Category: Law

How a Simple Conversation Can Go Wrong…

The following is a video transcript.

It’s Saturday afternoon and the crowd noise from the football game broadcast is pumping through the surround sound. It’s so loud you almost miss the sound of your phone ringing, and Caller ID says it’s your local police department.

You excuse yourself from the four-touchdown blowout unfolding in your den and head outside to take the call. The voice on the other end identifies themselves as a law enforcement officer and they want to ask you a few questions about a gun you lost years ago.

Your mind starts racing. Was it used in a crime? Did you properly report it missing or did you say it was stolen?

In previous videos, we have discussed the Fourth Amendment to the United States Constitution, the legal standards and proof required in arrest and prosecutions, warrant exceptions, and the differences between a search and a seizure.

Police Interactions: Casual and Formal Encounters.

A casual encounter is not a seizure—you are free to stop the conversation and leave at any time.

A formal encounter is a seizure.

Casual encounters typically consist of an officer walking up to you in a public place and starting a conversation with you. The courts have held that police officers do not need a “legal” reason to approach a person in public and strike up a conversation.

Returning to our example, a phone call would be considered a casual encounter. You have the power to stop the conversation by hanging up, and you are not required to answer any questions on the phone. Depending upon what state you’re in and the laws associated with reporting a missing or stolen firearm, you may want to hang up the phone and start scheduling appointments with an attorney.

Police officers typically use these informal conversations to get more information to reach the legal levels of proof of reasonable suspicion or probable cause that a crime has occurred or is recurring. If they reach either level, you could find yourself detained, or even under arrest. Once you’re detained or under arrest, you can rest assured there is nothing casual about your encounter with law enforcement.

What if the officer on the phone asks you to go to the station and answer some questions? Unless you are a victim of a crime that does not involve you using force or a weapon in self-defense, you should never go to the police station to give a statement or answer questions without first consulting with an attorney or bringing one with you.

Let’s change the scenario. You’re in another state, you had a few alcoholic drinks at your hotel, and you remember that you left a bag in your car in the parking lot outside. You concealed your firearm on your person and you go to the parking lot.

Once outside, a police officer approaches you and asks if you’re okay. You say “Yes,” and attempt to walk to your vehicle. The police officer stands in front of you and asks if you’ve been drinking. Before you can answer, he says he can smell the strong odor of alcohol coming from you.

Should you go ahead and answer his questions?

No. At this point, you are detained. The difference between a conviction and a dismissal, or a jury saying you’re not guilty, often hinges on what an accused person says to a police officer. It is completely up to you to invoke your Constitutional Rights. Tell them you are invoking your right to remain silent, and you are not going to answer any questions without your attorney present.

In the meantime, if you have any questions about police interactions or speaking with law enforcement, call U.S. LawShield and ask to speak to your Independent Program Attorney.

Traveling State Spotlight: Georgia

The following is a video transcript.

Are you traveling to Georgia soon? If you’re an out-of-state license holder, what should you know? If you’re traveling from out of state without a license, what should you know?

Georgia Reciprocity

To begin, Georgia shares reciprocity with 32 other states. That means that Georgia recognizes the weapons carry licenses and permits from those states just as if they were Georgia licenses. Those who have licenses that share reciprocity with Georgia have the same rights and abilities to carry in locations in Georgia that a Georgia resident does.

Where Can You NOT Carry?

So, let’s talk about carrying with a weapons license versus carrying without a weapons carry license. With a weapons carry license you can carry virtually anywhere in Georgia. There are some specific places enumerated by statute where you cannot carry: courthouses, jails, mental health facilities, government buildings with law enforcement screening. These are commonsensical places where you can’t carry. Places of worship without permission: if you do have permission to carry in a place of worship, and that permission must be a specific, an affirmative “yes,” then it’s okay to carry. Otherwise, you cannot carry, but you can leave it in your vehicle.

