LEGAL QUESTION

[g+16]

I am confused and perhaps a lawyer of LEO can answer it for me. I have a friend that I have known my entire life, he was convicted of murder in 1979, and has been out 1 year now. His P.O. told him because he falls under the laws of 1979 after he serves 2 yrs probation that he can legally own a firearm again. Not to carry but he can keep one in his home. I have researched all that I can but can not find this clause in any 1979 firearms law. Can anyone enlighted on this law? Why would his P.O. tell him this if it is not true. state of Indiana Thanks

 

[phylodog]

Why would his P.O. tell him this if it is not true.

People are mistaken all the time. Hopefully your friend ignores the advice.

 

[Fargo]

I am confused and perhaps a lawyer of LEO can answer it for me. I have a friend that I have known my entire life, he was convicted of murder in 1979, and has been out 1 year now. His P.O. told him because he falls under the laws of 1979 after he serves 2 yrs probation that he can legally own a firearm again. Not to carry but he can keep one in his home. I have researched all that I can but can not find this clause in any 1979 firearms law. Can anyone enlighted on this law? Why would his P.O. tell him this if it is not true. state of Indiana Thanks

Maybe under state law although I doubt it. Under federal law absolutely not.

 

[LoriW]

wrong code posted

 

[Thor]

If he was convicted of murder why are you trying to help him get a firearm?

 

[Fargo]

I'm not a lawyer but I will repeat not listening to the PO until he's asked a lawyer. I did find this though...

Can Convicted Felon Purchase or Possess a Firearm

and

IC 35-47-4-7
Persons prohibited from possessing a firearm; restoration of right to possess a firearm
Sec. 7. (a) Notwithstanding IC 35-47-2, IC 35-47-2.5, the restoration of the right to serve on a jury under IC 33-28-5-18, or the restoration of the right to vote under IC 3-7-13-5, and except as provided in subsections (b), (c), and (f), a person who has been convicted of a crime of domestic violence may not possess a firearm after the person's release from imprisonment or lawful detention.
(b) Not earlier than five (5) years after the date of conviction, a person who has been convicted of a crime of domestic violence may petition the court for restoration of the person's right to possess a firearm. In determining whether to restore the person's right to possess a firearm, the court shall consider the following factors:
(1) Whether the person has been subject to:
(A) a protective order;
(B) a no contact order;
(C) a workplace violence restraining order; or
(D) any other court order that prohibits the person from possessing a firearm.
(2) Whether the person has successfully completed a substance abuse program, if applicable.
(3) Whether the person has successfully completed a parenting class, if applicable.
(4) Whether the person still presents a threat to the victim of the crime.
(5) Whether there is any other reason why the person should not possess a firearm, including whether the person failed to satisfy a specified condition under subsection (c) or whether the person has committed a subsequent offense.
(c) The court may condition the restoration of a person's right to possess a firearm upon the person's satisfaction of specified conditions.
(d) If the court denies a petition for restoration of the right to possess a firearm, the person may not file a second or subsequent petition until one (1) year has elapsed after the filing of the most recent petition.
(e) A person has not been convicted of a crime of domestic violence for purposes of subsection (a) if the conviction has been expunged or if the person has been pardoned.


I'm interested in what a lawyer says

The statute you posted is in relation to Indianas prohibition on domestic batterers possessing firearms. It has nothing to do with felony disability which comes in under Indianas serious violent felon statute and the federal general felony statute.

The short answer is that I do not know how far back Indianas serious violent felon provision reaches, but I know that the federal one goes back indefinitely so it is not legal for a person as described to posses a firearm.

 

[LoriW]

The statute you posted is in relation to Indianas prohibition on domestic batterers possessing firearms. It has nothing to do with felony disability which comes in under Indianas serious violent felon statute and the federal general felony statute.

The short answer is that I do not know how far back Indianas serious violent felon provision reaches, but I know that the federal one goes back indefinitely so it is not legal for a person as described to posses a firearm.

I did a search for felon and indiana gun laws. This came up. Thank you for pointing out it is not the right code...

 

[Fargo]

I did a search for felon and indiana gun laws. This came up. Thank you for pointing out it is not the right code...

It is a very confusing area of law since you have different but overlapping federal and state laws. What is legal under Indiana law is often illegal under federal law.

 

[MCgrease08]

I'm guessing maybe the P.O. really believes this guy belongs in jail and gave him this advice as a way to get him back there.

 

[BigRed3588]

If you want to know for sure, shoot me a PM. I run the law library at a correctional facility and have access to all Indiana case law dating back to the 1800's. I can have one of my clerks look it up and get the applicable IC code.

Off the top of my head, I think the P.O. is correct. The guy that does my car audio has a felony from the mid 90s and was told the same. He later had his home searched after a misdemeanor arrest and a shotgun was found. He was never charged with possession by a convicted felon. It would certainly be a different story had it been the feds though.

