North Carolina Criminal Defense Lawyer: Felon in Possession of a Firearm

Possession of a Firearm by a Felon is Illegal Under Both North Carolina State and Federal Law.

Depending on the defendant's criminal history, the facts of the case, and whether they are prosecuted in state or federal courts, the penalties can be extremely serious, and competent counsel should be retained if possible.

North Carolina Law

North Carolina Gen. Statute Sect. 14-415.1 establishes the felony offense of Possession of a Firearm by a Felon. Under North Carolina law, to secure a conviction for the offense, a prosecutor must prove all of the following elements beyond reasonable doubt:
1. Has previously been convicted of
    a)  A felony in North Carolina or
b) a violation of the criminal law of another state or the United States (federal crime) for an offense substantially similar to a North Carolina felony  and carrying a punishment of more than one year imprisonment
2. (a) purchases
    (b) owns
    (c) possesses or
     (d) has in his custody, care, or control
3. (a) a firearm or
    (b) a weapon of mass death and destruction.

Possession can be Actual or "Constructive"

Possession may be proven by either actual or constructive possession. Actual possession occurs and can be proven by evidence that the Defendant kept the firearm on their person; constructive possession can be proven by establishing beyond reasonable doubt that the defendant had the power and intent to control the gun's disposition. According to North Carolina case law:
A person has actual possession of a firearm if it is on his person, he is aware of its presence, and either by himself or together with others he has the power and intent to control its disposition or use. In contrast, a person has constructive possession of a firearm when, although not having actual possession, the person has the intent and capability to maintain control and dominion over the firearm.
State v. Billinger, 213 N.C.App. 249, 253 (2011). Either actual or constructive possession may be established by either direct or circumstantial evidence. Direct evidence would show evidence of the crime whereas as a conviction based upon circumstantial evidence would require proof that the circumstances established in evidence are such that reasonable doubt regarding guilt is eliminated. Obviously, proving constructive possession can be trickier than actual possession because actual possession establishes that the defendant had custody of the firearm.

Defending a North Carolina Felon in Possession of a Firearm Charge

Felon in Possession of a Firearm charges can be defended. Possible defense approaches can include motions to suppress evidence, establishing that the State's evidence is insufficient to prove each element of the crime, and, in limited circumstances, justification.

Motions to Suppress

A motion to suppress is a request to the court to exclude from trial evidence that was discovered in violation of the defendant's "reasonable expectation of privacy" established by case law interpreting the 4th Amendment and state constitution analogs. The basic idea is that the government is not allowed to establish guilt based upon evidence that was unlawfully obtained. A simple example would be evidence that was found in a vehicle that was pulled over without a legal justification. Another example would be a motion to suppress a firearm discovered during a search incident to an unlawful arrest. A successful motion to suppress would keep all the evidence from being presented to a jury. Often a successful motion to suppress leads to dismissal of charges, but the government may appeal the court's ruling to suppress.

Insufficient Evidence

Generally speaking, insufficient evidence would be an issue for a jury. It is much more likely to result in a "constructive" rather than "actual" possession case, though it is possible that a jury could find that the government failed to prove that the Defendant was a felon. A 2019 Supreme Court ruling, Rehaif v. United States, made clear that Defendant's knowledge of their convicted felon status, and the accompanying ban on firearms possession is an essential element of the offense, meaning that knowledge of that status must be plead (in the indictment/charging document) and proven beyond a reasonable doubt to a jury. This was a fairly major departure from existing law, and the Fourth Circuit, at least, has held it to be retroactive in at least one post-conviction challenge in United States v. Medley.
More common challenges to the sufficiency of evidence are based upon allegations of constructive possession as outlined above, but there is at least a possibility of challenging the proof even when the charge is based upon actual possession. North Carolina courts have declined to uphold convictions based upon constructive possession in cases where the defendant is not the sole occupant of the area where the firearm is found, and no other incriminating evidence links the defendant to the weapon. State v. Battle, 799 S.E.2d 434 (N.C. App. 2017). In another case, State v. Bailey, the appellate court overturned a conviction for possession of a recently fired gun found under the floorboard of a car driven by the Defendant's girlfriend. The evidence showed that the gun was registered to the girlfriend, and the Defendant alerted the investigating officer to the presence of the gun after the car was stopped related to reports of gunshots in the area. Despite the Defendant's knowledge of and proximity to the gun, and evidence that the gun had been recently fired, the Court overturned the conviction.


Under limited circumstances, a Defendant may be entitled to a jury instruction allowing the jury to find that they are not guilty because the Defendant's possession of the firearm was justified. This is also known as a "necessity" defense. A necessity defense basically establishes that the admittedly illegal behavior was rendered lawful because it was committed to avoid a greater harm. In the context of a felon in possession of a firearm charge, a justification defense might be available to a defendant who has established sufficient facts to show that they had a reasonable fear of deadly harm and possessed the firearm out of necessity because of a threat to their life. The justification defense to a felon in possession of a firearm charge has four elements that must be established by the Defendant:
(1) that the defendant was under unlawful and present, imminent, and impending threat of death or serious bodily injury;
(2) that the defendant did not negligently or recklessly place himself in a situation where he would be forced to engage in criminal conduct;
(3) that the defendant had no reasonable legal alternative to violating the law; and
(4) that there was a direct causal relationship between the criminal action and the avoidance of the threatened harm.
State v. Mercer, 818 S.E.2d 375 (N.C. App. 2018).
Any necessity defense is, by its nature, an affirmative defense. Presenting any affirmative defense in a criminal case can be risky for a few different reasons. The government has a burden to prove each element of a crime, and by asserting an affirmative defense, the Defendant essentially admits the illegal behavior and accepts a shift of the burden to prove the existence of the elements of the defense. Generally speaking, a Defendant is under no obligation to present any evidence at all; presenting evidence can be risky because if a jury doesn't believe the evidence they may be tempted to conclude guilt. In the context of a felon in possession of a firearm charge, the existence of four different elements provides multiple opportunities for the government to argue a missing element and thus technical guilt. Although imperfect necessity defense might be available as a "mitigating factor" in sentencing, obviously it's better to not be convicted at all. The decision to proceed with any affirmative defense (as opposed to a plea bargain or outright denial) must be approached carefully and deliberately and with experienced legal counsel.

Federal Firearms Charges

Federal law also prohibits possession of a firearm by a convicted felon, or even someone who is under felony indictment with charges pending. 18 U.S.C. 922  provides for a maximum ten year sentence but no minimum mandatory sentence. Generally speaking, the same defenses are available as in state Felon in Possession cases. Other Federal gun charges can carry significantly greater penalties including steep mandatory minimums. For instance, use, carrying, or possessing a firearm in furtherance of a crime of violence or drug trafficking carries a mandatory minimum sentence of five years under 18 U.S.C. § 924(c)(1)(A)(iii).  Brandishing that gun in the same situation can result in a seven year mandatory sentence; discharging it results in ten year. If the gun is a machine gun, the minimum sentence is 30 years! Furthermore, these so-called 924 (c) sentences must run consecutive to the sentence for the underlying violent or drug crime. The details of federal gun charges are for another article, but suffice to say that when a federal criminal case includes gun charges the situation becomes serious fast.
Felon in Possession of a Firearm cases are generally difficult and are considered by the government to be serious. Serious charges require serious legal counsel.  Attorney Sean Cecil has experience in State and Federal Courts. We are nice enough to be able to make a deal when that is in our client's best interest, but experienced and willing to try the case if the situation is appropriate. We provide free consultations regarding criminal charges. Give us a call to discuss your case.