In all other locations, you can leave your firearm in your vehicle. But with a weapons carry license, you can carry both openly or concealed; the law makes no distinction between the two. With a weapons carry license, you can carry on your hip, on the small of your back, under your arm; you can carry openly. The law allows you to do this in virtually any location: private property or public property.

Where You Can Carry

If there’s a sign at a property, the law doesn’t necessarily state that that sign is enough to keep you out of the property. However, if you are approached by someone who’s in legal control of the property, manages the property, or has been tasked to perform a security, and they ask you to leave, then you must leave. If you don’t leave, then it could be a violation of the law called criminal trespass.

Let’s say you’re traveling to a hotel. Now, with a weapons carry license and even without a weapons carry license, you can always carry in your home, your car, or your place of business. These three places are called your habitation. If you’re staying in a hotel, that location becomes your habitation if you have excluded all others from the use of that specific room or specific suite that you have.

With a weapons carry license, you can carry in public. You can carry in a state park. Which means in Georgia, if you can carry in a state park, you can also carry in a federal park. But you cannot take the firearm into any federal buildings. If you go to a national park to hike, you can’t take it into the bathroom or the Visitor’s Center.

There’s no distinction in Georgia between restaurants that serve alcohol and restaurants that do not serve alcohol. You don’t have to stay away just because a location serves alcohol. It’s okay to take a firearm in with you, but again, if the owner or the person in legal control asks you to leave, then you must leave.

More generally, let’s talk about those without a weapons carry license for just a moment. If you’re eligible to possess a firearm, then you can carry in your home, your car, and your place of business. You can carry in any location so long as the firearm is enclosed in the case and unloaded. You can carry in another person’s vehicle with that person’s permission, except that in Georgia you must otherwise be eligible for a weapons carry license in order to do this. So, we do run into some issues there, potentially if you’re an out-of-state resident, because the law is not very clear on that point.

So if you are traveling from out-of-state and do not have a weapons carry license, be very careful about carrying in another person’s vehicle.

The Federal Bump Stock Ban Explained

Florida and New Jersey Members: Bump stocks are already illegal under state law. For more information, please call U.S. LawShield and ask to speak to your Independent Program Attorney.

 

The following is a video transcript.

Acting Attorney General Matthew Whitaker has just signed a national ban on bump stocks, expected to go into effect on March 21, 2019. This prohibition is unlike any previous gun ban we’ve seen, in that it was neither passed by Congress, nor signed by the President. Instead, an administrative agency simply changed one of their definitions in order to institute the ban.

Bump stocks will now fall into the definition of machinegun, found in 27 C.F.R. Parts 477, 478, and 479.

Previously, this term was defined as: “[A] firearm which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger.” The term also includes any part of a machinegun or anything that may convert a weapon into a machinegun.

Specifically, with regard to bump stocks, the new rule adds: “The term ‘machinegun’ includes a bump-stock-type device, i.e., a device that allows a semiautomatic firearm to shoot more than one shot with a single pull of the trigger by harnessing the recoil energy of the semiautomatic firearm to which it is affixed, so that the trigger resets and continues firing without additional physical manipulation of the trigger by the shooter.”

This new definition has the effect of criminalizing the possession of all bump stocks.

The new rule has no provision to grandfather in and register the bump stocks that many citizens already own.

Without exception, before March 21, 2019, if you own a bump stock, you must either surrender it to the ATF or destroy it.

You will not be compensated for the money you spent when you legally bought this item. Failure to comply with this new rule is a federal felony, punishable by up to 10 years in federal prison and up to a $250,000 fine for each bump stock in your possession.

There have already been many legal challenges filed and there will be many more to come before March 21. Most ask that the courts block this rule from going into effect so that the issue can be fully litigated before any American has to destroy their property without compensation.

Does this open the door for future regulation and re-classification of guns, ammo, and accessories?

What do you think?

If you have any questions about bump stocks or the regulatory process, call U.S. LawShield and ask to speak to your Independent Program Attorney today.

