Weapons Offenses

The most common battlefield in weapons offenses litigation is the concept of possession. The government does not need to prove you were holding the gun to convict you. They rely on the doctrine of constructive possession.

Constructive possession exists when a person has knowledge of the weapon and the ability to exercise dominion and control over it. If a gun is found in the glove box of a car you are driving or in a shared closet, prosecutors will argue you constructively possessed it. We dismantle this theory by showing a lack of exclusive control. We present evidence that others had access to the space or that the client was merely present near the weapon without the intent to control it. Mere proximity is not possession.

Federal authority to prosecute local gun crimes hinges on the Commerce Clause. The government must prove that the firearm traveled in interstate commerce. This usually means the gun was manufactured in one state and found in another.

While this is often a low bar for the prosecution, it is a technical element that must be proven beyond a reasonable doubt. We scrutinize the origin of the weapon. In cases involving homemade firearms or 3D-printed ghost guns that never left the state of manufacture, we argue that federal jurisdiction is completely lacking. By attacking the jurisdictional hook, we can force the case out of federal court and back to the state level where penalties are often significantly less severe.

The most frequently charged federal gun crime is being a prohibited person in possession of a firearm or ammunition under 18 U.S.C. § 922(g). This applies to felons, fugitives, drug users, and those subject to domestic violence restraining orders.

We defend these cases by attacking the knowledge element. Under the Supreme Court's Rehaif decision, the government must prove not only that the defendant knew they possessed the gun, but also that they knew they belonged to the prohibited category. If a client believed their civil rights had been restored or did not know their prior conviction qualified as a felony, they lacked the requisite mens rea. We gather court transcripts and legal advice the client received to prove this lack of knowledge.

The interaction between drug charges and gun charges is perilous. If a gun is found in a house where drugs are sold, prosecutors charge § 924(c) for possession in furtheranc of a drug crime.

This carries a mandatory five-year minimum that cannot be served concurrently. We argue that the presence of the weapon was incidental or for personal protection unrelated to the drug activity. We demonstrate that the gun was stored in a safe, unloaded, or located far away from the narcotics to break the nexus required for the conviction. Defeating the in furtherance element is critical to avoiding the mandatory minimum.

We file motions to suppress based on lack of probable cause or reasonable suspicion. In vehicle stops, we question the validity of the initial stop and the scope of the subsequent search.

If the officer claims they saw the gun in plain view, we reconstruct the scene to prove that was physically impossible. If the officer relies on consent to search, we use the body camera audio to prove the consent was coerced or never given. Successfully suppressing the weapon results in a dismissal of the charges in the vast majority of cases.

As mentioned, the government's burden to prove knowledge of status is a potent defense tool. This is particularly effective for clients with old convictions or out-of-state records.

We present evidence of the client's confusion regarding their legal status. If a client voted in elections or obtained a hunting license, it demonstrates a good faith belief that they were not prohibited from owning firearms. We argue that a misunderstanding of complex legal restoration procedures is a defense to the specific intent required by the statute.

Carrying a concealed weapon without a valid permit is a crime in most states. However, the definition of concealed and carried varies.

We argue that the weapon was not readily accessible or was being transported in accordance with the Firearm Owners Protection Act (FOPA), which provides safe passage for travelers. If the client was passing through the state with the gun unloaded and locked in the trunk, federal law preempts the state charge. We assert this federal defense in state court to secure dismissals for travelers.

The proliferation of privately made firearms (PMFs) or ghost guns has led to new state statutes criminalizing the possession of frames or receivers without serial numbers.

We challenge the definitions in these statutes. We argue that a collection of parts is not a firearm until it is readily convertible to expel a projectile. If the kit was incomplete or the machining was unfinished, no crime has been committed. We also monitor the evolving Second Amendment jurisprudence to challenge these restrictions as unconstitutional infringements on the right to build arms for personal use.

We litigate the categorical approach to prior convictions. We analyze the specific statutory elements of the old crimes. If a prior state drug conviction included substances not on the federal schedule, it cannot count as an ACCA predicate.

We have successfully argued that prior burglary or assault convictions do not meet the federal definition of a violent felony. Removing a single prior conviction from the calculation can drop the mandatory minimum from 15 years to zero, radically changing the sentencing landscape.

Even without mandatory minimums, the Federal Sentencing Guidelines for weapons offenses are severe. They increase penalties for stolen guns, altered serial numbers, or large collections.

We fight for downward variances. We present the client's history of responsible gun ownership and lack of dangerousness. We argue that the guidelines overstate the seriousness of the offense, particularly in cases of mere possession without use. We humanize the client to the judge, distinguishing them from the violent criminals the guidelines were intended to punish.