Will the AshleyMadison.com data dump lead to divorces in Mississippi?

AshleyMadison

AshleyMadison.com is a website designed for married people to find a person with which to have an affair. Their slogan is “Life is short.  Have an affair.”  The bottom of their site contains what appear to be little awards claiming “Trusted Security Award” and “100% Discrete Service.”  Not so.

By now you have probably heard about the AshleyMadison.com (AM) data dump.  This story began back on July 15 when online security expert Brian Krebs reported that a group of hackers named the Impact Team had compromised the databases and proprietary electronic information of AM, its parent company Avid Life media and related sites Cougar Life and Established Men.

A little over a month later on August 18 the data dump started showing up around the web.  Various sites have popped up where you can search the database by email address including this one.  According to Joseph Cox at Motherboard, the Impact Group as now dumped another set of data that is roughly twice the size of the first dump.

The two AM data dumps come on the heals of yet another data dump at adult hookup site AdultFriendFinder.com a few months back.  Cheaters beware.

So how long will it be before the first client walks into a lawyer’s office in Mississippi asking for a divorce based on the AshleyMadison or AdultFriendFinder data dumps?  If it hasn’t already happened, it won’t be long.

Advertisements

3 years to file for alienation of affection in MS, but when does the 3 years start?

As the above letter from a reditt user shows, there are a number of ways to seek revenge with a cheating spouse.  If you are in Mississippi, you can add the filing of an alienation of affection lawsuit against the paramour to the list.

Mississippi is one of only a handful of states that allows a legal claim for alienation of affection.To prevail, a plaintiff must show  the legal elements for the claim which are wrongful conduct of the defendant, loss of affection or consortium and a causal connection between the conduct and the loss.  Fitch v. Valentine, 959 So.2d 1012, 1015 (Miss. 2007).  In addition, the plaintiff must file the lawsuit within the statute of limitations.  “Thought alienation of affection is an intentional tort, it does not have a specifically prescribed statute of limitations.  Therefore, we apply the general three-year statute of limitation..” Fulkerson v. Odom, 53 So.3d 849, 851 (Miss. Ct. App. 2011).

Under Mississippi law, a claim of alienation of affection accrues when the alienation of affection or loss of affection is finally accomplished.  The accrual of the claim, then, occurs when the affections of the spouse involved in the extramarital relationship are alienated.  The affections of the spouse wronged by the affair are irrelevant to a determination of when the cause of action accrued.

Carter v. Reddix, et al, 115 So.3d 851, 857 (Miss. Ct. App. 2012)(internal citations omitted).  The discovery rule does not toll the three year statute of limitations. Fulkerson v. Odom, 53 So.3d 849 (Miss. Ct. App. 2011).

With those general principles in mind, the Mississippi Court of Appeals is set to her oral argument in the case of Shane Anderson v. James B. Ladner in cause no. 2014-CA-00730 on Wednesday at 10:30 a.m.

Webcast link.

Brief of Shane Anderson

Response of James B. Ladner

Reply of Shane Anderson

Anderson brought claims against Ladner for alienation of affection (AA), reckless infliction of emotional distress and punitive damages.  The statute of limitations for an intentional infliction of emotional distress claim is one year and a claim for punitive damages is not a stand alone claim, so lets focus on the AA claim.

At the trial court level, Ladner argued that the filing of the joint filed divorce triggered the running of the statute of limitations on the AA claim.  The trial court agreed and dismissed the case.

On appeal, Anderson primarily argues for a bright line rule that accrual of an alienation of affection case begins at the finalization of the divorce and that such a rule “would be more consistent with the irreconcilable differences divorce statute because the statute itself provides for an opportunity for reconciliation.”  Anderson’s Brief at p. 10.

Ladner counters that Anderson didn’t request a bright line rule before the trial court and that Anderson’s claim accrued at the time the complaint for divorce was filed.  Ladner also argues that Anderson is prohibited from arguing a different accrual date due to res judicata and collateral estoppel.

So when exactly does the three years start?  The positions advocated by both parties have positives and negative attributes.  A bright line rule provides clarity.  However, consider the situation where a married couple files for divorce, but subsequently reconcile in spite of an earlier alienation of affection by a third party.  Anderson’s position would be that an AA claim never accrued because there was no divorce.  Ladner’s position is in and of itself a form of bright line rule.  Any time a divorce was filed (regardless of whether the parties completed the divorce), the statute of limitations would begin to run on an AA claim.

