Can a Felon Use a Gun in Self-Defense? A Federal Court of Appeals Hints Yes

A federal court has held that a person who is a felon still has the right to argue self-defense with a firearm, despite the fact that he is a convicted felon who cannot possess a firearm under federal law. The court’s decision overturned the lower court’s conclusion that a felon doesn’t have the right to protect himself with a firearm because of the mere fact that he’s a felon.

Donald Wilson, a convicted felon, opened fire on a moving vehicle, hitting the driver multiple times with his nine shots. He said he acted in self-defense because he thought someone was shooting at him from inside the car. He pled guilty to the charge of having ammunition as a felon. According to U.S. Sentencing Guidelines § 2K2.l(b)(6)(B), the Presentence Report (PSR) recommended a four-level increase for shooting “at an occupied vehicle, which constitute[d] Felonious Assault under Ohio law.”

Mr. Wilson objected, claiming that his actions were justified by self-defense and citing the maxim “if somebody is shooting at you, you have a right to shoot back at them in self-defense, even if you’re not allowed to have that gun” as justification for his actions.

But the district judge stated that Mr. Wilson did not have the right to use deadly force in self-defense because of his previous felony conviction. The court added that all it had to do under § 2K2.1 was check for legal violations. After considering this aggravating factor, the court determined that a sentence of 46 months was appropriate—almost double what the guideline range would have been without the enhancement.

Mr. Wilson argued on appeal that the firearm enhancement did not apply because the other “felony offense” was felonious assault and self-defense was an affirmative defense under Ohio Rev. Code Ann. § 2903.ll(A)(2). Therefore, a defendant can object to the firearm enhancement by claiming self-defense. See Adkins v. United States, 729 F.3d 559 (6th Cir. 2013). In addition, the prosecution has the burden of proof under Ohio law to show that the defendant did not act in self-defense.

The Sixth Circuit agreed with that reasoning and applied it here. The government had to show that the defendant was guilty of felonious assault by a greater than 51% margin of probability. If he could produce a viable self-defense argument, the state would then have to disprove self-defense. However, the district court here made no factual determinations regarding the self-defense claim. Because of this mistake, Mr. Wilson’s sentence is procedurally unreasonable.

“Not only did the district court fail to make the requisite factual findings, it rejected [the defendant’s] self-defense claim out of hand based on its belief that [he] could not invoke self-defense because he did not lawfully possess the ammunition or firearm he used at the time of the subject incident,” the court wrote. Furthermore, the court noted that United States v. Adkins, 729 F.3d 559 (6th Cir. 2013), and United States v. Walker, 858 F. App’x 857, 860–61 (6th Cir. 2020), both found the opposite to be true and contradicted the district court’s reasoning.

The court remanded for resentencing to decide whether or not Mr. Wilson met his burden of production on his self-defense claim.

United States v. Wilson, 75 F.4th 633 (6th Cir. 2023).

Leave a Reply

%d bloggers like this: