Possession of gun by spouse of convicted felon?

by NRA_guy on Sat Dec 31, 2011 7:34 am

It has nothing to do with me personally, but a neighbor (former law enforcement official) was convicted of a felony (attempting to get a friend to lie under oath), and he can no longer legally possess a gun.

Several "experts" have told me that, under the law, his wife and children cannot have a gun in their house.

That makes no sense to me. They were not convicted. Why would their constitutional rights be denied?

Anybody got any insight into this?

Here is the Mississippi Code on the subject:

§ 97-37-5. Unlawful for convicted felon to possess any firearms, or other weapons or devices; penalties; exceptions

(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 United States 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 less than one (1) year nor more than ten (10) 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.

by msredneck on Sat Dec 31, 2011 7:39 am

G. Gordon Liddy got convicted at Watergate

He has big time guns...His wife "owns" them all

I say your "experts" are mis-informed

by shoeshooter on Sat Dec 31, 2011 7:50 am

What's the definition of "possess"? Does it mean to have actual, physical control? Or does it mean ownership? Two different things to me, but I'm no lawyer.

by Scharfschütze on Sat Dec 31, 2011 8:25 am

msredneck wrote:G. Gordon Liddy got convicted at Watergate

He has big time guns...His wife "owns" them all

I say your "experts" are mis-informed

Ha ha ... yeah I remember his exact words on his radio show: "as a convicted felon I cannot own a firearm. But Mrs. Liddy owns a few and sometimes she keeps them on my side of the bed."

by mascott on Sat Dec 31, 2011 2:32 pm

I have an in law that got out of prison and came to stay for 6 months at his mothers house. They made her get rid of all guns in the house and told her they would search if necessary. He was not convicted on weapons charges. This just made me assume they could not be in the same house as a weapon.
scott

by PhillipM on Sat Dec 31, 2011 5:01 pm

A friend of mine was a parole officer and told me the same, no guns in the house.

There is a way for him to regain gun rights but I bet it's expensive.

by 22lrfan on Sun Jan 01, 2012 10:49 pm

I've known that a felon couldn't have a gun but I didn't know about the knives. So does this mean that the house they live in can't have a "butcher knife" in it? I wonder what the legal definition is for a butcher knife?

by sidroski on Mon Jan 02, 2012 12:47 am

One fella had a pistol. His passenger was a felon (driver didn't know). When they asked to search the fella's car he knew
he had nothing to find that was illegal. Found the pistol. Driver was ok but passenger went to jail.

by NRA_guy on Mon Jan 02, 2012 6:42 am

sidroski wrote:One fella had a pistol. His passenger was a felon (driver didn't know). When they asked to search the fella's car he knew
he had nothing to find that was illegal. Found the pistol. Driver was ok but passenger went to jail.

[edited to straighten out my screwed up post]

There is just NO WAY the driver was "in possession" of the gun.

That makes sense to me.

As I read the law, the felon may not legally "possess" a firearm.

That raises the question regarding what, exactly, constitutes possession.

Seems the law has several different (and evolving) definitions of possession:

--------------------------------

Possession versus Ownership

Although the two terms are often confused, possession is not the same as ownership. No legal rule states that "possession is nine-tenths of the law," but this phrase is often used to suggest that someone who possesses an object is most likely its owner. Likewise, people often speak of the things they own, such as clothes and dishes, as their possessions. However, the owner of an object may not always possess the object. For example, an owner of a car could lend it to someone else to drive. That driver would then possess the car. However, the owner does not give up ownership simply by lending the car to someone else.

The myriad distinctions between possession and ownership, and the many nuances of possession, are complicated even for attorneys and judges. To avoid confusion over exactly what is meant by possession, the word is frequently modified by adding a term describing the type of possession. For example, possession may be actual, adverse, conscious, constructive, exclusive, illegal, joint, legal, physical, sole, superficial, or any one of several other types. Many times these modifiers are combined, as in "joint constructive possession." All these different kinds of possession, however, originate from what the law calls "actual possession."

Constructive Possession

Constructive possession is a legal theory used to extend possession to situations where a person has no hands-on custody of an object. Most courts say that constructive possession, also sometimes called "possession in law," exists where a person has knowledge of an object plus the ability to control the object, even if the person has no physical contact with it. For example, people often keep important papers and other valuable items in a bank safety deposit box. Although they do not have actual physical custody of these items, they do have knowledge of the items and the ability to exercise control over them. Thus, under the doctrine of constructive possession, they are still considered in possession of the contents of their safety deposit box. Constructive possession is frequently used in cases involving criminal possession.

Criminal Possession

Both federal and state statutes make possession of many dangerous or undesirable items criminal. For example, the federal statute 26 U.S.C.A. § 5861 (1996) prohibits possession of certain firearms and other weapons. Likewise, the possession of other items considered harmful to the public, such as narcotics, Burglary tools, and stolen property, is also made criminal under various laws. Criminal possession, especially of drugs, has been a major source of controversy. Making possession a crime allows for arrests and convictions without proving the use or sale of a prohibited item.

