Felon in Possession Defenses

A defense to a charge under 18 U.S.C. § 922(g) is assembled element by element. The government must establish status, knowledge of that status, knowing possession, that the item meets the statutory definition, and the required connection to interstate or foreign commerce. A case can be strong on most of those and fail on one, and identifying which one is the work.

What follows is the defense map used in these cases. Which parts of it apply depends on the discovery, on the police encounter that produced the firearm, and on the records behind the prior conviction. Call (888) 437-7747 to request a consultation.

On this page

Contesting Possession

Possession is the element most often contested successfully. Where a firearm was on the defendant’s person the argument is difficult, but a very large share of these prosecutions involve firearms found in vehicles, residences, or shared spaces, and those are constructive possession cases.

Constructive possession requires knowledge that the item was there together with the intent and the ability to exercise control over it. Presence near an object is not control of it. Where several people had access to a vehicle or a room, where the space belonged to someone else, or where the item was concealed in a place the defendant had no reason to look, the government is proving identity by inference.

Forensic proof is frequently absent. Usable fingerprints are recovered from firearms far less often than people assume, and genetic material from an object handled by several people can be a mixture that resists attribution. Where the government has no forensic link, the defense can press that absence rather than merely note it, and can put forward the alternative access the record supports.

Contesting Knowledge of Status

The government must prove that the defendant knew he belonged to the prohibited category at the time of the alleged possession. It does not have to prove he knew possession was unlawful, and that distinction defines the space in which this defense operates.

The issue becomes real where a prior disposition was ambiguous on its face, where a defendant completed a sentence that did not obviously carry the federal consequence, where rights had been restored in some respects, or where a defendant was told by an official source that he could lawfully possess a firearm. Court records, plea colloquies, discharge paperwork, and correspondence all bear on what a defendant actually knew, and they are obtained rather than assumed.

Contesting the Predicate

Whether a prior conviction qualifies is a question of law about the prior statute, not about the defendant’s conduct. Courts compare the elements of the prior offense against the federal definition. A prior statute that reaches conduct the federal definition does not cover may fail to qualify even where the defendant’s actual behaviour would have.

That analysis matters most where a prior comes from another state, where it is old, where the disposition was deferred or later modified, or where rights were restored by operation of law. The records are obtained in full, including the charging instrument and the judgment, and they are analysed before any position is taken on the charge.

Suppression and the Encounter

In most of these cases the firearm reached the government through a stop or a search, and the lawfulness of that encounter is the defense with the largest consequence. If the firearm is suppressed, there is generally nothing left to prosecute.

Counsel examines whether the initial stop rested on a lawful basis and whether the facts said to justify it actually occurred; whether the encounter was extended beyond the reason for it, and on what new justification; whether a frisk was supported by articulable facts pointing to a weapon; and whether any search of a vehicle or residence rested on a valid warrant, on consent that was voluntary and given by a person with authority, or on an exception that fits what actually happened.

Where a warrant was used, the affidavit is tested for probable cause on its own terms, for currency, and for particularity. Video from body-worn and in-car cameras is obtained and compared against the written reports, because the accounts do not always match, and the discrepancy is itself evidence.

Constitutional and Trial Defenses

Constitutional challenges to the firearms prohibition, brought facially and as applied, are an active and unsettled area of federal litigation, with the framework asking whether a regulation is consistent with the historical tradition of firearm regulation. Whether such a challenge has force in an individual case depends on the category charged and on the defendant’s record. It should be assessed honestly and preserved where there is a basis, because an issue not raised in the district court is generally unavailable later.

At trial the ordinary defenses remain: the interstate commerce element must be proved rather than assumed, the item must meet the statutory definition, and the instruction given to the jury must track the statute rather than paraphrase it. The charge conference is part of the defense, not a formality that follows it.

Frequently Asked Questions

The firearm belonged to someone else. Does that matter?

Ownership is not the element, so the answer depends on what the record shows about knowledge and control. Where the item was in a shared vehicle or residence, the government must connect it to the defendant with more than proximity. Access by others, whose belongings surrounded the item, where it was concealed, and the absence of forensic attribution all bear directly on whether constructive possession can be proved.

What if I did not know the conviction made me prohibited?

Knowledge of status is an element, so it is squarely in issue. What the government need not prove is that you knew possession was against the law. The defense turns on documents: what the prior disposition said, what you were told at the time, whether rights had been restored in any respect, and whether an official source gave you inaccurate information you reasonably acted on.

Can the prior conviction be attacked in the federal case?

Generally the prior itself is not relitigated, but whether it qualifies as a predicate is fully open. That question compares the elements of the prior statute against the federal definition, so priors from other states, older matters, and broadly worded statutes sometimes fail to qualify. Because the consequences are large, the full records are obtained and analysed early rather than accepted as described in the indictment.

How strong are suppression arguments in these cases?

They are frequently the strongest part of the defense, because the object is the case. Whether an argument exists depends on the basis for the stop, whether it was extended, whether any frisk or search was supported by facts the law recognises, and whether video corroborates the written account. These are record questions, which is why the discovery demands are made early and specifically.

Is a constitutional challenge likely to succeed?

No responsible answer treats it as likely. The law is unsettled and results differ across the federal courts and by the category charged. What can be said is that the argument should be evaluated on the individual record and preserved where there is a basis for it, because preservation costs little and its absence forecloses the issue on appeal.

Should I explain the situation to the officers?

Not without counsel. Statements made at the scene or in an interview become the government’s evidence on precisely the elements it would otherwise have to prove by inference, particularly knowledge and control. Counsel can present information to the prosecution later, in writing and at a chosen time, without creating a new exhibit. Call (888) 437-7747 to request a consultation.

Working With Law Offices Of SRIS, P.C.

Defenses under § 922(g) sit in the encounter that produced the firearm, in what the record shows about control, and in whether the prior conviction qualifies at all. The firm works those questions from the documents rather than from the summary in a charging document.

Mr. Sris, Owner and Founder of Law Offices Of SRIS, P.C., is a former prosecutor and is admitted in Virginia, Maryland, the District of Columbia, New Jersey, and New York. The firm has been practicing since 1997. Mr. Sris and the firm’s Of Counsel attorneys handle criminal defense matters across those jurisdictions, which matters in federal practice because a single investigation frequently reaches conduct, witnesses, and records in more than one state. Mr. Sris brings a background in accounting and information systems from George Mason University, applied to complex financial and technology-related cases.

The firm serves Northern Virginia from 1655 Fort Myer Dr, Suite 700, Room 719, Arlington, VA 22209 and central Virginia from 7400 Beaufont Springs Drive, Suite 300, Room 395, Richmond, VA 23225. By appointment. Call (888) 437-7747 to schedule. Request a consultation. Reach our location at (888) 437-7747.

This page provides general information about defenses to federal firearms possession charges under 18 U.S.C. § 922(g) and does not create an attorney-client relationship. Case results depend on a variety of factors unique to each case. Results may vary.

Attorney advertising. Prior results do not guarantee a similar outcome.

Attorney responsible for this advertising: Mr. Sris.

These defences apply to one offence. Our page on felon in possession charges sets out that offence from start to finish.