Tune in tomorrow at 10:30 for the argument.

Making a federal case out of it?

Very few cases make it to the United States Supreme Court.  According to stats from the Court, they receive “approximately 10,000 petitions for a writ of certiorari each year.  The Court grants and hears oral argument in about 75-80 cases.”  Your ordinary car wreck case where both parties are residents of the same state generally doesn’t have any federal questions.  Appeals end at the highest appeals court for the state where the case was tried.

The alienation of affection case involving pro golfer John Daly that I previously discussed here is making a stop by the US Supreme Court due to the defendant filing a petition for writ of certiorari.  The basis of the petition boils down to claiming the Mississippi courts have no jurisdiction over the defendant where:

  • The plaintiff and defendant are non-residents of Mississippi
  • The defendants contacts with Mississippi are insufficient to confer jurisdiction
  • Mississippi has “virtually no interest in entertaining this dispute between the Plaintiff and another nonresident to which no Mississippi substantive law is likely to apply”
  • The states of residency for the parties have abolished the tort of alienation of affection therefor allowing Mississippi courts to exercise jurisdiction here would corrupt the doctrine of state sovereignty.

Interesting arguments that raise federal issues.

The original opinion from the Mississippi Court of Appeals states:

While the state’s interest is not as strong in this case as it was in Knight since the marriage at issue is not a Mississippi marriage, we still conclude that Mississippi has “an especial interest” in this case. The Legislature, in modifying our state’s long-arm statute in 1980, expressed the public policy of the state to provide a forum for nonresidents to pursue compensation for torts committed in whole or in part in this state. See Camp, 462 So. 2d at 727; 1980 Miss. Law, Ch. 437. ¶33. The trial court recognized Miller’s strong interest in obtaining effective relief for the alienation-of-affection tort she alleges occurred within our borders. Miller lacks a viable alternative forum to adjudicate that claim, since both Tennessee and Florida have abolished alienation-of-affection as a cause of action. This fact increases Mississippi’s interest in adjudicating this claim.

While I support Mississippi’s reluctance to abolish alienation of affection cases for the benefit of Mississippi residents, I fail to see what business Mississippi has in providing a forum for out of state litigants in these matters or why Mississippi’s interests are increased in the matter due to the litigants being residents of states that have abolished alienation of affection.

My take – the Court of Appeals got it wrong, but statistically I do not expect the US Supreme Court to fix it.  Petition for writ of certiorari will be denied.  The case will head toward trial in Mississippi and may very well end up before the Mississippi appellate courts once again.  For now, alienation of affection cases are viable in Mississippi where:

  • the defendant is a Mississippi resident,
  • a non-resident defendant engages in acts (romantic rendezvous) in furtherance of the alienation of affection while physically present in Mississippi, or
  • a non-resident defendant directs contact (phone calls, gifts, emails, text messages, etc.) to a married person in Mississippi in furtherance of the alienation of affection.

Return to sender, reverse and render

Arguably the most famous person ever born in Tupelo, Mississippi had a little hit back in 1962 titled “Return to Sender”

I gave a letter to the postman,
He put it his sack.
Bright in early next morning,
He brought my letter back.

She wrote upon it:
Return to sender, address unknown.
No such number, no such zone.

Hopefully, Elvis wasn’t singing about sending love letters to a married person as was central to Nordness v. Faucheaux case handed down today by the Mississippi Supreme Court.

Phillip and Paige Faucheux were a military couple who moved frequently, but lived in Mississippi during the time relevant to the case.  While Phillip was a resident of Mississippi he began a relationship with Francesca Nordness, a resident of Louisiana.  According to the opinion:

Phillip and Francesca continued the affair while Phillip trained in south Louisiana. Phillip often would drive Francesca around in his Mazda pick-up truck with Louisiana license plates. Francesca never visited Phillip in Mississippi, and Phillip never told Francesca that he lived in Mississippi. Instead, he misled her into believing he actually lived in Memphis. His cell phone had a “901” area code—the area code for the Memphis area—and he sent her packages with a Memphis return address.

and

Francesca and Phillip continued to rendezvous at locations across the country, including Louisiana, Florida, North Carolina, Nevada, and Colorado—but never Mississippi. And although the two exchanged e-mails, phone calls, and text messages, Francesca never knowingly communicated with Phillip while he was in Mississippi. Phillip also sent Francesca several FedEx packages during this time, but according to Phillip’s uncontroverted testimony, he always used a Memphis return address.

