What to Do If You’re Arrested for Having a Gun as a Convicted Felon

This is one of the most common gun charges we see, and one of the most misunderstood.

You don’t have to be selling guns. You don’t have to be using one. You don’t even have to own it. If you have a felony conviction on your record and a firearm is found in your possession — on you, in your car, in your house — you can be charged under both South Carolina state law and federal law for the same act.

The penalties get serious fast. State court: up to 5 years in prison. Federal court: up to 10, and sometimes a 15-year mandatory minimum if you have the wrong combination of prior convictions.

If you’ve just been arrested or you know charges are coming, here’s what you need to know — and what to do right now.

What South Carolina Law Says

The relevant statute is SC Code § 16-23-500. It is unlawful for anyone convicted of a “violent crime” as defined under § 16-1-60 to possess a firearm or ammunition in the state of South Carolina.

The penalty: up to 5 years in prison and/or a $2,000 fine, plus permanent forfeiture of the firearm to the state.

A second offense can carry up to 10 years in prison.

A few details that matter:

• “Possession” is broad. Same constructive possession analysis as drug cases. The gun doesn’t have to be on you. It can be under the seat, in the glove box, in the closet of a house you live in.
• “Firearm” is broad. It includes handguns, rifles, shotguns, and frames or receivers. Some replicas and antiques are excluded but the law is narrow.
• “Ammunition” is enough. You don’t have to have the gun. Loose rounds in a drawer, a magazine in a backpack, or shell casings can technically support a charge.

What Counts as a Disqualifying Conviction

Not every felony triggers § 16-23-500. The statute applies to convictions for “violent crimes” as listed under § 16-1-60. That list is long, but the most common include:

• Murder and attempted murder
• Voluntary manslaughter
• Armed robbery and strong-arm robbery
• Assault and battery of a high and aggravated nature (ABHAN)
• Assault and battery, first degree
• Burglary, first degree
• Kidnapping
• Carjacking
• Criminal sexual conduct in any degree
• Many drug trafficking offenses
• Lynching, second degree
• Arson, first or second degree
• DUI causing great bodily injury or death

Under federal law, any felony conviction — violent or not — disqualifies you under 18 U.S.C. § 922(g)(1). That’s where the federal exposure comes in even when the state charge wouldn’t apply.

So even a non-violent state felony — say, a fraud or burglary conviction — that doesn’t trigger § 16-23-500 can still be the basis for a federal “felon in possession” prosecution.

Why Federal Charges Make This So Much More Serious

The federal version of this charge (18 U.S.C. § 922(g)) carries:

• Up to 10 years in federal prison
• A $250,000 fine
• No state parole — federal sentences require serving 85% of the term

And then there’s the Armed Career Criminal Act (ACCA) under 18 U.S.C. § 924(e). If you have three or more prior convictions for “violent felonies” or serious drug offenses, the ACCA imposes a 15-year mandatory minimum federal sentence — with no early release.

ACCA cases come out of joint state-federal task forces. A state arrest in Rock Hill can absolutely get picked up by the U.S. Attorney’s Office for the District of South Carolina if you fit the profile. That decision often gets made within the first weeks of the case.

This is why what you do in the early days of the arrest matters so much.

What to Do Right Now If You’ve Been Arrested

The first 72 hours after arrest set the tone for everything that follows. Here’s what to do — and what not to do.

1. Stop Talking. Right Now.

The single most damaging thing you can do is try to explain. “It wasn’t mine.” “I didn’t know it was there.” “It belongs to my girlfriend.” Every one of those statements is recorded, written down, and turned over to the prosecution.

You are not going to talk your way out of this. Stay quiet. Ask for a lawyer.

2. Don’t Consent to Anything Else

If the police want to come back to your house, search your car again, look at your phone, or do anything else after the arrest — say no, ask for a lawyer, and stop.

