In light of the escalating pattern of gun violence in the United States, certain politicians in and out of the Government have been advocating new, more restrictive gun control laws, and more aggressive enforcement of existing laws. These efforts can clash with the Second Amendment right to bear arms.
Federal firearms enforcement can be broken down into three areas.
–Firearms Dealers and Regulations
–Possession of firearms by prohibited persons
–Use of firearms in the commission of crimes
Federal Firearms Licensed Dealers
Only Federal Firearms Licensed Dealers are approved by the U.S. Department of Justice, Bureau of Alcohol, Tobacco and Firearms to sell firearms to the public. Before selling a firearm, a FFL dealer must undergo a criminal background check. Depending upon the State, and sometimes the County where the sale is taking place, there may be additional restrictions.
Within the jurisdiction of ATF, there are regulations restricting the sale and possession of machine guns and explosives. In order to legally purchase or possess such weapons, a person must be registered with the Government. Otherwise, the simple possession of a machine gun or explosives by an unregistered person is a violation of Federal law.
The Federal regulations governing the sale of firearms can be most readily found in the ATF Federal Firearms Regulations Reference Guide a link to which follows.
[18 U.S.C. 922]
[hppt: //www.atf.gov/follow/11241/download]
ATF actively investigates and prosecutes persons who it alleges were “straw purchasers” of firearms. These cases arise when a prohibited person, e.g., convicted felon, has someone buy a firearm for him. In these cases, the “straw purchaser” can be held liable under Federal law.
An area of current controversy concerns private sales or transactions at gun shows, where guns can be bought and sold without many of the safeguards that must be followed by FFL Dealers. Current law permits the private sale of a firearm to anyone who is not known to the seller to be a prohibited person. A prohibited person would be someone who is a convicted felon, an illegal alien, or a mental incompetent. Selling a firearm to someone who a person knows or has reason to believe will use it to commit a crime can make the seller a co-conspirator or an aider or abetter to that criminal activity. Gun hobbyists or those who collect, can sell and purchase firearms without possessing a FFL. But, ATF has taken the position that repeated sales and purchases of firearms for profit without a FFL can be a violation of Federal law.
Possession of a Firearm by Prohibited Person.
Federal law and the law in all States prohibits the possession of a firearm by a convicted felon. The crime of conviction can be either violent or non-violent. The prohibition extends to any crime for which the maximum term of imprisonment of more than one year.
In order to be prosecuted in Federal Court for possessing a firearm by a convicted felon, the prosecution has to show that the firearm itself had to have been transported across state lines sometime before it came into the possession of the person charged. This is frequently accomplished by proving that the firearm in question was manufactured in another State or country, and that it necessarily had to cross state lines or national boundaries before being possessed.
Possession can mean more than physically having a gun on your person. In addition to physical possession, the law prohibits felons from having constructive possession of guns. Constructive possession means, for example, a felon cannot have a gun in his house or car, even if he is not present at that location at the time the police show up.
Certain states, including Florida, have enacted sentencing statutes that permit the finding of guilt, but a withhold of adjudication. For instance, under Florida law, the person who has received a withhold of adjudication for a felony has not been convicted. Nonetheless, although a withhold of adjudication may make a defendant immune from prosecution under Florida law, the U.S. Supreme Court has held that these so-called rehabilitative statutes do not control the Federal law prohibiting possession by a convicted felon. Congress has addressed this issue, but it remains ambiguous. If you or anyone you know was arrested for possession of a firearm by a convicted felon, and adjudication was withheld on the predicate felony, you need an attorney who understands the law in this field, and has experience with these issues to avoid a miscarriage of justice.
In addition to the eligibility of the predicate felony, most felons in possession of a firearm cases focus on the search and seizure of the firearm by the police. An attorney handling such a case must be thoroughly familiar with the Fourth Amendment, which protects persons from unreasonable searches and seizures by the police in order to provide effective and competent representation.
Federal felonies for possession of a firearm by convicted felons can range from two to ten years. For felons with three prior convictions for crimes of violence, they can be prosecuted under the Armed Career Criminals Act (ACCA), and if convicted would face a 15-year minimum mandatory.
Use of firearms in the commission of crimes
[Title 18, U.S.C., Section 924] [link] prohibits the possession, use, carry, brandishment or discharge of a firearm during the commission of a crime of violence or narcotics offense. Penalties for violating this law range from five to 25 years incarceration that must be served consecutive to any other sentence imposed for the underlying crime of violence or narcotics offense. In addition, the minimum mandatories can be enhanced based on whether the gun was merely possessed, brandished or discharged.
In a Federal case involving more than one defendant, the prosecution will frequently attempt to prove that the possession, use, brandishment or discharge of a firearm by one co-defendant can be attributed to the others under a conspiracy or an aiding and abetting theory. Any attorney representing a defendant under those circumstances must be familiar with the complex Federal law governing these issues.
Charles G. White secured a reversal of a conviction for conspiracy to rob, robbery (Hobbs Act), and discharge of a firearm in relation to a crime of violence under Section 924 from the U.S. Court of Appeals for the Eleventh Circuit by arguing the deficiencies in the Court’s instructions to the jury on the law of conspiracy and aiding and abetting invalidated the conviction for Section 924. Knowledge and experience in this area of law is necessary for effective representation in these types of cases.
Obtain Legal Assistance.
If you or someone you know is accused of a Federal firearms offense, it is imperative that you work with an attorney who has experience in these cases, and who has handled cases addressing all of the issues described above. Charles G. White. He has over 34 years of experience with these types of cases and will defend you and your rights.
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