Paige finally decided enough was enough and divorced Phillip.  Shortly thereafter, Paige brought suit in Mississippi against Francesca for alienation of affection and a number of related torts.  Francesca filed a motion to dismiss due to lack of personal jurisdiction claiming in essence “I wasn’t in Mississippi and didn’t do anything in Mississippi.”  The trial court denied the motion and the parties ended up before the Mississippi Supreme Court.

Several recent alienation of affection cases before the Court have centered on claims by defendants of insufficient contact with Mississippi to support personal jurisdiction.  To the best of my recollection, all of those challenges have failed until today.

In Miller v. Provident Adver. & Mktg., 2014 Miss. App. LEXIS 339, 24-25 (Miss. Ct. App. June 17, 2014) involving pro golfer John Daly, the Court of Appeals found:

[T]he alleged sexual activity between Cladakis and Daly within the state of Mississippi, which contributed to the breakup of Daly’s marriage with Miller, constituted a tort committed, at least in part, within this state. For whatever reason Cladakis and Daly chose Mississippi for the site of their liaisons, this Court finds that decision constituted a purposeful availment to activities within the state for purposes of personal jurisdiction.

In Knight v. Woodfield, 50 So. 3d 995 (Miss. 2011) the court found sufficient contacts where “Knight admitted he was aware that Dakka and Woodfield were married and that Dakka lived with Woodfield in Mississippi.”

In contrast to Miller and Knight, the Court in this case could find no purposeful contact by Francesca with the State of Mississippi.

The record includes no evidence that Francesca created sufficient purposeful minimum contacts with Mississippi by having an affair with a man she did not know lived in Mississippi. Her calls and text messages to Phillip’s Memphis telephone number do not establish minimum contacts in Mississippi. A nonresident defendant must knowingly and purposefully establish minimum contacts with the forum state—in this case, Mississippi—such that the nonresident reasonably can expect to be haled into court in that state.

Nordess, at paragraph 45.  The end result from the Court was to reverse and render.

*Short practice tip – If you plan on filing an alienation of affection case in Mississippi against a non-resident of Mississippi, find some knowing contact by the paramour with the State of Mississippi.  That contact could be:

  • directing emails, letters, texts messages or gifts to the married person in the State of Mississippi
  • knowledge by the paramour that the married person is a Mississippi resident
  • presence of the non-resident paramour in the State of Mississippi to engage in a sexual act with the married person or further the illicit affair

If you can’t prove these minimum contacts your lawsuit, like the King’s letter, will be returned to sender.

The worst pro se filing ever?

Last week on tax day made 15 years for me in the practice of law.  In that period of time I have crossed paths with some really good people and a considerably smaller group that were anything but.  Just when I thought I had viewed most every absurd thing that could be filed in a court, I saw this jewel that was filed in the US District Court for the Northern District of Georgia by an irate pro se plaintiff.  I did not bother to count the number of F-bombs in her “Notice to F*ck this Court and Everything It Stands For” but the number is substantial.

http://www.docdroid.net/y8kx/41-main.pdf.html

This woman will likely end up in jail or a mental institution in the very near future.

Here is a small piece of advice I give every client before deposition and that applies equally to anyone filing a document in Court…..Do not use profanity for any reason unless you are directly quoting to the Court what someone else said that is important to your case.

Unfortunately, something will likely top this pro se pleading before I make my next 15 years.

