Possessing a Defaced Firearm
Defending Against Weapons Charges in Ohio, Including Possession of a Defaced Firearm
Ohio Statute § 9.68 protects the right of Ohio residents to, “without further license, permission, restriction, delay, or process,” “own, possess, purchase, sell, transfer, transport, store, or keep any firearm” unless otherwise prohibited by law. Ohio does not have a state firearms registry, and Section 9.68 prohibits localities from registering firearms. However, Ohio and certain federal laws do prohibit the knowing possession of a “defaced firearm.” Defacement is restricted in Ohio, and residents should be cautious when purchasing a firearm secondhand or from an unrepeatable dealer. It is illegal to both deface and possess a defaced firearm, even if the firearm isn’t yours. This may result in misdemeanor or even felony charges.
If you’ve been charged with defacing a firearm under Ohio Code § 2923.201 or are concerned about a recent purchase, consult our Ohio Information Center for Possessing a Defaced Firearm, and do not hesitate to contact the experienced firearms defense attorneys at the Joslyn Law Firm directly. Our top-rated Columbus criminal defense lawyers are available today for a free, no-risk consultation at 614-444-1900 and online.
Ohio Information Center for Possessing a Defaced Firearm
- Understanding the Criminal Offense of Possessing a Defaced Weapon or Defacing a Gun under Ohio Code § 2923.201
- Criminal Penalties for Possessing a Defaced Weapon
- Defenses to Criminal Charges of Possessing a Defaced Weapon
- Possessing a Defaced Weapon Conviction and Your Firearms Rights
1. Understanding the Criminal Offense of Possessing a Defaced Weapon or Defacing a Gun under Ohio Code § 2923.201
Ohio Code § 2923.201, “Possessing a Defaced Firearm,” actually contains two crimes: (1) defacing identification marks of a firearm and (2) possessing a defaced firearm. The Ohio Code defines a “firearm” as anything capable of inflicting death by expelling a projectile through explosive means including unloaded and inoperable firearms. Section 2923.201(A)(1) makes it illegal to “[c]hange, alter, remove, or obliterate” the following information from a firearm:
- the name of the manufacturer
- manufacturer’s serial number
- other marks of identification
Those accused of violating Section (A)(1) are charged with “defacing identification marks of a firearm.” Section (A)(2) states that no person shall “[p]ossess a firearm knowing or having reasonable cause to believe that the name of the manufacturer, model, manufacturer’s serial number, or another mark of identification on the firearm has been changed, altered, removed, or obliterated.” Those accused of violating Section (A)(2) are charged with “possessing a defaced firearm.”
All criminal charges must be proved beyond a reasonable doubt, and both charges have separate criminal elements. Defacement under Section (A)(1) does not require criminal intent. Even the innocent removal of an identification mark while cleaning or painting a firearm is sufficient to sustain criminal charges for defacing identification marks. Prosecutors need only prove the actus reas, which is the criminal act itself aside from intent. Evidence must indicate you physically changed, altered, removed, or obliterated identifying information on a firearm. Having a defaced firearm in your home isn’t enough to sustain charges for defacing a firearm unless prosecutors have evidence you made the alteration.
Criminal possession of a defaced firearm under Section (A)(2) requires some level of mens rea, i.e., criminal intent. Prosecutors must prove you actually knew or should have known the firearm was defaced. They don’t need to prove you knew it was illegal just that you knew or should have known the identifying information was altered or removed. The professional alteration of a serial number might trick a reasonable secondhand buyer, but a reasonable person should know the weapon was defaced when scratch marks obliterate the serial number.
So what happens if you buy a secondhand weapon and thereafter discover the model number has been altered? You’re technically guilty of possessing a defaced firearm, even if you immediately contact local authorities. While it’s rare to be charged in such circumstances, you should speak with an experienced Ohio firearms lawyer immediately after discovering a potential defacement to discuss your options.
2. Criminal Penalties for Possessing a Defaced Weapon
Both defacing a firearm and possessing a defaced firearm are misdemeanors in the first degree. First-degree misdemeanors may result in up to 6 months in prison and/or a $1,000 fine. However, these are separate charges. You may be charged with two misdemeanors in the first degree, potentially doubling your sentence. If this was not a first-time offense, these crimes are felonies in the fourth degree if the previous convictions match the current charges. This means a previous conviction under (A)(1) is not sufficient to make a current charge under (A)(2) a felony.
