Prohibited Person in Possession of Firearm

Estimated reading time: 17 minutes

Prohibition: Felony possession of a firearm charges can include more than just a “felon in possession of a gun.” So, an “prohibited person” (a/k/a “ineligible person”), is a broader category. Since these crimes have severe penalties, we should learn more about these laws. And you can do that here.

Due Process & Reasonable Doubt

Complexity: Gun laws have become complex and confusing – even for some lawyers and judges. And that’s a problem. After all, the core principle of “due process” is fair notice. So we should have notice of just what to avoid doing, to be on the safe side of the law. But on the other hand, when the law contains grey areas, “the rule of lenity” applies. And legal grey areas create “reasonable doubt.”

Complex to simple: What is a “Prohibited Person in Possession of a Firearm” crime? First we must understand the gun laws. And we must simplify. So keep in mind that while we start simple, a deeper level of analysis is often possible.

Gun laws in Minnesota include both state and federal laws; interpreted by both Minnesota and federal courts. Firearm laws categorize crimes based upon different factors:

• the object (i.e., type of firearm),
• the person (i.e., “ineligible persons”),
• location or proximity.

Most “ineligible person in possession of a firearm” crimes are state charges. So Minnesota law will be our focus. Similarly, we’ll discuss what makes a person “ineligible to possess a firearm” in Minnesota. (And here is our page discussing: the law of criminal possession of a firearm.)

What makes a person “prohibited?”

Certain laws strip away people’s civil rights based upon either past conduct or the person’s status. So here are the most common categories of ineligibility making a “prohibited person:”

• Under Age 18, with exceptions
• Some criminal convictions
• Certain pending criminal charges, fugitives, restraining orders
• Court civil commitments, some informal admissions for mental health, chemical dependency
• alien not lawfully in the USA

Criminal law & ineligibility: Ineligibility is the basis for most felony possession of a firearm charges. The most common grounds of ineligibility are a loss of citizenship rights for (1) past criminal convictions, or (2) certain pending criminal charges or civil restraining orders.

The rights diminished by certain restraining orders are generally temporary, ending when the period of the Order ends. So now we’ll focus on prohibited person status triggered by a criminal charge or conviction.

The two main bases for lifetime ineligibility, or loss of civil rights, are based upon a criminal conviction:

1. Felony “crimes of violence;”
2. Domestic assault.

Pending Felony Charge Temporarily Strips Gun Rights

Pending felony charge: A criminal charge is “pending” after a prosecutor files a Complaint but before resolution of the case. And that applies to people on “pretrial diversion” or “stay of adjudication” (since the charge is pending until the end), as well. See, Minn. Stat. §624.713, Subd. 1 (7), for persons facing felony “crime of violence” charges. So a person can face felony possession of a firearm charges, even with no prior convictions.

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 example:

• 18 USC 922(n) “It shall be unlawful for any person who is under indictment for a crime punishable by imprisonment for a term exceeding one year to ship or transport in interstate or foreign commerce any firearm or ammunition or receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.”
  • Federal courts held that a Complaint is included within the statutory definition of “indictment” under 18 U.S.C. § 922(n), due to the statutory definition of “indictment” in 18 U.S.C. § 921(a)(14), which applies to all of Chapter 44, including § 922; and by equating an “Information” with a “Complaint.” The definition says, “The term ‘indictment’ includes an indictment or information in any court under which a crime punishable by imprisonment for a term exceeding one year may be prosecuted.” 18 U.S.C. § 921(a)(14).
  • Congress explicitly included “possess” in 18 U.S.C. § 922(g) but omitted it from 18 U.S.C. § 922(n). So, a person under indictment is permitted to possess a gun owned before the indictment, but they cannot ship, transport, or receive one while under indictment. And yet, to prosecute illegal receipt the government would need to prove possession. As a practical matter, a person facing a pending felony charge may avoid possession of firearms and ammunition while the charge is pending, even if not otherwise prohibited.
  • Some federal courts have held the 18 U.S.C. § 922(n) “under indictment” prohibition to be void as a violation of the Second Amendment. United States v. Luna, 765 F. Supp. 3d 605 (U.S. Dist. Court, SD Texas 2025) (Statute Violated Second Amendment, As Applied). The U.S. Suprme Court has not yet decided this issue.
• Minn Stat 624.713, Subdivision 1. Ineligible persons. “The following persons shall not be entitled to possess ammunition or a pistol or semiautomatic military-style assault weapon or, except for clause (1) [under age 18], any other firearm:
  (7) a person, including a person under the jurisdiction of the juvenile court, who has been charged with committing a crime of violence and has been placed in a pretrial diversion program by the court before disposition, until the person has completed the diversion program and the charge of committing the crime of violence has been dismissed;”
• Minn. Stat. §624.713, Subd. 1a: A person with a pending charge of a felony “crime of violence” and in a pretrial diversion program may not receive, ship, or transport any pistol or semiautomatic military-style assault weapon or ammunition designed for use in same.
• Minn. Stat. §624.713,Subd. 1 (9) (iii): a person who “is an unlawful user” of a controlled substance is prohibited from possession of a firearm.

