Arrest for Weapon Possession and 2nd Amendment
If you were arrested for weapon possession in Los Angeles, contact Los Angeles Criminal Defense Attorney immediately so we can explain to you how to fight your case. Los Angeles Criminal Defense Attorney can defend you and even recover your weapons if such weapons were confiscated by the police. The laws prohibiting weapons possessions are different from the laws prohibiting criminal use of a weapon, which is a violation of California Penal Code section 245.
Generally, weapon possession criminal cases can be separated into several groups, such as possession of either concealed or loaded firearms, possession of dangerous weapons (such as billy clubs), and possession of a firearm by a person with a felony conviction on his record or with a conviction that prohibits ownership of firearms. Depending on the facts of the case, there are different ways to fight your criminal case in Los Angeles.
EX-FELON WITH A GUN
For an ex-felon with a gun, the most commonly used defenses would be a motion to suppress the search and a motion to reduce the felony conviction to a misdemeanor under Penal Code 17(b). If you were convicted of a felony in the past but then a motion to reduce your offense to a misdemeanor was granted, you are no longer prohibited from owning a firearm in California.
SIMPLE GUN POSSESSION
In California, a person who is arrested for simple gun possession, such as possession of a concealed firearm, is guilty of a misdemeanor. Such misdemeanor offenses can be dismissed if the police search was done in violation of the 4th amendment. To get such Los Angeles criminal case thrown out, a criminal defense attorney Los Angeles needs to file a motion under Penal Code 1538.5.
Another common way to dismiss a misdemeanor criminal case is diversion. Penal Code 1001.95 permits a judge to place a person on a “pre-plea” diversion, upon completion of which, the criminal case would be dismissed.
There are two other types of diversions, a mental health diversion under Penal Code 1001.36, is available for most crimes except crimes requiring sex registration and murder, and misdemeanor military diversion, which will also result in a dismissal. All 3 types of diversion are pre-plea diversion, which means that a person does not have to admit any fact of the offense. The benefits of pre-plea diversion is not only avoidance of a conviction but also avoidance of collateral consequences associated with licensing or administrative benefits, such as immigration status.
2ND AMENDMENT
Recent federal case law challenges various criminal statutes prohibiting weapon possession and invites constitutional arguments for dismissal.
The 2nd amendment permits a person to carry weapons for protection. The 2nd amendment was adopted in 1791 as part of the Bill of Rights (10 initial amendments to the US Constitution) and applied to the States with the adoption of the 14th Amendment in 1866/1868. Since then, and sometimes preceding 1868 the states tried to limited the rights of citizens to carry weapons.
A major decision by the US Supreme Court in New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1, 26 (2022) struck down NY law (and by extension challenged other states’s laws) prohibiting gun possession. Prior to that a case of District of Columbia v. Heller, 554 U.S. 570, 630 (2008) and McDonald v. City of Chicago, 561 U.S. 742, 791 (2010) brought similar challenges the gun possession.
Heller case involved a total ban by the District of Columbia on firearm possession by not allowing to carry unregistered firearms and by not permitting registration of firearms. In Bruen, the state of New York denied firearm application because the applicants were not able to demonstrate a unique need for “self-defense”. The Supreme Court held both laws, DC and NY, are unconstitutional violation of 2nd and 14th Amendments to the US Constitution. McDonald case from 2010 is similar. There, Illinois local ordinance prohibiting firearm ownership was struck down.
On a Trial Level, the Federal District Court in the case of Fouts v. Bonta 561 F.Supp.3d 941, held that California Penal Code section 22210, prohibiting possession of a billy club (or any similar weapon) is unconstitutional because it violates the 2nd Amendment. Fouts v. Bonta decision is based on Bruen analysis of California Penal Code section 22210 concluding that a person is permitted to carry a billy club (or other like weapons) for self-protection.
By extension, Fouts v. Bonta case can be applied to any other weapon listed in California Penal Code section 22210.
Fouts v. Bonta references Caetano v. Massachusetts, 577 U.S. 411 (2016), which struck down Massachusetts law that prohibited possession of a stun gun.
The analysis of the right to possess a weapon (including a firearm) is dynamic. Please call Los Angeles Criminal Defense Attorney to explain how we can help you win your criminal case based on the above-cited case law that protects the 2nd Amendment rights. Los Angeles Criminal Defense Attorney can be reached directly at (323) 464-6424.
(No Ratings Yet)
Loading...