A recent posting at OpenCarry.org reveals that, when asked by clients, many defense attorneys are themselves not completely sure of the effects of an indictment on the accused’s right to purchase, possess, or transport firearms.
But an understanding of this issue is crucial for the person being indicted since a misstep can lead to additional charges, bail being revoked, and plea bargain offers being withdrawn.
Let’s take a quick look at state and federal laws that are on-point …
Purchase
In this area, federal law governs. 18 U.S.C. § 922(d)(1) prohibits the sale of firearms and ammunition to those “under indictment for … a crime punishable by imprisonment for a term exceeding one year.”
Subsection (n) of this section further prohibits “any person who is under indictment for a crime punishable by imprisonment for a term exceeding one year to … receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.”
These prohibitions, unlike some others, do not simply apply to licensed dealers but to all sales including private sales between individuals.
Question 11(b) on the federal form 4473 completed by a prospective buyer attempting to purchase a firearm asks “Are you under indictment or information in any court for a felony, or any other crime, for which the judge could imprison you for more than one year?”
If you answer “Yes” to this question then the dealer will refuse the sale. If you answer “No” to this question then you are committing both a state and federal felony by willfully making a materially false statement. Under Virginia law, this will be prosecuted under § 18.2-308.2:2(K) of the Code of Virginia.
It is especially important to note than an Alford plea with deferred disposition does NOT extinguish an indictment until such time as the court actually acquits. Therefore, during the time that the disposition is deferred, the accused remains under indictment for purposes of this prohibition. This was the key question in the January 2014 case of Maldonado-Mejia v. Commonwealth.
Transportation
Federal law also contains a prohibition at 18 U.S.C. § 922(n) prohibiting the interstate transportation of firearms or ammunition by anyone “who is under indictment for a crime punishable by imprisonment for a term exceeding one year.”
But what about transportation inside the state? There is no state law that prohibits the transportation of a legally owned firearm by someone under indictment. However, if the accused has a Concealed Handgun Permit (CHP), § 18.2-308.013(B) of the Code of Virginia states that:
An individual who has a felony charge pending or a charge pending for an offense listed in subdivision 14 or 15 of § 18.2-308.09, holding a permit for a concealed handgun, may have the permit suspended by the court before which such charge is pending or by the court that issued the permit.
While the statute says that the permit “may” be suspended, the accused would be well served to not exercise the privilege of concealed carry until they are certain that their permit has not been suspended.
Possession
Neither federal nor Virginia state law directly prohibits the simple possession of otherwise legally obtained firearms by a person under felony indictment.
However, it is often in the best interests of the accused to transfer ownership and control of such firearms to a trusted family member or friend until the issues giving rise to the indictment have been resolved.
Finally
This discussion may be moot in any case since the conditions of bail often will stipulate that the accused not possess firearms. Any such stipulation would ultimately govern.
Disclaimer: This information is presented for educational purposes only and does not give rise to an attorney-client relationship. Additionally, I am licensed to practice law in the Commonwealth of Virginia and this answer may not be appropriate for other states.