Historically, actual possession was required for a criminal possession conviction. Beginning in the 1920s, however, courts began expanding criminal possession to include constructive possession. The federal Prohibition of intoxicating liquors spawned several cases involving criminal possession. In one of the first criminal cases to use constructive possession, the court found a defendant guilty of possessing illegal liquor in trunks in the actual possession of another person. Subsequent cases, especially narcotics cases, have continued to expand the law of criminal possession.

--------------------

But still, it seems to me that the felon would have to have knowledge of the gun plus the ability to control the gun in order to be charged with possession.

Seems like a good case for the ACLU to push. (Hope I live that long!)

Good source of the above information: http://legal-dictionary.thefreedictionary.com/possession

by PhillipM on Mon Jan 02, 2012 7:55 am

sidroski wrote:One fella had a pistol. His passenger was a felon (driver didn't know). When they asked to search the fella's car he knew
he had nothing to find that was illegal. Found the pistol. Driver was ok but passenger went to jail.

When I was on grand jury duty years ago a case like this came up. We let him off the hook.

by NRA_guy on Tue Jan 03, 2012 6:38 am

PhillipM wrote:
sidroski wrote:One fella had a pistol. His passenger was a felon (driver didn't know). When they asked to search the fella's car he knew
he had nothing to find that was illegal. Found the pistol. Driver was ok but passenger went to jail.

When I was on grand jury duty years ago a case like this came up. We let him off the hook.

Sorry. I had misread sidroski's post when I posted the above. Now that I have re-read it, it makes perfect sense.

I thought he had said that the unknowing driver went to jail. My bad.

by DevilDog on Wed Jan 11, 2012 6:55 pm

The answer to the original question is just "No." Sorry, but that is the way it is. Most judges, state and federal, have a speech they give to newly-convicted felons, and their families, regarding clearing the firearms out of the house. It is not a matter of the family's constitutional rights beng violated, it is a matter of the family waiving those rights by choosing to live with a convicted felon. I got a federal judge to agree to release a young man one day, only to (almost) have him stay in because his dad wouldn't give up his hunting guns. Can we split legal frog hairs discussing where the gun is, who owns it, who controls it, whether they knew it was there, whether it's a firearm? Sure.

Constructive possession (guns, also drugs, any type of contraband) is also fun to think about, but it is fodder for much subjective interpretation, and litigation. Won some constructive possession cases I should have lost (according to the law). Lost some, too. These cases are always fact-specific.

by NRA_guy on Thu Jan 12, 2012 6:50 am

DevilDog wrote:The answer to the original question is just "No." Sorry, but that is the way it is. Most judges, state and federal, have a speech they give to newly-convicted felons, and their families, regarding clearing the firearms out of the house. It is not a matter of the family's constitutional rights beng violated, it is a matter of the family waiving those rights by choosing to live with a convicted felon. I got a federal judge to agree to release a young man one day, only to (almost) have him stay in because his dad wouldn't give up his hunting guns. Can we split legal frog hairs discussing where the gun is, who owns it, who controls it, whether they knew it was there, whether it's a firearm? Sure.

Constructive possession (guns, also drugs, any type of contraband) is also fun to think about, but it is fodder for much subjective interpretation, and litigation. Won some constructive possession cases I should have lost (according to the law). Lost some, too. These cases are always fact-specific.

Thanks. That's interesting. I can (maybe) see current family members committing to giving up their Constitutional rights but this applies to subsequent associates the convicted criminal might have---girl friends and roommates and spouses he has not even met at the time of his release.

Those people would have made no such commitment and might not even know he was a convicted felon.

Just seems overreaching to me.

As you have found, though, every case is decided by a judge based upon unique details and the judge's personal opinion. That brings the inconsistencies that are simply a fact of life in our court system---and why we have appeal courts.

by shoeshooter on Sat Jan 21, 2012 11:00 pm

Saw this today:

http://www.gunreports.com/news/news/Can-Housemates-of-Felons-Own-Guns_3699-1.html?ET=gunreports:e1166:207239a:&st=email

by NRA_guy on Sun Jan 22, 2012 7:09 am

shoeshooter wrote:Saw this today:

http://www.gunreports.com/news/news/Can-Housemates-of-Felons-Own-Guns_3699-1.html?ET=gunreports:e1166:207239a:&st=email

Thanks for the link. I agree with the commenters on the story that the appeals court made their anti-gun decision and then backed into their "logic". It's insane and would likely get overturned if they could afford to appeal it to the Supreme Court---if they do it quickly before Obama gets to appoint another liberal judge.

Having said that, I read the actual case http://www.ca3.uscourts.gov/opinarch/104729p.pdf.

She was on rather thin ice and would not have been charged except for the fact that her live-in boy friend pled guilty to possession of a firearm by a convicted felon and transfer of unregistered firearms to an undercover agent.

I still think she was innocent and never proven guilty.

But if a case ever goes to the Supreme Court on this issue I hope the defendant is pure as the driven snow.

Possession of gun by spouse of convicted felon?

Possession of gun by spouse of convicted felon?

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