AV Preeminent
The Florida Bar

Can I Argue Self Defense If Charged with Possession of a Firearm by a Convicted Felon?

Although there is authority holding that self-defense is not a viable defense to a charge of unlawful possession of a firearm by a convicted felon, it has also been held that there may be circumstances under which a convicted felon’s possession of a firearm would be justified. According to this latter view, a convicted felon’s temporary possession of a firearm does not constitute a crime if the following five circumstances are present:

  1. defendant is in present, imminent, and impending peril of death or serious bodily injury, or reasonably believes him- or herself or others to be in such danger;
  2. defendant must not have intentionally or recklessly placed him- or herself in a situation in which it was probable that he or she would be forced to choose the criminal conduct;
  3. defendant must not have any reasonable, legal alternative to possession of the firearm;
  4. the firearm must be made available to defendant without preconceived design; and
  5. defendant must give up possession as soon as the necessity or apparent necessity ends.

Necessity or justification may constitute a valid defense to a charge of unlawful possession of a firearm by a convicted felon based on the circumstances, and in such event, the defendant is entitled to a jury instruction on such defense.

A person found guilty of a felony may not defend against a charge of possession of a firearm by a convicted felon on the ground that he or she lacked knowledge of his or her status as a convicted felon. However, the antique firearm defense was available to a defendant charged with possession of a firearm by a convicted felon as the statute expressly provided that the class of firearms a convicted felon is prohibited from possessing excludes “antique firearm.”

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