Felonies in the fourth degree are punishable by a prison term between 6 and 18 months and/or a $5,000 fine. However, there are numerous collateral penalties associated with a felony conviction. These may include losing government benefits, your right to vote, and your firearms rights. It’s also more difficult to obtain financial aid, a job, and reasonable housing with a felony conviction. Ohio judges have considerable discretion during sentencing and may order additional or alternative punishments. These include alcohol/drug rehabilitation, counseling, community service, restitution to any victims, and/or probation. The nature and circumstances of the offense will dictate the punishment imposed.
3. Defenses to Criminal Charges of Possessing a Defaced Weapon
An experienced Ohio criminal defense attorney will review the facts of your case and raise any procedural defenses available to these charges. Such defenses include objecting to the introduction of illegally seized evidence such as the firearm or identifying constitutional violations during a police investigation. A qualified firearms defense attorney will also identify the weakest elements of the prosecution’s case to defeat the necessary elements of defacement and/or possession charges.
For example, a defense lawyer may claim the item was not a “firearm” under the Ohio Code, or you did not know the firearm was defaced. Firearms aren’t all made the same, and many weapons don’t contain the maker’s name, model number, and specialized identifying information. You’re expected to examine the firearm for basic identifying information and obvious evidence of sabotage. Offenders are not expected to be firearms experts capable of identifying missing information or inconsistencies.
The only statutory defense to a defacement charge is if no serial number was inscribed when the weapon was manufactured. You cannot be charged with obliterating a serial number or possessing a defaced firearm if the weapon wasn’t made with one. Since 1968, federal law has required all firearms made in or imported into the United States to contain a unique serial number. This defense primarily applies to antique weapons, WWII era firearms, or certain guns manufactured before 1968. An Ohio firearms defense attorney can have a firearms expert analyze the allegedly defaced firearm for age-related anomalies.
The following defenses are also available to most criminal charges in Ohio:
- Self-Defense – You used a defaced weapon because you were in immediate danger of serious bodily harm or death. For example, wresting the defaced firearm from an offender and using it to protect yourself.
- Defense of a Third Person – The above standard is also applicable if you were defending a third person from imminent bodily harm or death. It is often necessary that the third person was not capable of defending himself. It would not be a defense, however, if the weapon was yours, to begin with.
- Necessity/Lesser Harm – Applicable if possessing the defaced weapon was necessary to prevent greater harm that wasn’t “imminent.” For example, removing a defaced weapon from a mentally unstable household and turning it in to police. The necessity defense may arguably be raised when you discovered the defacement and took immediate, legal action to remedy the illegality.
- Insanity/Mental Incompetence – Applicable if you did not understand your actions and didn’t have the capacity to understand their illegality. Intoxication is not a valid excuse. For example, a mentally challenged young man who didn’t understand what a serial number was could not be expected to know it was missing.
- Duress –You were forced to do an unlawful act due to the threat of harm to yourself or a loved one, i.e., you were trapped in a gang and forced to deface weapons. You must not have an avenue of easy escape from the situation, and the threatened harm must be more serious than the criminal behavior.
An experienced Ohio firearms defense attorney will analyze the facts of your defacement case and raise any and all applicable defenses.
5. Possessing a Defaced Weapon Conviction and Your Firearms Rights
Possessing a defaced weapon is not a “violent felony” as defined by the Ohio weapons disabilities statute. As such, a conviction alone will not impact your right to keep and bear arms but may impact your ability to obtain a CHL. Certain felonies, including violent felonies and drug-related convictions, will impact your firearms rights, and adjudication of mental incompetence, alcoholism, or drug dependency will trigger a firearms disability in Ohio. Further, the types of weapons possessed and defaced may lead to additional federal and state firearms charges. Federal offenders may be prohibited from owning or possessing a weapon by operation of federal, as opposed to state, law. Always speak with an experienced Ohio weapons defacement defense attorney before pleading guilty to defacement or possession charges. Any criminal conviction can potentially impact your firearms rights.
Seek Help from an Ohio Weapons Defense Lawyer for Your Possession of a Defaced Firearm Case
Any type of weapons conviction can affect your future, and you never want to face a criminal case without the right defense help and representation. Discuss your firearms charges and defense strategy with the Joslyn Law Firm today by calling 614-444-1900 or contacting us online for your free Ohio firearms defense consultation.