While the United States Constitution guarantees the right to bear arms through the Second Amendment, this right is not absolute and all-encompassing. While it is obviously a crime to use a gun in furtherance of a violent crimes such as assault, robbery or murder, there are circumstances where possession, sale and distribution of guns may be a criminal act. This is true for both federal and North Carolina law, which regulate how firearms, ammunition, and other weapons can be sold and distributed, as well as who has the right to own or carry them.
If you are facing charges weapon charges related to distribution or possession of a weapon, you could face some serious misdemeanor or felony charges. These can carry a lengthy prison sentence upon conviction, and additionally, if you are convicted of a felony you may lose your second amendment rights entirely. While these regulations exist to prevent people from intimidation and violence, there are aspects of both state and federal law that are quite vague, even unconstitutionally so. This has led to people who were no threat to public safety losing their constitutional rights, all because they did not have a strong criminal defense attorney at their side. To avoid these harsh penalties, you should hire an experienced criminal defense attorney as soon as you can to fight for your rights in state or federal court.
Weapon Offenses in North Carolina
Gun and other weapon offenses in North Carolina can be misdemeanors or felonies. Additionally, if a person is carrying or using a weapon to commit another crime, they could face much more serious penalties that are often charged as felonies. In addition to facing criminal penalties, the weapons involved can be confiscated and disposed of upon conviction of many of these crimes, in accordance with N.C.G.S § 14-269.1.
Most weapon offenses in North Carolina that are not tied to another crime involve either a person in possession of a weapon when they are not permitted to do so or carrying a weapon in a location where weapons are prohibited.
Carrying a Concealed Weapon Without a Permit
In North Carolina, you need a permit to carry a weapon outside of your home. Concealed weapons include brass knuckles, bowie knives, daggers, guns, stun guns and other similar deadly weapons, but not “ordinary pocket-knives”. While law enforcement officers and people in similar positions have a permit through their profession, US citizens in North Carolina need to go through a process to get a concealed carry permit for handguns, which typically involves the completion of a training course.
To be convicted of this crime, prosecution needs to prove that the defendant willfully and intentionally carried a weapon outside of their home without a permit. A first-time conviction of this offense is a class 2 misdemeanor, but a second conviction for carrying a gun or pistol is a class I felony.
Weapon Possession by Felons
While most of your personal freedoms become restored after you have served your sentence and paid your debt to society, a felony on your criminal record does carry lifelong implications. North Carolina’s Felony Firearms Act bans a person who has been convicted of a felony from possessing, purchasing, owning or controlling any weapon of mass death and destruction. The definition of weapon includes a gun and accessories, such as silencers or mufflers.
No matter how many years have passed since the conviction or completed sentence, the ban still applies. A felony conviction in North Carolina, another state, or under federal law prohibits you from possessing a gun. The only exceptions are for offenses commonly termed “white collar” crimes, such as antitrust violations and unfair trade practices, where there is a process to restore firearm rights.
If convicted of felony firearm possession, the crime is a Class G felony.
Weapon Possession by Individuals Subject to Protective Orders
In addition to felons being barred from possessing firearms, anybody subject to valid a domestic violence protective order is also barred from purchasing or possessing firearms. Domestic violence protective orders, often referred to as “restraining orders”, are orders issued by state courts to bar perpetrators of domestic violence from contacting their victims. These typically last a year and can be increased renewed for a second year, so the person subjected to the order cannot purchase a firearm or possess a weapon outside their home until the order is cleared.
While many domestic violence crimes are felonies, which means a violation of this law can lead to a conviction of the previous crime mentioned, some are misdemeanors. In essence, this means some misdemeanor crimes result in a temporary ban on firearm possession, if those crimes were part of a domestic violence case.
If convicted of domestic violence order firearm possession, the crime is a class H felony.
Weapon Offenses Involving Minors
While Americans have the constitutional right to bear arms, this right does not extend to minors under the age of 18 in most circumstances. North Carolina has several laws regulating weapons when minors are involved which typically hold adults accountable for allowing minors access to firearms. These laws include:
- Permitting Young Children to Use a Dangerous Firearm: If a person knowingly permits a child under the age of 12 to have access to any gun or other dangerous firearm without adult supervision, they will be guilty of a class 2 misdemeanor. It does not matter whether the was loaded or unloaded.
