Gun Charges Defense

Estimated reading time: 13 minutes

Minnesota Gun Defense Attorney Thomas Gallagher has successfully defended people facing gun charges, for decades. He is a frequent lecturer and author on gun laws, gun crime defense and criminal defense. And here, he will cover some basics of Minnesota gun law and criminal defense. But be sure to check out the other gun law pages here, via the menu, hyperlinks, or the search box, above. And you can also call Attorney Thomas Gallagher directly with any questions.

If you’re a competitive shooter, hunter, collector, or just an occasional plinker, you know that gun laws are complex. Let’s dig into them.

Get to know Minnesota Gun Laws

Break a law on a technicality? Many people might not even know about the law. (Basic fairness requires “notice” of any conduct which is prohibited.) But with so many laws these days, it happens all the time. And gun charges can result. As a society, we could reduce the number and complexity of gun laws.

The solution on the individual level? Learn more about them. Ready?

If you are not sure about how to comply with the gun laws, do your best to investigate. And make sure to comply. That way, you should never need a gun defense attorney.

To begin, “intent” is a necessary “element” of every crime.

Intent defense: An accident or mistake may mean that there was no “intent” to do the prohibited act. So, for example, if it is too late now to go back, and fill out that form differently; it may be possible to defend the gun charges with an intent defense. But if it is not too late, then avoid shortcuts, and be careful. And don’t put yourself at risk. Learn about Minnesota gun law so you can be legally safe.

Firearms contexts for gun defense attorneys

1. Criminal “limitations on gun rights.”
2. Enhancement of other crimes (e.g., robbery) to more punishment, if gun used.
3. Loss of civil rights due to conviction, charge or court order.

Gun Charges: Rights Infringements

Numerous Federal and Minnesota State statutes seek to limit our fundamental rights to and duties of self-defense, guns and firearms. And your gun defense attorney should know them.

These laws directly address the sale, possession, and use of firearms. And they do so in relation to the:

• status of the person involved, as well as
• immediate circumstances.

This web of laws includes both civil and criminal gun charges.

Gallagher’s gun charge cases

Past gun-related cases include:

• Illegal Discharge of Firearm
• False Statement on Gun Purchase Application (misunderstood legal terms) or Permit.
• Illegal sales.
• Negligent Storage of Firearm (access by under 18).
• Carrying Under the Influence, or over 0.04 alcohol concentration. It’s legal to carry with your permit in a bar, but not legal to carry anywhere “in public,” over 0.04.
• Carrying Without a Permit. Minnesota Statutes § 624.714. This statutory section sets forth the objective “shall issue” criteria. See our Carry Permit page for a deeper look.
• “False representations” on a permit application. For example, false, material information in a carry permit application, with reason to know it’s false, is a gross misdemeanor.
• Assault Second Degree – Display or Point Weapon

The New Prohibition: gun possession

Gun Prohibition is victimless-“crime” laws criminalizing:

1. Prohibited person (up to everyone, eventually);
2. Prohibited gun (up to all guns, eventually).

The Prohibition paradox is: the wider & more severe the Prohibition, the more Demand rises. The laws of Supply and Demand, combined with the first Natural Law of survival and self-defense, guarantee these Prohibition laws will not accomplish their stated goals.

A key feature of Prohibition “crimes” is that even though no one was hurt (no victim, no harm); someone is being punished. The punishment is based on being a disfavored person or possession of a disfavored thing. And enforcement is often based upon both.

Possession cases

No serial number: Is possession of a privately made firearm really a crime under Minnesota law? If they charge you with having a “ghost gun,” you’ll need a good criminal defense lawyer who knows gun laws.

And, Is a BB Gun a Firearm in Minnesota?

Unlawful Possession by Ineligible Person (due to prior conviction). Minnesota Statutes Section § 624.713. Possession of a gun by an “prohibited person” as defined by statute, is a crime. These are common gun charges for a gun defense attorney. But the prohibitions are broader for possession of “pistols” and “semiautomatic military-style assault weapons” [sic] (SAMSAW) than other firearms.

A common misconception: Most people unfamiliar with the law of criminal possession, conflate the concepts of “ownership” with that of “possession.” But ownership is distinct and different that possession. For example, a person who is “prohibited from possession of a firearm” by law, faces no prohibition at all to ownership of a firearm. In other words, a “Prohibited Person” can lawfully own a firearm, as long as they never “possess” a firearm (not within “dominion and control”). For more detail of what constitutes criminal possession, see my page:

What is Firearm Possession?

Prohibited Person in Possession

What can make a person “prohibited?” Many non-criminal conditions:

• Mental illness history,
• Chemical dependency history,
• Presence in the US illegally, fugitives, etc.