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How NOT to Fire Off the New Year | Ohio

The following is a video transcript.

U.S. LawShield members in Ohio, I am Wilkes Ellsworth, Independent Program Attorney in Ohio, here to talk to you about another holiday-themed topic that most, if not all of you, already know, but may not think about when you’re caught up in the fun of New Year’s Eve celebrations.

Let’s talk guns, alcohol, and fireworks. I don’t need to tell you that guns and booze don’t mix. They are a bad idea in the general sense of course, but are also a very bad combination when looking at the respective criminal and civil penalties or liabilities one might face should he or she choose to combine the two.

Firearms and Alcohol

What do we all like to do on New Year’s Eve? We go out to a party or a bar. Many might have some cocktails or beers. No harm, right? Well, while we can take our firearms into bars and restaurants normally, we never want to do so if we are drinking alcohol.

Ohio law comes down hard on individuals, even those with permits to carry concealed firearms, if they have consumed any alcohol whatsoever.

Firearms and Fireworks

Please do not incorporate your firearms into your celebrations at home. If you are lighting off fireworks and discharging your guns in the air, there is going to be a problem. In addition to potentially being charged with discharging your firearms in city limits, those rounds have to come down somewhere. I have personally seen people charged with criminal acts related to hitting strangers with rounds fired in the air.

Furthermore, the negligence involved would subject you to civil liabilities as well, which could amount to large monetary losses depending on the severity of the damage to a person or their property. As a quick aside, fireworks are legal in Ohio to buy and to own, but they are not legal to set off. This is likely to be changed based on new legislation soon, but right now you have to take them out of the state within 48 hours of purchasing them.

Until 2015, you actually had to sign a document promising to do just that. That is no longer required. The reality is this is not strictly enforced and you probably already know this, but it’s food for thought. And remember, you cannot sell them without a license, so don’t set up a little side business around the holidays to make some extra money by selling fireworks.

Let’s say you are setting off those fireworks and someone gets injured. You are protected in Ohio under Revised Code 2305.23 if you render aid to a person in distress. You cannot be sued by that person. I know that’s crazy to think that you could be, but it does happen. That person could decide what you did to help them actually caused them further harm. As long as you were not willful or wanton or grossly negligent, or asking for something in return, you will be protected.

Now, if you cause the injury through some action of your own, then under Ohio law you would likely be responsible to provide aid to the person. Generally, you are not under any obligation to come to someone’s aid, but in Ohio, one of the exceptions kicks in if you cause the person’s distress.

To sum up, go out and have a great time. Just do not mix your guns with booze or fireworks displays, and you should be just fine.

Knock! Knock! – Show Us Your Glock

What to Expect & How to Protect Yourself from the New Jersey Murphy Magazine Ban

By U.S. LawShield Independent Program Attorney Evan F. Nappen

The Murphy Magazine Ban WILL be enforced. It is only a question of what degree it will be enforced against honest gun owners.

“The New Jersey State Police corresponded with Breitbart News on December 11 and refused to rule out house-to-house enforcement of the state’s “high capacity” magazine ban.”

Possession of any magazine capable of holding over 10 rounds that works in a semi-automatic firearm is now a felony-level offense with a penalty of up to 18 months in prison. There is no “grandfather clause.” If you are convicted, you lose your gun rights for the entire United States. These standard-capacity magazines, which have been turned into contraband, are commonly being called “Murphy Mags.”

There are four basic levels of potential enforcement. The question is how aggressive the anti-gun-rights Murphy administration is going to be in enforcing the Murphy Mag Ban. Here are the four possibilities:

  1. Police Raids: House-to-house searches of suspected possessors.
  2. Police Investigations: Interrogation of suspected possessors.
  3. Demand Letters: Intimidating official letters sent to suspected possessors.
  4. Random Prosecutions: Randomly prosecuting anyone caught possessing.

