» Arizona Cases, Arizona Statutes, Procedural Rules » Self-Defense, Depublication, and Uncertainty

Self-Defense, Depublication, and Uncertainty

In Arizona, felons who haven’t had their rights restored can’t possess firearms. It’s a class 4 felony, and because alleged offenders are obviously likely to have at least one historical prior felony conviction, defendants charged with misconduct involving weapons under the prohibited possessor subsection usually face a pretty significant mandatory prison term. What if they possess the firearm in self-defense though?

The self-defense statute justifies “threatening or using physical force against another.” It doesn’t necessarily justify possessing a firearm if you’re a prohibited possessor. Another statute justifies the defensive display of a firearm, again not specifically allowing a prohibited possessor to possess a firearm, and the statute governing the use of force in defense of a residential structure or occupied vehicle and the statute governing the use of force in crime prevention are effectively the same as the general self-defense law. The closest thing to a clear defense to being a prohibited possessor in possession of a firearm would be the necessity statute, and that doesn’t apply if the crime involves homicide or serious physical injury. I guess a convicted felon might have a good textual argument that he or she can defensively display a weapon, but he or she may be out of luck if he or she uses it.

There’s actually a case directly on point. The Court of Appeals of Arizona, Division One, has said that “a person who is prohibited by law from possessing deadly weapons is not entitled to the legal protection of [the use of force in crime prevention statute] when he uses a firearm.” In a footnote, the court mentioned that other justification defenses have been characterized as fundamental rights, whereas proactive crime prevention has not. In the end, the court didn’t want to “immunize convicted felons from the consequences of later criminal acts by permitting them to use deadly weapons that they are not allowed even to possess.” Based on that and the statutes, it would seem that prohibited possessors can probably defend themselves with a gun, but they can’t use it to stop crime.

If there’s a case on point, then why aren’t I more certain about this? Well, the opinion was depublished. Even though the Court of Appeals certified the opinion for publication, the Supreme Court of Arizona can depublish it before it becomes final, which it did. The Supreme Court doesn’t even have to say why, which it didn’t. I can tell you about a depublished case, but it isn’t regarded as precedent and can’t be cited in any court except for in certain very limited circumstances. Sadly, we’re left to speculate about the state of the law regarding the use of a firearm in self-defense by a prohibited possessor. Did the Supreme Court think a gun can be used by a felon in crime prevention? Did it agree with the ruling but disagree with the reasoning? Did it agree with the reasoning of the dissent? Did it agree with the opinion in general but dislike the footnote saying other justification defenses might apply to the prohibited possessor law? I can honestly tell you that I have absolutely no clue.

If you’re a prohibited possessor and you’re wondering if you can use a deadly weapon to save your life or the life of someone you love, I’m afraid I don’t have a definite answer for you. Your safest bet may be to hone your hand to hand combat skills. You might beat a murder or aggravated charge, but there’s a chance you may have no justification defense to a misconduct involving weapons charge. Careful with your combat skills though, lest a court decides your hands are designed for lethal use and you find yourself convicted of prohibited possession of deadly weapons simply by virtue of your training. Sadly, this isn’t a clear area of law.

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3 Responses to "Self-Defense, Depublication, and Uncertainty"

  1. Blue Collar Man says:

    Hypothetical question: Subject 18 yo male got into fight with 3 youths, one of whom swung a blunt instrument. Subject pulled knife cutting youth’s face before fleeing. Police arrived to youth bleeding from laceration 3 youths claimed subject attacked without provocation. Police detained subject, charged assault w/deadly instrument. Judge appointed legal counsel and on his advice, without so much as five minutes consultation, plead guilty to felony assault, sentenced 3 years. Upon release subject gained employment completed parole and relocated to Arizona. Subject maintained clean record for twenty years before being charged as prohibited possessor of a handgun purchased from friend for personal security. Subject committed no new crimes and did not brandish, discharge or behave irresponsible. Just possessing. Subject cites several events including having been assaulted several years ago, being threatened by a homeless man with a knife several weeks ago and a recent murder in his residential community as proof demonstrating a “compelling necessity” to possess a personal firearm for the defense of life and limb.

    Subject released on own recognizance awaiting to hear from courts. Does anyone have any thoughts or experience they can share pertaining to similar cases outcomes or defenses? It could be helpful to hear.

  2. Keith says:

    Can a prohibited possessor with a class 6 felony reside in a structure with firearms. Felony is not open, would this be considered constructive possession.

  3. Keith says:

    Someone who is a prohibited possessor are they allowed to reside in a residence that has firearms. This person is on supervised probation with class 6 felony restricted( not open). Will this be considered constructive possession ????

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