NRS § 202.360 – People Prohibited from Owning or Possessing Firearms in Nevada

Under NRS § 202.360, Nevada law prohibits certain categories of people from owning or possessing firearms. This list includes:

• convicted felons,
• people subject to a domestic violence restraining order,
• fugitives,
• illegal aliens,
• drug users, and
• people adjudicated to be mentally ill.

A person in one of these categories who unlawfully has a gun can be charged with a felony punishable by

• 1 to 6 years in prison and
• a possible $5,000 fine.

In this article, our Las Vegas criminal defense attorneys will address the following key issues regarding unlawful firearm possession in Nevada:

• 1. Elements of NRS 202.360
• 2. Penalties
• 3. Defenses
• 4. Immigration Consequences
• 5. Record Seals
• 6. Pardons
• 7. Statute Text
• Additional Reading

Being a felon with a firearm in Nevada is a category B felony offense.

1. Elements of NRS 202.360

For you to be convicted of unlawful possession of a firearm in Nevada under NRS 202.360, prosecutors have to prove beyond a reasonable doubt that you possessed, owned, or had control over a gun and that you either:

1. were convicted of misdemeanor domestic violence in the U.S.;¹
2. were convicted of stalking;²
3. were convicted of a felony in the U.S. unless you received a pardon restoring the right to bear arms;³
4. were subject to an extended protection order against domestic violence, and the order prohibited you from having firearms;⁴
5. were a fugitive;
6. were a drug addict or unlawful user of controlled substances;
7. were prohibited by federal law from having a gun (this also includes if you were dishonorably discharged from the armed forces or renounced your American citizenship);⁵
8. were adjudicated as mentally ill or committed to a mental health facility by a court in the U.S.;
9. pleaded guilty but mentally ill in the U.S.;
10. were found guilty but mentally ill in the U.S.;
11. were acquitted by reason of insanity in the U.S.; or
12. were an undocumented alien.

Firearms include any gun, whether loaded or not, in working order or broken. It encompasses a wide range of weapons, including pistols, revolvers, long guns (such as rifles), and semi-automatic weapons.

NRS 202.360 is sometimes referred to as the law prohibiting ex-felons in possession of a firearm. Though as discussed above, state law forbids far more people than convicted felons from keeping or carrying guns.

Note that lawful gun owners and carriers may still be prohibited from carrying guns and other deadly weapons in certain locations, such as schools and child care facilities. See our articles on open carry and background checks.

Also note that it is not a crime for otherwise prohibited persons to possess firearms or explosives in the course of lawful employment involving mining, agriculture, or construction.⁶

See our related article, Can a spouse of a felon own a gun in Nevada?

2. Penalties

The punishment for possession of a firearm by a prohibited person in Nevada depends on the reason the defendant was prohibited from possessing firearms to begin with, as the following chart shows:

A conviction for possession of a firearm by a prohibited person in Nevada will likely negate the chance of getting gun rights restored through a Governor’s Pardon. Note that you face a separate charge for each gun you unlawfully possessed.⁸

It is a violation of federal law for convicted felons – or people charged with a felony – to possess a gun or ammunition that was transported across state lines. Penalties include up to 10 years in federal prison. And defendants with three or more previous felony convictions face at least 15 years in prison with no possibility of parole.

Learn more about the federal crime of felons in possession of a firearm.⁹

NRS 202.360 prohibits many different people – including people with felony convictions – from being in firearm possession.

3. Defenses

As long as Nevada prosecutors cannot establish guilt beyond a reasonable doubt that a prohibited person possessed or owned a firearm, criminal charges should not stand. Four possible defenses to this crime are:

1. The defendant was not prohibited from having a gun. Perhaps prosecutors are simply wrong to believe that the defendant is not permitted to have the firearm. For example perhaps the defendant was convicted of a felony, but then the defendant received a pardon restoring gun rights. The criminal defense attorney would compile the documentation necessary to show the court that NRS 202.360 does not apply to the defendant.¹⁰
2. The police department found the gun through an illegal search. If a law enforcement agency found the defendant’s gun through an unlawful search and seizure, the defendant’s attorney can ask the court to suppress that gun as evidence. If the court agrees there was police misconduct, the district attorney may be left with too little forensic evidence to continue prosecuting the criminal case.¹¹
3. There was no possession. No crime occurred if the defendant was not in actual, constructive, or joint possession of a gun. As long as insufficient evidence exists that the defendant had control over a firearm, the charge should be dropped.
4. The defendant was falsely accused. Perhaps someone levied false allegations against the defendant out of anger, revenge, or a misunderstanding. If the defendant can show that the accuser lacks credibility, the D.A. may be willing to drop the charge.

Another potential defense to charges of possession of a firearm by a prohibited person in Nevada is that the defendant acted in lawful self-defense. This is a narrow argument that applies to emergencies, justifying the defendant taking control of someone else’s firearm for only as long as necessary to fend off an attack they did not provoke. Nevada is a stand-your-ground state, but only if the person defending him/herself is not:

• the original aggressor;
• in the process of committing a crime;
• in a location where he/she is not allowed to be.

In self-defense cases, the criminal defense attorney would seek video surveillance and eyewitness testimony to support the defendant’s position that “legal necessity” justified the defendant’s temporary possession of a firearm.¹²

4. Immigration Consequences

Any gun-related crime is usually a deportable offense.¹³ Therefore, non-citizens charged with having a firearm by a prohibited person in Nevada are advised to hire an attorney right away to try to negotiate the charge down to a dismissal or other offense that does not jeopardize resident status.

