What "Constructive Possession" means to Gun Owners

[Old Ironsights]

Despite the NRA Platitudes, their new NICS Law IS a "gun control law" and WILL disarm people - or prevent them from buying firearms. I told them this back when the bill was still the McCarthy HR297. But why should they believe me when they've got Chucky Schumer to listen to?

Here is a link to a PDF instructing Judges on how to deal with various Firearms issues - motly relating to persons "prohibited" by the Lautenberg act.

http://aja.ncsc.dni.us/courtrv/cr39-2/CR39-2MitchellCarbon.pdf

Note these comments:

Another scenario is where the abuser transfers possession of firearms to friends or family members, feeling that this may help ensure retrieval at the end of the case. Such a scenario raises questions of “constructive possession.”60 If a respondent can ask for, or physically retrieve without barrier, any of the firearms transferred to a third party, such action may not constitute the requisite relinquishment. A respondent who has constructive possession of firearms has the opportunity to use them, which is an action expressly prohibited by law. A court should order that all such firearms be truly relinquished, for instance, to a law enforcement agency. A related scenario is presented when a respondent, who has been removed from the joint residence with the survivor, moves into his parents’ home where access to firearms is available (whether they are the respondent’s own weapons that he “sold” to them or gave to them for safekeeping, or they are his parents’ weapons). The court should consider ordering relinquishment of such weapons to law enforcement, especially if they are owned by the respondent... I.e. take a Prohibited Person into your home (wife, kid, whomever), lose your guns. :mad:


If you are found to be ineligible to either possess or purchase firearms as a result of the PFEC, you must relinquish any firearms you may have in your possession to a law enforcement agency or designate a power of attorney to take control and possession of them for you. Furthermore, firearms may not stay in the constructive possession of a prohibited person (e.g. you may not transfer possession to a person sharing the same household).
http://caag.state.ca.us/firearms/pfecfaqs.html#29

This is EXACTLY the type of regulation/opinion that will allow an Anti-Gun Attorney General (State or Federal) to sic the BATFE on the family of a now "listed" "prohibited person".

They had no way to do that before the Wayne "Vichy" LaPierre & the NRA collaborated with the Enemy.

[Old Ironsights]

Here's another (brand new/2008) Federal Opinion:
http://www.ca11.uscourts.gov/unpub/ops/200710257.pdf
“[A]ny firearm possession, actual or constructive, by a convicted felon is prohibited by [18 U.S.C. § 922(g)].” United States v. Howell, 425 F.3d 971, 977 (11th Cir. 2005). The government can establish actual possession of a firearm by proving that “the defendant either had physical possession of or personal dominion over the thing allegedly possessed.” United States v. Leonard, 138 F.3d 906, 909 (11th Cir. 1998). “[T]he government can establish constructive possession of a firearm by proving ‘ownership, dominion, or control over the firearm.’” United States v. Thompson, 473 F.3d 1137, 1143 (11th Cir. 2006) (citations omitted), cert. denied, 127 S. Ct. 2155 (2007). A defendant can be in constructive possession of a firearm even if it is not on him or near his person. United States v. Wright, 392 F.3d 1269, 1273 (11th Cir. 2004). Moreover, a defendant may be deemed to be in constructive possession of contraband where he owns or exercises dominion and control over the premises in which the contraband is concealed. United States v. Molina, 443 F.3d 824, 829 (11th Cir. 2006). The Red bit means a "prohibited person" SPOUSE when she at Home, alone or otherwise. :eek:

A link to a paper discussing how "possession" somehow got to mean "use" in law...

http://www.constitution.org/2ll/2ndschol/21usei.htm

[Old Ironsights]

This from the Federal Defense handbook:

F. Actual and Constructive Possession Many firearms cases also go to trial on the issue of whether the defendant possessed the firearm. If you are considering this type of defense, make sure to look at the law in your circuit about “constructive” as opposed to actual possession. This type of defense is not specific to gun cases, although it has been applied extensively in gun cases. In general, a person has constructive possession of a firearm as long as he or she had knowledge of and access to it.However, in constructive possession cases, think of the connection with the “knowledge” element, because if a person did not actually possess the firearm, query whether they could have known that it had the characteristics necessary to make it a firearm under the federal code.http://www.fd.org/pdf_lib/Firearms.pdf

If a "prohibited person" is married to someone who legitimately owns/uses firearms then according to the FD handbook they both have knowledge and access - because you can't prove that they DON'T have access. Hello BATFE battering ram.

This is the information the NRA believes the BATFE should have and be able to use against gun owners. :mad:

And they knew it, because I TOLD THEM... but, in this case, we are supposed to trust the Government/BATFE...

[Old Ironsights]

An RKBA Lawyer:

I hadn't thought it thru, but I think you're pretty much on. "Possession" is a vague concept. You have it in your hand, that's clear possession. But under your roof, when it is "owned" by someone else? Odds are a court would just give it to the jury and tell them to decide what it means.

In law, that'd only penalize the prohibited person-- but in practice, it impedes ownership and possession by the uninvolved partner or spouse, since they can only possess a gun if willing to risk their spouse being jailed...

A Defense Attorney:

Only a prohibited person is prohibited -- the problem, as you indicated, is "constructive possession". It affects the prohibited person -- not the other people involved. Case law indicates that if the other person has joint possession of the home or office etc -- but the prohibited person has the ability to get to the firearm, even if that's remote -- it's likely constructively possessed. It will always be a jury question of fact on both issues. If your spouse had a firearm on her person -- likely OK, but again, a question of fact. If it was in a locked gun safe in a room you did not have access to and you also didn't have the combination of the safe -- and the safe was purchased by your spouse -- question of fact. Truly a problem situation -- since it obviously affects the other spouse's rights from a practical standpoint. It all depends on the degree of separation from control, if the cops ever find out there are guns in the house, and who's your jury and lawyer. Lot's of luck on whatever you decide. Best shot is buy an antique firearm since it's not a "firearm" under federal law if it meets the legal definition. That way -- who cares? It still can have six shots (or five if you don't keep one under the hammer) and be mighty effective.
Yes, you read that right. He told me that it's better to give up cartridge guns than to fight the BATFE & NRA... :eek:

Everything hinges on Who Prosecutes, Which Judge and What Jury... all AFTER the BATFE kicks in your door.

Makes me feel really safe... and oh so proud of "my" NRA...

I'm a Life Member... but they get Not Another Penny.

The NRA Executive Office can take a Dirt NAP as far as I'm concerned - and I'll do everything in my power to see them Fired for Malfeasance.