# Would a Judge charged a felon who grabs a gun to protect people? **URL:** \ **Category:** In My Humble Opinion\ **Created:** [May 22, 2019, 6:30am UTC](https://boards.straightdope.com/t/would-a-judge-charged-a-felon-who-grabs-a-gun-to-protect-people/834339 "2019-05-22T06:30:48Z")\ **Posts on this page:** 10\ **Page:** 2
**Author:** ![md2000](https://avatars.discourse-cdn.com/v4/letter/m/73ab20/32.png) [@md2000](https://boards.straightdope.com/u/md2000)\ **Post date:** [May 22, 2019, 7:39pm UTC](https://boards.straightdope.com/t/would-a-judge-charged-a-felon-who-grabs-a-gun-to-protect-people/834339/22 "2019-05-22T19:39:20Z")
I guess the short answer is: “It depends. There’s only one way to find out.” ---
**Author:** ![Omar\_Little](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/omar_little/32/269_2.png) [@Omar\_Little](https://boards.straightdope.com/u/Omar_Little)\ **Post date:** [May 22, 2019, 7:44pm UTC](https://boards.straightdope.com/t/would-a-judge-charged-a-felon-who-grabs-a-gun-to-protect-people/834339/23 "2019-05-22T19:44:36Z")
> [@lingyi](#): > > The law is the law and as stated above, it’s the prosecutor’s office’s duty to charge the person. There are many examples of prosecutors choosing not to pursue cases for various reasons. _See recent high profile case of Jussie Smollet, as one example_ ---
**Author:** ![Gray\_Ghost](https://avatars.discourse-cdn.com/v4/letter/g/c0e974/32.png) [@Gray\_Ghost](https://boards.straightdope.com/u/Gray_Ghost)\ **Post date:** [May 22, 2019, 7:49pm UTC](https://boards.straightdope.com/t/would-a-judge-charged-a-felon-who-grabs-a-gun-to-protect-people/834339/24 "2019-05-22T19:49:31Z")
I’m not an attorney, you’re not my client, and this isn’t legal advice. [Website](https://www.shouselaw.com/felon-firearm.html#5.4) from a (presumably) CA attorney explaining possible legal defenses for a felon charged with a violation of CA Penal Code Section [29800](https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PEN§ionNum=29800), which is one of the Penal Code sections that prohibits felons from being in possession of a firearm. The article goes through several defenses to the charge, including self-defense (though a duty to retreat is required for a felon in this situation, while it is not required for non-felons), having only “momentary” possession of the firearm, “justifiable” possession, and others. I don’t know if the above state law defenses in California would also apply to a potential Federal violation. ---
**Author:** ![Royal\_Nonesutch](https://avatars.discourse-cdn.com/v4/letter/r/ecb155/32.png) [@Royal\_Nonesutch](https://boards.straightdope.com/u/Royal_Nonesutch)\ **Post date:** [May 22, 2019, 7:55pm UTC](https://boards.straightdope.com/t/would-a-judge-charged-a-felon-who-grabs-a-gun-to-protect-people/834339/25 "2019-05-22T19:55:27Z")
> [@kopek](#): > > I would have to go back into some of my research and some depends on the jurisdiction but ------- my understanding is that is comes down to how “possess” is defined. For example; someone is a felon and the wife has purchased and is the legal owner - does he having it in his car going to a shooting range without her possession? Is he sitting in my livingroom holding it possession? If I am hunting with my nephew and he is carrying one of my shotguns would that be possession? (In PA its no) > > Now --------- the other extreme of the situation. I also know a person who, at least while on parole, was forbidden to hold or use ANY firearm including flintlocks and true antiques. His conviction was for assault and terroristic threats on an ex-wife and their children and the judge knew the same thing we did; the dude was too psycho at that point to even have something that was legally a curio and not a firearm. Sometimes the legal system does work. I honestly don’t think you understand how the law works here. In 2019’s America, EVERYONE on “parole” is a felon, by definition, and ALL felons are legally prohibited from possessing ANY firearm (black powder, antique, collectable, etc.) unless and until they have been granted express legal permission to have their 2nd Amendment rights restored, and I would bet that that is a population of less than 0.5% of all felons in total. I am also virtually certain that a felon can be arrested and charged for constructive possession of a firearm that is merely in a car that they are a passenger in, even if the legal owner of said firearm is in the same car and tells the cop, “Hey, that’s my gun!” ---
**Author:** ![DorkVader](https://avatars.discourse-cdn.com/v4/letter/d/73ab20/32.png) [@DorkVader](https://boards.straightdope.com/u/DorkVader)\ **Post date:** [May 23, 2019, 6:12am UTC](https://boards.straightdope.com/t/would-a-judge-charged-a-felon-who-grabs-a-gun-to-protect-people/834339/26 "2019-05-23T06:12:23Z")
Which highlights the discretion of the police officer your highness. In the case where the owner was in the car with the felon and told the officer and could show proof that they owned the firearm, that officer may very well let the fact that the felon had the gun in his or her hand fall to the side as not worth pursuing. ---
