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Zoey_ JD
Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 27425
Experience:  Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
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My husband fired my weapon i the house in destress reports

Customer Question

My husband fired my weapon i the house in destress reports come back from mri however he is a felon with access and negligent discharge we filed complaints do to the nature of the events that have transpired that day alot of police misconduct he is thinking
about going pro se in these matters is there anyone good at motions or research into sheriff practice and procedures thank you...
Submitted: 2 years ago.
Category: Criminal Law
Expert:  Zoey_ JD replied 2 years ago.
Hello,
My name is ***** ***** I am an experieced criminal lawyer.
As a convicted felon, your husband has no state or Federal gun rights. That means he can be arrested for having anything at all to do with a firearm. The mere act of taking custody and control over it, whether he fires it or not, intentionally or unintentionally, recklessly or negligently is unlawful and can get him prosecuted.
On what grounds do you believe he has a civil suit? That is, what did the officers do? And what is the status of the criminal case, because that would be important to the outcome of any civil matter.
Customer: replied 2 years ago.
Is there any motions that you are able to provide he had a medical condition, there was overwhelming police misconduct he was thinking of going pro o'er pro she and having an attorney on standby at any event the gun is registered to me and there was a false search and seizure conducted any assistance you can provide would be greatly appreciated thank you
Expert:  Zoey_ JD replied 2 years ago.
It doesn't matter who the gun is registered to, if the gun was in your house where your husband was in a position to take custody and control of it. He is not allowed to have anything to do with ANY weapon. Period. When you live with someone who has no gun rights and keep a gun in the home, you are at risk for exactly what happened here if he knows you have a gun, can get to it, and something happens that brings the police to the house.
I am not saying that the police behaved correctly. I have no reason to know one way or the other. But can he be arrested and charged as a felon with a firearm based on what you've told me? Yes, absolutely.
Your husband will need a lawyer to fight his case, because they will likely not offer him anything he'll be excited about taking for this charge.
If you are expecting that your husband's case will be dismissed because you didn't like how the search and seizure of the weapons and the arrest went down, you are likely to be disappointed. That is not the way our system works. There is a procedure set down by the US Supreme Court to explore and challenge constitutional issues. That means that if your husband wants to go to trial on the case, his lawyer would file a motion asking for a pre trial suppression hearing to challenge the Constitutionality of the search, seizure and all that flowed from it to see if your husband's Constitutional rights were violated.
At such a hearing, the officer will take the stand, discus what brought him to the house, what he saw and did there, and how it led to your husband's arrest. Your husband's lawyer lawyer would get the opportunity to cross examine the officer and show how he violated your husband's rights through an unlawful search and seizure.
The standard that the court must use to judge such a hearing is what a reasonable officer would do under the same circumstances. If the judge finds the search unreasonable, any evidence that was unlawfully taken could not be used in your husband's case. Obviously, if the gun is suppressed as the fruit of an unlawful arrest, the state doesn't have much, if any ofa case left.
If you're going to go that route, however, make sure you do it through a lawyer. Unfortunately, judges give a great deal of deference to the judgment calls of police who are out in the field. So if the officer has any good and credible excuse for your search, the judge is likely to find the search lawful No pre-trial suppression hearing is ever a slam-dunk for either side, no matter how good the issues may be.
If you are unable to afford an attorney to represent your husband, he needs to plead not guilty at his arraignment and ask the court for a public defender.