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Collateral Consequences: State and Federal Firearm Prohibitions

Posted by Ian M. L'Heureux | Aug 28, 2020 | 0 Comments

What is a Collateral Consequence?

Oftentimes in the criminal justice system after somebody has plead guilty or is convicted after trial of a criminal offense, the negative consequences accompanying those criminal convictions do not stop at the sentencing phase. Oftentimes there are consequences triggered that have nothing to do with paying a fine or spending time in jail, and those consequences are just as important to know about as any possible sentence that a defendant might be facing. 

Common examples of collateral consequences include license suspensions or revocations, effects on immigration status, the right to vote (in some states in the case of felonies), and today's subject: firearms prohibitions.

Your Second Amendment Rights

We live in the State of Maine. Whether for hunting or defensive purposes, there are a lot of guns and gun owners in the State of Maine and protecting Second Amendment rights it is an important issue to a great many folks here in the Pine Tree State.  Now some of you, however, may be thinking to yourself, "that's ok, I don't own a gun, nor do I ever plan on owning one."

That's all fine and dandy, but the fact of the matter is it is still a Constitutional right that you possess and may face having to give up for the rest of your life. That matters. Not to mention, if you become what they call a "prohibited person" as the result of a criminal conviction or a protective order, there now exists the potential to expose yourself to criminal liability somewhere down the line. Life is long and unpredictable. Stuff happens. Don't let it happen to you. 

Make sure you have a discussion with your attorney about potential collateral consequences before you ever proceed to trial or enter a plea of guilty.

Prohibited Persons

The term "prohibited persons" refers to people who by law are can no longer legally possess a firearm and for whom the mere possession of a firearm (regardless of whether it is used, discharged, or even loaded) is a criminal act. 

There are separate State and Federal laws that define who is considered a prohibited person. At the State level, the law you will want to look for is codified as Title 15, section 393 "Possession of firearms prohibited for certain persons." What you will find is a rather lengthy section addressing numerous situations and outcomes that will result in becoming classified as a prohibited person. At the federal level, you will want to look for 18 United States Code, section 922(g).

It is worth noting at the outset that under federal law a prohibited person specifically cannot possess firearms or ammunition while the state law in Maine only mentions firearms.

Felonies and Domestic Violence

Generally speaking, the major events which will trigger prohibited person status under Maine law are convictions for felonies or domestic violence crimes. Persons who are convicted in jurisdictions outside of Maine (any other state or in federal court) of a "substantially similar" crime, are also considered prohibited persons.

Possession of a firearm by any person with the above-described convictions is a Class C crime.

These very same convictions will trigger prohibited person status at the federal level as well, but you also need to be aware that there are convictions that won't make you a prohibited person at the state level but that will make you a prohibited person at the Federal level. 

A federal firearms prohibition can be triggered by a conviction for a misdemeanor crime of violence that is committed against an "intimate partner," even if it does not result in a domestic violence conviction. This is frequently a problem when someone is charged with a domestic violence crime, such as a domestic violence assault, but the State offers a deal whereby the accused person may plea to a non-domestic violence misdemeanor, such as an assault. This will often happen when the evidence supporting the State's case is weak or  the alleged conduct is minor.

While such a plea deal would help the accused person avoid becoming a prohibited person under state law, the feds can do something called "going beyond the complaint." This basically means that the background information regarding what specific conduct the State alleges took place, rather than what section a person is convicted under, is what determines a prohibited person.

So if you plea guilty to an ordinary misdemeanor assault in Maine state court, but that assault was against an "intimate partner," then you are a prohibited person despite not being convicted of a felony or a crime of domestic violence.

Protection from Abuse Orders (aka Restraining Orders)

A person may also become a prohibited person under Maine State law or federal law if they are subject to a court order that restrains them from harassing, stalking or threatening an intimate partner or a child of an intimate partner, or from engaging in any other conduct that would place the intimate partner in reasonable fear of bodily injury to themselves or the child.

The final order must also either contain a finding that the defendant poses a credible threat to the plaintiff or child or explicitly prohibit the use, threatened use, or attempted use of force against the plaintiff or child.

To trigger the firearms prohibition, however, the order must have been issued after a hearing where the Defendant was given notice and an opportunity to participate.

Currently, the U.S. Attorney's Office interprets this law as meaning that an actual evidentiary hearing need not take place, and that it is sufficient to trigger the firearms prohibition if the Defendant received notice of the hearing and had the opportunity to fight the accusations. This interpretation has not yet been tested by the courts.

It is important to always consult a lawyer before agreeing to the entry of a protection order without findings or a hearing.

Less Common Triggering Events

Other, less commonly referenced events that may trigger federal or state firearm prohibitions include but aren't limited to being dishonorably discharged from the armed forces, being involuntarily committed to a mental health facility, being addicted to or a user of illegal narcotics, being a citizen of the United States who renounces his citizenship, or being a foreign alien in the country illegally.

About the Author

Ian M. L'Heureux

Ian L'Heureux is originally from Sanford, Maine and graduated from Norwich University, The Military College of Vermont, in 2014 with a Bachelor of Arts in Political Science. Afterwards, he worked for a year as a Juvenile Program Worker at Long Creek Youth Development Center before entering the Un...

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