Has "constructive intent" ever been challenged in court?

That is a pretty good question, although speeding won't put you in the pen for ten. The felony also generates a <deleted> load more money for the govt.

I guess it comes down to risk. Most people speed because...oh well a ticket and fine. The punishment for an unregistered nfa item is far worse.

So while you may not find a case on it, I'm not gonna test it haha.

Sent from my Galaxy Nexus using Tapatalk 2

If you could cite the law in question it would be helpful in answering. However, the law most likely does not require any showing of intent, just that the circumstances existed (i.e. strict liability for possession of a regulated weapon).

It's like involuntary manslaughter. You didn't mean to kill someone, but ya did...

There's no such thing as "constructive intent." I think you have it confused with "constructive possession." If you have all the parts to make a machine gun, you have a machine gun -- intent has nothing to do with it.

No, it's never been tested by the Supreme Court. It is an extra requirement that the ATF made up, and which they treat as if it is the law.

henschman No, it's never been tested by the Supreme Court. It is an extra requirement that the ATF made up, and which they treat as if it is the law.

Click to expand...

Its never been tested because it doesnt exist.....read the post above yours.

dogtown tom said:

Its never been tested because it doesnt exist.....read the post above yours.

Click to expand...

I believe the OP has constructive possession confused with constructive "intent". Its just semantics but we all knew what he meant

DO NOT CONSTRUE THIS AS LEGAL ADVICE, I AM NOT A LAWYER. THIS IS NOT A SANCTION FOR YOUR ACTIVITIES. RELY ON THIS AT YOUR OWN PERIL.

Well, it looks like I, and I think everyone else, was wrong. I quote below a small part of a semi-lengthy opinion by the Supreme Court in Staples v. United States, 511 U.S. 600 (1994), in which the government found that there must be a showing of mens rea by the defendant to be convicted of possession of an unregistered automatic weapon. "Mens rea" is the mental aspect of the crime, and requires that the defendant be mentally guilty of committing the crime (for example, if you ask me to go get your sweater off a bench, and I walk over and pick it up, I have not committed larceny if it turns out the sweater is not yours, but belongs to someone else. I did not intend to deprive the owner of that sweater of their rightful belonging, and I therefore cannot be convicted. You, however, can).

Section 5861(d) … states simply that “t shall be unlawful for any person ... to receive or possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record.” 26 U.S.C. § 5861(d). Nevertheless, silence on this point by itself does not necessarily suggest that Congress intended to dispense with a conventional mens rea element, which would require that the defendant know the facts that make his conduct illegal.

…

According to the Government, however, the nature and purpose of the Act suggest that the presumption favoring mens rea does not apply to this case. The Government argues that Congress intended the Act to regulate and restrict the circulation of dangerous weapons. Consequently, in the Government's view, this case fits in a line of precedent…in which we have understood Congress to impose a form of strict criminal liability through statutes that do not require the defendant to know the facts that make his conduct illegal. In construing such statutes, we have inferred from silence that Congress did not intend to require proof of mens rea to establish an offense…On this understanding…a conviction can rest simply on proof that a defendant knew he possessed a “firearm” in the ordinary sense of the term.

…[Court discusses why the government’s position is wrong]…

In short, we conclude that the background rule of the common law favoring mens rea should govern interpretation of § 5861(d) in this case. Silence does not suggest that Congress dispensed with mens rea for the element of § 5861(d) at issue here. Thus, to obtain a conviction, the Government should have been required to prove that petitioner knew of the features of his AR-15 that brought it within the scope of the Act.17

Click to expand...

Constructive Possession.....hmmmm
Does that mean we will have some attempted prostitution filling the courts?

I remember getting pulled over as a kid of 16 or so and had a tool box on the back floorboard. Cops really did not like my attitude. Said he could run me in for having burglary tools and driving around at night.

You may beat the rap but you won't beat the ride! They can arrest you for anything. Many of the ATF regs are posted with a discussion period then go into the Fed Register and become like a law after 30 days.

It is my understanding (and may be wrong) Congress can put a stop to anything going into the register through some simple process, even executive orders but they don't.

If you have reloading powder and PVC sewer pipe in your home, is that bomb making supplies?

Every year Congress meets, every year tons of fed regs are put out by government departments. They all write things that turns into laws.

My real question is, when will we got to the point it is all unworkable? Or are we there already?

To be clear, CONSTRUCTIVE POSSESSION, as it applies to the ownership of all the parts necessary to put together something illegal, has never been tested in an appellate court and is something the ATF treats as if it is law.

However, it HAS been pretty well settled that constructive possession can apply to people who have the power and intention to exercise dominion and control over something. It usually pops up in drug cases, but can apply to any other victimless crime in which the mere possession of something is against the law. The way that would work is if you had an unregistered select fire sitting in your closet, your wife and kid could be charged with constructive possession if the gov't shows they had power and intent to exercise dominion and control over it. But if it is in your safe and only you know the combo, only you could be charged. But I have never seen a case reported in which someone's conviction was affirmed under the constructive possession doctrine for merely having some parts that, if put together in some certain way, would be an illegal object.