Police Raids

Many gun owners are very concerned that the police will be coming door-to-door and searching homes. It is unlikely to happen. The State Police claim to have “no plans” at this time to do this. However, it is not an unreasonable fear. Ultimately, New Jersey’s zealous anti-gun-rights Attorney General could order the State Police to act. To say it will never happen would be foolish. Although a search warrant is normally necessary, house-to-house searches have happened without warrants when there are “exigent circumstances.” Approximately five years ago, this was done in Boston when the police were looking for a terrorist suspect. Here are some reasons/scenarios why it might happen in New Jersey:

  1. Some highly publicized mass shooting occurs, and the knee-jerk, politically expedient reaction is to go after Murphy Mag possessors.
  2. Murphy’s failure to aggressively enforce his ban gives his political challengers the opportunity to call him out on it. There is already pressure on Murphy to explain how he intends to enforce the ban. Breitbart News also reached out to Murphy’s press secretary, Daniel Bryan, about enforcement of the ban. He confirmed that the Governor “…had not ruled out house-to-house enforcement of the ban either.”
  3. New Jersey has a computerized database of registered gun owners & their registered handguns (which includes make and model). Many of these handguns came with Murphy Mags. For example, 15-round magazines come standard with the Glock Model 19, Beretta Model 92 and SIG Model P226, just to name three commonly possessed handguns.
  4. New Jersey has a long history of abusing gun owners, creating “gun law victims” (destroying people’s lives with arbitrary gun laws) and undermining Second Amendment rights.
  5. New Jersey has an anti-gun news media which actively acts as the propaganda arm for the anti-gun-rights movement.
  6. New Jersey law enforcement will obey orders and enforce the law, rather than lose their jobs & pensions.

In 1990, the Florio Administration explored going after “Assault Firearm” owners under the newly enacted “Assault Firearm” law, which included a “large-capacity ammunition magazine” ban. They tried to quietly sneak through an Administrative Code provision requiring the filing of the Certificate of Eligibility with the police on private sales of long arms. This would have cured the break in the chain of possession. I personally helped to kill it by successfully challenging the code modification as being outside the statutory law. The Florio Administration abandoned their scheme. Since then, the Murphy Administration has eliminated private sales via newly passed legislation.

There are other important differences between the Florio Ban of 1990 & the current Murphy Mag Ban:

  1. There are substantially more, commonly possessed, standard capacity magazines that can hold over 10 rounds, than magazines that can hold over 15 rounds, that fit readily identifiable, registered handguns.
  2. There was no reliable pre-existing computer database in 1990.
  3. There was no windfall of Bloomberg money for anti-gun extremist candidates in 1990.

What to Do If the Police Raid Your Home

A right given up is a right lost. Do not consent to a search without a warrant. Never physically resist. Do not sign any documents or statements without an attorney’s advice. All citizens have a Fourth Amendment right to a warrant being issued before their person or premises are searched. Exceptions exist regarding the necessity for a warrant, and a large body of law exists as to when a law enforcement officer has probable cause for a warrantless search. However, whether probable cause for the warrantless search exists or not, one should never consent to a warrantless search. The key here is never consent.

Warning: Even if you are not home, the police can search your home based on the consent of your spouse, roommate or a guest. If a law enforcement officer insists on searching your home, do not resist the search. Just make it clear that you are not consenting to this search. Additionally, do not sign any consent form—or for that matter, any document—without the advice of your attorney. Law enforcement officers cannot get a warrant simply based on your refusal, nor can they punish you for not giving consent to search.

If a search is done in violation of your Fourth Amendment rights, the court will suppress the evidence obtained, and the State will not be able to use it against you in a criminal prosecution. When you consent to a search, anything found may be used as evidence—evidence against you—whether there was probable cause or not! Although you may feel that you have nothing to hide, consider that you may inadvertently possess contraband which you believe to be legal, or that a friend may have left contraband in your car, house, or borrowed clothing.

