Chapter 2: Possession of Firearm, Ammunition, Destructive Device, or Dangerous Weapon (Probation and Supervised Release Conditions)
Under 18 U.S.C. § 3563(b)(8), the court may provide that the defendant “refrain from possessing a firearm, destructive device, or other dangerous weapon.”
B. Standard Condition Language
You must not own, possess, or have access to a firearm, ammunition, destructive device, or dangerous weapon (i.e., anything that was designed or was modified for the specific purpose of causing bodily injury or death to another person, such as nunchakus or tasers).
- This condition serves the statutory sentencing purpose of public protection. 18 U.S.C. § 3553(a)(2)(C).
- By allowing the probation officer to supervise the defendant without risk to safety caused by the possession of weapons, this condition enables the probation officer to satisfy the statutory requirements to keep informed as to the conduct and condition of the defendant, report the defendant’s conduct and condition to the sentencing court, and aid the defendant and bring about improvements in his or her conduct and condition. 18 U.S.C. §§ 3603(2)-(3).
- This condition promotes the public safety and reduces safety risks posed by the defendant to the community and the probation officer, and it assists in ensuring that the defendant is complying with other conditions such as the prohibition on committing new crimes, including the prohibition on possession of certain weapons for defendants convicted of certain crimes.
D. Method of Implementation
- At the beginning of the supervision process, the probation officer explains the types of firearms, ammunition, destructive devices, and other dangerous weapons that are prohibited and inquires whether the defendant possesses any of these items in his or her place of residence or employment or vehicle(s).
For the purpose of implementing this condition, the terms “firearm,” “ammunition,” “destructive device,” and “dangerous weapon” are defined as follows:
- The term “firearm” means any weapon that will or is designed to or may readily be converted to expel a projectile by the action of an explosive, the frame or receiver of any such weapon, or any firearm muffler or firearm silencer.1
- The term “ammunition” means ammunition or cartridge cases, primers, bullets, or propellant powder designed for use in any firearm.2
The term “destructive device” includes:
- any explosive, incendiary, or poison gas – bomb, grenade, rocket having a propellant charge of more than four ounces, missile having an explosive or incendiary charge of more than one-quarter ounce, mine, or device similar to any of these devices; and
- any type of weapon (other than a shotgun or a shotgun shell, which the Attorney General finds is generally recognized as particularly suitable for sporting purposes) by whatever name known that will, or that may be readily converted to, expel a projectile by the action of an explosive or other propellant, and that has any barrel with a bore of more than one-half inch in diameter.3
- The term “dangerous weapon” is defined as anything that was designed, or was modified for, the specific purpose of causing bodily injury or death to another person (e.g., nunchakus or tasers).
- In some cases, the defendant may have possession of, or access to, these prohibited items before supervision commences. Legal prohibition against possessing firearms does not deprive a person of his or her remaining ownership interest in seized or surrendered firearms.4 Therefore, the probation officer coordinates with the defendant to facilitate removal of the items from areas over which the defendant has access or control by making a temporary seizure and maintaining custody of the items until the term of supervision expires (for misdemeanor cases); by instructing the defendant to temporarily (for misdemeanor cases) or permanently transfer the items to another person who has a lawful right to possess them and provides adequate assurances that the defendant will not retain any influence over their use; or by consulting the court of jurisdiction for direction on the appropriate equitable disposition when the defendant is legally, permanently prohibited from possessing the items.
- If the defendant is legally prohibited from possessing certain types of weapons (see, e.g., 18 U.S.C. § 922), the probation officer explains the additional potential exposure to criminal liability for a violation of this condition.
- Throughout the term of supervision, the probation officer conducts home visits with the defendant (see: Chapter 2, Section VI). Should the probation officer observe a prohibited firearm, ammunition, destructive device, or dangerous weapon in plain view, the probation officer may remove the item(s).
- Certain defendants may be subject to a special condition authorizing search and seizure (see: Chapter 3, Section XV). In these cases, a probation officer may conduct a search if reasonable suspicion exists to believe the defendant is in possession of a prohibited firearm, ammunition, destructive device, or dangerous weapon.
1 See 18 U.S.C. § 921(a)(3).
2 See 18 U.S.C. § 921(a)(17)(A).
3 See 18 U.S.C. § 921(a)(4).
4 Henderson v. United States, 135 S.Ct. 1780 (2015).