And criminal law related conditions:

Minnesota “Crime of Violence” Conviction: Generally a person convicted of a felony “crime of violence” may not possess a firearm for life. Minn. Stat. §§ 624.713, 609.165, Subd 1a. But, the person could restore their citizenship rights with a court order or a pardon. See Minn. Stat. § 624.712, subd. 5, and our page on Minnesota felony “crime of violence” statute:
Minnesota Felony “Crimes of Violence” and Civil Rights

Other felonies: Regardless of the offense, a person with a Minnesota felony conviction may not lawfully possess a firearm until sentence expiration (end of probation or supervised release). Minn. Stat. §§ 624.712, subd. 10; 624.713 subd. 1 (10) (i).

Non-felony drug: Persons with misdemeanor and gross misdemeanor drug convictions, under Minnesota Statutes Chapter 152, may not lawfully possess a firearm until three years elapse from the conviction date, but the person must not been convicted of drug crimes during that time. Minn. Stat. § 624.713, Subd. 1 (4).

Select Gross Misdemeanors: A person with a gross misdemeanor level conviction may not lawfully possess a firearm, unless three years since conviction date and no convictions for another violation, such as these sections: 609.229 (crimes for a gang); 609.255 (false imprisonment); 609.378 (child neglect or endangerment); 609.582, subd. 4 (burglary fourth degree); 609.71 (riot); or 609.749 (harassment or stalking). Minn. Stat. § 624.713, Subd. 1 (11).

Stalking and Harassment: A person convicted of stalking or harassment may not possess a pistol for three years from the date of conviction. Minn. Stat. § 609.749, Subd. 8.

Domestic Assault: A person convicted of Assault 5, section 609.224, if a judge determines the assault was against a family or household member (domestic assault), unless three years elapsed since the conviction date and no convictions for other same or similar crimes. Minn. Stat. § 624.713, Subd. 1 (12). But for convictions that fit the narrower federal law definition of “misdemeanor crimes of domestic violence,” the person suffers a lifetime ban. See our other pages discussing that, and what to do about it.

Some Pending Charges Temporarily Strip Gun Rights

Certain pending felony charges, and other events, may limit firearm rights temporarily, while the charge is pending. This can happen by court order, either as part of a judge’s Pretrial Release Order conditions (“no firearm possession”), or as part of a restraining order (e.g. OFP, HRO, ERPO), And it can happen by operation of statute. For more on how some pending criminal charge temporarily strip gun rights, see my page, Prohibited Person in Possession of Firearm.

Summary – Prohibited Person

If Minnesota law strips a person’s citizenship rights to firearms, that status will be either permanent by default, or limited in time. If limited by time, restoration will be automatic by statute, either when the sentence expires (end of probation or supervised release), or a period years after the conviction date (usually three). For information on restoring rights after a lifetime ban, see our pages discussing how.

For more on Prohibited Person in Possession cases, see my article: Prohibited Person in Possession of a Firearm.

Felony Assault, 2nd Degree – Weapon

A prosecutor can enhance misdemeanor assault charges to a felony, Assault Second Degree, based possession of a weapon. And some of these cases involve nothing more than “brandishing” a firearm, with no bodily harm at all. But we have at least two different types of defenses in Brandishing Felony Assault cases.

Reckless or Intentional Discharge gun charges defense

Reckless Discharge of a Firearm Within a Municipality, Minnesota Statutes Section § 609.66, subd. 1a(a)(3) and Intentional Discharge of a Firearm Under Circumstances that Endanger the Safety of Another, Minnesota Statutes Section § 609.66, subd. 1a(a)(2). Both are felony gun charges. For more: Reckless Discharge of Firearm.

“Dangerous Weapons” charges

Minnesota has a “Dangerous Weapons” crimes statute which includes a miscellany of firearms-related crimes. These include those related to reckless handling, pointing and discharge of a firearm, possession of a suppressor not lawfully possessed under federal law, possession in state buildings, including courthouses, with exceptions, and on school property with exceptions. See my specific page for more on: Dangerous Weapon Charges.

Enhancement of Other Underlying Crimes

Many criminal statutes in Minnesota contain “charge enhancements” and “mandatory minimum” sentencing provisions triggered somehow by a gun or firearm. Your gun defense attorney can help protect you from these. An example of the latter is in Minnesota Statutes Section § 609.11. But others are scattered throughout the statutes.

A “charge enhancement” increases the maximum sentence to a more severe one. But the enhancement element requires proof of some fact in the case, such as a firearm.

“Mandatory minimum” sentencing provisions, similarly, require proof of a predicate fact. Mandatory minimum laws attempt to reduce the judge’s discretion to be fair. So they would force a severe prison sentence, no matter how unfair.

The same fact in a case should not be used twice, to both (1) enhance the charge severity; and (2) trigger a mandatory minimum sentencing law, since that would be “double counting” and unfairly exaggerate the severity of the punishment.