**Author:** ![md2000](https://avatars.discourse-cdn.com/v4/letter/m/73ab20/32.png) [@md2000](https://boards.straightdope.com/u/md2000)\ **Post date:** [May 23, 2019, 2:19pm UTC](https://boards.straightdope.com/t/would-a-judge-charged-a-felon-who-grabs-a-gun-to-protect-people/834339/27 "2019-05-23T14:19:17Z")
> [@DorkVader](#): > > Which highlights the discretion of the police officer your highness. In the case where the owner was in the car with the felon and told the officer and could show proof that they owned the firearm, that officer may very well let the fact that the felon had the gun in his or her hand fall to the side as not worth pursuing. There was a case in New Brunswick many decades ago where a pair of guys were parked off the road, and on was drinking a beer. Open alcohol in a vehicle is illegal in Canada. The policeman asked the other fellow to hand him the beer, and as he passed it to the policeman, he was charged with also possessing open alcohol in a vehicle because he had held it. the fact that this had to go to appeal and quite a ways up the appeal chain to get overturned, demonstrates the level of discretion the police have and how broadly it can be applied. it would not surprise me if a policeman deciding to throw his weight around or not liking the demeanor or ethnicity of someone decided to charge them with the maximum possible to see what sticks. Jerry Pournelle in one of his discussions called this the crime of “maiestus”, the old Roman crime where a subject fails to pay sufficient deference to the majesty of the state. ---
**Author:** ![pool](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/pool/32/4152_2.png) [@pool](https://boards.straightdope.com/u/pool)\ **Post date:** [May 23, 2019, 3:27pm UTC](https://boards.straightdope.com/t/would-a-judge-charged-a-felon-who-grabs-a-gun-to-protect-people/834339/28 "2019-05-23T15:27:22Z")
I had an Uncle who was a felon who killed a man in self defense with a gun, when he tried to intervene when another man was beating a woman, and the man attacked him. He wasn’t convicted of the murder because it was ruled self defense but he had to spend a year in prison for possessing the gun. I guess a year in prison is better than being dead though. ---
**Author:** ![Nars\_Glinley](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/nars_glinley/32/8177_2.png) [@Nars\_Glinley](https://boards.straightdope.com/u/Nars_Glinley)\ **Post date:** [May 23, 2019, 6:00pm UTC](https://boards.straightdope.com/t/would-a-judge-charged-a-felon-who-grabs-a-gun-to-protect-people/834339/29 "2019-05-23T18:00:46Z")
In most states, the district attorneys are publicly elected. I would think that any of them that chose to prosecute in the situation described in the OP would find themselves out of a job at the next election or possibly even recalled. ---
**Author:** ![Moriarty](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/moriarty/32/49_2.png) [@Moriarty](https://boards.straightdope.com/u/Moriarty)\ **Post date:** [May 23, 2019, 6:10pm UTC](https://boards.straightdope.com/t/would-a-judge-charged-a-felon-who-grabs-a-gun-to-protect-people/834339/30 "2019-05-23T18:10:11Z")
Colorado (to cite the example with which I am familiar) has an affirmative defense of “Choice of Evils” which would apply to the fact pattern. Basically, in addition to being instructed on the charge of being a Previous Offender in Possession of a Weapon (a “pow-po” charge), the jury would also be instructed that the Defendant raised this defense and would be told > [@Jury Instruction](#): > > The evidence presented in this case has raised the affirmative defense of “choice of evils,” as a defense to possession of a weapon by a previous offender. > The defendant’s conduct was legally authorized if: > > 1. he [she] possessed the weapon for the purpose of defending his [her] home, person or property from what he [she] reasonably believed to be a threat of imminent harm which was about to occur because of a situation occasioned or developed through no conduct of the defendant. This assumes that the prosecutor does, in fact, choose to go forward. If the facts are not in dispute (e.g. a clear case of self defense), it would be a bad case to take to trial. Also, fun fact: There is no parole for federal cases. Instead, people are given “supervised release”. Same thing, but a person is never technically on parole if they committed a federal crime. ---
**Author:** ![kopek](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kopek/32/337_2.png) [@kopek](https://boards.straightdope.com/u/kopek)\ **Post date:** [May 23, 2019, 6:20pm UTC](https://boards.straightdope.com/t/would-a-judge-charged-a-felon-who-grabs-a-gun-to-protect-people/834339/31 "2019-05-23T18:20:26Z")
> [@Royal\_Nonesutch](#): > > I honestly don’t think you understand how the law works here. And I honestly don’t think you understand or have ever experienced how it all works when moved from words on a page to actual real-world application. Thankfully for the Old Wench, who doesn’t actually play piano in a cat house but how do you escape the stigma of being with _A Firm_, there are a lot of people out there to interpret things in a wide variety of ways. And like I said, this one struck close to home for us. So we will just agree that each other is missing something in this conversation. [Previous page](https://boards.straightdope.com/t/would-a-judge-charged-a-felon-who-grabs-a-gun-to-protect-people/834339.md?page=1)