Differences Between North Carolina and Federal Possession-of-Firearm by Felon Offenses Concerning the Prior Conviction Element Disqualifying Possession of a Firearm

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Federal law and North Carolina law each prohibit in their own ways the possession of a firearm by a felon and, under federal law, certain domestic violence misdemeanors as well. A recent Fourth Circuit Court of Appeals case ruled that a North Carolina felony conviction did not qualify to prove the federal offense of possession of a firearm by felon. The fact that this conviction likely would qualify for the North Carolina offense leads to this post that provides a general overview of the differences.

North Carolina law. G.S. 14-415.1(b) provides that a conviction disqualifies possession of a firearm or weapon of mass death or destruction if: (1) it was a felony and occurred in a North Carolina state court before, on, or after December 1, 1995; or (2) it was a violation of a federal or other state’s criminal law that occurred before, on, or after December 1, 1995, and is substantially similar to a North Carolina felony that is punishable where committed by more than one year’s imprisonment. G.S. 14-415.1(d) provides exceptions from the law’s prohibitions if another jurisdiction’s convictions are those for which a person has been pardoned or has had his or her firearm rights restored if the restoration of rights could also be granted under North Carolina law. G.S. 14-415.1(e) provides that there is no disqualification from possession of firearms for convictions of antitrust violations, unfair trade practices, or restraints of trade under North Carolina or other jurisdictions’ laws.

Before December 1, 1995, the firearm prohibition lasted five years after the person completed his or her sentence, including probation or parole, and allowed felons to possess weapons in their homes or places of business. The 1995 amendment, effective before, on, or after December 1, 1995, imposed a lifetime ban on the possession of handguns by convicted felons outside their homes or businesses. In 2004, the statute was amended again, this time to extend the ban to all firearms, regardless of type or length and regardless of where possessed. Thus, the statute now contains a lifetime ban that applies to all property, including the defendant’s home and place of business. Moreover, the offense applies regardless whether the weapon was concealed or not.

The effect of the 1995 amendment, which made the law’s prohibitions retroactively apply to convicted felons who had their firearms rights restored before the amendment’s enactment, has been challenged on various constitutional grounds (e.g., ex post facto, bill of attainder) and rejected. State v. Johnson, 169 N.C. App. 301 (2005). The 2004 amendment has likewise been upheld. State v. Whitaker (2010). However, challenges to the constitutionality of G.S. 14-415.1 under the North Carolina Constitution as applied to a particular person has sometimes been successful. See Britt v. North Carolina (2009) (defendant’s felony drug conviction was nonviolent and did not involve firearm), and the other case law for or against the felon discussed in Jessica Smith, North Carolina Crimes 584-85 (7th ed. 2012), and 2015 Supplement at 125-26.

Federal law. Federal firearm law and its disqualifying convictions are much more complex than North Carolina firearm law. This summary will be limited to disqualifying convictions: 18 U.S.C. § 922(g) makes it unlawful for a person to possess a firearm who has been convicted in any court of a “crime punishable by imprisonment for a term exceeding one year” [18 U.S.C. § 921(a)(20)] or “a misdemeanor crime of domestic violence” [18 U.S.C. § 921(a)(33)]. The domestic violence crime definition is analyzed in Jeff Welty’s post here and will not be discussed further, except to mention a case decided after he wrote the post: United State v. Vinson, 805 F.3d 120 (4th Cir. 2015) (because North Carolina law permits an assault conviction based on culpable negligence, none of the North Carolina forms of assault (attempted battery, show of violence, or completed battery) qualify as a misdemeanor crime of domestic violence).

The definition of a crime punishable by imprisonment exceeding one year excludes: (1) federal or state offenses involving antitrust violations, unfair trade practices, restraints of trade, and other similar offenses concerning regulation of business practices; and (2) state offenses classified as misdemeanors and punishable by two years or less, which excludes all North Carolina misdemeanors except (i) DWI, Aggravated Level One, which is punishable by up to three years (or perhaps all DWIs committed on or after December 1, 2011), see Shea Denning’s post on DWI and gun possession here, and (ii) misdemeanor crimes of domestic violence, discussed above (but see the post mentioned above on domestic violence misdemeanors, which is a separate federal prohibition). The definition excludes: (1) expunged convictions; or (2) convictions for which a person has been pardoned or has had civil rights restored unless the “pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.”

Fourth Circuit Case. In United States v. Burleson ___ F.3d ___, 2016 WL 878136 (4th Cir. March 8, 2016), the defendant, a convicted North Carolina felon, possessed a firearm in 2012 and as a result was convicted in a North Carolina federal district court of being a felon in possession of a firearm under 18 U.S.C. § 922(g). The predicate felonies that supported the federal conviction occurred in North Carolina state courts between 1964 and 1985. However, as discussed above, federal law (18 U.S.C. § 921(a)(20)) excludes a prior conviction for the federal offense if the person has had his or her civil rights restored, unless the restoration expressly provides that the person may not ship, transport, possess, or receive firearms. The defendant’s civil rights had been restored by operation of state law in 1993, well before his possession in 2012. However, the government argued that his federal firearm rights were restricted in 2012 because the North Carolina legislature in 1995 enacted a provision that prohibited people with felony convictions from possessing firearms regardless of when they were convicted—before, on, or after the 1995 effective date.

The fourth circuit ruled, agreeing with rulings in other circuit courts, that federal law excludes state law restrictions enacted after a person’s civil rights had been restored. Therefore, the defendant’s state law convictions, for all of which his civil rights had been restored before the 1995 legislative change, could not support his federal conviction of being a felon in possession of a firearm.

Note that the defendant likely would not be barred from state prosecution and conviction based on these facts. The defendant had been convicted of a felony drug offense in 1983 and his civil rights restored in 1990, so he then could legally possess a firearm. The 1995 legislative change, however, again barred him from possessing a firearm as a convicted felon. In 2012 he possessed a firearm that was the basis of his conviction.

Relevant blog post. See John Rubin’s post here on restoring state firearm rights as condition for restoring federal firearms rights.

6 comments on “Differences Between North Carolina and Federal Possession-of-Firearm by Felon Offenses Concerning the Prior Conviction Element Disqualifying Possession of a Firearm

  1. Aggravated Level 1 is punishable by up to 3 years so if a defendant is sentenced in that level, it would be disqualifying under federal law. As there is no statute restoring firearm rights for a misdemeanor, I wonder how a defendant would restore his gun rights for DWI conviction, a civil suit?
    As I have never heard of any attorney advise a client on this consequence, I wonder if this would be grounds for an MAR after a plea.

  2. DWI Aggravated Level 1 is punishable by up to 3 years so if a defendant is sentenced in that level, it would be disqualifying under federal law. As there is no statute restoring firearm rights for a misdemeanor, I wonder how a defendant would restore his gun rights for DWI conviction, a civil suit?
    As I have never heard of any attorney advise a client on this consequence, I wonder if this would be grounds for an MAR after a plea.

  3. While it isn’t the original case setting out the standard and rationale, the court recently analyzed the applied challenge on NC’s Constitution in the COA case STATE V. BONETSKY Docket No. COA15-811

    https://appellate.nccourts.org/opinions/?c=2&pdf=33781

  4. The decision in United State v. Vinson, 805 F.3d 120 (4th Cir. 2015) is hard to accept. The Fourth Circuit Court of Appeals originally decided in the government’s favor justifying it under the modified categorical approach. The defendant filed a petition for a rehearing with the 4th Circuit to consider a new approach using culpable negligence to argue that assault on a female is not a misdemeanor crime of domestic violence. The court ruled that none of the different forms of assault under NC law categorically qualifies as an MCDV, because each form permits conviction for conduct that does not amount to a “use” of force under Leocal.

    It is amazing that our courts through technical conjecture would essentially render void a very important law that protects victims of domestic violence. North Carolina does allow culpable negligence to be used to imply intent; however intent remains an essential element of the assault. The standard requires the assault to be an intentional act done under circumstances showing a reckless disregard for the safety of others and a willingness to inflict injury. The 4th circuit would have you to think our assault statute can apply to someone that knows he is very clumsy and falls on someone knocking them to the ground on accident.

  5. I have a question what if your being charged for possession and we’re never caught with a firearm and it was in someone else’s home

    • My BROTHER borrow his GIRL friend car but it had her gun in it with out he knowing it, my brother is a felon. He did not know the gun in car.
      What CAN BE DONE to help him

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