Radio personality G. Gordon Liddy was quoted as saying that as a convicted felon he cannot possess firearms but his wife does, and keeps some on his side of the bed. One hopes that this is merely public relations to deter visits by unpleasant persons. A felon with such access to firearms can be imprisoned for being a felon in possession under the theory of “constructive possession.” Persons providing firearms to felons can also be imprisoned. It would be a terrible thing if either Mr. or Mrs. Liddy were arrested, but not everyone holds this opinion.
Ex-felons are not the only prohibited category.1 Many families have suffered through a member’s alcohol or drug addiction, probation or parole, dishonorable discharge,2 psychiatric episode, indictment for a felony or an adult abuse order. Even non-resident aliens are mostly prohibited.3 One notable exception is the 26 April, 2005 U.S. Supreme Court ruling in Small v. United States. The Court ruled that foreign convictions are not convictions for the purposes of federal gun laws.4 Mr. Small was convicted in Japan for illegal possession of firearms. The Court was concerned that Mr. Small did not have any meaningful access to his attorney, whose involvement in the case seemed limited to urging a guilty plea. Authorities testified at trial that this was common in Japanese courts.
Possession by Parolees
Persons on parole or probation have a unique problem as they are considered to still be in prison, although a very large and lightly supervised institution. Because of this legal fiction, regulations can be restrictive — to the point of absurdity. Typically, the rules for persons on probation or parole are in a booklet; however the probation officer can add to or subtract from them. Any alteration must be requested in writing, which avoids misunderstandings.
One Missouri parolee was a week away from the end of his parole when he was seen having dinner in a bar and grill. He was never shown to have consumed alcohol; however, his parole officer did not remember giving him permission to enter restaurants that served alcohol, and he went back to prison.5 An avid hunter who had been convicted of a felony asked his attorney if he could still bow-hunt; he was assured that he could, but the probation and parole officer conducting the pre-sentence investigation told him that a bow was “the same thing as a gun”. Reflecting on his lawyer’s advice, the defendant ventured that this did not sound right. Based on this conversation, the officer reported to the judge that the defendant believed himself to be above the law and advised a lengthy prison sentence.
Tales of Absurdity
Prohibited persons are prohibited from having access to firearms, ammunition or bulletproof vests. It may seem improbable that guns on Mr. Liddy’s side of the bed would ever come to the attention of the police; however, such things do occur. Fires, medical emergencies, and the like often attract police attention. In 1998, a gentleman in Pennsylvania slept too deeply to hear his telephone. Worried neighbors called the police who, in waking the man up, saw that he owned semi-automatic firearms. The responding officer decided that this, coupled with refusal to answer the telephone, indicated insanity and he was dropped off at a mental ward. He was quickly found to be sane, but his brief stay was described as a “commitment” which prohibited possession of firearms.6
An ex-felon in Cedar Rapids, Iowa found a .22 cartridge in his new apartment, which he tossed in a box of miscellany. Police investigating an argument entered the apartment, and of all the objects in the room, noticed the .22 cartridge; for which the ex-convict became a new convict and did fifteen years.7 No matter how innocent the possession, the prohibited person can expect to be prosecuted. One ex-convict migrated to San Francisco. He had the misfortune to be at a party when home invaders threatened the guests. The ex-convict disarmed one invader and routed the rest, saving five lives. For this heroism, he was subsequently prosecuted for being a felon in possession of a handgun.8 It doesn’t have to make sense, it’s just the law, or so people seem to think.
Antiques and Replicas
Under federal law, original and replica muzzle-loading guns made before 1898 and cartridge firearms made before 1898, for which cartridges are no longer commercially available, are not considered firearms.9 Under federal law (and only federal law) many prohibited persons can possess antique firearms. Certain state laws are different. On 28 June, 2006 the Wyoming Supreme Court handed down Harris v Wyoming. Mr. Harris was an ex-convict who wanted to hunt. He understood that federal law allowed ex-convicts to possess muzzle-loading firearms. He questioned police officers and gun store clerks on this subject and they all committed legal malpractice by assuring him that he could purchase a muzzle-loader. Wyoming law did not include an exemption for antiques and Mr. Harris went back to prison. According to the BATF, the federal law exception does not include “in-line” muzzle-loaders. Federal law refers to antiques and replicas thereof; in-line muzzle-loaders are modern designs and therefore not replicas.
