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What did the “Campus Concealed Carry” bill really say and why did the Governor veto it?

May 5, 2011 AZ CCW Laws, Campus Concealed Carry, Legal Issues Comments Off

Senate Bill 1467 was a very simply bill.  It would have simply amended the existing ARS statute 13-2911 with a single substantive paragraph.  The paragraph would have preserved the rights of the governing board of an educational institution to adopt rules to preserve public order on that institutions property which would govern the conduct of students, faculty, staff and visitors.  No changes there.  They could also still establish appropriate penalties for violation of those policies including suspension, expulsion and ejection from the property.

All the new law would have done would have been to make it impossible for the governing board to enforce a policy or rule that prohibits the lawful possession or carrying of a weapon on a “Public Right-of-Way”.  Now, what does that mean really…

Under current law, let say you happened to be walking down University Drive in Tempe.  As soon as you cross Mill Avenue traveling east on University you are on campus.  If you happen to be carrying a lawfully owned, properly permitted concealed firearm, you are now violating ASU policy and can be ejected from campus or charged with criminal trespass or misconduct with a firearm or both.  You are now a criminal.  Your crime…walking down a ‘public right-of-way’ in the City of Tempe.  The same thing applies if you happen to be driving in a car or riding a bus.

University Drive, Veteran’s Way and McAllister Avenue are all major thoroughfares through the City of Tempe that happen to go directly through the ASU Campus.  Plus there are dozens of other streets, Forest Avenue, Myrtle Avenue, 6th Street, 7th Street, all of which have businesses, restaurants and shops, all of which are now “off limits” to anyone carrying a lawfully concealed firearm.

Notice that I used the word ‘lawfully’.  Since most criminals intent on some type of mayhem are not particularly picky about breaking the law (it kind of goes with the territory for criminals), I would hazard a guess that the University policy against concealed carry on campus won’t bother or deter them.  Students, Faculty, Staff and Visitors may need to conduct necessary business on campus and to avoid problems with the policy may choose to remain unarmed.  This creates a great environment if you are a criminal.  As a criminal, you stand a good chance that few if any of the victims you might find on a college campus will be in a position to defend themselves.

While the law passed through the Legislature by a comfortable margin, the primary opposition came from the Democrat members of both the House and Senate.  In the House, 6 Republicans voted with the Democrats on this law.  Those six were:  Kate Brophy McGee, District 11; Heather Carter, District 7; Rick Gray, District 9; Russ Jones, District 24; Bob Robson, District 20; and Michelle Ugenti, District 8.  That Representative Ugenti voted against this was a bit of a surprise since during her campaign her slogan was “the Republican Party meets the Tea Party”.  Last time I checked, the Tea Party did not support restricting individual rights, particularly with respect to firearms.

The vote in the Senate was also largely along party lines with seven Democrats voting against the bill.  Interestingly, Democrat Senators Aboud and Sinema did not vote on this one.

University administrators lobbied hard against this one using the same tired arguments.  Let’s take a “point, counterpoint” look at the top three that are always used by those opposed to concealed carry on campus.

1.  Firearms on campus will increase the incidence of violent crime. In truth, this one is not borne out by statistics.  There are 11 college that allow concealed carry on campus.  There has not been a single incident, a single gun accident or a single gun theft.  Statistics show that licensed concealed handgun owners are 5 times less likely than non-permit holders to commit violent crimes.

2.  College students are not emotionally stable enough to be trusted with firearms. First, anyone wishing to get a concealed carry permit must be at least 21 years of age.  Personally, I know some 30 somethings that are not ‘emotionally stable enough to be trusted with firearms’.  There has to be an age threshold at some point.  Frankly,  this argument is insulting and condescending to thousands of responsible, mature students.  What about veterans and adult students?  What about the 18 year olds that are in military reserve service?  Are you starting to see how ridiculous this argument is?

3.  The answer to criminal violence on college campus is not ‘more guns’. Statistics fly in the face of this one for anyone who cares to look.  When states adopt broadly based concealed carry legislation, the rate of violent crime generally drops by a factor of 8% to 10% in the FIRST YEAR after such legislation is passed.  Criminals are now more concerned about the possibility that their prospective victim may be armed and literally do not commit as many crimes against persons.  Without the means to defend themselves on campus, the likelihood that a student will become a victim of a violent crime actually increases.