In connection with another crime: gun charges

A common fact pattern here is using or possessing a gun “in connection with” another crime. The most common is a simple drug possession case where the person also possesses a gun in the home. The legislature did not intend this abuse of the law.

See: Removing Drugs from Minnesota “Crimes of Violence” Law.

Gun Charges: Civil Rights, Property Rights

After conviction; during restraining order

The government could take away your civil rights or property rights to your firearms. And the legal basis can be criminal gun charges or convictions. Or, the rights impairment could be temporary, such as during a domestic civil restraining order, like an OFP or HRO.

So contact Gun Defense Attorney Thomas Gallagher by phone, to discuss your case

Civil rights: Felony and some misdemeanor convictions (including domestics) can cause a loss of civil rights to firearms. And the loss is either temporary or forever (rendering an “ineligible person”). So protecting your civil rights is an essential part of gun crime defense work.

Property rights: In some criminal cases, guns can be seized by the government. And these seizures happen even while presumed innocent before trial or acquittal; and after certain convictions.

When should you act to protect your rights?

The past: Sometimes you can do things to help, after the passage of enough time. So, eventually, apply for a Pardon; or petition the court to restore civil rights to firearms in Minnesota. But beware: a “Minnesota expungement” won’t restore gun rights.

The future: But the best way to protect your civil rights to firearms; is to prevent the loss in the first place. How? Put the law on your side. Retain a good gun defense attorney to fight gun charges, prevent a conviction and protect your gun rights.

The best time to protect yourself is before a guilty plea or conviction. But after that, could be too late.

Self-Defense is a Human Right

A person has the natural right to defend self or others with reasonable force. The laws of Minnesota recognize this. But regardless, we know that self-defense is a basic Human Right that each of us has. It belongs to you. You were born with it.

So if you’re facing gun charges, your gun defense attorney should be an expert in self-defense law.

Issues in Self-Defense Law

Did you ever see two people fighting, perhaps when you were school-age or on the street? When you were a witness to how it started, normally one person was the aggressor. And the other tried to back away. But then after the fight is underway, only then do most people notice, look, and come over to see. But they did not see how it started. And what do they say? “Why are THOSE TWO fighting?! I wish THEY would stop.”

Minnesota self-defense law includes a “duty to retreat,” except in the home or defense of another. Some call this “the Castle Doctrine.” So, outside the home, unless defending another; a person facing a threat has a “duty to retreat,” if reasonable, before using “reasonable force.” Of course, we should suffer humiliation rather than get involved in a physical fight, if we can avoid it. All too often, however, the attack is sudden. Without warning, retreat would be self-destructive – with risk of great bodily harm. And a show of force with a weapon, to an oncoming attacker can at times deter and prevent that violent attack, without injury to anyone. See my article: Escalation, Dominance, Deception in Self-Defense

“No one wins a fight.” You’ve heard it. And you know it’s true. So if it is about “winning,” there should be no fight at all. But if you must protect yourself with no safe alternative, to ensure survival; then there is no reasonable choice. See my article: Point-of-View and Self-Defense.

What is “reasonable force?”

It’s situational. Courts instruct that what is reasonable depends upon “the totality of the circumstances at the time.” And if you use a weapon in self-defense, the use of deadly force statute requires that it be necessary to resist or prevent an offense which the actor reasonably believes exposes the actor or another to great bodily harm or death, or preventing a felony in the actor’s place of abode.

There must be thousands of court cases discussing reasonable force, in various situations. And self-defense can be a defense to some gun charges.

What is reasonable force? Of course, shooting at someone who insults you is not reasonable force.

We train police officers to shoot continuously at the center of mass in self-defense, until the physical threat stops. And, we train them to shoot a person armed with a knife within a certain distance – wisely so. That can be reasonable force – a good gun crime defense.

In the end, no one wants to be in a position where a jury has to decide “was it reasonable?” given the threat presented at the time. But if you are defending yourself from a violent attack, deadly force can be necessary and reasonable. If you survive the violent attacker, you may then need to survive a legal attack. Attorney Thomas Gallagher can help you do that.

Self-defense pages

• Minnesota Self-defense laws
  
• Our series: Blog articles on self-defense in Minnesota.

More Gun Charges pages

• Restoration of civil rights to firearms
  
• Negligent Storage of Firearm (access by minor)
  

Question? Call Attorney Thomas Gallagher, 612 333-1500

Are you facing a gun charge? Need a gun crime defense attorney? Attorney with a gun law question?

Or just have a question. You can call Minneapolis Criminal Defense Attorney Thomas Gallagher. He’s happy to help.

More: gun charges

How Gallagher won serial number | Privately Made Firearm cases

Carrying under the influence

Public Order Crimes and Their Defense

Blog articles: Gun Laws in Minnesota