Search terms……….Ask Randy v2

Version 2 of my previous blog post Ask Randy.   As stated in the previous post, it is a combination of Dear Abby, ask a friend and general Mississippi legal advice.  If you have a specific legal issue contact an attorney licensed in your state for your specific issue.  Keep this legal notice in mind.

if a divorce goes to trial does the man always end up worse

Worse than what?  Worse than if he settled on equitable terms? Maybe.  Worse than if he never had a go through a divorce?  Probably so.  Worse than taking a horrible settlement offered by his future ex?  Doubtful.  Every case and potential settlement must be evaluated on its own terms.

what happens if you pick up your husband’s last name and u get divorce

You keep it unless you request that your maiden name be restored in the divorce.

what recourse is available to me if my husband did not tell me he murdered someone prior to us getting married.

That is a freaky situation, but not grounds for divorce in Mississippi.

wife cheats on husband and wins in court

A basis or ground for divorce may entitle you to divorce, but it is not outcome determinative.  While the court may consider marital fault, cheaters receive an equitable distribution of marital assets and debt.

since i married ten years ago my wife and her exbf want kill me

Strongly consider getting a divorce and moving on with your life.  No reason to stay around anyone that wants to kill you!

bringing mistress home to live before divorce is final does that hurt custody changes

It certainly doesn’t help your chances.  Just don’t do it.

how to divorce your crazy boyfriend

Leave.  No legal process is required to separate yourself from a boyfriend.

are muzzle loaders legal for felons

Not in Mississippi.

what is it call if you lie in a divorce court

It is called many things…..perjury, stupid, a bad idea, a good way to go to jail, how to piss of the judge, etc.  Just don’t do it.

how to make sure my wife gets nothing in divorce

That probably isn’t going to happen.  Get over it.

if a man leaves you 5 times and keeps coming back what are the odds of divorce

I am not sure Vegas would put odds on it, but at least 50/50 (meaning I don’t have a clue).

what can one due to stop grandparents from meddling in divorce proceding by funding adulterous son

Nothing.  His parents can pay whatever they want on his behalf.  Only worry about what is in your control.

i am with a man thats married thst says his attorney said to wait to grt divorced until the house sells

There is a decent chance that you will be waiting a LOOOOOOOONG time.

 

 

Landowners file suit against MDWF&P over dogs on private land

On February 2, 2015 three plaintiffs filed suit in Hinds County Chancery Court against the Mississippi Department of Wildlife, Fisheries and Parks, the Mississippi Commission on Wildlife, Fisheries and Parks, and Sam Polles, in his official capacity as Executive Director of the Mississippi Department of Wildlife Fisheries and Parks.  You can read the plaintiffs’ complaint here.

The plaintiffs claim that dog hunters have caused free ranging hunting dogs to cross their land and the MDWFP has failed to take any action to prevent these dogs from intruding on the property of the plaintiffs.  Plaintiffs also allege that the MDWFP has failed to implement a system of permitting and fines to reduce or eliminate the problems of which plaintiffs complain.  The plaintiffs’ legal theories are based on public nuisance, an unconstitutional taking of their property, civil trespass, and private nuisance.

Plaintiffs prayer for relief states

dogjpg

My Take:    This case is a dog that won’t hunt.  The plaintiffs will soon learn about something called the Mississippi Tort Claims Act that applies when you sue the State of Mississippi for money.  Assuming they complied with the notice provisions, there are several other provisions which they will soon find problematic.  For example:

§ 11-46-9. Exemption of governmental entity from liability on claims based on specified circumstances

   (1) A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim:

   (a) Arising out of a legislative or judicial action or inaction, or administrative action or inaction of a legislative or judicial nature;

   (b) Arising out of any act or omission of an employee of a governmental entity exercising ordinary care in reliance upon, or in the execution or performance of, or in the failure to execute or perform, a statute, ordinance or regulation, whether or not the statute, ordinance or regulation be valid;

   (c) Arising out of any act or omission of an employee of a governmental entity engaged in the performance or execution of duties or activities relating to police or fire protection unless the employee acted in reckless disregard of the safety and well-being of any person not engaged in criminal activity at the time of injury;

   (d) Based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee thereof, whether or not the discretion be abused;

   (e) Arising out of an injury caused by adopting or failing to adopt a statute, ordinance or regulation;

….

