"Constructive Possession" and "Firearms"
Due to some confusion I caused in this thread, now that I'm back to a real computer, I thought I would start a new thread to clear up some of the confusion on the application of the doctrine of "constructive possession" to firearms law.
This post has a good hypothetical explaining the difference between actual and constructive possession. In the case of federal firearms law, I'd add that the possession must generally be "knowing." Meaning that the defendant has to have knowledge that he actually possessed the firearm, but not knowledge that the firearm was actually a "firearm." E.g., a defendant who is a prohibited person and is discovered with a firearm in his backpack would not be helped by alleging that he didn't know that he was a prohibited person or that the thing he possessed was legally a "firearm", but he could allege that he didn't know that there was a firearm in the backpack, which would then create a question of fact (did he actually know the firearm was present) for the judge or jury hearing the case.
In firearms law, the doctrine of constructive possession generally causes issues where a firearm may be possessed by some people, but not others. For NFA "firearms", this is why many attorneys suggest registering any "firearms" to a trust or other legal entity to authorize possession by anyone who may be in exclusive possession of the "firearm." The most common example given is where an individual is the registered owner of an NFA "firearm" and his spouse knows the combination to the safe where the "firearm" is stored. If the registered individual is not present but his spouse is, she would technically be in violation of the law by having constructive possession of the firearm (it's not under her immediate control, but she could open the safe and access the firearm, so it is considered to be in her possession).
A similar issue with even non-NFA firearms arises where individuals cohabitate with a prohibited person or an individual who still has title over firearms after becoming a prohibited person.
The cohabitation constrictive possession problem has become substantially more interesting post-Heller because the government cannot preclude an individual from having a functional firearm for self-defense within the home. We recently filed a brief in a Supreme Court case addressing some of these issues. Here is an excerpt:
The Government's position is a subterfuge under which it can limit or restrict a law-abiding citizen's Second Amendment rights for simply associating with a prohibited person under the theory of constructive possession without having to establish any of the elements required by Section 922(g)(1).There exists substantial case law demonstrating unequivocally that a prohibited person may reside or be present in the home of a lawful firearms owner without exercising dominion or control over the firearms in violation of Section 922(g). See United States v. Thomas, 321 F.3d 627, 636 (7th Cir. 2003) (“[e]ven when a defendant continues to have weapons in his home that he legally obtained before his felony convictions, he is not guilty of violating 18 U.S.C. § 922(g)(1) without a showing that he exercised control over the firearms”); United States v. Griffin, 684 F.3d 691, 697 (7th Cir. 2012) (“when [a] defendant jointly occupies a residence, proof of constructive possession of contraband in the residence requires the government to demonstrate a ‘substantial connection’ between the defendant and the contraband itself, not just the residence[.]”); id. at 695 (“Constructive possession may be established by demonstrating that the defendant knowingly had both the power and the *11 intention to exercise dominion and control over the object, either directly or through others.… This required ‘nexus' must connect the defendant to the contraband, separating true possessors from mere bystanders.”) (internal citations omitted); see also United States v. Cardenas, 864 F.2d 1528, 1533 (10th Cir. 1989) (“In addition to knowingly holding the ability to control an object, there must be an act by which that ability is manifested and implemented[.]”); United States v. Flenoid, 718 F.2d 867, 868 (8th Cir. 1983) (finding that mere physical proximity to the contraband is insufficient to establish constructive possession).In addition, advisory opinions of the Bureau of Alcohol, Tobacco, Firearms and Explosives (“BATFE”), see 1 Stephen P. Halbrook, Firearms Law Deskbook, Federal and State Criminal Practice § 2:20 (2014-2015 ed.) (2014), contradict the Government's contention that mere possession of a firearm, let alone the return of the non-contraband firearms, creates a “significant risk that petitioner would retain custody or control over the firearms in violation of Section 922(g).” U.S. Br. in Opp'n. at 9.Federal law places no restrictions on the receipt or possession of firearms by the spouse or children of a prohibited person. However, those individuals' rights to possess firearms may not be used as a subterfuge to enable a prohibited person to possess firearms.