When asked about her veto, Governor Brewer stated that the term ‘public right-of-way’ was too vague and it was for this reason that she vetoed the bill.  Wikipedia says that a public right-of-way is defined as:  ”the right to travel unhindered, to access a route regardless of land ownership or any other legality”.  Seems pretty clear to me.

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Felony Conviction and Firearms Possession…

March 8, 2010 Legal Issues, State Firearms Laws Comments Off

Question:  I was convicted of a felony in 1998.  Can I legally possess a firearm?

Answer: Since you didn’t tell me where you lived, I will have to assume that you are in Arizona.  Unless you have had your felony conviction set aside, you cannot legally possess a firearm.  Since it has been a very long time since you committed your felony, you may be able to petition the court to ‘set aside’ your conviction, expunge your record and restore your civil rights, including your right to own a firearm.  This is only possible if your felony was a ‘non-violent’ one.  If the crime you committed involved either serious injury or death or was sexual in nature (sexual assault, molestation, etc.) the court will generally not consider a request to have the conviction set aside.

In general, if this is something you would like to pursue, you should probably contact an attorney who could help you with this process.  It is also possible to petition the court directly, but you’d probably need someone to help you with this.  You could contact the Clerk of Court in the jurisdiction where you were convicted of your crime to find out how the process might work.

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Firearms Ownership Issues After Divorce…

Question: I need proof that a gun was my father’s and if it was registered in his name or not. He is deceased and my ex-husband has taken it and now I have to have proof that it was my father’s gun and  should now be mine. Thank you.

Answer: Unfortunately, if you live in Arizona, there is no ‘registration’ of guns.  The only thing that would generally serve as ‘proof of ownership’ would be a bill of sale or a household inventory that also recorded the serial number of the gun.  If you have a document such as a bequest from your father’s estate transferring the firearm to you that also had a description of the gun and / or its serial number, that would show ownership as well.

In the absence of any paperwork, you have not way to prove the gun was yours.  If the gun has sentimental value to you, perhaps speaking to your ex-husband and requesting that he give it back to you would be helpful.  If he isn’t cooperative, unfortunately, there isn’t much that can be done.

Sorry I don’t have better news for you.

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Prior Felony Conviction and Firearms Ownership…

February 22, 2010 AZ CCW Laws, Legal Issues, State Firearms Laws Comments Off

Question: I am a convicted felon who served 5 years in ADOC for failing to file income taxes. My sentence expired it 11/98. I have had no further contact with law enforcement. I am 65 years old and would like to take up pistol shooting at a range as a hobby. I want to to all this legally. What steps should I take? I live in Yavapai county.

Answer: The first step should be to look into having your conviction expunged.  There is a legal process in Arizona that allows a non-violent convicted felon to petition the court to “set aside” the conviction and expunge your record.  Since it has been more than 10 years since completing your sentence, you are well past the time threshold to be able to do this.  I’d suggest that you speak with an attorney about how to get this process started.  If you can’t afford an attorney, someone in the county attorney’s office may be able to point you in the direction of resources available in Yavapai County that could help you.

Once you file the appropriate paperwork and have the conviction set aside, your civil rights including your right to own a firearm will be restored.  Then you will legally be able to purchase a pistol to pursue your new hobby.

On a final note, I also encourage you to seek out some good firearms training once you can legally own a firearm again.  Good training from a qualified instructor will make a big difference by helping you build quality skills and teaching you how to handle a firearm safely…

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Firearms Owner Living With a Convicted Felon

February 15, 2010 Federal Firearms Laws, Legal Issues, State Firearms Laws Comments Off

Question:  Can a husband legally own a firearm in their home if it is locked in a safe that the spouse doesn’t have the combination to?  The wife is a convicted felon in Colorado.

Answer: In order to receive a truly authoritative answer, you should contact a licensed attorney in Colorado and seek legal advice.  In order to try and help you out, I will give you my informed opinion.

If the firearms are stored in such a way that the convicted felon has absolutely no access, most jurisdictions agree that this is acceptable.  The question becomes more murky if there is any possibility of access at all.

Let’s say that you have the guns in a safe and the wife does not know the combination.  That should be OK.  Now let’s say that you have the combination recorded in a computerized address book and that your wife has access to the computer.  Now there is a case that could be made for what is referred to as ‘constructive possession’ on the part of the wife since she has the means to open the safe and get the guns.  From a legal standpoint, that could cause both you and your wife a problem.

