Gun Crime Defense
The primary defense that can be used when there is a crime involving the discharge of a firearm is self-defense. Oklahoma recognizes the right to defend oneself against violence. The first thing that must be looked at when facing a charge involving the discharge of a firearm is who the instigator was. If the defendant shot someone in self-defense, then the defendant has a good defense to a charge involving the unlawful use of the firearm.
Some gun charges make the possession of a firearm illegal under certain circumstances. A strong defense to these crimes is that the defendant did not have possession of the firearm. This would mean the defendant had neither actual nor physical control. The defendant cannot have been in joint control of the firearm with someone else. To prove possession, the defendant must have had knowledge of the firearm and the ability to control the disposition of it.
Other defenses to gun charges include:
- Someone else did it
- Not enough evidence
- Didn’t meet all the elements of the offense
- No intent (where required)
- Not a firearm
Prosecutors look very unfavorably on gun crimes. The belief is that the use of a firearm adds an entirely new level of danger to a situation. Therefore, prosecutors are generally less inclined to be lenient in plea negotiations for gun crimes. Additionally, prosecutors typically have a very harsh stance on felons in possession of a firearm. It won’t matter what the original felony was. The thought from the prosecutor’s perspective is that the felon’s gun rights were taken away for a reason, and a felon’s disregard of that law makes that felon a greater danger to society.
Some prosecutors require minimum prison time for felons caught in possession of a firearm—regardless of the reason the individual became a felon and regardless of circumstances surrounding the new incident. Unfortunately, this mentality is one of the reasons Oklahoma’s prisons are overflowing. Maybe the felon lived in a bad neighborhood and needed the gun for protection. Or, maybe the felon was using the gun in self- defense. Nevertheless, prosecutors take offenses involving firearms very seriously. That’s why it’s important to hire a lawyer who understands the stakes involved in a firearm charge and who has experience defending offenses involving firearms.
Oklahoma’s Self-Defense Law
Oklahoma citizens have a right to expect absolute safety within their own homes, places of business, or or places of worship and have the right to establish policies regarding the possession of weapons on property pursuant to Oklahoma law.
A person (regardless of official capacity or lack of official capacity, within a place of worship) or a person, an owner, manager, or employee of a business is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself, herself, or another when using defensive force that is intended or likely to cause death or great bodily harm to another if:
- The person against whom the defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, occupied vehicle, place of business, or place of worship, or if that person had removed or was attempting to remove another against the will of that person from the dwelling, residence, occupied vehicle, place of business, or place of worship.
- The person who uses defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.
- The person who uses defensive force knew or had a reasonable belief that the person against whom the defensive force was used entered or was attempting to enter into a dwelling, residence, occupied vehicle, place of business, or place of worship for the purpose of committing a forcible felony, and that the defensive force was necessary to prevent the commission of the forcible felony.
The above presumption doesn’t apply if:
- The person against whom the defensive force is used has the right to be in or is a lawful resident of the dwelling, residence, or vehicle. Examples include an owner, lessee, or titleholder. There can’t be a protective order from domestic violence in effect or a written pretrial supervision order of no contact against that person;
- The person or persons sought to be removed are children or grandchildren or are otherwise in the lawful custody or under the lawful guardianship of the person against whom the defensive force is used; or
- The person who uses defensive force is engaged in an unlawful activity or is using the dwelling, residence, occupied vehicle, place of business, or place of worship to further an unlawful activity.
A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force, if he or she reasonably believes it’s necessary to do so to prevent death or great bodily harm to himself, herself, or another or to prevent the commission of a forcible felony. This is Oklahoma’s “Stand Your Ground” law.
A person who unlawfully and by force enters or attempts to enter the dwelling, residence, occupied vehicle of another person, a place of business, or place of worship is presumed to be doing so with the intent to commit an unlawful act involving force or violence. A person who uses defensive force, as permitted pursuant to the above paragraphs, is justified in using such defensive force and is immune from criminal prosecution and civil action for the use of such defensive force. This is known as the “Castle Doctrine.”
A law enforcement agency may use standard procedures for investigating the use of defensive force, but the law enforcement agency may not arrest the person for using defensive force unless it determines that there is probable cause that the defensive force that was used was unlawful. A court will award reasonable attorney fees, court costs, compensation for loss of income, and all expenses incurred by the defendant in defense of any civil action brought by a plaintiff if the court finds that the defendant is immune from prosecution as provided in this law.
This law and the Oklahoma Self-Defense Act may not be construed to require any person using a weapon in accordance with this law to be licensed in any manner. Someone who points a weapon at a perpetrator in self-defense or in order to thwart, stop, or deter a forcible felony or attempted forcible felony may not be deemed guilty of committing a criminal act.
“Criminal prosecution” includes charging or prosecuting the defendant.
“Defensive force” includes, but is not limited to, pointing a weapon at a perpetrator in self-defense or to thwart, stop, or deter a forcible felony or attempted forcible felony.
