After being convicted of a crime, have you ever wondered if owning or carrying a firearm would be possible? What types of convictions prevent a citizen from exercising their God given Second Amendment right and is it possible to restore those right?
Hello everyone, my name is Joseph Radzwion IV Your Trusted Attorney with Radzwion Law, PLLC, and this post will cover what crimes caselaw considers “specified felonies” and crimes that are not considered “specified felonies.” In previous posts we discussed the differences between non-specified and specified felonies. You can find those posts linked at the bottom of this post.
Clarifying the Term “Specified Felony.”
The Michigan courts have clarified the term “specified felony by applying more than one section of MCL 750.224 f(10). One section of the law says that a felony of burglary of an OCCUPIED dwelling will be considered a specified felony. Another part of the law says, if a citizen committed a crime that included force or the citizen threatened force against another person or another person’s property, that crime will be classified as a specified felony.
So the question is, what if a citizen is convicted of burglary of an UNOCCUPIED dwelling? The court in Tuggle v. Dept of State Police, 269 MICH App 657, 666 (2005) held that physical force against unmanned/unoccupied property will still categorize as a specified felony. The court reasoned that even though no person was in the building, the crime of burglary has the element of force used against the property of another person. The use of force against property is an element that meets the statute’s (MCL 750.224 f(10)) definition of force or attempted force.
In other words, even if a citizen committed a burglary or a breaking and entering of a dwelling and the homeowner was not home, the court may still view the crime as a specified felony because the action of burglary or breaking and entering requires the use of force on another person’s property.
Speaking of the use of force. The court has also found that a crime with the threat of force can be considered as a specified felony. The crime of Larceny from a person is like robbery without the use of force. But, the court in People v. Perkins, 473 Mich 626, 629 (2005) held, even if no physical threat is used, there is a substantial threat of physical force which may occur. Such a crime may be categorized as a specified felony.
In other words, a prosecutor may argue that even if a citizen did not use force during the commission of a crime, the manner in which the crime was carried out may imply a substantial threat of physical force. If the court agrees with such argument, the crime may be viewed as a specified felony.
This means, a citizen who is going through the process of restoring their firearm rights, is going to have to meet the requirements that are imposed on crimes that are classified as a specified felony. The specified felony definition can be found HERE:
Crimes that are NOT a Specified Felony
Unlawful Driving Away of an Automobile. In Re Schultz, No 350292, 2020 WL 6930059 (Mich Ct. App, November 24, 2020)
Preparing Your Case
There may be hurdles to overcome in a case. There may be arguments made for and against why a crime should be considered a specified felony.
If the type of crimes not otherwise specified in the statute can be considered specified felonies per se because of the nature of the crime. Tuggle, supra at 666.
In other words, the prosecutor has the ability to argue that a felony is a “specified felony” based on the nature of crime and the citizen’s attorney should be prepared to argue why it should not be considered as a specified felony.
Your Trusted Attorney
If you would like to retain Radzwion Law, PLLC as Your Trusted Attorney, please do not hesitate to contact us. We are here to protect you when you need it most and we will fight for your freedom.
Related Posts
REMEMBER: Our posts should never be taken as legal advice. You should ALWAYS consult a Trusted Attorney with your legal questions.
Comments