You can solve the problem by either not writing down the combination or by putting the combination somewhere where the wife has absolutely no access to it…

I would also suggest that you consider looking into the process of expunging or ‘setting aside’ the conviction as soon as it might be possible to do that.  That would restore your wife’s citizenship rights and rights to own a firearm making this entire problem go away.  Most states have a process to expunge a conviction as long as the felony was not a violent one or as long as the felony was not ‘sex crime related’.

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Nephew Arrested with my Pistol…Will I Be Affected?

February 11, 2010 Legal Issues, Out-of-State Carry, State Firearms Laws Comments Off

Question: My nephew had my 9mm pistol as I let him use the firearm to go target practice shooting while he was visiting family in CA. He got pulled over with my 9mm loaded while intoxicated and is now being charged with carring a loaded concealed firearm along with a DUI.  Will this have any affect on my CCW in Arizona since it is my gun that he had in his possession?

Answer: Fortunately for you, it will not.  While it is not always a good idea to load out firearms, as long as he was legally able to possess a firearm in Arizona, it was legal for you to loan it to him.  It was NOT very smart of him to take your firearm to California without having a complete understanding of the laws there.  Based on my understanding of California law, the weapons charge is far more serious than the DUI.  Having a loaded, concealed firearm in his possession alone carries a penalty of up to one year in jail and a fine of up to $1000.  I’m sure that they firearm was confiscated.  You may wish to contact the Police Department that arrested your nephew and see if there is a way for you to recover your firearm.  I’m guessing that you would not be in a position to recover it until after the case is tried since it would most likely be considered to be evidence.  For future reference, I would be very careful about traveling to California with a firearm in the future.

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Obligation to Render Aid to Shooting Victim…

January 27, 2010 Legal Issues, State Firearms Laws, Use of Force Issues Comments Off

Question:  I am in the Army National Guard, a combat vet, and need some help on this. I just took a job as a corrections officer and while going through the training on Pressure Point Control Tactics we were told that if we use these methods on someone in self defense we are required by law to provide aid to the person afterwards because we are trained. I have never heard anything about this in the Army and I carry a gun religiously. Does this mean I have to provide aid if I shoot someone in self defense just because I am trained professionally to use a firearm. If this is true could you please include the ARS and if not please provide proof so I can educate the rest on my class.
Thank You Very Much

Answer: There are a couple of different issues here that we need to separate and discuss.  Probably the first thing would be to help you understand the “Good Samaritan Law” in Arizona.  Under this law and in the absence of any “special relationship” with the injured party, a bystander has no duty or obligation to render assistance to an injured party,  regardless of the circumstances or the bystander’s ability to render aid or assistance.  This is further extended to say that if the bystander does render aid “gratuitously and in good faith” they cannot be held liable for civil or other damages unless they are guilty of ‘gross negligence’.  The full text of the law is provided at the end of this article.

To address your first question, as a corrections officer acting in an official capacity, are you obligated to render aid to someone under your care if they are injured or incapacitated?  The answer to this question is “Yes”.

An exception to the ‘Good Samaritan Law’ exists when there is a ‘special relationship’ which gives rise to a duty to aid or protect.  An example of that special relationship would be your role as a corrections officer.  As a corrections officer, you are required by law to take custody of another under person which may deprive them of their ‘normal opportunity for protection’.  In other words, you are responsible for the prisoners while they are in your custody and are therefore required to render aid should they be injured or become incapacitated.

In your second question, you asked if the fact that you had firearms training required you to render aid if you shot someone in self-defense.  I am assuming that you are asking this question as an armed private citizen, not as a law enforcement officer of any kind.  As a private citizen, you are under no legal obligation to render aid to a person that you had legal justification to shoot in self defense.  In a self defense shooting, I would call 911 and request assistance from law enforcement and emergency medical personnel, but would not attempt to render aid myself since to do so might put me at additional risk from my attacker.  Consider the possibility that the criminal could be feigning injury in an attempt to get you to approach so that they could attack and regain the initiative or escape.