5. Record Seals

People convicted of being a felon with a firearm in Nevada may be eligible to seal their criminal record five years after the case closes. But if the charge gets dismissed, then there is no waiting period to petition the court for a record seal.¹⁴

Learn how to seal Nevada criminal records.

6. Pardons

The only way that people convicted of a felony in Nevada can regain their firearm rights is through a Nevada Governor’s pardon. Sealing a felony case does not automatically restore gun rights.

Note that Nevada law is stricter than federal law. Felons can regain their gun rights under federal law when the conviction has been set aside, expunged, pardoned, or if the state where the felony occurred has restored the person’s gun rights.

Nevada grants very few pardons, and individuals typically must wait several years after their felony case is closed before the Nevada Board of Pardon Commissioners will consider their application. (The Board consists of the state governor as well as the state supreme court justices and attorney general.)

When deciding whether to grant a pardon, the Nevada Board of Pardon Commissioners consider various factors:

• The nature of the felony. The more serious and violent the crime, the less likely that a pardon will be granted.
• How much time has elapsed. Felons are advised to wait at least five to 12 years before applying for a pardon depending on the severity of the case. And the case cannot be on appeal.
• Whether the person completed the sentence. People with outstanding fines or who were dishonorably discharged from probation will likely not be granted pardons.
• Criminal history. The longer the criminal history, the less likely that the pardon will be granted.
• Whether the felon shows remorse. Felons who maintain they were falsely accused will likely not be granted a pardon.
• Character. People who show they have been rehabilitated and are law-abiding, valuable members to society are more likely to get a pardon, especially if the felony is keeping them from getting gainful employment.

Other disqualifiers are if the person is currently the subject of a criminal investigation or is a registered sex offender.¹⁵

Learn more about how to get a pardon.

7. Statute Text

NRS 202.360: Ownership or possession of firearm by certain persons prohibited; penalties.

      1. A person shall not own or have in his or her possession or under his or her custody or control any firearm if the person:

      (a) Has been convicted in this State or any other state of a misdemeanor crime of domestic violence as defined in 18 U.S.C. § 921(a)(33);

      (b) Has been convicted of a felony in this State or any other state, or in any political subdivision thereof, or of a felony in violation of the laws of the United States of America, unless the person has received a pardon and the pardon does not restrict his or her right to bear arms;

      (c) Has been convicted of a violation of NRS 200.575 or a law of any other state that prohibits the same or substantially similar conduct and the court entered a finding in the judgment of conviction or admonishment of rights pursuant to subsection 7 of NRS 200.575;

      (d) Except as otherwise provided in NRS 33.031, is currently subject to:

             (1) An extended order for protection against domestic violence pursuant to NRS 33.017 to 33.100, inclusive, which includes a statement that the adverse party is prohibited from possessing or having under his or her custody or control any firearm while the order is in effect; or

             (2) An equivalent order in any other state;

      (e) Is a fugitive from justice;

      (f) Is an unlawful user of, or addicted to, any controlled substance; or

      (g) Is otherwise prohibited by federal law from having a firearm in his or her possession or under his or her custody or control.

–> A person who violates the provisions of this subsection is guilty of a category B felony and shall be punished by imprisonment in the state prison for a minimum term of not less than 1 year and a maximum term of not more than 6 years, and may be further punished by a fine of not more than $5,000.

      2. A person shall not own or have in his or her possession or under his or her custody or control any firearm if the person:

      (a) Has been adjudicated as mentally ill or has been committed to any mental health facility by a court of this State, any other state or the United States;

      (b) Has entered a plea of guilty but mentally ill in a court of this State, any other state or the United States;

      (c) Has been found guilty but mentally ill in a court of this State, any other state or the United States;

      (d) Has been acquitted by reason of insanity in a court of this State, any other state or the United States; or

      (e) Is illegally or unlawfully in the United States.

–> A person who violates the provisions of this subsection is guilty of a category D felony and shall be punished as provided in NRS 193.130.

      3.    A person shall not use or carry a firearm during and in relation to, or possess a firearm in furtherance of, the commission of any act in violation of NRS 453.321, 453.322, 453.337, 453.3385 or 453.401. A person who violates the provisions of this subsection is guilty of a category B felony and shall be punished by imprisonment in the state prison for a minimum term of not less than 1 year and a maximum term of not more than 6 years,  and may be further punished by a fine of not more than $5,000.

      4. As used in this section:

      (a) “Controlled substance” has the meaning ascribed to it in 21 U.S.C. § 802(6).

      (b) “Firearm” includes any firearm that is loaded or unloaded and operable or inoperable.

Additional Reading

For more in-depth information, refer to these scholarly articles:

• Time To Reload: The Harms Of The Federal Felon-in-possession Ban In A Post-Heller World – Duke Law Journal.
• Problematic Presumptions: Why The Current State of Felon-in-Possession Law Risks Punishing the Innocent – University of Pennsylvania Law Review.
• Notice(ing) Ex-Offenders: A Case Study of the Manifest Injustice of Passively Violating a Felon-in-Possession Statute – Wisconsin Law Review.
• Going off Half-Cocked: Opposing as-Applied Challenges to the “Felon-in-Possession” Prohibition of 18 U.S.C. Sec. 922(g)(1) – Penn State Law Review.
• In Defense of Felon-in-Possession Laws – Cardozo Law Review.

Legal References