law regarding a felon being in the promixity of a firearm?


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iohk
July 12, 2006, 01:12 PM
Hi All,

I know that felons are not allowed to be in possession of firearms but I need to know if this extends to not being in close proximity to firearms that are in the possession of someone else? In particular, I need to know if a felon can legally be in a vehicle, which contains a firearm, that is owned and operated by a non-felon who is present at all times?

It seems like this could be legal, although potentially asking for trouble.

The background on this question is that someone who is close to me, who is prohibited from possessing firearms, drove out here to visit friends and family but has fallen ill. I get to drive him back to his home state as he is now unable to do the trip himself.

I'm not real excited about driving halfway across the country unarmed but I'm even less excited about running afoul of the law if I were to elect to pack something.

Any input would be appreciated.

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leadcounsel
July 12, 2006, 01:50 PM
In particular, I need to know if a felon can legally be in a vehicle, which contains a firearm, that is owned and operated by a non-felon who is present at all times?


I did some "light" research on this topic a year ago.

My understanding it that the rules for cars are VERY liberal regarding drug and gun possession. Basically, for guns, ANYONE in the vehicle CAN be construed to have possession of the gun/ammo located in the passenger compartment of the vehicle.

Now, if the non-felon is specifically carrying the gun, It MIGHT change the circumstances. I'm not sure on that one. But if the gun is loose (glove box, under a seat, etc.) then the felon would be at risk of being viewed in possession.

Stupid, I agree, but that's how it's generally viewed.

iohk
July 12, 2006, 02:13 PM
Yeah, that's the interpretation I was afraid I'd hear.

Thanks for the quick response!

sacp81170a
July 12, 2006, 03:13 PM
If you're transporting a firearm in a locked container and you retain possession of the key, then, no it's not in the possession of the felon.

Autolycus
July 12, 2006, 03:29 PM
What about in the same household?

Creeping Incrementalism
July 12, 2006, 04:22 PM
How can a felon possess something when you're the one possessing it?

HankB
July 12, 2006, 05:32 PM
IANAL, but as I see it, if you're licensed to carry, and the gun is on your person, the felon is not in possession.

If the gun is locked in the trunk or a secure container, and the felon doesn't have a key or some other means of entering the trunk or container, he's not in possession.

If you have the gun locked in the glove box, and when you leave the car for whatever reason with the keys in the ignitiion or in the felon's possession, then trouble can ensue if caught.

If there's a gun, say, in a rifle rack in the rear window of a pickup where the felon can reach it, again, trouble may result if caught.

PinnedAndRecessed
July 12, 2006, 05:45 PM
Out of the Oklahoma Self Defense Course Handbook.

Section 1283: Paragraph 1: Except as provided in subsection (a) below, it is a felony for anyone previously convicted of a felony to have in their possession or under their immediate control, or in any vehicle which they are operating or riding, or at their residence, any pistol, machine gun, sawed-off shotgun, or rifle, or any other dangerous or deadly firearm.


Subparagraph a: Any person who has previously been convicted of a nonviolent felony and who has received a full and complete pardon from the proper authority, and has not been convicted of any other felony offense which has not been pardoned, shall have restored the right to possess any firearm and to apply for and carry a concealed handgun pursuant to athe provisions of the Oklahoma Self-Defense Act.

BigO01
July 12, 2006, 05:53 PM
Half way across the country huh ?

And he can't drive because he is sick .

Me with the price of gasoline I would buy him a plane ticket and watch him fly away .

It sounds like this could be a 3-5 day long trip with you as the only driver plus then you get to return alone . Not a good situation especialy with him being sick to the point he can't drive . I don't know what he has but let me ask you this , is it life threatening ? Do you have any formal medical training ? Would you want the guy to get worse on the way and have to take him to a hospital that he has to be admitted to and get stuck there until he is released or even worse have to deal with arranging for his body to be transported to whereever for burial ?

I say this simply because an ill visitor would normally be allowed to stay until they are well again , this sounds like he isn't going to get well to me therefore you are taking him home so he is comfortable in his last days .

iohk
July 12, 2006, 06:51 PM
Well, I typed up a thorough response to the points you raised but when I went to post it the process failed, saying I wasn't logged in (I was when I started typing).

Rather than type it all up again, let's just say that; Yep, I'm driving, the hardware is going to be left behind, it's going to cost a lot and take several days, the cost and time is not relevant or of concern, and I'm happy to do it.


Half way across the country huh ?

And he can't drive because he is sick .

Me with the price of gasoline I would buy him a plane ticket and watch him fly away .

It sounds like this could be a 3-5 day long trip with you as the only driver plus then you get to return alone . Not a good situation especialy with him being sick to the point he can't drive . I don't know what he has but let me ask you this , is it life threatening ? Do you have any formal medical training ? Would you want the guy to get worse on the way and have to take him to a hospital that he has to be admitted to and get stuck there until he is released or even worse have to deal with arranging for his body to be transported to whereever for burial ?