 

[bradmedic04]

 

[T.Lex]

The short answer is that I do not know how far back Indianas serious violent felon provision reaches, but I know that the federal one goes back indefinitely so it is not legal for a person as described to posses a firearm.

I believe SVF goes back to about 2005. So, that would not apply.

What the PO is likely referring to is the prohibition on ex post facto laws. Part of that idea is that the laws in effect at the time of a conviction (well, crime) apply throughout that case. So, whatever the possible sentence was when he was convicted, including any restoration of rights, would continue to apply.

However, as Fargo suggested, the feds are unlikely to be sympathetic.

Quick googling, and there may actually be a chance the PO is correct, but I highly doubt for the reasons the PO thinks.

Check out this post-Heller case:
http://www.washingtonpost.com/news/...content/uploads/sites/14/2014/09/binderup.pdf

Looks like it holds that a non-violent criminal conviction may not support a felon-in-possession charge.

BTW, I'm pretty sure the felon-in-possession goes back to the 1968 Gun Control Act. That would pre-date the murder charge in the OP.

 

[HoughMade]

Teer claims that the serious violent felony statute violates the ex post facto prohibition "because it uses a felony which occurred prior to the enactment of the statute to punish and outlaw once legal conduct.”... In addressing Teer's contention, we find our supreme court's analysis of the habitual offender statute instructive. In Funk v. State, the defendant had been convicted for a theft that he committed in May 1979. 427 N.E.2d 1081, 1087 (Ind. 1981). Under the habitual offender statute, Funk's sentence was enhanced for the May 1979 theft because of his prior crimes. Id. Although Funk had committed these prior crimes before the habitual offender statute went into effect, his sentence for the May 1979 theft was still constitutionally enhanced. Our supreme court reasoned that the penalty was imposed for the last crime committed, that is, the May 1979 theft. In other words, the State was not punishing Funk for the crimes he committed before the habitual offender statute became effective. Id. Therefore, inasmuch as Funk was punished for the May 1979 crime, ex post facto protections were not impinged.


Teer's circumstances are similar. In the instant case, Teer was charged for a crime, possession of a firearm by a serious violent felon, he committed on December 1, 1999. The statute criminalizing this act was substantially amended, recodified, and became effective on July 1, 1999... The serious violent felony statute addresses and governs Teer's conduct on December 1, 1999. The statute essentially prohibits the possession of a firearm by a serious violent felon; it neither re-punishes Teer for the 1996 crime he committed nor enhances the penalty for the 1996 crime. See Spencer, 707 N.E.2d at 1042. Accordingly, Teer's ex post facto challenge fails.

Teer v. State, 738 N.E.2d 283, 287-288 (Ind. Ct. App. 2000)

 

[PistolBob]

Teer v. State, 738 N.E.2d 283, 287-288 (Ind. Ct. App. 2000)

The words "seriously violent felony" seem to leap off the page....I'd hate to see the guy have a firearm.

 

[SteveM4A1]

The words "seriously violent felony" seem to leap off the page....I'd hate to see the guy have a firearm.

A convicted murderer? Pssshh no way. I understand I don't know the specifics, but I guess my first question is: What the hell is he doing out of prison? Oh wait, this is America, where we give murderers less than life in prison, because you know, second/third/fourth chances and all that.

 

[PistolBob]

A convicted murderer? Pssshh no way. I understand I don't know the specifics, but I guess my first question is: What the hell is he doing out of prison? Oh wait, this is America, where we give murderers less than life in prison, because you know, second/third/fourth chances and all that.

Op says he did the crime in 1978 I think and then says he's just been out a few years...so he did 25 years maybe, in the slammer for murder. I'll be honest...would not want him for a neighbor, I have doubts about his assimilation back into polite society after being in the slammer for that long, the government says he's paid his debt and that's good but I would still want him under the supervision of a parole board or probation officer. I would not want him to have access to a firearm, but hell he can use anything as a weapon should he feel the urge...sooooooo

 

[Bill of Rights]

As Steve said, I don't know the specifics of the case. That said, I do know that once he is out of prison, and therefore deemed no longer a threat, to keep him from being allowed under the law to protect his home and family effectively is to relegate him to "second class" citizenship. That the crime of which he was convicted was murder does not tell me that he will forever be a threat, only that he was to that person back 36 years ago.

Who among us has not changed his views, his actions, his thoughts prior to commencing those actions, in the last 36 years?

In short, I think he should not be prevented from having a firearm in his home. I also think that if he misuses that or any other firearm, his sentence for whatever crime he commits should be "enhanced"... possibly even doubled or more. Use it in self-defense, or transport it unloaded to the range to practice or take a class, I'm fine with. Use it to intimidate or cause discomfort or pain to an innocent, you belong in that cage again.



Blessings,
Bill

 

[Kirk Freeman]

Good grief, no. Not just no, but NO!

 

[printcraft]

 

[Thor]

I also think that if he misuses that or any other firearm, his sentence for whatever crime he commits should be DEATH.

FIFY...and pretty much right now and on the spot.