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New Ruling on Felon’s Right to Own Firearms

In People v Minch, the Michigan Supreme court created a new rule that will be important to felons who own guns which were lawfully seized by police during the investigation of their case.  In this Muskegon County case, Mr. Minch was in lawful possession of 86 firearms at his home in the Fruitport area.  At the end of his case, the question arose as to what should happen to his guns.  Minch had appointed his mother as his power of attorney and agent.  The Circuit Court judge ordered the guns delivered to her.

Interestingly, the Muskegon County Prosecuting attorney appealed the case and the appeal eventually ended up before the Michigan Supreme Court.  The Prosecution argued that delivering the guns to an agent of the defendant would violate Michigan law.  Michigan law prohibits a felon from being in possession of a firearm until five years after the following three events: the person has paid all fines imposed in his case, has served all prison or jail imposed, and has completed all conditions of probation or parole.  In addition, the person must have his rights to possess a firearm restored under public act 372 (MCL 28.424.)

Michigan courts have interpreted “possession” to include the concept of constructive possession, which essentially means that if a defendant retains any type of control over the firearm, he is unlawfully in possession and in violation of the statutes.  Therefore, an agent or power of attorney acting on behalf of the defendant leaves the defendant in a precarious position and subject to further criminal prosecution.

The defendant cannot possess the firearms which he lawfully owns

Michigan law which criminalizes possession of a firearm does not deprive the defendant of his ownership interest in the guns.  Therefore, the defendant cannot possess the firearms which he lawfully owns.  In the Minch case, the prosecution argued that the Fruitport Police Department held the firearms as a constructive bailee.  A bailee is someone who holds the property of another and thereby incurs an obligation to do nothing contrary to the ownership interest of the lawful owner.  The Supreme Court agreed, and has now provided a solution for defendants in this situation.  It has specifically authorized the trial courts to order the guns delivered to a successor bailee, with specific language in the order indicating that defendant has no access to or control over the guns.  The Court further stated that if no successor bailee could be found, the police would continue to hold the firearms until such time as the defendant was lawfully able to possess the guns.  This could create some storage problems for police departments since it would require them to store and maintain the firearms for a minimum of five years.

The Kronzek Firm PLC assists people in restoring their gun rights and defends people charged with firearm related crimes in Muskegon County and in every county in Michigan’s lower peninsula.  If you need a Muskegon Criminal Defense attorney, you may contact us by using the convenient form on this page.

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