   (g) Arising out of the exercise of discretion in determining whether or not to seek or provide the resources necessary for the purchase of equipment, the construction or maintenance of facilities, the hiring of personnel and, in general, the provision of adequate governmental services;

   (h) Arising out of the issuance, denial, suspension or revocation of, or the failure or refusal to issue, deny, suspend or revoke any privilege, ticket, pass, permit, license, certificate, approval, order or similar authorization where the governmental entity or its employee is authorized by law to determine whether or not such authorization should be issued, denied, suspended or revoked unless such issuance, denial, suspension or revocation, or failure or refusal thereof, is of a malicious or arbitrary and capricious nature.

 

Alienation of Affection Case with John Daly Headed Back to Court

Yardbarker.com reports that an alienation of affection case involving pro golfer John Daly is headed back to court in Mississippi.  On January 15, 2015 the Mississippi Supreme Court denied review of a Court of Appeals case which revered the trial court’s ruling that Mississippi wasn’t a proper forum for the case.

[T]he alleged sexual activity between Cladakis and Daly within the state of Mississippi, which contributed to the breakup of Daly’s marriage with Miller, constituted a tort committed, at least in part, within this state. For whatever reason Cladakis and Daly chose Mississippi for the site of their liaisons, this Court finds that decision constituted a purposeful availment to activities within the state for purposes of personal jurisdiction.

Miller v. Provident Adver. & Mktg., 2014 Miss. App. LEXIS 339, 24-25 (Miss. Ct. App. June 17, 2014).  To make matters even worse for the defendant, the Court of Appeals also erased $78,307 in sanctions the trial court had awarded against the plaintiff as a sanction under the Litigation Accountability Act.

[O]ur reversal of the trial court’s judgment regarding jurisdiction undermines the trial court’s position on attorneys’ fees as well. Accordingly, we reverse the award of attorneys’ fees to Cladakis.

……

[A] claim is frivolous ‘only when, objectively speaking, the pleader or movant has no hope of success. Though a case may be weak or ‘light-headed,’ that is not sufficient to label it frivolous.”

Miller v. Provident Adver. & Mktg., 2014 Miss. App. LEXIS 339 (Miss. Ct. App. June 17, 2014).

Philip Thomas’ blog reviews a number of alienation of affection verdicts in Mississippi.  The verdicts range from zero to 7 digits.  Where this one will end is anyone’s guess.  Daly’s fiance, Cladakis, may have a decent defense if she can prove there was no love in the Daly marriage to alienate in part due to Daly’s ex-wife allegedly demanding $2,500 every time they had intercourse.  On a side note, if Daly marries Cladakis it will be his fifth marriage.  At some point Daly has to look in the mirror and realize the marital struggles might just be his fault rather than his exes.

Discovery of facebook content in civil litigation

images

In the first few years of my practice of law there was no facebook or myspace.  The little social media that existed consisted of bulletin boards or AOL chatrooms.  As a result there were no discovery disputes about the production of material within facebook accounts.  Today, very few cases of any type hit my desk where social media content doesn’t play some role in litigation.  It might be the facebook photos and responses under it of a cheating spouse and his paramour, bar room  pictures of a defendant drinking alcohol on the night of a collision, or pictures of a injured party doing some activity after a car wreck the the person claims he cannot do.  Regardless of the circumstances, the party with the facebook page claims the content is privileged or protected and the other party claims the opposite leaving the court to sort it out.

The recent case of Nucci v. Target Corp, et al from the Florida Fourth District Court of Appeals highlights one of these disputes.   Maria Nucci filed a lawsuit claiming she slipped and fell on the floor of a Target store.  She alleged:

  • bodily injury
  • pain from the injury
  • medical, hospital, and nursing expenses
  • suffered physical handicap
  • emotional pain and suffering
  • lost earnings
  • Lost the ability to earn money
  • Lost or suffered a diminution of ability to enjoy her life
  • Suffered aggravation of preexisting injuries
  • Suffered permanent or continuing injuries
  • Will continue to suffer the losses and impairment in the future

According to the court’s decision:

Target took Nucci’s deposition on September 4, 2013. Before the deposition, Target’s lawyer viewed Nucci’s Facebook profile and saw that it contained 1,285 photographs. At the deposition, Nucci objected to disclosing her Facebook photographs. Target’s lawyer examined Nucci’s Facebook profile two days after the deposition and saw that it listed only 1,249 photographs. On September 9, 2013, Target moved to compel inspection of Nucci’s Facebook profile. Target wrote to Nucci and asked that she not destroy further information posted on her social media websites. Target argued that it was entitled to view the profile because Nucci’s lawsuit put her physical and mental condition at issue.

