Honorable Charles Head
Office of the Attorney GeneralFebruary 26, 1992
1992 WL 614564 (Miss.A.G.)
Office of the Attorney General
State of Mississippi
*1 February 26, 1992
*1 Re: Concealed Weapons
*1 Honorable Charles Head
*1 Post Office Box 958
*1 Jackson, Mississippi 39205
Dear Mr. Head:
*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:
*1 “The Department of Public Safety/Mississippi Highway Safety Patrol respectfully request an official opinion from your office on the issue of a convicted felon possessing a firearms or other deadly weapon as set forth in Section 97-37-1(1), Miss.Code of 1972 (Ann.) Is it legal under Section 97-37-1(2) for a person who is a convicted felon to possess a firearm or deadly weapon, concealed in whole or in part, within any motor vehicle?” I respectfully call your attention to Section 97-37-5, Miss.Code of 1972 (Ann.) wherein the possession of any deadly weapon described in section 97-37-1 by any person who is a convicted felon shall be prima facie evidence of a violation of that section.”
*1 In response I first refer to a prior opinion of this office dated 7-21-81 to Tom Zachary which points out that possession of a deadly weapon by a convicted felon is not, in 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. carrying a concealed weapon.
*1 As you note § 97-37-1 has been amended to provide that it is not a violation of the concealed weapon law for a person to carry a weapon concealed in whole or in part within any motor vehicle. Therefore, the law as it stands presents a paradoxical situation where a convicted felon carrying a concealed weapon within a motor vehicle could conceivably be arrested, on probable cause, based on a prima facie case of a violation of § 97-37-1. Of course, he could then easily rebut the prima facie case by showing that he was not violating § 97-37-1 because he was within a motor vehicle at the time of possessing the weapon. Therefore such an arrest would be senseless.
*1 Of course, nothing contained herein would affect the ability to prosecute a convicted felon for possession of a firearm under federal law, 18 U.S.C. § 922, or other applicable laws.
*1 Please contact us if you have further questions regarding this matter.
1992 WL 614564 (Miss.A.G.)
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