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Can my Spouse Keep Their Guns If I’m on Felony Probation?

Feb 22nd, 2018 Felony Offenses Gun Laws Can my Spouse Keep Their Guns If I’m on Felony Probation?

Probably not.  If you’ve been convicted of a felony in Michigan, then your gun rights will be suspended for three to five years, depending on the type of felony.  The suspension time periods start when you’re done with your felony probation and it is also likely that the sentencing Judge addressed this issue at the time you were sentenced and made the non-possession of firearms an explicit condition of probation.  For a more detailed explanation, let’s look at what the law provides.

The law that covers this issue is found at Michigan Compiled Laws § 750.224f, which provides as follows:

A person convicted of a felony shall not possess, use, transport, sell, purchase, carry, ship, receive, or distribute a firearm in this state until the expiration of 3 years after all the following circumstances exist: (a) The person has paid all fines imposed for the violation. (b) The person has served all terms of imprisonment imposed for the violation. (c) The person has successfully completed all conditions of probation or parole imposed for the violation.

This three-year prohibition is for all felonies other than “specified felonies” for which the five-year prohibition applies.  According to the law, specified felonies include, but are not limited to, felonies where an element of the felony is the use, attempted use, or threatened use, of physical force against the person or property of another; felonies where an element is the unlawful manufacture, possession, importation, exportation, distribution, or dispensing of a controlled substance; felonies where an element is the unlawful possession or distribution of a firearm; felonies where an element is the unlawful use of an explosive; and burglary of an occupied dwelling, breaking and entering an occupied dwelling and arson.

In addition to the legal prohibition against possessing firearms, a judge may order that you not be allowed to possess guns as a condition of probation. The statute addressing conditions of probation is found at Michigan Compiled Laws § 771.3.  This law sets forth all the things a judge must order as a condition of probation and this list does not include firearms.  However, there are many things not specifically listed that may be ordered as a condition of probation at sentencing, and this includes your gun rights.  After all, the judge is only ordering you to be in compliance with existing law.

This brings us directly this specific question: if you are on probation and your spouse or someone else you live with owns firearms, must they give them up as well? And what does giving up the guns entail; do they have to be removed from the home, or can the guns be locked in a safe kept at the home?  To answer these questions it is necessary to consider the definition of the term “possession.”  Even though this may seem like a simple word to define, the legal definition is actually quite complicated.

According to Michigan case law, “possession” is defined as[i] “‘1. [t]he fact of having or holding property in one’s power; the exercise of dominion over property. 2. [t]he right under which one may exercise control over something to the exclusion of all others; the continuing exercise of a claim to the exclusive use of a material object.’”[ii]. In general, “possession is either actual or constructive.” [iii]“ ‘[A] person has constructive possession if he “knowingly has the power and the intention at a given time to exercise dominion or control over a thing, either directly or through another person or persons….” ’ ”[iv].

Keeping the guns locked in a safe may not be enough to preclude prosecution for felony possession of a firearm while on probation.  A web page from Ionia County sets forth their “zero tolerance” gun policy and makes this explicit.  If you are on probation elsewhere, and your County does not have a zero-tolerance gun policy, then it is still best to check with your probation officer for further guidance. Don’t assume you can keep the guns without checking with your probation officer.  If you’re not happy with the information given to you, or can’t reach your probation officer, then you may want to retain a lawyer to assist you.  Obtaining clarity around this issue is especially important considering that raising a “defense” to a prosecution such as that you were not in possession of firearms kept sequestered within a home where you lived, Michigan Compiled Laws suggests that you will have the burden of proving that this exception applies.  Specifically, MCL § 776.20 provides:

In any prosecution for the violation of any acts of the state relative to use, licensing and possession of pistols or firearms, the burden of establishing any exception, excuse, proviso or exemption contained in any such act shall be upon the defendant but this does not shift the burden of proof for the violation.

If you have been convicted of a felony in Michigan, then until your firearms rights are restored, it is best for you to stay as far away as possible from firearms of all kinds.  Otherwise, you may be placing yourself at risk of not only a violation of probation but of new felony charges.  A conviction for either could send you back to jail.

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[i] People v. Mar., 499 Mich. 389, 415–16, 886 N.W.2d 396, 411–12 (2016).

[ii] People v. Flick, 487 Mich. 1, 12, 790 N.W.2d 295 (2010), quoting Black’s Law Dictionary (7th ed.)

[iii] Id. at 14, 790 N.W.2d 295.

[iv] Id., 412 quoting People v. Hill, 433 Mich. 464, 470, 446 N.W.2d 140 (1989) (citation omitted).