Nucci v. Target Corp. at page 2.

Target served Nucci with a set of Electronic Media Interrogatories and a Request for Production of Electronic Media.  Nucci entered objections on the grounds of (1) privacy; (2) items not readily accessible; and (3) relevance, (4) overbroad; (5) brought solely to harass; (6) “over[ly] burdensome;” (7) “unduly burdensome”; and (9) unduly vague.

The Court found in favor of allowing the discovery despite Nucci’s objections.

[T]he photographs posted on a social networking site are neither privileged nor protected by any right of privacy, regardless of any privacy settings that the user may have established. Such posted photographs are unlike medical records or communications with one’s attorney, where disclosure is confined to narrow, confidential relationships. Facebook itself does not guarantee privacy. By creating a Facebook account, a user acknowledges that her personal information would be shared with others. Indeed, that is the very nature and purpose of these social networking sites else they would cease to exist. Because information that an individual shares through social networking web-sites like Facebook may be copied and disseminated by another, the expectation that such information is private, in the traditional sense of the word, is not a reasonable one.

Nucci v. Target Corp. at page 9 (internal citations and quotations omitted).

A more difficult question is can an attorney advise a client to “clean up” a social media or facebook profile before litigation starts.  Roughly two weeks after the Nucci decision was released, the Professional Ethics Committee of the Florida Bar issued Proposed Advisory Opinion 14-1 discussing the issue and advised that the practice was acceptable in certain limited situations.

The committee also agrees that a lawyer may advise the client pre-litigation to remove information from a social media page, regardless of its relevance to a reasonably foreseeable proceeding, as long as the removal does not violate any substantive law regarding preservation and/or spoliation of evidence. The committee is of the opinion that if the lawyer does so, an appropriate record of the social media information or data must be preserved if the information or data is known by the lawyer or reasonably should be known by the lawyer to be relevant to the reasonably foreseeable proceeding.

The committee is of the opinion that the general obligation of competence may require the inquirer to advise the client regarding removal of relevant information from the client’s social media pages, including whether removal would violate any legal duties regarding preservation of evidence, regardless of the privacy settings. If a client specifically asks the inquirer regarding 109 removal of information, the lawyer’s advice must comply with Rule 4-3.4(a). What information on a social media page is relevant to reasonably foreseeable litigation is a factual question that must be determined on a case-by-case basis.

In summary, a lawyer may advise that a client change privacy settings on the client’s social media pages so that they are not publicly accessible. Provided that there is no violation of the rules or substantive law pertaining to the preservation and/or spoliation of evidence, a lawyer also may advise that a client remove information relevant to the foreseeable proceeding from social media pages as long as an appropriate record of the social media information or data is preserved.

Keep in mind this is only a proposed opinion, it is limited to Florida and has enough “known” or “reasonably known” thrown in that it should make any lawyer think twice before counseling a client to destroy any social media content.

Courts in other states may not view the issue the same.  For example, in Allied Concrete Co. v. Lester, 736 S.E.2d 699 (Va. 2013) a Virginia Court upheld sanctions of $542,000 against a lawyer and $180,000 against the client for spoliation of evidence when the client, at the lawyer’s direction, deleted photographs from client’s social media page, the client deleted the accounts, and the lawyer signed discovery requests that the client did not have the accounts.  As a side note, the main photograph they were apparently trying to suppress was one of the plaintiff wearing a shirt stating “I love hot moms.”  The half a million in sanctions to the lawyer wasn’t the end of it as later the attorney agreed to a five year suspension of his law license.

The takeaway from all of this is simple.  If your social media presence is contrary to your litigation claims, the other side will eventually find out.  If you attempt the delete your social media presence, the other side will eventually find out.  When they catch you being dishonest, your case will go down the toilet and you may very well end up owing the other side some significant attorney’s fees.  In two words—-Be honest.

Can a convicted felon legally hunt with a muzzle loader in Mississippi?