I say this simply because an ill visitor would normally be allowed to stay until they are well again , this sounds like he isn't going to get well to me therefore you are taking him home so he is comfortable in his last days

Werewolf
July 12, 2006, 06:56 PM
Out of the Oklahoma Self Defense Course Handbook.

Section 1283: Paragraph 1:
Quote:
Except as provided in subsection (a) below, it is a felony for anyone previously convicted of a felony to have in their possession or under their immediate control, or in any vehicle which they are operating or riding, or at their residence, any pistol, machine gun, sawed-off shotgun, or rifle, or any other dangerous or deadly firearm
Dang! I wish there was an OK lawyere on THR. I've always interpreted that to mean the firearm has to be under the felon's immediate control and that that applies to all the subordinate clauses.

Laws written like that suck! Why can't legislators just write in plain english so anyone can understand not only the letter but the intent.

American By Blood
July 12, 2006, 07:05 PM
How can a felon possess something when you're the one possessing it?

Jonathan Swift on lawyers - "I said there was a Society of Men among us, bred up from their Youth in the Art of proving by Words multiplied for the Pleasure, that White is Black, and Black is White, according as they are paid. To this Society all the rest of the People are Slaves."

cassandrasdaddy
July 12, 2006, 07:12 PM
not directly on topic but the va suoreme court rules that a felon could avail himself of a firearm to defend himself. they threw out a conviction where guy rn next door used dads gun to defend himself from attack and was convicted of felon using a firearm

PinnedAndRecessed
July 12, 2006, 07:38 PM
Why can't legislators just write in plain english

They do that on purpose so as to provide for the broadest possible interpretation by the court.

The language of laws is always in favor of the court. Never the citizen.

TallPine
July 12, 2006, 09:07 PM
So how does that apply when a known felon shows up on my doorstep and I answer the door armed ...? ;)

Can I make a citizens arrest because the felon is now in the proximity of a firearm? :p

DMF
July 13, 2006, 01:27 AM
You folks need to do some research into "constructive possession."

Let me give you a head start:

Black's Law definition of constructive is; "That which is established by the mind of the law in its act of construing facts, conduct, circumstances, or instruments. That which has not the character assigned to it in its own essential nature, but acquires such character in consequence of the way in which it is regarded by a rule or policy of law; hence, inferred, implied, or made out by legal interpretation; the word "legal" being sometimes used here in lieu of "constructive.""

Which leads you to Black's Law definition of constructive possession; "A person has constructive possession of property if he has power to control and intent to control such an item. Com. v. Stephens, 231 Pa.Super.481, 331 A.2d 719, 723. Being in a position to exercise control over a thing. US v. DiNovo, C.A.Ind., 523 F.2d 197, 201.

If you would like a real world example of a felon in possession case where the defendant was found to be in constructive possession of a firearm, read the 7th Circuit decision in US v. Gill (1995). You can find it on findlaw.com

The definition of constructive possession from an earlier 7th Circuit court decision (US v. Garrett, 1990) is; [i]". . . 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, either directly or through others."

tulsamal
July 13, 2006, 01:51 AM
I've wondered about this same thing with my dad. Nobody wants to hear the whole story but let's just summarize by saying my Dad was never accused of a crime in his lifetime until he retired from the DoD (civilian) and tried to "come back" as a contractor. The government went after him like he was Billy the Kid. He ended up down $40,000 in legal fees plus he pled guilty to a single count of a felony in order to not have to go to trial. He sold me his few remaining guns. And believe me, he is very bitter about it. (The government witch hunt, not selling me his guns. Well, he's not very happy about that either!)

Anyway, he is 65 years old and he comes down to visit his grandchildren. Not a problem. But there are a LOT of guns in my house. Some in safes, some not in safes. Some in open rifle racks in various places in the house. I've thought before that some yahoo lawyer could argue that he could "grab one of my guns" and do "something" with it. And what about when the wife goes to work and I go to take the children to school? Then it is just mom and dad in a house full of guns!

The whole process/law just doesn't make sense. The man has never even been in a fist fight since he left high school. The felony was a non-violent one based totally on who wrote the job description for the job he was seeking. I don't think he should have lost his rights to own a gun in the first place. And I'm not going to run around and try to squeeze each and every gun I own into a safe every time he comes to visit his grandkids!

He keeps hoping that various influential contacts he has will eventually lead to a presidential pardon. I hope so; this crazy game has gone on long enough!

Gregg

qlajlu
July 13, 2006, 01:59 AM
Yep, I'm driving, the hardware is going to be left behind, it's going to cost a lot and take several days, the cost and time is not relevant or of concern, and I'm happy to do it.
I think that if you had decided to take the "hardware" with you another pressing question would be CCW laws of the states you would be driving through or into, or transporting a handgun in a vehicle sans CCW license.

