I recently received a call from an individual who had been convicted of a felony, they asked if his life was threatened could he possess a gun to defend himself?
Generally speaking a person who’s been convicted of a felony is not allowed to possess a firearm. If a felon is found in possession of a firearm they can be charged and convicted of an additional felony.
There are, however, certain circumstances under which a convicted felon can possess a firearm. One of those exceptions is the affirmative defense of “necessity.” The United States Court of Appeals in the 6th Circuit has fairly detailed case law regarding the components and/or elements that make up the affirmative defense of “necessity.” The 6th Circuit indicates that necessity is only available in “rare situations” and only in those circumstances when the defense can demonstrate five conjunctive requirements.
The defendant must be able to demonstrate they:
1) reasonably feared death or serious injury from an imminent threat,
2) not recklessly placed himself in the path of that threat,
3) had no reasonable alternative to possession,
4) reasonably believed that possession would avert the threat, and
5) maintained possession only as long as necessary to avoid the threat. USA v. Jaffari Moore 12-6437/6437 filed October 23, 2013 (recommended for full text publication).
So to answer to the original question of whether a convicted felon can possess a firearm to defend their life, it depends on the circumstances surrounding the incident. If the convicted felon meets all five prongs the defense will be available to them. However if you are missing just one of those five elements the defense will be unavailable.
In the recent case of USA v. Moore, cited above, Mr. Moore met 4 out of 5 criteria for the necessity defense. However because the Court determined that he maintained the firearm longer than necessary to avoid the threat, the affirmative defense was not allowed.
This discussion relates to the Federal law regarding the affirmative defense of “necessity” and does not necessarily reflect Michigan State law regarding the affirmative defense of “necessity.” I will discuss “necessity” in the context of Michigan State law in a different writing.
Michael D. Hills