and safekeeping must take into account Washington’s passage of I-594, amending RCW 9.41, and the lack of clarity or definitive operational guidance that exists as to entity possession/ownership.
Prior planning or early planning always provides the widest choice of options in preserving a firearms collection for self or others. Dealing with lawful possession, enjoyment and transfer when there are no pending issues is far superior to disaster planning. All of us face the reality of death, possibility of incapacity due to age or illness, and will never face the kinds of criminal charges contemplated here. The good news is that by creating a quality gun trust in advance of need both issues can be dealt with quite handily and for a comparatively modest cost.
Attorney at Law
P.O. Box 3, Shelton, WA 98584
Under current Washington state law, I would advise the person to get all of his firearms out of his house into the hands of a very close or trusted relative or friend who can be trusted to give them back when appropriate. This may require a visit to a federally licensed firearms dealer to do the paperwork for transfer under the new Washington law that effectively creates a uniform registration system by requiring the vast majority of firearms transfers to take place at the hands of an FFL.
James B. Fleming
Fleming Law Offices, P.A.
PO Box 1569, Monticello, MN 55362
Various states have provisions in their statutes and/or rules of criminal procedure, empowering the trial court to prohibit the possession of firearms in a variety of types of cases, usually involving allegations of crimes against another person, or crimes involving the use of firearms in general.
In Minnesota, for example, 629.715 Release in Cases Involving Crime Against Persons; Surrender of Firearms, provides that the judge may order as a condition of release that the person surrender to the local law enforcement agency all firearms, destructive devices, or dangerous weapons owned or possessed by the person, and may not live in a residence where others possess firearms.
In Illinois, it is Sec. 110-10. Conditions of bail bond:
(a) If a person is released prior to conviction, either upon payment of bail security or on his or her own recognizance, the conditions of the bail bond shall be that he or she will: (5) At a time and place designated by the court, (a) Surrender all firearms in his or her possession to a law enforcement officer designated by the court to take custody of and impound the firearms and physically surrender his or her Firearm Owner’s Identification Card to the clerk of the circuit court when the offense the person has been charged with is a forcible felony, stalking, aggravated stalking, domestic battery, any violation of the Illinois Controlled Substances Act, the Methamphetamine Control and Community Protection Act, or the Cannabis Control Act that is classified as a Class 2 or greater felony, or any felony violation of Article 24 of the Criminal Code of 1961 or the Criminal Code of 2012.
In Texas it is found in various sub-divisions of Chapter 17 of the Texas Code of Criminal Procedure. There are many other examples but going over all 50 of them would be boring.
Challenges to these provisions on Constitutional grounds uniformly fail. SCOTUS has provided in the Heller and McDonald decisions that the right to keep and bear arms is subject to reasonable regulation. This is considered reasonable regulation for the sake of public safety. “But I am innocent until proven guilty!!” falls on deaf ears since conditions of release have nothing to do with guilt or innocence, and everything to do with public safety.
My suggestion would be, have a plan, including identification of someone who does not live with you, and who legally can, and is willing, to take custody of all your firearms in advance of your first appearance/bail hearing. Have them do so immediately after the incident, placing the firearms in locked storage. Some prosecutors are going to argue that this does not comport with the letter of the law. Counsel can argue that the intent of the law is to remove the firearms from your possession, custody and control, and that by having them in the hands of a competent third party adult, under lock, the intent is met.
Joel A. Brodsky
Law Office of Joel A. Brodsky
8 S. Michigan Ave., Ste. 3200, Chicago, IL 60603
First, as in any case where you may be, or are charged with a criminal offense, do not say anything at all to anyone until you have talked to your lawyer. (Of course there are situations where you may have to call 911 to state “there has been a shooting please response to ---”, or tell the police where the firearm is so they can secure it, but if at all possible say nothing until you have spoken to an attorney).
Then, your attorney will want to immediately start looking for and making requests for, what we in Illinois we call “Lynch evidence” (named after the case of People v Lynch), which is evidence of the violent, aggressive, or criminal character of the person who was shot. While normally a defendant is prohibited from seeking character evidence regarding a “victim,” in self-defense cases, this type of evidence is both highly relevant and admissible. The more evidence you have regarding the violent, aggressive or criminal background of the person who was shot in self defense, the better chance you have of a low bond and an eventual acquittal.
Benjamin M. Blatt
Attorney at Law
P.O. Box 221, South Bend, IN 46624-0221
This question is why I strongly recommend that clients use a firearm trust, not just for NFA items but for all of their firearms. If a client is, by the conditions of their bail pending trial, unable to lawfully possess firearms, another appointed trustee can take them (since they are the trust’s and not the client’s) and hold them pending the case’s outcome, without causing concern for the client (assuming that the client selected a trustworthy second trustee).
If the outcome is negative, and the client is barred by state or federal law from possessing firearms, a trust can operate in one of two ways. If the conviction may be eventually expunged and the client’s rights to possess firearms fully restored under state and federal law, then the trust can again enable the other trustee to hold and store the firearms pending that eventuality. If the conviction is not one that may be expunged, or if the client later becomes ineligible due to further offenses, then the trust can operate to smoothly transfer possession and ownership of the firearms to the next trust beneficiary.
If, however, a client does not have a trust, then the options available are much more limited. Without a trust, a client must make a quick and sudden decision as to which family member or friend is trustworthy enough to hold on to the firearms for a short time (due to bail conditions), keep for a lengthy time (if the client wants to buy them back from the new owner after firearm rights have been reinstated), or own forever (if the firearms have special meaning or are heirlooms that the client wants to keep in the family).
29 N. D St., Hamilton, OH 45013
Under Ohio and federal law simply being charged does not prohibit possession of a firearm, there must be an indictment of a felony that prohibits firearm possession. If that happens then the defendant cannot possess a firearm.
Jon H. Gutmacher, Esq.
Attorney at Law
1861 S. Patrick Dr., PO Box 194, Indian Harbour Beach, FL 32937
You want to be granted bail, rather than rotting in a prison cell. You certainly are not much help to your attorney sitting in jail, and in a worst-case scenario at least you can see to your affairs if prison is a possibility. Likewise, if you are convicted, I seriously doubt that whether you can own a firearm in the future is a real consideration since you’re likely going to be sent to prison upon conviction. The ability to own a firearm after that is a given “no,” and should be the least of your worries.
A big “Thank you!” to each Network Affiliated Attorney who responded to this question. Please return next month when we pose a new question to our Affiliated Attorneys.
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