I’m Talking Elsewhere…

Hello all,

My very good friend and colleague, Joyce Akiko, has requested I do a few guest blogs for her at Go HR for Startups. You can read about employment contracts in my post, here, and if you happen to be an entrepreneur, consider hiring her to help with your HR and other work systems consulting.

Don’t forget to mention you found her through my site.

Possession of Firearms by Convicted Persons

When can a person who has been convicted of a crime possess a firearm? This question has been asked of me a few times, by people who were gun owners and who are wondering if they still might be permitted to own a gun.

The Pennsylvania Code states that it is unlawful for a person to possess a gun if they have convicted of any felony under the Controlled Substance Act, if there is a protective order against the person, or if one accepts a firearm from a person who is the subject of a protective order.  Additionally, the code specifically prohibits gun ownership or possession by persons convicted of certain crimes. These crimes include:

–          §911 (relating to corrupt organizations)

–          §912 (relating to possession on school property)

–          Murder

–          Voluntary Manslaughter

–          Involuntary Manslaughter if done recklessly using a firearm

–          Aggravated Assault

–          Stalking

–          Luring a Child

–          Rape

–          Arson

–          Robbery

–          Burglary

The statute elaborates, and you can read the full list under 18 Pa.C.S.A. §6105(b). Interestingly, the Pennsylvania Supreme Court has found that conviction of attempt under burglary is not sufficient to prevent you from owning a gun, because attempt was not an included offense in the state for burglary. Theoretically then, any statute which did not include attempt and the attempt statute was not included under this list, would not be a conviction which would prevent ownership or possession of a gun.

Wyoming Statute §6-8-102 prohibit use or possession of a firearm by a person convicted of a violent felony or attempt to commit a violent felony. This statute specifically includes interference with a peace officer as being sufficient to prohibit possession of a firearm. Whether a felony is violent is sometimes defined in the convicting statute but generally it is not. It is usually obvious if a person was convicted of a violent felony or attempted a violent felony, but if you are unsure, you should confer with an attorney before purchasing or using a firearm.

The Miranda Warnings

When a person is taken into police custody, they must be Mirandized. This means that the individual must be given a warning which clearly and concisely states the persons rights. You probably know the Miranda warning best from television shows, but in real life, a good statement of Miranda rights might be:

“You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you. Do you understand the rights I have just read to you? With these rights in mind, do you wish to speak to me?”

The Miranda warnings originated from the case Miranda v. Arizona, where the United States Supreme Court determined that Ernesto Miranda had no way of knowing that he had the right not to confess, nor that he could get an attorney provided for him, and that was why he confessed to the crime. The U.S. Supreme Court determined that his confession was essentially coerced, and that to protect citizens, all persons must be read certain essential rights when they are taken into custody.

The Right to Remain Silent

Every person who is arrested has the right to remain silent. This comes from your Fifth Amendment right, which I discussed here. Although now we all hear that right on every law enforcement television show and movie out there, back in 1966, the warning was not known, and some people did not understand that they could remain silent and that doing so would not cause any problems for them.

The right to remain silent warning comes with a consequential statement: anything you say can and will be used against you in a court of law. This serves to drive home the warning that a person should remain silent. It shows the accused that any confessions will be considered valid. Prior to these warnings some people did not know whether their confessions were actually confessions, rather than just them talking to a friendly police officer. This forces the officers and the person to understand their roles: that of law enforcement vs. the accused- and the relationship is not always a friendly one.

The Right to an Attorney

Every accused person has the right to legal representation; this right is provided by the Fifth Amendment as well. This right is separate and distinct from the Sixth Amendment right to counsel, which refers to a right to an attorney while in court. The Fifth Amendment right is a right given while being interrogated or questioned. Informing a person of this right lets a person know they are being seriously questioned and that they do not have to submit to questioning without legal advice.

The right would mean almost nothing without an assurance that even an impoverished person could get legal help, and so the warning contains this consequential statement: if you cannot afford an attorney, on will be provided for you. This lets people know that there is legal advice out there available for all persons, and not just people who can pay a lot for legal help.

Exception

There is one exception to the Miranda Warnings. The warnings do not have to be read if there is an on-going public emergency and officers believe the suspect has information which would end the emergency.

Waiving your Rights

You must affirmatively assert your Miranda Rights, or you waive them. You can assert your rights by stating that you want an attorney, by stating you won’t answer questions until you see an attorney, or a similar statement. Once you assert your Miranda Rights, the interview should immediately cease until you have had time to confer with an attorney. The officers cannot ask you any more questions without violating your rights.

You can waive your Miranda Rights either by responding to officers questioning, or by actually saying you are ignoring your Miranda Rights. Any attorney would counsel you not to waive your rights until you have spoken with an attorney and gotten some legal advice on the situation.

If you were taken into custody and interrogated by police, you should have been read you Miranda rights. If you were not, you may be able to have statements excluded from trial. If you think you were not properly read your Miranda rights, contact Shannon K. McDonald today.