I hope this clarified the differences in the two situations for you…

ARS 32-1471 – Health care provider and any other person; emergency aid; nonliability

Any health care provider licensed or certified to practice as such in this state or elsewhere, or a licensed ambulance attendant, driver or pilot as defined in section 41-1831, or any other person who renders emergency care at a public gathering or at the scene of an emergency occurrence gratuitously and in good faith shall not be liable for any civil or other damages as the result of any act or omission by such person rendering the emergency care, or as the result of any act or failure to act to provide or arrange for further medical treatment or care for the injured persons, unless such person, while rendering such emergency care, is guilty of gross negligence.

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Legal Age to Purchase or Possess Firearms in Arizona…

November 16, 2009 Federal Firearms Laws, Firearms Transfers, Legal Issues Comments Off

Question: Can you tell me the specific ARS law in which it tells you specifics about what ages at which you can buy a handgun or shotgun or any type of gun?  I have been googling binging yahooing and I can’t seem to find it.  I don’t want to be misinformed and would like to read the specific laws about it.  I found your page after hours of looking. Thank you for your help.

Answer: Part of the reason you were having trouble finding the information is because of the way the laws are written regarding age limits on firearms in Arizona.  While you might expect there to be an affirmative statement (you must be X age to buy a rifle, etc.), the law is written in such a way as to exclude people of certain ages from owning certain types of guns.  For example, under ARS 13-3111, the law state that except under certain conditions, that anyone under the age of 18 who is not accompanied by a parent, grandparent, legal guardian or firearms instructor acting with the consent of said parent, grandparent or legal guardian may not carry or possess a firearm.  By definition, that means that anyone who is over the age of 18 and not otherwise prohibited from owning or possessing a firearm may do so.

Federal law provides that in order to purchase a firearm from a federally licensed firearms dealer, a person must be at least 21 years of age and meet the federal and state legal requirements to own a firearm which include, not being a prohibited possessor under state or federal law, be a resident of the state where they are purchasing a firearm, provide proof of age and identity, submit to a criminal background check and meet any other requirements set for by the state for firearms purchases.

Under Arizona law, prohibited possessor are defined in ARS 13-3101 which states:

7. “Prohibited possessor” means any person:

(a) Who has been found to constitute a danger to himself or to others or to be persistently or acutely disabled or gravely disabled pursuant to court order under section 36-540, and whose right to possess a firearm has not been restored pursuant to section 13-925.

(b) Who has been convicted within or without this state of a felony or who has been adjudicated delinquent for a felony and whose civil right to possess or carry a gun or firearm has not been restored.

(c) Who is at the time of possession serving a term of imprisonment in any correctional or detention facility.

(d) Who is at the time of possession serving a term of probation pursuant to a conviction for a domestic violence offense as defined in section 13-3601 or a felony offense, parole, community supervision, work furlough, home arrest or release on any other basis or who is serving a term of probation or parole pursuant to the interstate compact under title 31, chapter 3, article 4.

(e) Who is an undocumented alien or a nonimmigrant alien traveling with or without documentation in this state for business or pleasure or who is studying in this state and who maintains a foreign residence abroad. This subdivision does not apply to:

(i) Nonimmigrant aliens who possess a valid hunting license or permit that is lawfully issued by a state in the United States.

(ii) Nonimmigrant aliens who enter the United States to participate in a competitive target shooting event or to display firearms at a sports or hunting trade show that is sponsored by a national, state or local firearms trade organization devoted to the competitive use or other sporting use of firearms.

(iii) Certain diplomats.

(iv) Officials of foreign governments or distinguished foreign visitors who are designated by the United States department of state.

(v) Persons who have received a waiver from the United States attorney general.

The definition of a prohibited possessor under Federal law is found in the Gun Control Act of 1968, and was later amended under what is generally referred to as the “Laudenberg Amendment”.

The Gun Control Act of 1968 is actually Chapter 44 of Title 18 of the US Code which defines a prohibited possessor as follows:

(d) It shall be unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person—
(1) is under indictment for, or has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;
(2) is a fugitive from justice;
(3) is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802));
(4) has been adjudicated as a mental defective or has been committed to any mental institution;
(5) who, being an alien—
(A) is illegally or unlawfully in the United States; or
(B) except as provided in subsection (y)(2), has been admitted to the United States under a non-immigrant visa
(6) who [2] has been discharged from the Armed Forces under dishonorable conditions;
(7) who, having been a citizen of the United States, has renounced his citizenship;
(8) is subject to a court order that restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child, except that this paragraph shall only apply to a court order that—
(A) was issued after a hearing of which such person received actual notice, and at which such person had the opportunity to participate; and
(i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or
(ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury; or
(9) has been convicted in any court of a misdemeanor crime of domestic violence.