Hopefully we will get a test case of this type before too long and put the ATF in their place, so they will cut all this BS out. Give them the Staples treatment.

Unfortunately I must say this again
I AM NOT A LAWYER, DO NOT CONSTRUE THIS AS LEGAL ADVICE. THIS IS NOT A SANCTION FOR YOUR ACTIVITIES. RELY ON THIS AT YOUR OWN PERIL.

So no one has been convicted of possessing say an AR 15 and M16 parts? Does that include SBR's?

Click to expand...

Here is a case rather on point that may answer your questions. You must read the case yourself however, and take from it what you will. Keep in mind the following:
(1) This is a plurality opinion. The rule of law to be taken from this opinion is the narrowest point on which the plurality and concurring opinions agree.
(2) I make no claims as to the continuing validity of this case. I have not searched for a more recent opinion on point, nor do I know whether the statute in question has been amended.

United States v. Thompson/Center Arms Co., 504 U.S. 505 (1992).

I have provided a synopsis of the facts. Entire opinion available here http://supreme.justia.com/cases/federal/us/504/505/case.html

Thompson/Center Arms Company manufactures a single-shot pistol called the “Contender,” designed so that its handle and barrel can be removed from its “receiver,” the metal frame housing the trigger, hammer, and firing mechanism…For a short time in 1985, Thompson/Center also manufactured a carbine-conversion kit consisting of a 21-inch barrel, a rifle stock, and a wooden fore-end. If one joins the receiver with the conversion kit's rifle stock, the 21-inch barrel, and the rifle fore-end, the product is a carbine rifle with a 21-inch barrel. If, however, the shorter, pistol-length barrel is not removed from the receiver when the rifle stock is added, one is left with a 10-inch or “short-barreled” carbine rifle. The entire conversion, from pistol to long-barreled rifle takes only a few minutes; conversion to a short-barreled rifle takes even less time. In 1985, the Bureau of Alcohol, Tobacco and Firearms advised Thompson/Center that when its conversion kit was possessed or distributed together with the Contender pistol, the unit constituted a firearm subject to the NFA.

…

The NFA provides that “[t]he term ‘make’, and the various derivatives of such word, shall include…putting together…any combination of these, or otherwise producing a firearm.” 26 U.S.C. § 5845(i).2 But the provision does not expressly address the question whether a short-barreled rifle can be “made” by the aggregation of finished parts that can readily be assembled into one. The Government contends that assembly is not necessary; Thompson/Center argues that it is.

Click to expand...

Does "constructive possession" have anything to do with construction..?

I was lead to believe that it meant that you are in possession of something not in your possession...

Kinda like having a gun in your car, and being elswhere, you're still in "constructive possession".

Correct me if I'm incorrect, please.

p

paul said:

Does "constructive possession" have anything to do with construction..?

I was lead to believe that it meant that you are in possession of something not in your possession...

Kinda like having a gun in your car, and being elswhere, you're still in "constructive possession".

Correct me if I'm incorrect, please.

p

Click to expand...

Once again...
I AM NOT A LAWYER, THIS IS NOT LEGAL ADVICE. DO NOT USE THIS AS A SANCTION FOR YOUR ACTIVITIES. RELY ON THIS AT YOUR OWN PERIL. I MAKE NO CLAIMS AS TO THE ACCURACY OF THESE STATEMENTS OF LAW AND FACT, AND THEY MAY NOT APPLY OR BE OUT OF DATE.

You're correct - constructive possession is possession that is not actual possession. For example, the difference between "I have a gun in my hand," actual possession, and "I have a gun in my car," constructive possession. Constructive possession is very fact specific, and you should always use caution, be aware of the pertinent firearms laws, the judicial interpretations in your own district, and, when in doubt, consult a qualified attorney (i.e. not me).

Here's some statements of law taken from relevant 11th circuit cases (Alabama, Georgia, Florida). I must stress that these may not be current, and may not apply to your district, and may not apply to your personal situation.

To prove constructive possession, “the government must show that the defendant exercised ownership, dominion, or control over the firearm or the [premises where] the firearm” was located. United States v. Gunn, 369 F.3d 1229, 1234 (11th Cir. 2004). In addition, “ownership is not a requirement for possession. Possession may…joint or sole.” United States v. Boffil-Rivera, 607 F.3d 736, 740 (11th Cir. 2010). “In essence, constructive possession is the ability to reduce an object to actual possession.” United States v. Gavin, 394 Fed.Appx. 643, 645 (11th Cir. 2010). (citing United States v. Martinez, 588 F.2d 495, 498 (5th Cir.1979)). Evidence of defendant’s knowledge of the firearm can be evidence demonstrating constructive possession, although knowledge alone is insufficient to sustain a conviction. United States v. Thompson, 473 F.3d 1137, 1142 (11th Cir. 2006). If the government presents legally sufficient evidence to support a finding of constructive possession, the issue should be presented to a jury or other trier of fact. Gavin, 394 Fed.Appx. 646.