- Selling or Giving Less-Lethal Weapons to Minors: If a person sells, offers for sale, or gives a minor any less-lethal weapon, they will be guilty of a class 1 misdemeanor, and will forfeit any proceeds made in the sale of the weapon. These weapons include pistol cartridges, brass knuckles, small knives, leaded canes and other sharp or blunt objects used as weapons.
- Selling or Giving Handguns Minors: If a person sells, offers to sell, or gives a minor a handgun, they will be guilty of a class H felony and forfeit and proceeds made in the sale of the handgun.
- Storing a Firearm in a Manner Accessible to a Minor: Any person who resides in the same home as a minor and owns a firearm is required to store it in a manner where the minor cannot access it. Leaving a firearm in a way that can be accessed by an unsupervised minor and discharged is punished as a class 1 misdemeanor if the minor gains access without supervision and does any of the following:
- Bring it to school
- Display it in a public place in a careless, angry, or threatening manner
- Cause personal injury or death with it not in self defense
- Use it to commit a crime
Weapon Possession at Educational Property
Under North Carolina law N.C.G.S § 14-269.2, knowingly carrying an open or concealed weapon into an educational property, whether it is a school or extracurricular activity sponsored by a school, is a crime that can range from a misdemeanor to a serious felony. These crimes include:
- Possession of “less lethal” weapons: The crime of carrying a weapon into an educational property that is not deemed very lethal is punished as a class 1 misdemeanor. These weapons include BB guns, stun guns, air guns, daggers, small knives, metallic knuckles, razor blades, fireworks, and other sharp-pointed or edged instruments. Sharp objects that are used for instruction purposes, food or maintenance are exempt. Additionally, if a person is found to encourage or aid a minor under 18 to possess any of these items in school, they will be guilty of the same crime and penalties.
- Possession of lethal guns: Carrying a lethal gun into an education property is punished as a class I felony. These weapons include pistols, rifles, and other firearms. As with the previous crime, if a person encouraged a minor to bring a gun to school, they will be guilty of this crime. If the defendant discharged the firearm on the education property, the penalty would increase to a class F felony. There is one exception to this law, where someone who is not a student or employee of the school attends a school sponsored activity and brings a firearm that is unloaded and locked in their vehicle. In this case, they will be charged with a class 1 misdemeanor rather than a felony.
- Possession of explosive devices: Bringing explosive devices such as bombs, dynamite, grenades, or mines to school is punished as a class G felony. Fireworks are not included under this law.
Weapon Possession in Other Prohibited Property
In addition to weapons being prohibited on educational property, there are some other locations where concealed or open weapons are illegal in North Carolina. These places include:
- Courthouses and State Property: Possessing an open or concealed deadly weapon without a permit is punished as a class 1 misdemeanor under North Carolina law C.G.S § 14-269.4. These locations include any courthouse, state capitol building, governor residence or the executive mansion.
- Locations Where Alcohol is Sold or Consumed: Bringing a gun into an establishment such as a bar or restaurant that serves alcohol is punished as a class 1 misdemeanor under North Carolina law C.G.S § 14-269.3, though there are exceptions. The owner or lessee of the establishment and any hired security are permitted to carry guns, as well as anybody who had been given direct permission from the owner to carry a weapon inside. Carrying a concealed handgun is permitted for people with a concealed carry permit.
- Parades and Other Demonstrations: Carrying a dangerous weapon into a parade, picket line, funeral procession, or any demonstration on a public place owned by the state, or a private healthcare facility, is punished as a class 1 misdemeanor in accordance with C.G.S § 14-277.2. As with the law above, there is an exemption for people carrying a handgun with a concealed handgun permit, as well as anybody otherwise authorized by the state or federal law to carry weapons.
Firearm Serial Number Offenses
Aside from crimes for carrying firearms, it is also illegal to knowingly alter, destroy or remove a serial number on a firearm with the intent to conceal or misrepresent it, under N.C.G.S § 14-160.2. This law applies to people who knowingly damage a serial number for a firearm in their possession, or for any firearm they intend to sell. Conviction of this crime is punished as a class H felony.
