Monday, April 02, 2007

The Shooters not a Felon... sorta kinda

Mark Wahlberg has been in a lot of action movies; most recently in "Shooter", which I reviewed here last week.

Since the movie came out, there has been some commentary in the blogosphere about there being a double standard for Hollywood vs. the rest of us with regard to firearms possession.

Why's that?

Well, see, Mark Wahlberg was convicted of what should have been felony charges, just under 20 years ago now, in his (and my) native Massachusetts.

Now, here's the thing: He's not a felon, because of a strange quirk of Massachusetts law (coincidentally the same one which allows Ted Kennedy to serve in congress).

In MA, if one does not receive a sentence of 24 months or more, in a prison not a jail; no matter the crime, one is not necessarily counted as a felon.

Mark Wahlberg only received an 18 month sentence which was suspended, plus 45 days confinement in a county jail (correction, it was two years and 90 days - but he only served 45 - HT to David Codrea), for assault, attempted murder, and two counts of contempt of court; because he was only 16 and 17 when the crimes occurred.

He would be disqualified from a CCW in most states, but he is not officially a felon according to the FBI or ATF.

Now, according to 18u.s.c, the code section related to this federally, he still could be federally disqualified:
18 USC Chapter 44, Sec. 922, “Unlawful Acts”:
“It shall be unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person - (1) is under indictment for, or has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;”
Under this statue, it could be interpreted, that because what Wahlberg was charged with COULD have been punished with more than one year of PRISON time instead of jail time (even though it was not), that he is a prohibited person.

Actually several states have had this fight with the feds several times; over various issues, including voting, firearms, drivers licenses, property ownership, background checks, and other things.

There are other ATF administrative procedures in question which muddy the waters further.

Honestly, what it comes down to is the discretion of the FBI, the ATF, and a federal judge whether Wahlberg is a prohibited person or not.

Given his history, I would bet that any responsible reviewer would conclude he was (he is an admitted recovering drug user, a recovering alcoholic, he's commited assault with intent to injure, grand theft, and possibly attempted murder); but on a basic background check, he would not be flagged as a felon.