“18 U.S.C. § 922(n) [prohibiting receipt of firearm while under Indictment] does not make it unlawful for a person under indictment to possess firearms or ammunition that he received prior to the indictment. See United States v. Laurent, 861 F.Supp.2d 71, 81 (E.D.N.Y.2011) (“By its own terms, § 922(n) does not prohibit possession of a weapon by someone under indictment, but only shipping, transportation or receipt.”) Id. at 85. To prove a violation of § 922(n), “the government is required to demonstrate that the defendant received the weapon after indictment.” Id. at 81. See also United States v. Adams, 2011 WL 1475978 (S.D.Ala.2011) (dismissing an indictment under § 922(n) that charged only possession).”

US v. Call, 874 F. Supp. 2d 969 (U.S. Dist. Court, D. Nevada 2012)

Felony convictions

What is a felon in possession? We begin with the General Rule for Prohibited Person status based on a felony conviction. Discharge of a Minnesota conviction restores the person’s civil rights. And it does to full citizenship; the same as if the conviction had not taken place. Minn. Stat. §609.165, Restoration of civil rights; possession of firearms, Subd. 1. So, many with a past Minnesota felony conviction will not be a “felon in possession.”

Exception to the general rule. Minn. Stat. §609.165, Subd. 1a:

“Certain convicted felons ineligible to possess firearms or ammunition. … a person who has been convicted of a crime of violence, as defined in section 624.712, subdivision 5, is not entitled to … possess, … a firearm or ammunition for the remainder of the person’s lifetime. Any person who has received such a discharge … whose ability to possess firearms and ammunition has been restored under subdivision 1d, shall not be subject to the restrictions of this subdivision.”

Minn. Stat. §609.165, Subd. 1a

And two exceptions to the exception.

1. Minn. Stat. §609.165, Subd 1d:

“Judicial restoration of ability to possess firearms and ammunition by felon. A person prohibited by state law from … possessing … a firearm or ammunition because of a conviction or a delinquency adjudication for committing a crime of violence may petition a court to restore the person’s ability to possess … firearms and … ammunition.
The court may grant the relief sought if the person shows good cause to do so and the person has been released from physical confinement.”

Minn. Stat. §609.165, Subd 1d

2. Pardon: In addition to the court Order route, a “Pardon Extraordinary” also restores all rights of citizens, including rights to firearms.

States can take & restore civil rights

Federal law either recognizes or incorporates state law on gun rights. So, Minnesota law controls in this area. Caron v. United States, 524 U.S. 308 (1998); 18 U.S. Code § 921, (a) (20); 27 CFR 478.11 (Meaning of terms. “Crime punishable by imprisonment for a term exceeding 1 year”).

In Minnesota, a person may temporarily lose their gun rights (become a Prohibited Person) while felony charges are pending, including pretrial diversion.

And after a felony conviction, Minnesota law automatically restores gun rights upon final discharge from sentence; unless the crime of conviction was on the felony “crime of violence” list (or certain domestic crimes).

But the list of felony “crimes of violence” is long. And it includes many factually non-violent crimes, such as felony possession of marijuana. As a result, in Minnesota people lose their civil rights to guns on a legal technicality. After a Minnesota felony “crime of violence” conviction, a person loses their civil rights to firearms for life, by default. But a person can get them back if:

• Court Order restores civil rights to firearms,
• Pardon,
• or otherwise gets their rights restored.