Not a hunting season goes by that someone doesn’t ask me this question so I figured it would be helpful to put the answer in writing for any convicted felons that might be considering hunting with a muzzle loader.

With respect to federal law, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) has a handy Top 10 Frequently Asked Questions section on their website.  The number 1 question is “Can a person prohibited by law from possessing a firearm acquire and use a black powder muzzle loading firearm?”  The ATF’s response is:

The Gun Control Act of 1968 (GCA) prohibits felons and certain other persons from possessing or receiving firearms and ammunition (“prohibited persons”). These categories can be found at 18 U.S.C. § 922(g) and (n) in http://atf.gov/publications/download/p/atf-p-5300-4.pdf. However, Federal law does not prohibit these persons from possessing or receiving an antique firearm. The term “antique firearm” means any firearm (including any firearm with a matchlock, flintlock, percussion cap, or similar type of ignition system) manufactured in or before 1898. The definition includes any replica of an antique firearm if it is not designed or redesigned for using rimfire or conventional centerfire fixed ammunition, or uses rimfire or conventional centerfire ammunition which is no longer manufactured in the United States, and which is not readily available in ordinary channels of commercial trade. Further, any muzzle loading rifle, shotgun, or pistol which is designed to use black powder or black powder substitute, and which cannot use fixed ammunition, is an “antique firearm” unless it (1) incorporates a firearm frame or receiver; (2) is a firearm which is converted into a muzzle loading weapon; or (3) is a muzzle loading weapon which can be readily converted to fire fixed ammunition by replacing the barrel, bolt, breechblock, or any combination thereof. See 18 U.S.C. § 921(a)(3), (a)(16). Thus, a muzzle loading weapon that meets the definition of an “antique firearm” is not a firearm and may lawfully be received and possessed by a prohibited person under the GCA. In addition, the GCA defines the term “ammunition” to mean “ammunition or cartridge cases, primers, bullets, or propellant powder designed for use in any firearm.” Because an “antique firearm” is not a “firearm,” it would is lawful for a prohibited person to receive or possess black powder designed for use in an “antique firearm.” Also, the Federal explosives laws do not make it unlawful for a prohibited person to acquire and possess black powder in quantities not exceeding fifty pounds if it is intended to be used solely for sporting, recreational, or cultural purposes in “antique firearms.” See 18 U.S.C. § 845(a)(5) By contrast, a prohibited person may not receive or possess black powder firearms that can be readily converted to fire fixed ammunition by replacing the barrel, bolt, breechblock, or any combination thereof. ATF has classified certain muzzle loading models as firearms. All of these models incorporate the frame or receiver of a firearm that is capable of accepting barrels designed to fire conventional rimfire or centerfire fixed ammunition. These muzzle loading models do not meet the definition of “antique firearm” as that term is defined in 18 U.S.C. § 921(a)(16), and are “firearms” as defined in 18 U.S.C. § 921(a)(3). Furthermore, as firearms, these and similar models, regardless of the barrel installed on the firearm or provided with the firearm, are subject to all provisions of the GCA. Persons who purchase these firearms from licensed dealers are required to fill out a Firearms Transaction Record, ATF Form 4473, and are subject to a National Instant Criminal Background Check System (NICS) check. Felons and other prohibited persons may not lawfully receive or possess these firearms or ammunition.

The following is a list of weapons that load from the muzzle and are classified as firearms, not antiques, under the GCA, because they incorporate the frame or receiver of a firearm:

  • Savage Model 10ML (early, 1st version)
  • Mossberg 500 shotgun with muzzle loading barrel
  • Remington 870 shotgun with muzzle loading barrel
  • Mauser 98 rifle with muzzle loading barrel
  • SKS rifle with muzzle loading barrel
  • PB sM10 pistol with muzzle loading barrel
  • H&R/New England Firearm Huntsman
  • Thompson Center Encore/Contender
  • Rossi .50 muzzle loading rifle

This list is not complete and frequently changes. There may be other muzzle loaders also classified as firearms. As noted, any muzzle loading weapon that is built on a firearm frame or receiver falls within the definition of a firearm provided in 18 U.S.C. § 921(a)(3). Finally, even though a prohibited person may lawfully possess an antique firearm under Federal law, State or local law may classify such weapons as “firearms” subject to regulation. Any person considering acquiring a black powder weapon should contact his or her State Attorney General’s Office to inquire about the laws and possible State or local restrictions. A list of State Attorney General contact numbers may be found at www.naag.org.