DMF
July 13, 2006, 02:02 AM
tulsamal, we've discussed this before. Let's quit pretending your father didn't know what he did was wrong. In fact you admitted that in a previous discussion:

http://thehighroad.org/showthread.php?p=1124360&highlight=contract+fraud#post1124360

http://thehighroad.org/showthread.php?p=1224110&highlight=contract+fraud#post1224110

Hkmp5sd
July 13, 2006, 02:27 AM
What about in the same household?

Officer could lose job over gun
Wife arrested on parole violation after weapon found in bedroom.
By Doug Hoagland
The Fresno Bee
(Published Friday, January 31, 2003, 5:28 AM)



A Fresno police officer could be fired after marrying a woman who served time in prison for attempted murder and then violated her parole in December by having access to his department gun.

Parole agents found city police officer Ray Holquinn's gun, pepper spray, baton and cartridges on the floor of his bedroom near the bed, where his bride had been sleeping.

Holquinn and his wife, Tanya Marie Holquinn, knew his gun had to be kept in a locked safe or locked gun cabinet for her not to violate parole, said Bill Sessa, spokesman for the California Board of Prison Terms.

Holquinn said he tried to find out what to do with his gun at home, but one parole agent gave him incorrect information and another agent wasn't in the office. Holquinn said he kept the gun in a safe until the day before his wife was arrested: "It was my mistake leaving the gun [in the bedroom]."

During an interview Tuesday, Holquinn provided details about a relationship that stunned fellow officers when it was first reported. Holquinn acknowledged the novelty of the situation: "This is totally irregular -- a cop marrying a parolee."

Holquinn said he believes his wife's past is being held against her: "Nobody wants to let it go and let her live a life."

Tanya Holquinn is now back in prison as she awaits a hearing to determine how much time she will have to serve for violating parole. She faces a maximum of one year.

http://www.fresnobee.com/local/story/6028251p-6984539c.html

tulsamal
July 13, 2006, 03:30 AM
tulsamal, we've discussed this before. Let's quit pretending your father didn't know what he did was wrong. In fact you admitted that in a previous discussion:

Nothing too high road about that! Want to give me a reach around while you do that?

This is my Dad we're talking about. Think about it.

My POINT was that what he did didn't deserve to be a felon. He didn't hurt anybody. He didn't make any money off of it. He made a bad decision. How that should result in loss of gun rights, right to vote, to serve on juries, etc. is a bit baffling.

IMO, the whole point of "felonies" was originally to separate whether a crime involved violence. Then it makes sense. Having a crime that _at best_ amounts to white collar crime is just silly.

It's a darn good thing this is online because I'm shaking with the desire to punch you right in the mouth.

Gregg

Autolycus
July 13, 2006, 03:48 AM
The thing is that white collar crime often does more damage to society economically than blue collar crime.

Either way if someone is trusted to walk on the streets they should be trusted with a gun.

I got a friend who is in trouble for assault on a police officer. He is facing trial and he did it. He admitted it. He was an 18 year old dumbass. But he is going to screw himself for life now. Either way he is like the little brother I never had and I am hoping to help straighten him out. I cant defend his actions but I understand them. Either way I was curious as to whether we could be in trouble if he visits me.

DMF
July 13, 2006, 03:50 AM
This is my Dad we're talking about. Think about it.
I acknowledged that in the other threads, but I also tire of you trying to minimize and rationalize your father's crime. Also, if you don't want to discuss your father's crime, don't bring it up on a public forum.
Having a crime that _at best_ amounts to white collar crime is just silly.So Ken Lay shouldn't have been a felon? How about Duke Cunningham, Mark Rich, or Michael Milken? :rolleyes:

Felonies are serious crimes, not just violent crimes. This is nothing new. If you stole someone's animals (horses, cattle, etc) 150 years ago, you would probably get hanged in many parts of the country, whether violence was involved or not. Rigging the bid on a $400,000 contract is a serious offense, and that is why your father was charged with, and convicted of, a felony.
It's a darn good thing this is online because I'm shaking with the desire to punch you right in the mouth.
:rolleyes: Better learn some anger management skills, or you too may end up a felon someday. I'll say again, if you don't want to discuss your father's crime, don't bring it up on a public forum.

DunedinDragon
July 13, 2006, 07:54 AM
I got a friend who is in trouble for assault on a police officer. He is facing trial and he did it. He admitted it. He was an 18 year old dumbass. But he is going to screw himself for life now. Either way he is like the little brother I never had and I am hoping to help straighten him out. I cant defend his actions but I understand them. Either way I was curious as to whether we could be in trouble if he visits me.

It may or may not be true that he will screw himself over for life. It depends mostly on his lawyer and the judge. Many states have young offender programs he may be able to qualify for. Even if your state doesn't if his lawyer is worth anything he'll ask that adjudication be withheld. Since your friend is pleading guilty, is young, and there won't be a need for a trial, he should be able to work out the details of that kind of arrangement with the prosecutor. If adjudication is withheld, he will only be a convicted felon if he doesn't successfully complete the terms of his probation. Once he successfully completes it, he will not longer be considered to be a felon by the state.

Art Eatman
July 13, 2006, 10:04 AM
Enuf.

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