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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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Obtaining a CCW…Advantages and Disadvantages

February 11, 2010 AZ CCW Laws, State Firearms Laws Comments Off

Question:  My wife and I have attended a recent CCW class and now question whether or not to finish the process and obtain an AZ CCW permit.  In your opinion what are the the real advantages (other than tactical) to being issued the card. Besides being placed on another list for the anti-gun establishment to point fingers at, the class we attended seem to bring up issues of higher accountability w/o significantly higher advantages to open carry.  Your thoughts would be appreciated.

Answer: This is a really good question and one I have been asked many times by prospective students.  First, let me dispel a couple of myths.  The fact that you have been issued a CCW permit is not publicly available information.  It is only available to law enforcement, so having a CCW does not put you on a ‘target list’ for the anti-gun establishment.  Also, there is no greater or lesser accountability whether you openly carry or carry concealed.  The laws regarding the use of firearms for self defense are exactly the same.  If someone carries a firearm they do have a great deal of responsibility and accountability, much more so than someone who does not carry at all, but there is no difference in accountability between open and concealed carry.

In terms of advantages to having an Arizona CCW permit, there are several things you should consider.

First, should you purchase a firearm in the future, you will not have to go through the background check if you have a valid CCW permit.  You can simply present your permit and driver licenses and walk right out with the firearm (after paying, of course!).

A second advantage would derive from being able to carry a firearm in your vehicle without having to keep it in a case or making sure it is visible to qualify for open carry.  When transporting a firearm in a vehicle without a permit, the firearm cannot be concealed and immediately accessible.  With a permit, you don’t have to worry about it.

A third possible advantage is a little more subjective.  If you are involved in a traffic stop with a law enforcement officer and have an AZ CCW and inform the officer that you have a permit, it lets them know that you have no serious criminal background.  After all, to get the card, you have to attend a firearms safety course and have a criminal background check done .  If you have a permit, it basically tells the law enforcement officer that you are a ‘good guy’ which makes the rest of the stop go more easily for both of you.

Another advantage is the reciprocal privileges that many states offer to concealed carry permit holders.  The Arizona CCW permit is currently recognized in 30 states.  This can be a nice advantage if you travel to those states.

In my view there are some very real advantages to concealed carry versus open carry from the standpoint of privacy.  It is no one’s business but your own if you decide to have a permit and lawfully engage in concealed carry.  Open carry, while legal in Arizona, puts everyone you come in contact with on notice that you have a firearm.  That is not necessarily a bad thing, but in my view, I would rather preserve the element of surprise and avoid unwanted attention that open carry can sometimes bring.

Per your request, I have specifically avoided the discussion of any ‘tactical issues’.

Since you have completed the course, there is very little additional effort required to get the permit.  I’d suggest that you complete the process.  Nothing in the law requires you to carry concealed or carry a firearm at all for that matter, but after doing all the hard work to attend the class, it seems only natural to complete the process assuming there are not financial issues that make the $60 application fee a hardship…

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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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Question about the "Parking Lot Law" in Arizona

January 21, 2010 2nd Amendment Issues, State Firearms Laws, Vehicle Carry Comments Off

Question:  Strictly going by hearsay and not actual word for word of the new law, if my employer bans guns on the property can I leave the firearm in my personal vehicle?  I also possess an
Arizona Concealed Carry permit.  Can they enforce their policy and also is there a link to that new law?  I also meant to mention
that there are fences, concrete barriers, cameras, and “loss prevention personnel” that periodically do their rounds through the parking lot.

Answer: If you read the text of the law you will see that under the circumstances that you describe, the employer may restrict the carrying of firearms on to their property.  The exact text reads:

3. The property owner, tenant, public or private employer or business entity provides a parking lot, parking garage or other area designated for parking motor vehicles, that:
(a) Is secured by a fence or other physical barrier.
(b) Limits access by a guard or other security measure.
(c) Provides temporary and secure firearm storage. The storage shall be monitored and readily accessible on entry into the premises and allow for the immediate retrieval of the firearm on exit from the premises.

