Justification as a Defense for Felons Using a Firearm

Charlotte Criminal Lawyer Brad Smith answers the question: “What are the long term effects of being convicted of a crime?”


Guns and firearms are a big issue in the United States. Regardless of which side of the debate you agree with, the right to bear arms is granted by the Second Amendment of the United States Constitution. Therefore, it is important to know the rules and regulations surrounding gun ownership and use. Not everyone is free to own a gun at any time. For example, those who have been convicted of a felony are restricted in their right to use and own guns. Felons who possess a firearm face additional criminal charges. Those facing additional charges have sometimes tried to use a justification defense for possessing the firearm. Recently, the North Carolina Court of Appeals elaborated on the applicability of a justification defense for use or possession of a firearm by a felon.


Revolver-Charlotte-Monroe-Mooresville-Lake-Norman-Criminal-Defense-Lawyer-300x225State v. Mercer


In State v. Mercer, the North Carolina Court of Appeals enumerated some instances in which justification can be used as a defense for felons with a firearm. The appeals court found that the trial court made a prejudicial error because the jury was not instructed on the use of a justification defense. In the case, there was an altercation between the defendant and another individual over a stolen phone. There was a threat of guns at the scene of the altercation from people other than the defendant. The defendant was a convicted felon. In trial court, the defendant was found not guilty for assault charges related to the altercation, but guilty of possession of a firearm.


Prior Law


Before Mercer, the leading test for a justification defense being available to a felon was:


  • The defendant must have been under unlawful, present, imminent, and threat of a serious bodily injury or death;
  • The defendant was not negligently or recklessly placing himself in the situation in which he or she would be forced to engage in criminal conduct;
  • There was no reasonable legal alternative available to the defendant; and
  • The criminal action and avoiding a threatening harm has a causal relationship.


The Mercer Legacy


In determining that the trial court erred in instructing the jury of the justification defense, the court looked to both the state and defendant’s evidence. The state claimed that the defendant had alternatives other than reaching for a firearm, but the court rejected this argument. The contention in this case revolved around the justification defense not being read to the jury, even though the jury specifically asked about it. The court found this to be prejudicial, further evidenced by the jury finding him not guilty on the assault charges.


It is important to note that the court is not saying that the firearm was justified in this case, but rather the jury should at least have been instructed about it. Justification should have been a defense the jury could consider in trial court.


If you have been convicted of a criminal charge, contact the criminal defense attorneys at Arnold & Smith, PLLC. We are here to ensure that every applicable defense is used in your case. One defense can make the difference between a guilty and not guilty verdict. Contact us today to find out how our attorneys can provide the best defenses to you given the circumstances of the case. If you find yourself facing criminal charges and need the help of an experienced criminal defense attorney in or around Charlotte, Lake Norman, or our new office in Monroe (by appointment only until 2019), please contact Arnold & Smith, PLLC today at (704) 370-2828 or find additional resources here.








The criminal defense attorneys at Arnold & Smith, PLLC make it their mission to zealously defend their clients on a wide range of criminal matters at both the state and federal levels. These matters may include any charge from traffic offenses; DWI/DUI; drug charges (from simple possession to possession with intent to distribute and trafficking); gun permit denials; weapons offenses; and property crimes (larceny, breaking and entering, robbery, fraud, embezzlement, white collar offenses); to sexually related offenses (indecent exposure; sexual assault, crimes against nature, removal from sex offender registry); and violent crimes (domestic violence; assault; manslaughter; homicide, murder). Other legal issues that Arnold & Smith, PLLC criminal clients may be facing include restraining orders, restraining order and probation violations, expungements; appeals; and immigration issues related to criminal charges. Our criminal defense attorneys are passionate about ensuring that individuals empower themselves by being informed about their constitutional rights, and stand at the ready to fight in the defense of those facing criminal charges.







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