3. Don’t Discuss the Case on a Jail Phone

Every call from inside the jail is recorded. Don’t discuss the gun, don’t discuss who it belonged to, don’t discuss your version of events. Don’t ask family members to “get rid of” anything (that adds an obstruction charge to your case in addition to everything else).

4. Don’t Post About It

Social media is not private. Posts, DMs, photos — all of it can be subpoenaed.

5. Get the Paperwork

Bond paperwork, arrest warrant, incident report number, ticket. Bring everything to your consultation.

6. Call a Defense Attorney Before Your First Court Date

Bond hearings happen fast. Initial appearances follow. The earlier you have a lawyer in the case, the more options you have.

How Okoye Law Defends Felon-in-Possession Cases

The defenses that work in these cases generally fall into three categories.

Challenge the Search

Most felon-in-possession arrests come out of traffic stops, search warrants, or consent searches. Each of those is a potential weak point.

If the officer didn’t have a legitimate reason to stop the car, the gun may be suppressible. If the warrant was overbroad or the affidavit was misleading, the gun may be suppressible. If the “consent” wasn’t really voluntary, the gun may be suppressible.

When the gun gets thrown out of evidence, the case usually goes with it.

Challenge Possession

Constructive possession is the state’s go-to theory when the gun isn’t physically on you. They have to prove you knew the gun was there and had the ability to control it.

If the gun was in a shared space (a car with multiple people, a house with multiple residents), the state’s case may not be as strong as it looks at first.

We work on:

• Whose fingerprints and DNA are actually on the gun
• Who had access to the location where the gun was found
• Whether you knew the gun was there at all
• Whether the gun belonged to someone else (a roommate, a family member, an ex)

Challenge the Predicate Conviction

In rare cases, the prior conviction the state is using to qualify you as a “convicted felon” can be challenged. This is more common in federal ACCA cases, where whether a prior conviction counts as a “violent felony” under federal definitions can be technical and litigable.

This is also where having an attorney who actually understands the difference between state classifications and federal “categorical approach” analysis matters.

Negotiate Down

When the case is hard to win at trial, the next move is to negotiate. Sometimes that means getting the felon-in-possession charge dropped in exchange for a plea on a lesser firearms offense. Sometimes it means agreeing to state prosecution to avoid federal exposure. The negotiation strategy depends entirely on the facts of your case and what the prosecution is willing to do.

What About Restoration of Gun Rights?

If you have a felony conviction and you want to legally own a firearm again in South Carolina, your only paths are:

• A pardon from the South Carolina Department of Probation, Parole and Pardon Services. A pardon restores civil rights but does not always restore federal gun rights.
• Expungement — only certain offenses are eligible, and most disqualifying felonies are not.

There is no automatic restoration of gun rights after completing a sentence in South Carolina. Anyone who tells you “you can have a gun again after X years” is wrong.

If gun rights restoration is something you want to pursue, that’s a conversation worth having — but it’s separate from defending against a current charge.

Why You Need a Defense Lawyer Who Handles Both State and Federal Cases

Felon-in-possession is one of those charges where the difference between state prosecution and federal prosecution can be the difference between probation and 15 years.

You need an attorney who:

• Knows when a case is likely to be picked up by the U.S. Attorney’s Office
• Knows how to position the case to keep it in state court when that’s the better outcome
• Has experience in both York County General Sessions Court and the U.S. District Court for the District of South Carolina
• Understands ACCA analysis and how prior convictions get categorized

Our founder Colin Okoye, a former public defender, has handled exactly this kind of case. We work in both court systems and we know how the early-stage decisions affect the rest of the case.

Learn more about our Rock Hill criminal defense practice or meet Colin Okoye.

Schedule a Confidential Case Review

If you’ve been arrested for felon in possession of a firearm — or you know charges are coming — reach out to us before you talk to anyone else.

Contact us online or schedule an appointment. Same-day response. The first conversation is free and protected by attorney-client confidentiality.

The earlier you have a defense attorney involved, the more we can do.

Read our reviews from clients who’ve been in your spot.