Police Investigations

There is a much greater chance that the police will investigate based on information gleaned from the computerized database of registered gun owners and their registered handguns. It is a relatively simple task for state or local police to look at their database of registered gun owners with their registered handguns and start knocking on doors to talk to suspected possessors of handguns with standard issue Murphy Mags (such as Glock 19, SIG P226, Beretta 92, etc.). No warrant is necessary to investigate. Talking to suspected possessors at their homes will possibly lead to more information justifying a search, seizure and arrest.

What if the Police Want to Talk to You?

If police knock on your door, do not open the door. Ask them through the closed door if they have a warrant. If they don’t have a warrant, do not allow them into your home. Do not answer any questions. Simply say “I do not want to talk to you” and do not talk to the police. The Fifth Amendment right to remain silent and against self-incrimination is one of the most important Constitutional rights. By remaining silent, a person is not assisting the State in its case against him or her. This is the purest form of self-protection. It is something everyone should do, whether the person believes him/herself innocent or not. You cannot be punished for a refusal to answer questions. Basically, only a court can order you to answer questions. Remember, anything you say can be used against you. For instance, merely affirming that you still have the registered handgun could lead to you being searched and arrested. Lying to the police is a crime, but remaining silent is not. So, stay silent!

Not giving consent is not probable cause for a search. Some people feel that if they do not consent to the search then the officer will think they are guilty of hiding something. Some people are afraid of the improper question: “What do you have to hide?” The proper question you should ask yourself is: “Why does this law enforcement officer feel it is necessary to invade my privacy and conduct a search without a warrant?” This mindset properly shifts the burden to the police. Remember, the Fourth Amendment is there to protect our privacy.

Always remain polite when asserting your rights, but the key is to assert them. Do not be embarrassed or intimidated into giving up your rights. If you give up your rights (apart from making defending you that much harder), you will have substantially increased your chance of becoming another victim of New Jersey gun law.

Intimidation Letters

Law Enforcement agencies might choose to send intimidating letters demanding information based on the computerized database of registered gun owners and their registered handguns. The letters would go to suspected possessors of handguns with standard-issue Murphy Mags. It is a simple matter today to send letters via a database. This type of intimidation letter is often used to collect taxes. Any information gleaned could then be followed up with further enforcement actions.

What if You Receive an Intimidation Letter?

Generally, you have no obligation to respond to questions in such a letter. Contact an attorney as soon as possible for specific advice regarding such a letter.

Random Prosecutions

There is no doubt that enforcement will occur by way of random prosecutions. Police will find Murphy Mags due to Red Flag Laws, Domestic Violence Laws, Duty to Warn Laws, safekeeping seizures, house fires, home inspections and the endless other ways that contraband items find their way to the authorities. You can be sure to see criminal charges on these Murphy Mags. This is the default setting for minimum enforcement.

What if You Are the Subject of a Random Prosecution?

If you are charged with Murphy Mag possession or any other criminal offense, contact an attorney as soon as possible for specific advice and representation.

Action Items:

  1. Make sure that your friends and family are aware of this potential threat.
  2. Make sure that your friends and family are aware of the implications of talking with the police and consenting to searches.
  3. Make sure that you do not have in your possession any Murphy Mags or other prohibited items.
  4. Make sure that you, your family and your friends have the mindset to stand up for your rights!

Can I Fly With My Gun?

The following is a video transcript.

Traveling on commercial airlines during the holidays or any time of year can be stressful, especially if you want to make sure that you can protect your family at your ultimate destination and bring your firearm with you. It is important that you know what you can and cannot do when traveling with your firearm.

The first thing you must do is make sure that you can lawfully possess and carry your firearm at your ultimate destination. If you cannot, you should probably consider traveling to a state that supports your Second Amendment rights instead. But, if you have no choice because your family lives in a state that you cannot lawfully carry, leave your firearm at home.

