28-1206. Possession of a deadly weapon by a prohibited person; penalty.

(1) A person commits the offense of possession of a deadly weapon by a prohibited person if he or she:

(a) Possesses a firearm, a knife, or brass or iron knuckles and he or she:

(i) Has previously been convicted of a felony;

(ii) Is a fugitive from justice;

(iii) Is the subject of a current and validly issued domestic violence protection order, harassment protection order, or sexual assault protection order and is knowingly violating such order; or

(iv) Is on probation pursuant to a deferred judgment for a felony under section 29-2292; or

(b) Possesses a firearm or brass or iron knuckles and he or she has been convicted within the past seven years of a misdemeanor crime of domestic violence.

(2) The felony conviction may have been had in any court in the United States, the several states, territories, or possessions, or the District of Columbia.

(3)(a) Possession of a deadly weapon which is not a firearm by a prohibited person is a Class III felony.

(b) Possession of a deadly weapon which is a firearm by a prohibited person is a Class ID felony for a first offense and a Class IB felony for a second or subsequent offense.

(4) Subdivision (1)(a)(i) of this section shall not prohibit:

(a) Possession of archery equipment for lawful purposes; or

(b) If in possession of a recreational license, possession of a knife for purposes of butchering, dressing, or otherwise processing or harvesting game, fish, or furs.

(5)(a) For purposes of this section, misdemeanor crime of domestic violence means a crime that:

(i) Is classified as a misdemeanor under the laws of the United States or the District of Columbia or the laws of any state, territory, possession, or tribe;

(ii) Has, as an element, the use or attempted use of physical force or the threatened use of a deadly weapon; and

(iii) Is committed by another against his or her spouse, his or her former spouse, a person with whom he or she has a child in common whether or not they have been married or lived together at any time, or a person with whom he or she is or was involved in a dating relationship as defined in section 28-323.

(b) For purposes of this section, misdemeanor crime of domestic violence also includes the following offenses, if committed by a person against his or her spouse, his or her former spouse, a person with whom he or she is or was involved in a dating relationship as defined in section 28-323, or a person with whom he or she has a child in common whether or not they have been married or lived together at any time:

(i) Assault in the third degree under section 28-310;

(ii) Stalking under subsection (1) of section 28-311.04;

(iii) False imprisonment in the second degree under section 28-315;

(iv) First offense domestic assault in the third degree under subsection (1) of section 28-323; or

(v) Any attempt or conspiracy to commit any of such offenses.

(c) A person shall not be considered to have been convicted of a misdemeanor crime of domestic violence unless:

(i) The person was represented by counsel in the case or knowingly and intelligently waived the right to counsel in the case; and

(ii) In the case of a prosecution for a misdemeanor crime of domestic violence for which a person was entitled to a jury trial in the jurisdiction in which the case was tried, either:

(A) The case was tried to a jury; or

(B) The person knowingly and intelligently waived the right to have the case tried to a jury.

(6) In addition, for purposes of this section:

(a) Archery equipment means:

(i) A longbow, recurve bow, compound bow, or nonelectric crossbow that is drawn or cocked with human power and released by human power; and

(ii) Target or hunting arrows, including arrows with broad, fixed, or removable heads or that contain multiple sharp cutting edges;

(b) Domestic violence protection order means a protection order issued pursuant to section 42-924;

(c) Harassment protection order means a protection order issued pursuant to section 28-311.09 or that meets or exceeds the criteria set forth in section 28-311.10 regarding protection orders issued by a court in any other state or a territory, possession, or tribe;

(d) Recreational license means a state-issued license, certificate, registration, permit, tag, sticker, or other similar document or identifier evidencing permission to hunt, fish, or trap for furs in the State of Nebraska; and

(e) Sexual assault protection order means a protection order issued pursuant to section 28-311.11 or that meets or exceeds the criteria set forth in section 28-311.12 regarding protection orders issued by a court in any other state or a territory, possession, or tribe.

Source

Annotations

1. Felon in possession

2. Miscellaneous

1. Felon in possession

Before a prior felony conviction can be used to prove that a defendant is a felon in a felon in possession case, the State must prove either that the prior felony conviction was counseled or that counsel was waived. State v. Watt, 285 Neb. 647, 832 N.W.2d 459 (2013).

Use of a prior conviction to establish status as a felon and then enhance a sentence does not constitute impermissible double enhancement. State v. Ramirez, 274 Neb. 873, 745 N.W.2d 214 (2008).

Possession of a knife by a convicted felon is not unlawful under the plain language of this section. State v. Gozzola, 273 Neb. 309, 729 N.W.2d 87 (2007).

Nebraska law explicitly and unequivocally prohibits a felon from being in possession of a firearm. State v. Mowell, 267 Neb. 83, 672 N.W.2d 389 (2003).

This section punishes the specific conduct of possession of a firearm by a person previously convicted of a felony, not the underlying felony. State v. Peters, 261 Neb. 416, 622 N.W.2d 918 (2001).

In order to use a prior conviction as proof that a defendant has been convicted of a felony for purposes of the felon in possession statute, the State must establish that at the time of the prior conviction, the defendant had or waived counsel. State v. Portsche, 258 Neb. 926, 606 N.W.2d 794 (2000).

The release of a convicted felon from probation and the restoration of his or her civil rights does not nullify the conviction under the terms of subsection (1) of this section. State v. Illig, 237 Neb. 598, 467 N.W.2d 375 (1991).

Pursuant to subsection (1) of this section, a convicted felon may not possess a firearm for purposes of self-defense. State v. Harrington, 236 Neb. 500, 461 N.W.2d 752 (1990).

Possession of a firearm by a felon on two separate days, absent any evidence of an interruption in that possession, is a single continuing offense where the statute does not specify any means for dividing an uninterrupted possession into separate offenses, and the former instance of possession is included in the offense for the latter. State v. Williams, 211 Neb. 650, 319 N.W.2d 748 (1982).

Statute prohibiting felon from possessing a firearm includes purchase and possession of antique firearm. State v. Tharp, 22 Neb. App. 454, 854 N.W.2d 651 (2014).

To have "previously been convicted of a felony", as the phrase is used in subsection (1) of this section, a defendant need not have commenced serving his or her sentence for the previous conviction. State v. Moore, 3 Neb. App. 417, 527 N.W.2d 223 (1995).

2. Miscellaneous

Subsection (1) of this section is not unconstitutionally overbroad. State v. Green, 287 Neb. 212, 842 N.W.2d 74 (2014).

Prosecution for both unlawful discharge of a firearm under section 28-1212.02 and possession of a deadly weapon by a felon under this section does not violate the Double Jeopardy Clause. State v. McBride, 252 Neb. 866, 567 N.W.2d 136 (1997).

A pistol is a firearm. State v. Melton, 239 Neb. 790, 478 N.W.2d 341 (1992).

This section is held not to be invalid as in conflict with Neb. Const. art. I, section 1. State v. Comeau, 233 Neb. 907, 448 N.W.2d 595 (1989).

Evidence which was seized during a search based solely on an illegal wiretap must be suppressed and a conviction based on that evidence reversed, where it was agreed that the defendant had waived his rights under the Fourth Amendment to the U.S. Constitution, but had not waived his rights under section 86-701 et seq. (recodified in 2002 as section 86-271 et seq.). State v. Aulrich, 209 Neb. 546, 308 N.W.2d 739 (1981).

Pursuant to subsection (1) of this section, the doctrine of constructive possession applies to the possession of a firearm by a felon or a fugitive from justice, and the fact of possession may be proved by circumstantial evidence. State v. Long, 8 Neb. App. 353, 594 N.W.2d 310 (1999).