… Based upon these principles of possession, a prohibited person could reside in a residence where firearms were maintained without *12 being considered in possession of those firearms if they are stored or located where the prohibited person is without the ability to exercise dominion or control over them. For example, if the firearm is located in a locked enclosure to which the prohibited person has no access, the prohibited person would not be considered to be in actual or constructive possession of the firearm.Halbrook, at 228 (internal citation omitted).While the BATFE's opinions all contain similar language noting that the firearm be stored or located where the prohibited person is without the ability to exercise dominion or control over them, such as in a locked enclosure or vault,4 the opinions do not take into account Heller's recognition that non-prohibited persons must be permitted to keep lawful firearms in the home accessible and operable “for the purpose of immediate self-defense.” Heller, 554 U.S. at 635 (emphasis added). Obviously, a firearm that is under lock and key is not immediately accessible, and any such requirement would frustrate Heller's, holding and the core right protected by the Second Amendment.5 *13 Griffin illustrates that such measures are not required to ensure that a cohabitating family member does not retain constructive possession over firearms in violation of Section 922(g). In Griffin, the defendant, a prohibited person, resided in the home of his father following his release from confinement. An avid hunter, Griffin's father possessed several firearms and ammunition stored at varying locations throughout the home. Upon the execution of an unrelated search warrant, Griffin was arrested for a violation of Section 922(g)(1) upon the discovery of such items. While several of the firearms and ammunition were stored in common areas and easily accessible to Griffin, the court found that “ ‘the Government must establish the likelihood that in some discernible fashion the accused had a substantial voice vis-à-vis the items in question’ ” and that “easy access does not mean that he actually violated the felon-in-possession statute by intending to exercise control over any of the firearms.” Griffin, 684 F.3d at 698 (quoting United States v. Ford, 993 F.2d 249, 252 (D.C. Cir. 1993)). Ultimately, his conviction was reversed as the Government failed to establish “that Griffin intended to exercise control over his father's shotgun and the nearby ammunition.” Id. at 699.Griffin is remarkable in two aspects. Not only does it uphold the established principle that a prohibited person can reside in a residence where firearms are present, it also preserves the integrity of Heller by recognizing that cohabitants, and specifically cohabitating family members, can possess immediately *14 accessible firearms in the home under the core right of the Second Amendment without exposing prohibited persons to a violation of 922(g)(1)'s prohibition on possession, whether actual or constructive. As this Court emphasized, “whatever else it leaves to future evaluation, it surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” Heller, 554 U.S. at 635. Furthermore, law-abiding citizens must be given a meaningful right to use arms to defend themselves. Thus, this Court held “that the District's ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self defense.” Id. (emphasis added).In sum, Griffin belies the Government's contention that the simple possession of firearms in the home amounts to either actual or constructive possession of those firearms by others present in the home without a further demonstration of intent to exercise dominion or control over them. Griffin, 684 F.3d at 698.
Brief of Amicus Curiae National Rifle Association of America, Inc.,, p.10-14, Henderson v. United States, 135 S. Ct. 1780 (2015).
The Henderson case itself was about the problem of a prohibited person who still has title over firearms. Federal law prohibits possession and receipt, but not ownership by prohibited persons. Henderson simply wanted to be able to dispose of the firearms that he still had title to, but the government claimed that allowing him to do so would violate federal law because allowing him to control the disposition would be an act of constructive possession. A unanimous Supreme Court rejected the government's argument and held that "a court may approve the transfer of a felon's guns consistently with § 922(g) if, but only if, the recipient will not grant the felon control over those weapons. One way to ensure that result is to order that the guns be turned over to a firearms dealer, himself independent of the felon's control, for subsequent sale on the open market. But that is not the only option; a court, with proper assurances from the recipient, may also grant a felon's request to transfer his guns to a person who expects to maintain custody of them. Either way, once a court is satisfied that the transferee will not allow the felon to exert any influence over the firearms, the court has equitable power to accommodate the felon's transfer request." Id. at 1782. Essentially, a disposition of title alone is not enough control over the firearms to trigger the prohibition of § 922(g).
My posts in the other thread were an attempt to defend the layperson use of "constructive possession" to refer to a situation where a person has a non-NFA firearm and parts that can only be used to turn that firearm into an NFA firearm. In United States v. Kent, the court found that the government can sustain a conviction for possession of an unregistered SBR where the government shows that the defendant had control over the requisite parts of an SBR (legal "constructive possession" Kent did not dispute this) and that the defendant intended to use the firearm in the SBR configuration. 175 F.3d 870, 878 (11th Cir. 1999). Because control + intent to possess is logically consistent with the legal doctrine of constructive possession, I've never had a problem with use of the term by laypersons in this context, but after going back through that other thread, I can see that it causes more confusion than I previously thought.