Proximity and Possession
It should be noted that federal law prohibits possession by a prohibited person. Such a person may own a firearm as long as they do not have physical access to it. This allows prohibited persons to transfer a gun to their lawyer as part of a legal fee.10
In order to support a conviction, the prohibited person must know that a firearm is present; “the dominion and control must be knowing, mere proximity or accessibility to contraband is not enough”.11 This issue frequently arises from the unfortunate selection of traveling companions. The Eighth Circuit ruled, “We have repeatedly stated that mere presence as a passenger in a car from which the police recover contraband or weapons does not establish possession.”
This sounds encouraging but as a practical matter, a prohibited person found in proximity to a firearm will cause no end of suspicion. One gentleman was arrested for illegal possession of three firearms. The court ruled that he was not in constructive possession of the handgun in his wife’s purse ruling “Constructive possession is ownership, dominion, or control over the item itself or control over the premises in which the item is concealed. Although a defendant’s exclusive occupancy of a place may establish his dominion and control over an item found there, his joint occupancy of a place cannot, by itself, support the same conclusion.”12 The court reasoned that no evidence indicated the guest of honor’s knowledge of his wife’s gun. When the police entered the room he admitted to the presence of only two guns. The court believed that this indicated he did not know about the third gun. Of course, he was a drug user and may have miscounted.
Power and Intent
Note the court’s use of the waffle term “by itself”. Other facts may support a conviction, even thin facts. It may amount to the statement of a felon trying to bargain his way out of charges. In a more recent case, a police informant stole a shotgun and concealed it in the home of another person “Because he didn’t want to get caught with it.” The court ruled that this informant’s claim that the defendant knew the gun was concealed in his home was enough to support a conviction.13 Missouri has found that “Constructive possession occurs if one has power and intent to exercise dominion or control over the substance either directly or through another person.”14
The cases on constructive possession can be summarized by the Gilbert case where the guns were in the home of Mr. Gilbert’s estranged wife. There was evidence that he knew about the guns, which were either in a locked closet or concealed from view. The court ruled “Constructive possession exists when a person does not have actual possession but instead knowingly has the power and the intention at a given time to exercise dominion and control over an object.”15
In order to prevent misunderstandings leading to incarceration, there must be a physical barrier between the prohibited person and a firearm. Concealment may work, but there is nothing like a gun safe with a combination known only to the legal owner to prevent misunderstandings. A complete lack of fingerprints, DNA, hair samples or property belonging to the prohibited person in the safe will complete the security.
Based on the above, one trusts that Mrs. Liddy’s guns are all antiques, locked up, or merely a public relations exercise.
[ Kevin L. Jamison is an attorney in the Kansas City, Missouri area concentrating in the area of weapons and self-defense. ]
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|Kevin L. Jamison
Individual answers are not usually possible but may be addressed in future columns.
This information is for legal information purposes and does not constitute legal advice. For specific questions, you should consult a qualified attorney.
- See 18 U.S.C. section 922(d) and (g). Congress felt so strongly on this point that it made it law twice.
- This is different from a general or bad conduct discharge; it is the military equivalent of a felony.
- Non-resident aliens, those without permanent residency or “Green Card” can possess firearms only under very limited circumstances. It would be unwise to have the foreign exchange student join a shooting event.
- State courts may take a different view.
- The specific experience of one of my clients, and the general experience of many.
- A gross misstatement of the law, but such gross misstatements are often the resort of bureaucrats seeking to restrict rights.
- U.S. v Yirkovsky, 259 F.3d 704 (8th Cir 2001).
- “SoMa loft hero held on parole violation” San Francisco Chronicle 26 August, 2001. It should be noted that he was prosecuted in state court, one of the few times federal prosecutors showed more tolerance than their state counterparts.
- See 18 U.S.C. section 921(3) for the definition of “firearm” which states “Such term does not include an antique firearm.” See 18 U.S.C. section 921(16) for the definition of an antique firearm.
- Or so I have found, although I have occasionally had to sue to enforce the contract.
- U.S. v Garner, 396 F.3d 438 (Ct. App. D.C. Cir. 2005) at 443.
- U.S. v Houston, 364 F.3d 243 (5th Cir 2004) at 248.
- U.S. v Woods, 2006 U.S. App. Lexis 14297 (8th Cir 2006).
- State v Cushshon, Missouri Court of Appeals E.D. 4/3/07.
- U.S. v Gilbert, 391 F.3d 882 (7th Cir 2004) at 886.