Paul Laska In a society where violence seems to be more accepted as a way of doing business than ever before, firearms arrests are an increasing occurrence. How we handle them determines whether the suspect is inconvenienced by a few hours in jail, or receives meaningful prison time.
Possession of a Firearm by a Convicted Felon
Sounds like an easy case to build. He's a felon, was in possession of a firearm, slam--dunk. Not so quick, though. Let's look at what it will take to ensure a conviction.
First, look at the law you will file under. Although most state laws are similar, and in turn similar to federal law, there are subtle differences. Federally, trigger lock legislation defines a firearm as what we commonly consider a firearm, but it also includes one round of ammunition as being a "firearm." However, also recognize that federal law exempts antique firearms, i.e. one manufactured prior to 1898, any reproduction black powder-designed muzzle loading firearm, or any reproduction designed for rimfire or centerfire ammunition no longer manufactured in the U.S. and not readily available for purchase. Various state laws may bear similar exemptions, or may not. Indeed, states have begun to adopt the federal language of including ammunition as a firearm--Florida amended its laws in 2004 to define ammunition as a firearm for possession by a felon.
So, is it a firearm? If your law is substantially the same as the federal law, it is a firearm if it was not manufactured prior to 1898, nor is a reproduction of such a firearm meeting the exemption. In most jurisdictions, air guns, pellet guns, BB guns, CO2 guns, and similar items are not firearms--there must be fire, i.e. explosive propellant, to constitute a firearm. If your felon has a round of ammunition in his pocket, and you are filing under either the federal trigger lock laws, or your state laws define ammunition as being a firearm, the only question could be whether the ammunition is so obsolete to not be considered a firearm; this will probably be a question of case law for your prosecutor to determine.
The firearm should go to the crime lab. This will ensure two things. First, it will be examined by an individual with extensive experience with firearms, who will be able to certify that it is a firearm, and that it meets the definition of functionality as usually needed by the law. Second, the majority of firearms that pass through crime labs get test fired and entered into the National Integrated Ballistics Identification Network (NIBIN), a national database maintained by ATF through the several hundred firearms labs in local, state, and federal crime labs. NIBIN's value is to link cases--a murder in one jurisdiction with a shooting in another, with the firearm you took off your arrestee.
Felon, that is easy to determine, right?
Not quite so fast. The issue is whether the suspect is a convicted felon. You will have to document the fact. A criminal history is not sufficient--the courts acknowledge that histories are often flawed in what they contain, or are not up to date. While the history provides you probable cause for an arrest, it won't substantiate the conviction to establish quilt of the offense.
The best evidence is a court record showing the conviction. And the best court record is one that contains fingerprints. For example, Florida fingerprints all persons convicted of a felony in open court, the prints becoming part of the court record. No prints available on the court record? A Pen Pack, the name for a package of records generated by a prison system, will include fingerprints obtained at intake into prison, plus records showing the offender's lineage back to court.
Problems arise when there are no fingerprints available on post-conviction records. Now it becomes a matter of building a paper trail. Take the history, locate the convictions on it, and first obtain copies of arrest fingerprints for those specific cases. Next step is to obtain a court records copy of the arrest affidavit. This will bridge the case from arrest into the court system. Now obtain the court disposition record, showing the conviction which will connect to the arrest fingerprint through the affidavit, which links the court case number with the booking information.
No matter what route is taken, at some point, a fingerprint examiner needs to be involved, to testify that your arrest fingerprints and the arrest fingerprints or conviction fingerprints (or, if you're a belt-and-suspenders guy, both) come from the same individual. Except for one state I dealt with, where no court records are maintained--and the U.S. Attorney was directed by the trial judge that he wanted to hear from the court clerk, prosecutor, or judge that this person had been convicted!
The process of obtaining records varies from state to state, and even by local jurisdictions. My own county government charged my agency for each certified page of record generated by the court clerk's office. Yet, the New York City Police Department, that agency so often vilified for being a huge, inhuman bureaucracy, bent over backwards whenever I approached them for case information. Also, sometimes locating records may be quite a chase; local, county, and even state courts maintain different records, prisons may keep records themselves or archive them in a state repository. In the federal system, if the individual served time, the records will be at the last prison, but if sentenced to probation, the records will be maintained by the court clerk for the district where the conviction occurred.
Most prosecutors do not undertake all this work; they expect the law enforcement agency to handle it. In larger agencies there may be persons assigned to handle these cases; for about 15 years I included these cases in my workload. But especially for smaller agencies, the work won't get done unless the officer sees to it. Generally, such a case would run two or three hours; most of it making requests for documents. If it doesn't get done, the state will drop the prosecution and out walks the offender; but get the work put together, and the offender is almost guaranteed lodging at state expense for five or more years. This is especially true for federal trigger lock cases, which is an enhancement program for persons convicted of multiple violent felonies; it is not unusual for a trigger lock conviction to gather a felon a 30 year sentence at a Bureau of Prisons facility.
Felony cases may be made in other manners. If your analysts run pawn tickets, have them run histories on persons pawning firearms; many a gun pawn turns out to be a felon. If your state has a call in program in addition to the federal NICS program operated jointly by ATF and the FBI, they may refer rejected sales to local agencies. Some of these will be rejected for felonies, and again, lead to taking a criminal off the streets.
Some of these steps should also be followed on any firearms arrest, such as unlicensed concealed carry. Submit the firearm to the lab, and ensure that it is a firearm, as well as getting it into NIBIN. Of course the offender should be run for a criminal history, and the firearm for wants. If circumstances warrant, request an ATF trace; over the years since ATF began tracing, the period of time to run a trace has been reduced dramatically, with most traces now being returned within a couple of days. This often leads to unreported stolen firearms, which begs the question; do you have a record of all your firearms' descriptions, including serial numbers?
Good police work can make strong inroads into felonious use of firearms and make strong cases against felons with firearms. Since so many of these offenders will be among your most violent criminals, and responsible for some of the most atrocious activity within your jurisdiction, the investment you make to produce a strong case will pay off many times over, for you and your community.