Legal Information: Delaware

Statutes: Delaware

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Updated: 
November 4, 2022

§ 1448. Possession and purchase of deadly weapons by persons prohibited; penalties

(a) Except as otherwise provided in this section, the following persons are prohibited from purchasing, owning, possessing, or controlling a deadly weapon or ammunition for a firearm within the State:

(1) Any person who has been convicted in this State or other jurisdiction of a felony or a crime of violence involving physical injury to another person, whether or not armed with or while possessing any weapon during the commission of the felony or crime of violence.

(2) Any person who meets any of the following:

a. Has been involuntarily committed for a mental condition under Chapter 50 of Title 16 , unless the person can demonstrate that the person is no longer prohibited from possessing a firearm under § 1448A(l) of this title.

b. For a crime of violence, has been found not guilty by reason of insanity or guilty but mentally ill, including any juvenile who has been found not guilty by reason of insanity or guilty but mentally ill, unless such person can demonstrate that he or she is no longer prohibited from possessing a firearm under § 1448A(l) of this title.

c. For a crime of violence, has been found mentally incompetent to stand trial, including any juvenile who has been found mentally incompetent to stand trial, unless there has been a subsequent finding that the person has become competent, or unless such person can demonstrate that he or she is no longer prohibited from possessing a firearm under § 1448A(l) of this title.

d. Is the subject of an order of relinquishment issued under § 1448C of this title.

(3) Any person who has been convicted for the unlawful use, possession or sale of a narcotic, dangerous drug or central nervous system depressant or stimulant as those terms were defined prior to the effective date of the Uniform Controlled Substances Act in June 1973 or of a narcotic drug or controlled substance as defined in Chapter 47 of Title 16.

(4) Any person who, as a juvenile, has been adjudicated as delinquent for conduct which, if committed by an adult, would constitute a felony, until that person reaches the age of 25.

(5) Any person under the age of 21.

a. Paragraph (a)(5) of this section shall not apply to the purchase, owning, possession, or control of the following deadly weapons:

1. A shotgun as defined in § 1444(c) of this title or ammunition for a shotgun.

2. A muzzle-loading rifle as defined in § 704(f) of Title 7.

3. Deadly weapons other than firearms if the person is 18 years of age or older.

b. Paragraph (a)(5) of this section shall not apply to any of the following persons 18 years of age or older:

1. An active member of the Armed Forces of the United States or the National Guard.

2. A qualified law-enforcement officer as defined in § 1441A of this title.

3. A person who has license to carry a concealed deadly weapon pursuant to § 1441 of this title.

c. Paragraph (a)(5) of this section shall not apply to any person under the age of 21 who does any of the following:

1. Possesses or controls a firearm for the purpose of engaging in lawful hunting, instruction, sporting, or recreational activity while under the direct supervision of a person 21 years of age or older.

2. Possesses or controls a firearm for the purpose of engaging in lawful hunting and is in compliance with § 704(g) of Title 7.

3. Possesses or controls a firearm for the purpose of transporting the firearm to the location of a lawful hunting, instruction, sporting, or recreational activity, for which the person is authorized to possess or control the firearm under paragraph (a)(5)c.1. of this section.

d. It is not a violation of paragraph (a)(5) of this section if a person under the age of 21 possesses or uses a firearm during the use of force upon or towards another person if such use of force is justifiable pursuant to § 464, § 465, § 466, or § 469 of Title 11.

<Text of Subsec. (a)(5)e. expires June 30, 2025, pursuant to 83 Laws 2022, ch. 329, § 3.>

e. Paragraph (a)(5) of this section does not apply to the possession or control of a firearm by a person 18 years of age or older.

(6) Any person who knows that the person is subject to a Family Court protection from abuse order, but only for so long as the order remains in effect, except that this paragraph shall not apply to a contested order issued solely upon § 1041(1)d., e., or h. of Title 10, or any combination thereof.

(7) Any person who has been convicted in any court of any misdemeanor crime of domestic violence. For purposes of this paragraph, the term “misdemeanor crime of domestic violence” means any misdemeanor offense that:

a. Was committed by a member of the victim’s family, as “family” is defined in § 901 of Title 10 (regardless, however, of the state of residence of the parties); by a former spouse of the victim; by a person who cohabited with the victim at the time of or within 3 years prior to the offense; by a person with a child in common with the victim; or by a person with whom the victim had a substantive dating relationship, as defined in § 1041 of Title 10, at the time of or within 3 years prior to the offense,

b. Is an offense as defined under § 601, § 602, § 603, § 611, § 614, § 621, § 625, § 628A, § 763, § 765, § 766, § 767, § 781, § 785 or § 791 of this title, or any similar offense when committed or prosecuted in another jurisdiction.

(8) Any person who, knowing that he or she is the defendant or co-defendant in any criminal case in which that person is alleged to have committed any felony under the laws of this State, the United States or any other state or territory of the United States, becomes a fugitive from justice by failing to appear for any scheduled court proceeding pertaining to such felony for which proper notice was provided or attempted. It is no defense to a prosecution under this paragraph that the person did not receive notice of the scheduled court proceeding.

(9) Any person, if the deadly weapon is a semi-automatic or automatic firearm, or a handgun, who, at the same time, possesses a controlled substance in violation of § 4763, or § 4764 of Title 16.

(10) Except for ‘‘antique firearms’’, any validly seized deadly weapons or ammunition from a person prohibited as a result of a felony conviction under Delaware law, federal law or the laws of any other state, or as otherwise prohibited under this subsection (a) of this section may be disposed of by the law enforcement agency holding the weapon or ammunition, pursuant to § 2311 of this title.

a. ‘‘Antique firearm’’ means any firearm not designed or redesigned for using rim fire or conventional center fire ignition with fixed ammunition and manufactured in or before 1898 and also any firearm using fixed ammunition manufactured in or before 1898, for which ammunition is no longer manufactured in the United States and is not readily restored to a firing condition.

b. A person prohibited under this section has the burden of proving that the subject firearm is an antique firearm as defined in paragraph (a)(10)a. of this section subject to an exemption under this section and § 2311 of this title.

(11) Any person who is subject to a lethal violence protection order, issued under § 7704 of Title 10, but only for so long as that order remains in effect or is not vacated or otherwise terminated under Chapter 77 of Title 10.

(12) Any person who knows that the person is the subject of an outstanding arrest warrant, or post-arrest charges or an active indictment or information, for any felony under the laws of this State, the United States, or any other state or territory of the United States, or for a misdemeanor crime of domestic violence under paragraph (a)(7) of this section, is prohibited from purchasing a firearm.

(b) Any prohibited person as set forth in subsection (a) of this section who knowingly possesses, purchases, owns or controls a deadly weapon or ammunition for a firearm while so prohibited shall be guilty of possession of a deadly weapon or ammunition for a firearm by a person prohibited.

(c) Possession of a deadly weapon by a person prohibited is a class F felony, unless said deadly weapon is a firearm or ammunition for a firearm, and the violation is one of paragraphs (a)(1)-(8) of this section, in which case it is a class D felony, or unless the person is eligible for sentencing pursuant to subsection (e) of this section, in which case it is a class C felony. As used herein, the word “ammunition” shall mean 1 or more rounds of fixed ammunition designed for use in and capable of being fired from a pistol, revolver, shotgun or rifle but shall not mean inert rounds or expended shells, hulls or casings.

(d) Any person who is a prohibited person solely as the result of a conviction for an offense which is not a felony shall not be prohibited from purchasing, owning, possessing or controlling a deadly weapon or ammunition for a firearm if 5 years have elapsed from the date of conviction.

(e)(1) Notwithstanding any provision of this section or Code to the contrary, any person who is a prohibited person as described in this section and who knowingly possesses, purchases, owns or controls a firearm or destructive weapon while so prohibited shall receive a minimum sentence of:

a. Three years at Level V, if the person has previously been convicted of a violent felony;

b. Five years at Level V, if the person does so within 10 years of the date of conviction for any violent felony or the date of termination of all periods of incarceration or confinement imposed pursuant to said conviction, whichever is the later date; or

c. Ten years at Level V, if the person has been convicted on 2 or more separate occasions of any violent felony.

(2) Any person who is a prohibited person as described in this section because of a conviction for a violent felony and who, while in possession or control of a firearm in violation of this section, negligently causes serious physical injury to or the death of another person through the use of such firearm, shall be guilty of a class B felony and shall receive a minimum sentence of:

a. Four years at Level V; or

b. Six years at Level V, if the person causes such injury or death within 10 years of the date of conviction for any violent felony or the date of termination of all periods of incarceration or confinement imposed pursuant to said conviction, whichever is the later date; or

c. Ten years at Level V, if the person has been convicted on 2 or more separate occasions of any violent felony.

d. Nothing in this paragraph shall be deemed to be a related or included offense of any other provision of this Code. Nothing in this paragraph shall be deemed to preclude prosecution or sentencing under any other provision of this Code nor shall this paragraph be deemed to repeal any other provision of this Code.

(3) Any sentence imposed pursuant to this subsection shall not be subject to the provisions of § 4215 of this title. For the purposes of this subsection, “violent felony” means any felony so designated by § 4201(c) of this title, or any offense set forth under the laws of the United States, any other state or any territory of the United States which is the same as or equivalent to any of the offenses designated as a violent felony by § 4201(c) of this title.

(4) Any sentence imposed for a violation of this subsection shall not be subject to suspension and no person convicted for a violation of this subsection shall be eligible for good time, parole or probation during the period of the sentence imposed.

(f)(1) Upon conviction, any person who is a prohibited person as described in paragraph (a)(5) of this section and who is 15 years of age or older, but not yet 18 years of age, is declared a child in need of mandated institutional treatment and shall, for a first offense, receive a minimum sentence of 6 months of Level V incarceration or institutional confinement, and shall receive a minimum sentence of 1 year of Level V incarceration or institutional confinement for a second and each subsequent offense, which shall not be subject to suspension. Any sentence imposed pursuant to this subsection shall not be subject to §§ 4205(b) and 4215 of this title.

(2) The penalties prescribed by this subsection and subsection (g) of this section shall be imposed regardless of whether or not the juvenile is determined to be amenable to the rehabilitative process of the Family Court pursuant to § 1010(c) of Title 10 or any successor statute.(g) In addition to the penalties set forth in subsection (f) of this section, a person who is a prohibited person as described in paragraph (a)(5) of this section and who is 14 years of age or older, but not yet 18 years of age, shall, upon conviction of a first offense, be required to view a film or slide presentation depicting the damage and destruction inflicted upon the human body by a projectile fired from a gun, and shall be required to meet with, separately or as part of a group, a victim of a violent crime, or with the family of a deceased victim of a violent crime. The Division of Youth Rehabilitative Service, with the cooperation of the Division of Forensic Science and the Victims’ Compensation Assistance Program, shall be responsible for the implementation of this subsection.

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