For example, after civil rights restoration, a prosecutor can no longer convict the person of felony possession of a firearm as a prohibited person. Careful: a typical Minnesota expungement does not restore gun rights.

Non-felony drug crimes & Prohibited Person

One Minnesota statute says a three-year loss of civil rights to firearms after a misdemeanor or gross misdemeanor drug conviction. But that statute appears to conflict with another statutory provision restoring civil rights, including to guns, immediately upon discharge from probation after a misdemeanor or gross misdemeanor drug crime conviction:

“Subdivision 1 (4) a person who has been convicted in Minnesota or elsewhere of a misdemeanor or gross misdemeanor violation of chapter 152, unless three years have elapsed since the date of conviction and, during that time, the person has not been convicted of any other such violation of chapter 152 or a similar law of another state; …”

Minn. Stat. §624.713, Subd. 1 (4) (2020)

Contrast that with the Minnesota statute automatically restoring civil rights for persons with felony, gross misdemeanor and misdemeanor convictions. Restoration is by operation of statute upon completion of sentence (discharge from sentence, probation, or supervised release). Minnesota Statutes §609.165, RESTORATION OF CIVIL RIGHTS; POSSESSION OF FIREARMS AND AMMUNITION:

“Subdivision 1. Restoration. When a person has been deprived of civil rights by reason of conviction of a crime and is thereafter discharged, such discharge shall restore the person to all civil rights and to full citizenship, with full right to vote and hold office, the same as if such conviction had not taken place.”

Minn. Stat. §609.165, Subd. 1

We were unable to find an appellate case resolving this apparent conflict. Though the “Rule of Lenity” may apply, prudence and caution may be the better approach, to avoid future troubles.

Domestic crimes & Prohibited Person

Some domestic assault and similar Minnesota convictions trigger a loss of civil rights to firearms – both felony and misdemeanor. Most Minnesota domestic felony crimes are on Minnesota’s list of felony “crimes of violence;” and cause a loss of gun rights on that basis. So now we can turn our focus to Minnesota non-felony domestic crimes.

What about loss of civil rights to firearms based upon a Minnesota domestic Gross Misdemeanor or Misdemeanor conviction? We need to look at both Minnesota and federal laws. When applicable, the Minnesota ban is generally three years from the date of conviction. On the other hand, when applicable the federal ban is a lifetime ban, unless civil rights have been restored. Which applies?

Our in-depth discussion of: Restoring Gun Rights After a Domestic Misdemeanor in Minnesota.

“What about non-felony conviction for violation of DANCO or OFP?”

Civil: What about a person currently subject to a Minnesota “Order for Protection” (“OFP”) or a “Domestic Abuse No Contact Order” (“DANCO”)? In general, such a person is ineligible to possess a firearm, while the Court Order is in effect, only.

Criminal: But what about a conviction for violation of a DANCO or an OFP? Those convictions are usually based on prohibited “contact” only (not a violent act).

18 U.S.C. § 922(g)(9) is a federal statute making people with convictions of certain crimes ineligible to possess a firearm. It includes “misdemeanor crimes of domestic violence,” defined in 18 USC § 921(a)(33). And under that definition; the statute must have an element of “the use or attempted use of physical force, or the threatened use of a deadly weapon.”

(2023 note: some federal courts have found this federal law in violation of the U.S. Constitution. But as litigation in federal courts continues, the matter seems unresolved. So you may want to avoid future trouble. But if a case is already pending, your defense lawyer may want to raise this defense.)

But Minnesota Statutes §629.75 DOMESTIC ABUSE NO CONTACT ORDER crime, does not have such a force or weapon “element.” So, after discharge from a sentence for a Minnesota “violation of a DANCO or OFP” conviction; the defendant has her civil rights to firearms. (Keep in mind, however, that the judge can prohibit firearms while a charge is pending; and as a condition of probation.)

“What’s the penalty for felon in possession?”