In other words, if there is a fence or physical barrier and if access is limited by a guard or other security measure, they can restrict you from bringing a firearm on the property only if they “Provide temporary and secure firearm storage.  The storage shall be monitored and readily accessible on entry into the premises and allow for the immediate retrieval of the firearm on exit from the premises.”

If they don’t restrict access with a guard or they don’t provide secure storage, they cannot restrict you from leaving the firearm locked inside your vehicle.  Having a CCW is not relevant as long as you are lawfully in possession of the firearm and you are otherwise transporting it lawfully.

If you would like to review the exact text of the law, you can find it at the following link:  http://www.azleg.state.az.us/FormatDocument.asp?inDoc=/ars/12/00781.htm&Title=12&DocType=ARS

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Scope of the LEOSA Act regarding Concealed Carry by Law Enforcement

Question: Under the Law Enforcement Officers Safety Act thatsexempts qualified active and retired law enforcement officers from many local and State provisions regarding concealed carry, are there any there any state or local police depts that still will not honor it. I plan to drive from SC to NY and need to know.

Answer: If a person is covered by the LEOSA, then “notwithstanding any other provision of the law of any State or any political subdivision thereof,” he or she may carry a concealed firearm in any state or political subdivision thereof. See Title 18, USC, Section 921, which defines “state” to also include the District of Columbia, Puerto Rico and U.S. Possessions. Thus, the LEOSA-qualified person does not generally require a state-issued CCW permit to carry a concealed firearm.

However, there are two types of state laws that are not overridden by the federal law, these being “the laws of any State that (1) permit private persons or entities to prohibit or restrict the possession of concealed firearms on their property; or (2) prohibit or restrict the possession of firearms on any State or local government property, installation, building, base, or park.” This does not mean that LEOSA-qualified persons are prohibited from carrying concealed firearms in such areas, but only that they must obey whatever state laws apply on those two points. They are free to disregard all other state and local laws that govern the carrying of concealed firearms.

The LEOSA overrides state and local laws, but not other federal laws.  LEOSA-qualified individuals must continue to obey federal laws and agency policies that restrict the carrying of concealed firearms in certain federal buildings and lands.

Whether or not a person is covered by the LEOSA depends entirely on whether or not he or she meets the definitions in the federal law for either “qualified law enforcement officer” or “qualified retired law enforcement officer.” It does not matter whether or not a given individual is defined as a “law enforcement officer” under the law of his state; only the definition in the federal law applies.

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Purchasing a Firearm at 19…

January 21, 2010 Firearms Transfers, State Firearms Laws Comments Off

Question: How can I legally get a pistol if I’m 19 years old?

Answer: Under Arizona law, you can legally purchase a firearm at age 18.  Under Federal law you cannot purchase a firearm from a federally licensed firearms dealer until you are 21 years old.  That means that the only way you can purchase is from a private party.  Private party transfers may occur between individuals in Arizona as long as both the buyer and seller are at least 18 years of age, the transfer is done ‘face to face’ and both parties are Arizona residents.  I do recommend that you get a bill of sale to insure there is a record of the transaction.  I also recommend that at the very least you either examine or record the drivers license information of the seller.

This is really the only way you can acquire a gun unless someone gives it to you as a gift or you inherit it from a parent or grandparent.

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Felony Conviction and Federal Home Protection Act

July 20, 2010

Question:  I am a felon and had to do a prison sentence.  My house was broke into twice while I was in bed asleep and both times I fled the home for my safety.  The police are telling me there is no true way to protect myself inside my home and that felons cannot possess [...]

Arizona Constitutional Carry About to Become Law…

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Open Carry in a Vehicle in Arizona

March 25, 2010

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Felony Conviction and Firearms Possession…

March 8, 2010

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 [...]