Mr. J. Stewart Murphy
Office of the Attorney GeneralNovember 20, 1992
1992 WL 614305 (Miss.A.G.)
Office of the Attorney General
State of Mississippi
*1 November 20, 1992
Re: Convicted Felons; Concealed Weapons
*1 Mr. J. Stewart Murphy
*1 Parole Board Chairman
*1 723 North President Street
*1 Jackson, Miss. 39202
Dear Mr. Murphy:
*1 Attorney General Mike Moore has received your request for an opinion and has assigned it to me for research and reply. Your letter asks: “Can a convicted felon carry a rifle with a barrel sixteen inches or more and a shotgun with a barrel eighteen inches or more and not be in violation of state law or does it require a pardon of the conviction?”
*1 In response I refer to the text of section 97–37–5 of the Mississippi Code:
§ 97–37–5. Deadly weapons—possession by convicted felon as evidence of crime.
*1 The possession of any deadly weapon as described in section 97–37–1 by any person who has been convicted of a felony under the laws of this state, any other state, or of the United States, shall be prima facie evidence of a violation of that section.
*1 (emphasis added).
*1 As you can see from the language of this statute, possession of a firearm by a felon is not, in and of itself, a crime under state law. Possession of such a weapon by a convicted felon is simply prima facie evidence of a violation of 97–37–1, i.e., the offense of carrying a concealed weapon. Therefore any convicted felon who possesses a rifle or shotgun, or other deadly weapon, is subject to being lawfully arrested, on probable cause, based on a prima facie case (by operation of 97–37–5) of a violation of 97–37–1. He may be able to rebut the presumption created by 97–37–5 by showing facts that the weapon he was carrying was not concealed either in whole or in part. In accord with this opinion are copies of two prior opinions of this office, to Charlie Head dated 2–26–92, and to Tom Zachary dated 7–21–81. (As stated in the opinion to Head, a convicted felon may not be arrested for carrying a concealed weapon within his home, business or a motor vehicle.)
*1 Also enclosed is a copy of a prior opinion to William Magnusen date 11–9–90 which states that in order for a convicted felon to be able to qualify for a gun permit, he could receive a governor's pardon or an executive order expressly restoring his privilege to obtain a gun permit. Similarly, it is our opinion that the provisions of 97–37–5 would have no application to a convicted felon who has received a pardon from the governor, or who has received an executive order expressly placing him outside the operation of 97–37–5.
*1 Please contact us if you have further questions regarding this matter.
Note
TO RETRIEVE THE FULL TEXT OF THE ATTACHED OPINION(S) SET FORTH AT THIS POINT, ENTER THE FOLLOWING FIELD SEARCH:
(11–9–1990) & TI (William +2 Magnusen)
(2–26–1992) & TI (“Charles Head”)
(7–21–1981) & TI (“Tom Zachary”)
Attachment
*1 October 28, 1992
*1 Honorable Mike Moore
*2 Attorney General
*2 State of Mississippi
*2 Gartin Justice Building
*2 Jackson, MS 39205
*2 RE: Interpretation of Governor's authority to grant executive clemency/pardon as it pertains to a convicted felon carrying a weapon.
Dear General Moore,
*2 The Governor's Office and Parole Board regularly receives request for a pardon so that a convicted felon may carry a weapon.
*2 Section 97–37–5 Mississippi Code—Deadly weapons, possession by convicted felon as evidence of crime forbids a felon from having in his possession a weapon as described in Section 97–37–1 Mississippi Code.
*2 This section describes a rifle with a barrel of less than sixteen (16) inches in length or any shotgun with a barrel of less than eighteen (18) inches in length as being in violation of Section 97–37–1
*2 Many request for executive pardon is based on the fact that the requesting felon wants to hunt. A pardon by the Governor is an extreme act by the Governor since it completely clears the felon's record.
*2 The question is, can a convicted felon carry a rifle with a barrel sixteen (16) inches or more and a shotgun with a barrel eighteen (18) inches or more and not be in violation of state law or does it require a pardon of the conviction? I am aware the felon must also comply with federal law.
1992 WL 614305 (Miss.A.G.)
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