The maximum penalty in Minnesota for gun possession by a prohibited person with a felony “crime of violence” conviction, is fifteen years. And for most other ineligible person in possession of a gun cases the maximum is one year (Gross Misdemeanor). Minn. Stat. §624.713, subd. 2. But judges almost never sentence to the maximum. The maximum does matter though. Because probation can’t normally be longer than the statutory maximum. And the difference between a felony and a gross misdemeanor matters when it comes to a criminal record.

Mandatory minimums: Mandatory minimum sentencing laws are controversial. And public skepticism of them continues to grow. They tend to:

• force judges to execute unjust, long prison terms;
• disparate impacts based on race.

And we do have several mandatory minimum sentencing laws in Minnesota for gun Prohibition crimes. When do mandatory minimum sentencing laws apply in a felony possession of a firearm case? We have two categories in Minnesota:

• Non-gun crimes but where the defendant had a gun (i.e., possession of marijuana)
• Gun crimes (i.e., felon in possession of firearm, Prohibition, malum prohibitum crimes.)

The mandatory minimum sentence in Minn. Stat. §609.11, subds. 5 & 9 is three years. But it’s five years if the defendant has a prior conviction with a gun (including non-violent priors, e.g., possession). And that usually means a sentence of prison commitment. No probation.

As a result, when a client faces a possession of a firearm charge; Attorney Thomas Gallagher works to avoid the mandatory minimum.

“Illegal for a prohibited person to be near a gun?”

Gun Crimes Defense Attorney Thomas Gallagher hears this question a lot. ”My wife has a gun, but I have a felony conviction. Can I face criminal charges?” Maybe. Caution is a good idea.

First we must know exactly the statute of the conviction, and the judge’s sentence. Are you a “Prohibited Person?” The public court record should show this. And you can easily find it online on the Minnesota Courts website, with the court file number.

Another way of asking this question is “have the person’s civil rights to firearms been restored?” Remember, the general rule. A person convicted of a Minnesota felony has civil rights restored when they complete their sentence and after “off paper.”

However, we have a big exception to that general rule for a felony “crime of violence” conviction. The felony “crime of violence” conviction triggers the default lifetime ban. A prosecutor can charge a person in this category as a felon in possession.

And then we have the exceptions to that exception. A person with the lifetime ban for felony “crime of violence;” can seek a Court Order restoring civil rights, or a Pardon.

But when it comes to non-felony domestic assault convictions, see: Restore Civil Rights to Firearms After a Misdemeanor Domestic Crime Conviction in Minnesota.

What about a person who never lost their civil rights in the first place; or who got them back? That adult can be around firearms without worry of prosecution as an ineligible person. If you have a question about that, call Gun Crimes Defense Attorney Thomas Gallagher.

“What if I successfully completed a Stay of Adjudication?”

What about a person who was charged with a crime that would strip civil rights to firearms in the event of a conviction; who has successfully completed a Stay of Adjudication? A Stay of Adjudication is a disposition in a criminal case, usually the result of an agreement, where the Defendant offers a guilty plea but the court withholds (or “stays”) adjudication (conviction) for some period of time with conditions. If the Defendant completes the period of the stay without violating a condition, the charge is then dismissed without conviction.

And under federal law, successful completion of a Minnesota Stay of Adjudication is also not a conviction:

“What constitutes a conviction shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.”
18 U.S.C. § 921 (a) (20).

18 U.S. Code § 921, which defines terms related to firearms, is part of the Gun Control Act of 1968 (GCA). Specifically, the GCA, which is codified in 18 U.S.C. Chapter 44, includes sections 921, 922, 923, 924, 925, 925A, 925B, 925C, 926, and 926A. Section 921, titled “Definitions,” defines key terms used throughout Chapter 44, the GCA. 

Therefore, if a person has a criminal charge dismissed after successful completion of a Minnesota Stay of Adjudication, not only does that person not have a conviction of the charged statute under Minnesota law, but in addition, that person also does not have a “conviction” for purposes of civil rights to firearms under the federal Gun Control Act of 1968, because that federal statute provides: “What constitutes a conviction shall be determined in accordance with the law of the jurisdiction in which the proceedings were held.”

Practical implications; Prohibited Person Possession

If a person loses their civil rights to firearms; then they’re an “ineligible person.” Or they are a “prohibited person.” So, they can’t legally possess guns.

