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POSSESSION OF FIREARM BY PROHIBITED PERSONS

Under Nevada law, certain people are not allowed to possess firearms. In particular, NRS 202.360 makes it a crime for the following types of people to own or possess firearms: ex felons, fugitives from justice, illegal drug users, mentally ill persons, and illegal immigrants. Review the details related to these offenses below, as well as the possible punishments and potential defenses.

EX FELON IN POSSESSION OF FIREARM

Under NRS 202.360(1)(a), a person cannot possess a firearm if he has ever been convicted of any felony offense in any state court or in federal court. For the purposes of this statute, a felony is any crime where a term of imprisonment of more than one year is a possible sentence, regardless of whether the defendant actually served any prison time as the result of the conviction. A "conviction" can result from either a guilty plea or a finding of guilt after a trial.

There is no time limit on the use of a prior felony conviction for the purposes of Nevada's ex felon in possession statute. Under this statute, once you are a felon, you are always a felon. The only exception is if you were granted a full pardon with restoration of your gun rights. Such pardons are very rare.

Ex felon in possession of a firearm is a category B felony. The punishment range is 1 to 6 years in Nevada prison, plus a possible fine of $5,000. Many times, judges are reluctant to grant probation for ex felon in possession cases, since a conviction for this crime will be, at the very least, the defendant's second felony.

Ex felon in possession of firearm may also be prosecuted federally. The possible penalties, as well as other aspects of the charge, are different in federal court and require separate analysis.

OTHER "PROHIBITED PERSONS" IN POSSESSION OF FIREARM

Several other types of people are not allowed to possess firearms under Nevada Law. A discussion of each class of "prohibited persons" follows.

Fugitives from Justice

A "fugitive from justice" may not own or possess a firearm in Nevada. A fugitive from justice is anyone who has fled from any state to avoid prosecution for criminal charges or to avoid testifying in a criminal matter. This crime is a category B felony, punishable by 1 to 6 years in Nevada prison and a fine of $5,000.

Drug Users and Addicts

A person may not own or possess a firearm is he is an "unlawful user of, or addicted to, any controlled substance." This means that if a person is arrested while in possession of both drugs and a gun, he may be charged under this statute. This crime is a category B felony, with a potential prison sentence of 1 to 6 years and a fine of $5,000.

Mentally Ill Persons

A person who has been "adjudicated as mentally ill or has been committed to any mental health facility" may not own or possess a firearm under Nevada law. Any person falling into this class of prohibited person who possesses a firearm is guilty of a category D felony, which is punishable by 1 to 4 years in Nevada prison and a fine of $5,000.

Illegal Immigrants

A person who is "illegally or unlawfully in the United States" may not possess a firearm. Any illegal immigrant who possesses a firearm is guilty of a category D felony, which is punishable by 1 to 4 years in Nevada prison and a fine of $5,000.

SELLING FIREARMS OR AMMUNITION TO PROHIBITED PERSONS

Under NRS 202.362, it is a crime to sell or give away a firearm or ammunition to certain prohibited persons. The list of prohibited persons is similar, but not identical to the prohibited persons listed above.

It is illegal to sell or give away firearms to all of the previously mentioned "prohibited persons" except for one group: illegal drug users. In other words, it is a crime to sell or give away firearms to ex felons, fugitives from justice, the mentally ill and illegal immigrants, but it is not a crime to sell or give away firearms to illegal drug users.

Additionally, this law expands the group of prohibited persons to include not only those convicted of felonies, but those "under indictment" for a felony. An indictment is a charging document like a criminal complaint, and means that a person has been charged with one or more criminal offense.

To prove that a person has violated this statute, the prosecution must prove that the person who sold or disposed of the firearm did so with "actual knowledge" that the person receiving the firearm factually fell into one of the prohibited categories.

This offense is a category B felony, and a conviction can result in a prison sentence of 1 to 10 years and a fine of $10,000.

DEFENDING EX FELON IN POSSESSION AND RELATED CHARGES

Defenses vary with the facts of each case, but generally, ex felon in possession charges are defended on grounds that either the accused was not in possession of the firearm, or the search was illegal and the evidence (i.e. the gun) must be suppressed. Other prohibited persons firearms cases may be defended similarly, although an additional defense may be available if the accused is arguably not a prohibited person (e.g. the person is not actually a drug addict).

Because defenses vary so much based upon the particular facts of each case, if you or someone you care about has been charged with being a prohibited person in possession of a firearm, you should seek the help of a criminal defense attorney. Call me now for a free consultation.

By Michael Pandullo

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