As referenced in the third to the last sentence above, a state may also classify muzzle loaders as firearms subject to regulation.  That is exactly what an Attorney General’s opinion does in Mississippi. See 2004 WL 555121 (Miss.A.G.) Opinion No. 2004-0043, dated February 13, 2004.  The opinion states:

Office of the Attorney General

State of Mississippi

Opinion No. 20040043

February 13, 2004

Re: Possession of Weapons by Felon

Honorable Mark A. Maples

George County Prosecutor

362 Summer Street

Lucedale, Mississippi 39452

Dear Mr. Maples:

Attorney General Jim Hood has received your letter of request and has assigned it to me for research and reply. Your letter states:

Sheriff Garry Welford and I hve recently been asked a question about a convicted felon and a firearm, and we pose the following question:

Section 97-37-5 of the Mississippi Code, 1972, as amended provides:

“(1) It shall be unlawful for any person who has been convicted of a felony under the laws of this State, any other State, or the United States, to possess any firearm…”.

An individual in George County was previously convicted of burglary of a building and accessory after the fact to armed robbery. He received an eight-year and four-year sentence, respectively, and served a period of ten years before being discharged from the Department of Corrections custody. He is no on any type of parole or Department of Corrections supervision at this time. He wishes to hunt using a muzzle loading rifle or muzzle loading shotgun or bow and arrow.

Our question is this: Can a convicted felon possess (and consequently hunt) with a muzzle loading rifle, muzzle loading shotgun, a traditional bow and arrow, or a cross bow?

In response, Mississippi Code Annotated Section 97-37-5 provides:

(1) It shall be unlawful for any person who has been convicted of a felony under the laws of this state, any other state, or of the United States to possess any firearm or any bowie knife, dirk knife, butcher knife, switchblade knife, metallic knuckles, blackjack, or any muffler or silencer for any firearm unless such person has received a pardon for such felony, has received a relief from disability pursuant to Section 925(c) of Title 18 of the U.S. Code, or has received a certificate of rehabilitation pursuant to subsection (3) of this section.

(2) Any person violating this section shall be guilty of a felony and, upon conviction thereof, shall be fined not more than Five Thousand Dollars ($5,000.00), or committed to the custody of the State Department of Corrections for not more than three (3) years, or both.

(3) A person who has been convicted of a felony under the laws of this state may apply to the court in which he was convicted for a certificate of rehabilitation. The court may grant such certificate in its discretion upon a showing to the satisfaction of the court that the applicant has been rehabilitated and has led a useful, productive and law-abiding life since the completion of his sentence and upon the finding of the court that he will not be likely to act in a manner dangerous to public safety.

The above quoted statute prohibits a convicted felon from possessing of any “firearm” among other weapons. Black’s Law Dictionary defines “firearm” as:

An instrument used in the propulsion of shot, shell or bullets by the action of gunpowder exploded within it. A weapon which acts by force of gunpowder. The word comprises all sorts of guns, fowling pieces, blunderbusses, pistols, etc.

It is the opinion of this office that a muzzle loading rifle or a muzzle loading shotgun is within the meaning of the term “firearm” as used in Mississippi Code Annotated Section 97-37-5. However, the statute does not include weapons such as a traditional bow and arrow or crossbow. Therefore, a convicted felon may possess (and consequently hunt with) a traditional bow and arrow or crossbow.

If we may be of further service to you, let us know.

Very truly yours,

Jim Hood,

Attorney General

By: David K. Scott

Special Assistant Attorney General

Long story short, while the ATF is ok with felons possessing some black powder muzzle loaders under federal law, felons are prohibited from possessing any type of muzzle loader under Mississippi state law.  If you have been convicted of a felony and intend to hunt in Mississippi, you are limited to the use of a bow or crossbow unless you have received a pardon for the felony, have received a relief from disability pursuant to Section 925(c) of Title 18 of the U.S. Code, or have received a certificate of rehabilitation pursuant to subsection (3) of 97-37-5.

%d bloggers like this: