An Experienced Criminal Defense Attorney’s Perspective on
Guns Laws v. Gun Crimes in Arizona: When Does a Hero Become a Criminal?
Arizona laws are extremely favorable to those who choose to legally own and carry firearms. But criminal defense attorneys have seen that while our state has some of the most lenient gun laws in the United States – laws that support gun ownership and possession it has also some of the harshest sentences for gun crimes. It is said that one of the worst things for any gun owner is to be in a situation where they have to use their gun. The one thing worse, however, is to be in that situation, but not have a gun.
In virtually every situation where a gun is displayed, pointed, or used, police will be called and there will be two questions asked that will have significant impact on the gun owner: 1) was gun owner justified; and 2) should he or she be charged with a crime? Unfortunately, the differences that determine the answer to these questions can be hard for even the most experienced and trained gun owner to understand. What is even more frightening, they are even difficult for police officers and prosecutors to understand.
The answer to the question, hero or criminal, hinges on concepts such as recklessness, reasonableness, self-defense, and justification. These are dense and complicated legal concepts that have a lot of interplay and are often open to interpretation and debate. In almost all cases it is prosecutors, often young and inexperienced, who determine whether a gun owner is viewed as a hero on one hand or a criminal facing up to 15 years in prison on the other.
To protect yourself and avoid being viewed as a criminal by police and prosecutors, it is critical to understand the gun laws in Arizona, the common gun crimes that are charged, and the slight differences that police and prosecutors look for when answering the question: hero or criminal.
Arizona Gun Laws that Support Ownership and Self-Protection:
- Any person over the age of 18 who is not prohibited from possessing a firearm may purchase a firearm. [Prohibited possessors – hyperlink: http://www.azleg.gov/FormatDocument.asp?inDoc=/ars/13/03101.htm&Title=13&DocType=ARS ]include undocumented aliens and those with felony convictions in this state or another state that haven’t had their rights restored. A person with a felony conviction does not automatically get their gun rights restored when other of their civil rights were automatically restored because it was a first time offense under Arizona Revised Statutes Section 13-912 (http://www.azleg.gov/FormatDocument.asp?inDoc=/ars/13/00912.htm&Title=13&DocType=ARS ), but must specifically petition a court to have their right to possess a weapon restored.
- Any person 18 years old or older who can legally own or purchase a firearm may open carry a firearm in public. That means a person may carry a gun out in the open. This includes handguns in a holster and even hunting rifles and assault rifles. Open carry includes firearms out in the open in a vehicle.
- A firearm will not be considered “concealed” if it is carried in any of the following:
- A manner where any portion of the firearm or holster in which the firearm carried is visible.
- A holster that is wholly or partially visible.
- A case, holster, pack or luggage that is carried within a means of transportation or within a storage compartment, map pocket, trunk or glove compartment of a means of transportation.
This means it is legal for a person 18 years or older who can legally possess a firearm to keep a handgun in a glove compartment, or other compartment, if the handgun is in a holster or case.
- A person who is 18 years old or older who may legally possess a firearm may carry a concealed weapon if they are in their own residence or a business premises or property owned or leased by that person or that person’s parent, grandparent or legal guardian.
- Arizona is a permit-less carry state which means anyone 21 year old or older who can legally own or purchase a fire arm can carry it concealed without any type of concealed carry permit. This law took effect in July of 2010. This includes carrying a firearm in a vehicle.
Restrictions to the Gun Laws Listed Above:
- A person under the age of 21 cannot carry a firearm concealed on their person or in a motor vehicle.
- You must inform a law enforcement officer when asked if you are carrying a firearm. Failure to do so may result in an arrest and criminal charge of misconduct involving weapons.
- A law enforcement officer who makes contact with a person in possession of a firearm may take temporary custody of the firearm during that contact.
- Schools – A person may NOT possess a firearm on school grounds. A firearm that is not loaded but carried within a vehicle under the control of an adult provided that, if the adult leaves the vehicle the firearm cannot be visible from the outside of the vehicle and the vehicle must be locked.
- Public or private businesses or events may restrict an individual from carrying a gun, either open or concealed, on their property if the business owner posts a sign that clearly prohibits the possession of firearms or if the operator of the business or event, or their employee, requests the gun owner remove the gun.
Common Gun Crimes in Arizona
- Misconduct involving weapons: The most common misconduct involving weapons charge arises when a person with a felony conviction who has not had their gun rights restored is in possession of a gun. Having a gun near the person, such has in a car or in a house may be considered “constructive possession” and may result in a charge for misconduct involving weapons. Failure to follow the law and restrictions listed above will also result in a misconduct involving weapons charge. Misconduct involving weapons charges range from misdemeanors to felonies and can carry a sentence from fines to probation and mandatory prison.
- Unlawful Discharge “Shannon’s Law”: Firing a weapon within city limits with criminal negligence is a crime and charged as a felony that can be punished by probation or a prison sentence.
- Disorderly-Conduct and Aggravated Assault: These crimes are discussed together because often the difference between disorderly conduct with a weapon and aggravated assault with a weapon is difficult to understand. Disorderly conduct is disturbing the peace of a person by recklessly handling, displaying, or discharging a firearm. When no injury occurs, aggravated assault is when a person uses a firearm to put another person in fear or apprehension of being shot. Traditionally, it is believed that if a person pulls out or otherwise displays a gun without being justified, they have committed disorderly conduct and if a person points a gun at another person without being justified, they have committed aggravated assault. Unfortunately, a person can be charged with aggravated assault even a person was never injured and even when a gun was never pointed. Both disorderly conduct and aggravated assault charges involving a weapon can carry a mandatory prison sentence of up to 3 years for disorderly conduct and up to 15 years for aggravated assault.
Innocent and law abiding gun owners typically find themselves facing either a disorderly conduct or aggravated assault charge when they act in self-defense. It is in these situations where a hero is viewed as a criminal by law enforcement and prosecuting agencies. Some of the factors they consider in coming to this conclusion are:
- Who called the police? Unfortunately, the person who first speaks to police is the person that is able to create the 1st impression with police.
- Did the person with a gun retreat? In Arizona, a person who is justified in using a firearm for defense has no duty to retreat when they are somewhere they are legally allowed to be. This includes public roadways. Yet, police officers and prosecutors may still consider that as a factor when deciding if a gun owner was acting in self-defense, or otherwise justified in using a gun.
- Was the gun owner justified? Was their conduct reasonable? What is justified hinges on the word reasonable. Reasonable is a legal term and often difficult to understand. It is something that is frequently debated among lawyers and judges.
These are some of the questions and factors that prosecution agencies consider in deciding whether a person is a hero or a criminal. A prosecutor’s opinion, however, is never the end. The opinion that ultimately matters belongs to a jury. These juries are routinely rejecting the opinions and conclusions of law enforcement and prosecutors and finding that individuals who are forced to use their gun in self defense are reasonable and are justified.
Consider these two examples of gun owners using their gun in self-defense:
Scenario 1 – A gun owner is returning home. He has his 2 year-old daughter in the back seat. He notices a car that appears to have been following him for over 2 miles. The gun owner comes to his home and the car that has been following him pulls up next to the gun owner’s house. The gun owner is concerned that the car following him all the way to his house and is fearful that this person may intend to harm him or his family. The gun owner removes his gun from his holster and is prepared to defend himself and his loved ones if necessary. The gun owner never points the gun and anyone and safely handles his firearm.
Scenario 2- A driver carries his gun in his vehicle for protection. While driving on a major street late at night, this gun owner comes across another car that begins yelling and cursing at the gun owner. The gun owner sees that the aggressive car is followed by a second car and that both cars have at least 2 other occupants. When the gun owner stops at a stop light, the two of the occupants in the aggressive car get out and threaten to beat up the gun owner. One of the aggressive occupants has a something in their hand. The gun owner, fearful of his safety, pulls out his gun and shoots one of the aggressive individuals in the leg.
Both of these scenarios are based on real cases where prosecutors made the decision to charge the gun owners with either disorderly conduct or aggravated assault – two crimes that carry mandatory prison sentences. In both of these scenarios reasonable people understand why the gun owners would be concerned for their safety and why they would display or use their weapon.
These scenarios and others like them are not unique [ http://viral.buzz/video-homeowner-shoots-and-kills-trespasser-inside-his-garage-gets-70-years/ ] . Gun owners throughout our state are being arrested and charged with serious crimes and facing serious penalties. Gun owners who are charged with a gun crime need an attorney that can clearly explain the facts and the law to prosecutors and ultimately to a jury. An experienced attorney can help communicate the reasons the gun owners were justified in protecting themselves or others and why their actions were reasonable. If you or a loved one is charged with a gun crime, it is critical to hire an attorney who is familiar with prosecutors’ opinions, policies, and arguments when they charge and attempt to convict law abiding gun owners that act in self-defense. The attorneys at Rowley, Long & Simmons have significant experience with these types of crimes and the laws surrounding them. Our attorneys can help prevent gun owners who were acting as heroes from being treated like criminals.