Federal Weapon Offenses
While state law tends to handle most firearm or weapon possession violations, there are circumstances where the federal government can get involved and press charges. This happens most often in cases that involve the illegal sale and trafficking of firearms along with drugs across state-lines, as well as when felons convicted of federal crimes are found in possession of a gun.
Federal firearm charges carry severe penalties, especially when a violent offender or drug trafficker is found to have a gun in their possession.
Federal Laws Barring Certain People from Firearm Possession
There are various groups of people who are barred from legally possessing firearms under federal law, in accordance with U.S.C § 922(g). People barred from firearm possession include:
- Convicted felons who have served a term longer than a year
- Domestic violence abusers while subject to a restraining order
- Ex-Armed Forces members who had been dishonorably discharged
- Ex-US Citizens who have renounced citizenship
- Fugitives from justice
- Illegal Immigrants
- Mental institution patients
- Unlawful drug users or people addicted to any controlled substance
The penalty for convicted of any of these crimes Is a term of imprisonment of up to a year, or fined, or both. To convict a person of this crime, the government must prove beyond a reasonable doubt that:
- The defendant belongs to any of these groups
- The defendant knowingly possessed, transported, shipped, or received the firearm
- The possession was in or affecting commerce because the firearm had traveled across state or countries at some point during its existence.
Actual possession is not necessary to sustain a conviction for possession; constructive possession is sufficient. Constructive possession exists when the Defendant exercises, or has power to exercise, dominion and control over the item. Simply put, the Government must prove the defendant voluntarily and intentionally exercised, or voluntarily and intentionally had power to exercise dominion and control over the firearm. However, mere presence at a crime scene or proximity to the firearm alone is insufficient to establish constructive possession.
Armed Career Criminal Act (ACCA)
The Armed Career Criminal Act (ACCA), 18 USC § 924(e), requires a minimum 15-year imprisonment term for defendants convicted of unlawful possession of a firearm (being a felon in possession of a firearm) who have three prior state or federal convictions for violent felonies or serious drug offences.
This act describes severe drug crimes as those punishable by 10 years or more imprisonment. It lists violent felonies as those that:
- have an element of threat, attempt, or use of physical force against another, or
- involve burglary, arson, or extortion.
Firearms in Relation to a Crime of Violence or Drug Trafficking
Under 18 USC § 924(c), it a crime to use or carry a firearm during and in relation to a crime of violence or a drug trafficking crime, or to possess a firearm in furtherance of a crime of violence or a drug trafficking crime. To be convicted, the government must prove each of the following beyond a reasonable doubt:
- The defendant carried or used a firearm, and
- The defendant did so during and in relation to a crime of violence or drug trafficking crime which may be prosecuted in federal court.
The term “crime of violence” may seem to just mean violent crimes, but it is actually a rather complicated definition, as we explored in a blog post that opens the doors for seemingly non-violent crimes to be prosecuted.
The penalty for this crime ranges tremendously depending on various factors, such as the type of weapon used and whether it was brandished or discharge. In less serious cases the defendant could face up to 5 years imprisonment and a fine, while serious cases can lead to life imprisonment.
Defending Against Weapon Charges
As there is a wide variety of ways the government can charge someone with firearm or weapon possession crimes, the defense used against these charges must be very specific to the case. One of the main areas where prosecution has the burden of proof is whether or not the defendant knowingly committed the crime. This can apply to many of the above crimes, including no knowing:
- The weapon was on the defendant’s person
- That the object was a weapon
- In the case of giving to a minor – that the person was a minor
- In the case of a destroyed serial number – that the serial number was damaged
An important issue to note here is that it is not always enough for the defendant to just claim they did not know. Prosecution will use evidence available to show that the defendant would have reasonably known that they violated the law. This is why it is crucial to contact a lawyer who can build a solid and consistent case to defend against any evidence presented.
Request a Consultation with Tarlton | Polk Defense Attorneys
Our lawyers have successfully represented clients in weapon offense and related cases, so they know how to carefully structure a defense based on the facts of the case. Most importantly, we are exceptionally skilled at taking these cases to trial, as we know the tactics used by prosecution that often push the defendant into a plea-bargaining position before a trial begins. If you would like to learn more about how we an help, or request a consultation with us, then leave us a message or call us today.