What if your spouse or family member is an ineligible person? That’s a common problem. Your rights as a citizen should not be infringed, just because you live with someone who is “ineligible.” And technically, they’re not. But what if something happens. What if a prosecutor charges your family member as felon in possession; even though it’s not their gun? In this situation, you should learn more about the law of possession, starting on our possession of a firearm page. The safest plan would be to keep any guns out of the house. But some people go with a gun safe with zero access for the prohibited person.

The New Prohibition: Guns

When will we learn? A student of legal history learns of Malum Prohibitum versus Malum In Se. The two categories describe things which are illegal merely because of some disapproving law of the King or the legislature (vs. the laws of God, Natural Law, broad social consensus and tradition).

In the United States we’ve seen the rise and fall of various criminal Prohibition schemes. All proved failures. We’ve seen an “Alcohol Prohibition,” a “Marijuana Prohibition,” and most recently the rise of “Gun Prohibition” laws. Some “gun crimes” are Prohibition crimes: “Malum Prohibitum,” such as mere possession by a Prohibited Person. These are non-violent “crimes.” These felony possession of a firearm laws create an illegal economy that requires self-help policing or enforcement (since criminals cannot use government police or courts).

Perhaps one day, these Prohibition laws will be repealed. But until then, criminal lawyers will be called upon to defend the people from government prosecutions.

Defending “Prohibited Person in Possession” cases

Gun Crime Attorney Thomas Gallagher looks at defenses for felony possession of a firearm cases. Defenses that apply to any criminal case, can apply here too. And we have more defenses specific to gun possession cases.

Not in Possession; not felon in possession: The basic ingredients of criminal possession are:

• threshold minimum: “knowledge” of the item & location
• dominion and control
• ownership is not possession

So, if the prosecutor lacks enough evidence to prove possession, the verdict is not-guilty. And possession cases can be quite fact specific. So each case is different.

For more on defending the possession charge, see our page possession of a firearm.

Not Ineligible, Not Prohibited Person

If the prosecutor lacks enough evidence to prove that the person is “ineligible” (or a “prohibited person”), then the verdict is not-guilty. And if the person does have their civil rights to firearms, they are not ineligible.

But due to widespread confusion about gun laws, a prosecutor could charge someone with felony possession of a firearm, despite their restoration of civil rights. An example could be a person with a felony conviction, not on the designated offense list of Minn. Stat. §624.712, subd. 5 “felony crimes of violence.” After such a person completes their sentence, their civil rights are automatically back.

Estoppel: felon in possession

What if the government mistakenly told you that you can legally possess a gun? And you take them at their word. Is it fair that they then prosecute you for that? Of course not. So this can be a defense in the right case.

Jury trial, jury court, jury power

Why is the jury trial the cornerstone of democracy? Because the jury is the conscience of the community. Where the government would urge the jury to do evil, the jury has the power to refuse.

The jury has the power to bring a not-guilty verdict, regardless of the facts and the law. So the last defense of democracy and the Constitution is the jury. Felon in possession of a firearm cases sometimes result in jury nullification.

The judge

Judges feel the conflict between the law and justice. We tell them to enforce both. But when the law conflicts with justice, what then?

Sometimes judges enforce the law, unjustly. But other times judges find a way to do the right thing; even when the law pushes them towards doing wrong.

Beyond felon in possession

Restoration of civil rights to firearms

Carry Without Permit

Minnesota Carry Permit Holders Page

Gun law posts on Gallagher Criminal Defense Blog

Minnesota Self-defense laws

Question? Call Attorney Thomas Gallagher, 612 333-1500

People rarely ask “do I need a good defense attorney?” in felony possession of a firearm cases. They know they do. With long, mandatory minimum prison sentences; the need is clear. But because gun laws are complex, you should have a defense attorney who is an expert on gun laws, too.

Thomas Gallagher is not only one of the best defense attorneys in Minnesota; he’s also a recognized expert on gun laws.

Take a look at all of the Continuing Legal Education courses Gallagher has taught lawyers and judges. And for every one, his peers invited Gallagher to speak as a recognized legal expert on gun laws. For example, this Minnesota Gun Law CLE.

These are important cases. And you need the best gun crimes defense attorney. You are welcome to call Attorney Thomas Gallagher about your case.

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