Once you are sure you can lawfully carry in your destination state, you should check both the TSA and your airline’s websites to learn the current rules for traveling with your firearm. Currently, the TSA advises that when traveling you should:

  • Comply with the laws concerning possession of firearms in the state where you are going, as they vary by local, state, and international governments;
  • Declare each firearm each time you present it for transport as checked baggage;
  • Ask your airline about limitations or fees that may apply;
  • Firearms must be unloaded and locked in a hard-sided container and may be transported as checked baggage only.

Only the passenger should retain the key or combination to the lock, unless TSA personnel request the key to open the firearm container to ensure compliance with TSA regulations. You may use any brand or type of lock to secure your firearm case, including TSA-recognized locks. However, some airlines have specific requirements.

Firearm parts, including magazines, clips, bolts, and firing pins are prohibited in carry-on baggage but may be transported in checked baggage. Replica firearms, including firearm replicas that are toys, may be transported in checked baggage only. Rifle scopes are permitted in carry-on and checked baggage. Ammunition clips and magazines must also be securely boxed. Firearm magazines and ammunition clips, whether loaded or empty, must be securely boxed or included within a hard-sided case containing an unloaded firearm. Small arms ammunition, including ammunition not exceeding .75 caliber, and shotgun shells of any gauge, may be carried in the same hard-sided case as the firearm.

Each airline also has their own requirements and rules. For instance, when traveling on Delta Airlines, you have to retrieve your baggage with your firearm at the baggage office. However, Southwest Airlines puts bags which contain firearms on the baggage carousel with everyone else’s. When you check your bag with a firearm in it, you must declare it to the airline and follow their rules and procedures. Ask when you check your bag where you should retrieve it at your ultimate destination.

If you are traveling with your firearm and your plane gets diverted, you need to know if you can legally possess and concealed carry a firearm in your new destination. If you retrieve your bag containing a firearm from the carousel at the airport where your flight was diverted, and it is illegal for you to possess a firearm or concealed firearm, you may find local law enforcement officers watching as you pull the bag off the carousel and moving in to arrest you.

Instead of having to find a hotel in the area, a comfy jail cell will await you. If you cannot or if you do not know for certain that you can lawfully possess and carry your firearm in the state your plane has landed when diverted, do not claim your bag from the airline on the carousel or in the baggage office. Make the airline retain possession until you reach your ultimate destination or return home.

U.S. LawShield members, should you have any questions, please feel free to give U.S. LawShield a call and ask to speak with your Independent Program Attorney.

Can I Go to Jail For Gifting a Gun?

The following is a video transcript.

With the holiday season upon us, what makes a better gift than a firearm? Here’s what you need to know under federal law.

As long as the recipient is lawfully allowed to possess a firearm, the ATF and the Supreme Court of the United States have repeatedly stated that guns may be purchased and given as gifts. The ATF even explains this process on their firearms transaction record (also known as a form 4473), specifically in question 11a. The form explains that a firearm purchased legitimately as a bona fide gift to a third person does not violate the law.

What about those posters you see in gun stores that say, “Don’t lie for the other guy?” Isn’t buying a firearm for another person illegal? Isn’t that what we call a straw man purchase? Simply put, federal law requires that you be the actual purchaser of the firearm. You can still give a firearm as a gift, but you cannot have a side agreement with a third party to make a purchase on their behalf, and you cannot use that person’s money to buy the gun.

With the purchase out of the way, the next question that comes up is the actual transfer or gift. Under state law, the majority of states allow the transfer of a firearm among residents of the same state, so long as the person isn’t disqualified from possessing a firearm. However, you must use caution. The law regarding the possession and transfer of firearms is not uniform throughout the United States and can vary greatly from state to state. Many states impose age restrictions on private transfers of firearms (typically, 18 years of age, but it could be as high as 21).

Many people have questions about sending a firearm gift to another state. To stay legal, you must have a federal firearms licensee, or FFL to facilitate the transfer and shipment of the gun. This is because it is illegal for you to gift a firearm to a person who is a resident of another state without having an FFL in the receiving party’s state conduct a NICS background check. Sending a firearm (even as a gift) to someone in another state without using an FFL could lead to a serious federal felony and a slew of potential state crimes.