“Dwelling” means a building or conveyance of any kind, including any attached porch, whether the building or conveyance is temporary or permanent, mobile or immobile, which has a roof over it, including a tent, and is designed to be occupied by people.
“Residence” means a dwelling in which a person resides either temporarily or permanently or is visiting as an invited guest.
“Vehicle” means a conveyance of any kind, whether or not motorized, which is designed to transport people or property.
“Place of worship” means:
- any permanent building, structure, facility, or office space owned, leased, rented, or borrowed, on a full-time basis, when used for worship services, activities and business of the congregation, which may include, but not be limited to, churches, temples, synagogues, and mosques, and
- any permanent building, structure, facility, or office space owned, leased, rented, or borrowed for use on a temporary basis, when used for worship services, activities, and business of the congregation including, but not limited to, churches, temples, synagogues, and mosques;
Source: 21 O.S. § 1289.25
Domestic Violence Charges and Firearms
It’s a federal crime to possess a firearm after being convicted of a misdemeanor crime of domestic violence. It’s illegal to possess a firearm after any felony conviction—including a felony domestic violence crime.
The federal Domestic Violence Offender Gun ban is often referred to as the “Lautenberg Amendment.” It prohibits the shipment, transport, and possession of guns or ammunition by individuals convicted of a misdemeanor crime of domestic violence or who are subject to a victim protective order. The Lautenberg Amendment also makes it illegal to knowingly sell or give a firearm or ammunition to such people.
The victim protective order ban applies to people restrained from harassing, stalking, or threatening an intimate partner of the person or the child of an intimate partner or person or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child. An “intimate partner” is, with respect to a person, the spouse of the person, a former spouse of the person, an individual who is a parent of a child of the person, and an individual who cohabitates or has cohabited with the person.
A “misdemeanor crime of domestic violence” is an offense that:
- is a misdemeanor under Federal, State, or Tribal law; and
- has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian; or by a person similarly situated to a spouse, parent, or guardian of the victim.
A person is not considered to have been convicted of a misdemeanor crime of domestic violence, unless:
- the person was represented by counsel in the case, or knowingly and intelligently waived the right to counsel in the case; and
- in the case of a prosecution for an offense for which a person was entitled to a jury trial in the jurisdiction in which the case was tried, either
- the case was tried by a jury, or
- the person knowingly and intelligently waived the right to have the case tried by a jury, by guilty plea or otherwise.
A person is not considered to have been convicted of a misdemeanor crime of domestic violence if the conviction has been expunged or set aside, or is an offense for which the person has been pardoned or has had civil rights restored (if the law of the applicable jurisdiction provides for the loss of civil rights under such an offense) unless the pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.
Enhancement for Weapon Possession
In general, the use of a gun will turn a crime that might have otherwise been a nonviolent crime into a violent crime. The primary effect of that will be to increase the time the defendant may spend in prison. It can also increase the mandatory minimum amount of time the defendant will have to spend in prison.
Anyone who discharges a firearm while committing or attempting to commit a crime of violence, in addition to the penalty provided by statute for the crime of violence committed or attempted, upon conviction, may be charged with an additional felony for possessing such weapon. The district attorney has discretion to charge this additional crime. This separate offense is a felony.
The minimum punishment in the Department of Corrections is ten years. This time may be served concurrently with the sentence for the crime of violence.
“Crime of violence” means an offense that is a felony and has as an element of the offense, the use, attempted use, or threatened use of physical force against someone or that by its nature involves a substantial risk that physical force against someone may be used in the course of committing the offense.
“Firearm” means a rifle, pistol, or shotgun.
Source: 21 O.S. § 1287.1
Violent Crimes in Oklahoma
Oklahoma considers some crimes “violent” crimes. These are listed in 57 O.S. § 571. A defendant convicted of a violent crime must serve a greater percentage of their sentence before being eligible for parole. Violent crimes that could involve firearms are:
- Murder (21 O.S. §§ 701.7 & 701.8);
- Manslaughter (21 O.S. §§ 711 & 716);
- Rape in the first degree (21 O.S. § 1114);
- Assault, battery, or assault and battery with a dangerous or deadly weapon (21 O.S. § 652);
- Shooting with intent to kill (21 O.S. § 652);
- Assault, battery, or assault and battery with a deadly weapon or by other means likely to produce death or great bodily harm (21 O.S. § 652);
- Armed robbery (21 O.S. § 801);
- Robbery with dangerous weapon or imitation firearm (21 O.S. § 801);
- Use of a firearm or offensive weapon to commit or attempt to commit a felony (921 O.S. § 1287);
- Drive-by shooting (21 O.S. § 652); and
- Pointing firearms (21 O.S. § 1289.16).
Source: 57 O.S. § 571
Current as of April 3, 2020. Laws are subject to change at any time! Go to the sources cited above for the most up-to-date law.
Charged with a gun crime in Oklahoma? Call Oklahoma firearms attorney Frank Urbanic in OKC for a free case consultation.