So the way that it works is that the laws defines who cannot be in possession of a firearm as opposed to saying who can.  The presumption is that if the prohibitions DON’T apply, a person can legally purchase or possess a firearm.

To explicitly answer the age question, here is the breakdown for Arizona:

Handgun – 18 years of age to possess or purchase via private party transaction, 21 years of age to purchase from a federally licensed firearms dealer.

Rifle or Shotgun – 18 years of age to possess or purchase via private party transaction, 21 years of age to purchase from a federally licensed firearms dealer.

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Can I get an AZ CCW Permit with an Expunged Domestic Violence Conviction in Arizona?

Question:  I plead guilty to disorderly conduct (domestic violence) in 2005 and was given 36 months unsupervised probation. One year after my probation ended I requested the judgment be dismissed and set-aside, which the court and Judge agreed and issued a dismissal.  Can I now legally own a weapon and apply for my CCW which was surrendered in 2005?

Answer: Unfortunately, the answer is “no”.  Here is the issue.  Under the Domestic Violence Gun Ban Act passed by Congress in 1996, a person that has been convicted of a domestic violence offense cannot legally possess a firearm or ammunition.  In order to restore a person’s right to own a firearm under this law, the state court must “set-aside” or “expunged” the conviction and explicitly restore the person’s right to own a firearm.

Unfortunately, while a process exists to do this for person’s convicted of a felony offense whose convictions have been “set aside” or “expunged”, a similar process does not exist for persons convicted of a misdemeanor crime in Arizona.  When the Arizona legislature wrote the law relating to setting aside misdemeanor convictions, the Domestic Violence Gun Ban Act did not exist.  The Arizona legislature did not anticipate the passage of a federal law that would narrowly define the process of setting aside misdemeanor convictions.  Since all other misdemeanors besides a domestic violence conviction do not result in the loss of gun ownership rights, there was no provision made in the law to restore the right to own a firearm when setting aside a misdemeanor conviction.

Therefore in Arizona and numerous other states, there is a “Catch 22″.  There is no mechanism to restore firearm rights when setting aside a misdemeanor conviction and the federal law in question requires that states explicitly restore the right to own a firearm when setting aside a misdemeanor conviction for domestic violence in order for the federal law not to apply.

To summarize, a convicted felon can have their case set-aside or expunged, have their right to own a firearm restore and then can buy a gun or get an Arizona CCW permit.  However, someone who has been convicted of a misdemeanor domestic violence offense has lost their right to own a firearm or get an AZ CCW permit forever, even if the charge has been set-aside or expunged.  Fair?  No, not at all.  But then laws are not always fair, are they?  The solution?  Contact your Arizona legislator and ask them to fix this law.

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Domestic Violence, Firearms Ownership and Concealed Carry…

Question:  What is the least costly way can I find out if I am allowed to carry a gun?  I know I have never been charged with a felony, however in the mid 90′s I did get into a physical altercatiojn with a familiy member and I think, but i’m not sure if I was charged with domestic violence…..

Answer: If you were simply arrested for a domestic violence offense, that is not sufficient cause to prohibit you from owning or carrying a firearm.  You would have had to go to court and be convicted of a crime of domestic violence.  If you did go to court, or your lawyer went for you, you would have received some final determination by the court.

You can determine if you were convicted of a domestic violence charge from the original court paperwork you received.  At the end of your case, you should have gotten some paperwork outlining exactly what charges you were convicted of and what your penalty was.  If you plead guilty or “no contest” to a charge of domestic violence, your right to own a firearm would be revoked and you cannot legally own or possess a firearm, possess ammunition or get an Arizona CCW permit.

The law that makes this prohibition is referred to as the “Lautenberg Amendment”.  The law is more properly referred to as the “Domestic Offender Gun Ban”.  Enacted in 1996, the law bans ownership and use of guns or ammunition by any individual convicted of a misdemeanor or felony domestic violence offense or any person who is under a restraining order for domestic abuse.  The law also makes it illegal to knowingly sell or give a firearm or ammunition to such a person.

If you were never actually convicted of a domestic violence offense and have no felony convictions, you can legally own a firearm and if you meet the requirements, you can obtain an AZ CCW permit as well.

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Felony Conviction and Firearms Possession…

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