Firearms make great gifts, but there may be some hoops you’ll have to jump through. Some states have restrictions on transfers, registration requirements, and even have outright prohibitions on certain firearms, so take the time to educate yourself to stay on the right side of the law.

If you have any questions about gifting a firearm, call U.S. LawShield and ask to speak to your Independent Program Attorney.

Be Careful Around These Guests During the Holidays | Texas

The following is a video transcript.

The holidays are right around the corner, and family members from all over the country are coming to visit you. You look forward to seeing everyone, and you start to think about taking your cousins to the range.

Suddenly, you remember Cousin Chris and his scrape with the law a few years ago. The details are hazy, but you remember he is a convicted felon. Can you take him to the range? Can he even stay with you? Do you lose your right to carry a firearm when he is around?

There aren’t simple answers to these questions, and state and federal law are not in agreement when it comes to possessing firearms after a felony conviction. Remember, felons aren’t the only ones who lose their Second Amendment rights. Everything discussed in this video also applies to someone who has been convicted of a crime of family violence—even if it was only a misdemeanor—and people who are under active protective orders.

Felony Possession

Under federal law, if a person is under indictment or information, has been convicted of a felony or other crime, and a judge could have sentenced them to more than one year of imprisonment, that person may not legally purchase or possess firearms. This is unless the crime was a state misdemeanor punishable by imprisonment of two years or less. Under Texas law, however, as a convicted felon, a person would not be allowed to purchase a firearm. However, he or she would be able to possess one in their home for self-defense beginning five years after their release from probation or from confinement.

Mental Health History

What if Cousin Chris isn’t a convicted felon, but instead can be dangerous and unstable at times, and has been committed to several mental hospitals over the past few years? Under federal law, if a court, board, commission, or other lawful authority determines that he, as a result of subnormal intelligence, or mental illness, incompetency, condition, or disease: is a danger to himself or others, or lacks the mental capacity to contract or manage his own affairs; OR if a criminal court finds that he is insane, incompetent to stand trial, or is found not guilty by reason of insanity or lack of mental responsibility, he is deemed “mentally defective.”

A mentally defective person could also include those who have been involuntarily committed to a mental institution, or committed by a court, board, commission, or other lawful authority. This does not include people who have been held in mental institutions for observation or admit themselves voluntarily. If a person is mentally defective, they are prohibited from buying or possessing firearms under federal law. Texas law does not directly address the purchase and possession of firearms by mentally defective persons.

Family and Gun Safety

When it comes to you and your firearms and a house full of family members, you will still want to exercise common sense gun safety. If you want to go to the range with a few family members and you remember Cousin Chris was convicted of a felony, crime of family violence, has a protective order against him, or was involuntarily committed to a mental institution, do not let him come on that trip to the gun range.

But you might ask, “Can Cousin Chris even stay at your house? Do you have to stop carrying your gun around?” What if you’re traveling in the car together? Even if Cousin Chris is disqualified from purchasing and possessing firearms, he can still be around them so long as he’s not in actual possession. Possession is defined as care, custody, control, or management. Keep your firearm in your possession by carrying it on your person, or keep it locked away in a place that he does not have access.

Intoxication and Gun Possession

Now, let’s change the story one more time. What if Cousin Chris does not fit any of those previous categories, but has one too many eggnogs and becomes intoxicated? If he has a Texas License to Carry or other recognized permit from another state, he cannot carry his firearm pursuant to that license while in public.

Also, if he wants to buy a few rounds of ammunition from you, or that .45 he’s always had his eye on, you could be charged with a crime because it is illegal to sell firearms or ammunition to someone who is intoxicated.

If you have any questions about how to properly secure or store your firearms when family comes to town, call Texas LawShield and ask to speak to your Independent Program Attorney.

Be Careful Around These Guests During the Holidays | Pennsylvania

The following is a video transcript.

It’s that time of year where family comes and visits. Now, there are great members of the family and there are some people that might have lived through some difficulties in the past. Whatever their scenario is, they are a prohibited person. They are a family member coming over, and perhaps they are even staying over for the night.

Let’s say that you have a really great gun collection. Do you have to gather them all up and get them out of the house completely because Cousin Richie is coming over and he is a prohibited person? The answer to that is, “No.” You are under absolutely no duty or obligation to change your life whatsoever in that type of scenario. It is on the person who cannot use, possess, own, or transfer a firearm to monitor the situation.

So, you do not have to gather up your guns and secret them away. You do not even have to lock them up. However, you cannot knowingly transfer (meaning give, let them hold, let them see, let them manipulate, let them possess, or let them have a gun) if you know that they are a prohibited person.

So, if Cousin Richie sees your collection, and says, “Oh my God, that is the most beautiful engraving I have ever seen. It’s absolutely exquisite. Can I hold it just to look at it?” The answer to that is, “No.” You cannot knowingly give it to them to possess (and possession includes actual possession, meaning holding onto it).

Another scenario that comes into play is: you like to keep a firearm inside your car. Can you give the keys to Cousin Richie, a former felon, to go run and get milk, knowing that there is a gun inside the car? Will you personally be criminally liable? And the answer to that is the same, which is: you cannot knowingly give, transfer, or allow possession of a firearm to a prohibited person. That is both federal and state law. You just cannot do it.

The next question is: in civil liability, can you be sued if Cousin Richie gets hold of a gun? The answer to that depends on what ultimately happens. The Commonwealth of Pennsylvania states under Negligence Theory that you are negligent in allowing a third party to possess a gun that you know or should have known will create an unreasonable risk of harm.

Those are some things to consider when former felons or prohibited people visit your house in the Commonwealth of Pennsylvania.

Be Careful Around These Guests During the Holidays | Florida

The following is a video transcript.

With the holidays right around the corner, many of us are either planning trips to see family or getting ready to host family at our homes. Whether traveling to see family or having family in your own home, it’s important to be a responsible gun owner. If you’re traveling out of the state, you must be aware of the gun laws in the state that you are visiting. If you are having family in your home, then it’s important to know your responsibilities under Florida law regarding storing your firearm with other family members present.

You are allowed to carry a firearm on your person while around someone under the age of 16; however, if a family member under the age of 16 is visiting, then when you are not carrying your firearm, you must have it secured either in a locked box or a container, or in a location where a reasonable person would believe it would be secure from a person under the age of 16, or secure it with a trigger lock.

If you do not properly store your firearm and your family member under the age of 16 gets access to your firearm without your permission and displays it in a rude, careless, angry, or threatening manner in public, then you could be charged with a second degree misdemeanor, which is punishable by up to 60 days in jail. Furthermore, you could face felony charges for culpable negligence if your family member under the age of 16 uses your firearm to cause injury or death to himself or another person as a result of the improper storage of your firearm, and face up to five years in prison.

Besides facing criminal charges, you may also find yourself a defendant in a civil lawsuit for your negligent storage. Even if you are not having anyone under the age of 16 visiting you over the holidays, you still need to properly store your firearms and keep them out of the reach of family members who are either prohibited by law from possessing firearms, such as a convicted felon, or who should not have access to your firearms for various reasons such as mental state or even due to their drug usage or intoxication.

If your visiting family member is a convicted felon and has access to your firearm and possesses it, they could be charged with a crime. However, if that visiting convicted family member uses your firearm to commit a crime, you could find yourself subject to a civil lawsuit and possibly a culpable negligence charge. The same result could occur if you do not prevent access to your firearms by a family member who is not mentally stable or who is under the influence of alcohol or drugs. Always properly store your firearms and be cautious about who you let access or use your firearms.

If you have any questions regarding storing your firearms during the upcoming holiday season or any other firearm-related question, please give U.S. LawShield a call and ask to speak to your Independent Program Attorney.