Firearm Posession question...

[Bhamrichard]

Not sure where to start so I'll just throw it all out there..

I have a friend that is possibly coming to live with me in a roommate situation but there's a possible snag.

Twenty five years ago or so he was hanging out with the wrong people in his youth, and was convicted along with them of breaking and entering in Mississippi (a felony, I believe). He is under the impression that because of that conviction, he cannot be around my firearms under any circumstances.

I've checked the Alabama statutes, and I don't see where it prohibits a felon from being in the presence or possession of a firearm. The statues specifically mentions a "Crime of Violence" as being a limiting factor.

I guess the question would be, is breaking an entering a crime of violence, and would his presence around my home with my firearms here, cause possible issue?

I'm saying no, but.... other opinions are most welcome.

 

[NavyLCDR]

18 USC 922 (g):
http://www.law.cornell.edu/uscode/18/usc_sec_18_00000922----000-.html

(g) It shall be unlawful for any person—
(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;

to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

If the person's conviction COULD HAVE resulted in a jail sentence of over one year, and that person has access to your firearms, with your knowledge, without having to go through some sort of lock to get them, he is guilty of possessing those firearms and you will be guilty of providing those firearms to him.

 

[Bhamrichard]

18 USC 922 (g):

I just knew someone was going to complicate this by bringing Federal law in :banghead: Thanks Navy

So from what I can tell B&E carries a sentence of 3 years (or 7 if burglary was also charged, and he doesn't remember) so much for that idea.

So.. guns in the safe at all times, and my EDC on my person at all times (which I do anyway). *SIGH* Why do people do stupid things when they're kids..

 

[NavyLCDR]

I would recommend he get a lawyer and check it out though. If it was a juvie conviction, it may be sealed and not applicable. Or he may be able to get it expunged or his firearms rights restored.

 

[belercous]

The gun does not neccessarily have to be in a safe. If the firearm is in a part of the house not common to all residents (i.e., your bedroom.) he cannot be considered to be in possession of it, hence no foul. What NavyLt says is true, you cannot give him permission (wink, wink) to access your weaponry. This assumes that you are allowed to possess a firearm in your state. Case law on this subject is not this stringent as it pertains to married couples, which I'll assume you two are not. Hopefully not anyway.

 

[DMF]

Case law on this subject is not this stringent as it pertains to married couples, which I'll assume you two are not.

That statement is absolutely untrue. The law, and the courts, do not treat married felons differently than unmarried felons with respect to possession of firearms, both actual and constructive possession. It is illegal for a felon to possess firearms and/or ammunition, and it is illegal for a person to knowingly provide a felon with firearms or ammunition. It doesn't matter at all if the felon and the non-prohibited person providing the firearm or ammunition are married.

 

[NavyLCDR]

Bottom line is that there has to be a lock between the felon and the guns themselves. Trigger locks, etc don't count. He has to break into a room or a safe to get to them. You might be able to get away with a trigger lock and a cable lock the secures the gun itself to something immovable. That way he could neither shoot the gun nor walk off with it. But it's easiest just to get a safe or lock the room they are in.

 

[Shadow 7D]

Tell him to pay the money and have the local sheriff office run a criminal back ground check on him, or you can find one of the many Realtor / rental agencies that will do a complete background and credit check on a potential renter.

Then if he comes back with a felony conviction, start worrying.

 

[CapnMac]

Actually, it's around $40 to get an online criminal records search, and without a paper trail to LE.

 

[TexasRifleman]

Bottom line is that there has to be a lock between the felon and the guns themselves.

This is where it gets fuzzy to me.

Let's take an example of machine guns. Unless my name is listed as an owner somehow (directly on the form, trust, etc) I cannot "possess" a machine gun.

That said, I can rent them all over the place and shoot them under the supervision of the owner, since he retains possession while I am shooting.

How is a felon shooting my shotgun, under my direct supervision, any different if it's still about 'possession'?

So the idea that the guns have to be locked up 100% of the time when he's around may be the safe path, but I'm not sure it's what the law requires here.

Any thoughts on that?

 

[NavyLCDR]

Any thoughts on that?

Ask a lawyer who is willing to defend you if his answers go wrong!

 

[TexasRifleman]

Ask a lawyer who is willing to defend you if his answers go wrong!

G Gordon Liddy has made several comments like (before his wife passed away) "I don't own any guns because I can't, but Mrs Liddy has a very nice collection that she allows me to shoot under her supervision".

 

[belercous]

In downstate Illinois, where I live and which is not "fire-arm friendly," no DA will bring charges against a felon whose wife (or husband) has a FOID card. The reason they do not is because if they were, then the non-offending spouse would be put at an unfair disadvantage (have his/her rights infringed). It will come down to a jury finding; who is in possession? The non-offending spouse, or the ex-felon? Well, who's gun is it, the ex-felon or the spouse who has the FOID? Around here, the juries give the benefit of the doubt, as they should, to the accused. Remember, in a crimminal case the onus is on the prosecution to prove, beyond a reasonable doubt, that the accused is guilty of the crime charged. Any 1st year law student can win a simple possession case which is why the state won't even bring charges around here.
As a matter of law, not just fact, nothing in Illinois law prevents me from allowing an ex-felon from shooting my guns under my supervision. This may not apply to me hunting with a buddy who is 200 yds. away, but a seasoned argument can be made that 3 yds away at the gun range is under my supervision. I'd feel comfortable arguing that one in court with a bad hair cut, a hangover & chiggers.

 

[Bhamrichard]

Case law on this subject is not this stringent as it pertains to married couples, which I'll assume you two are not. Hopefully not anyway.

Uhm, I like the guy, but not that much...

Thanks for all the info, thoughts and opinions folks.

 

[DMF]

In downstate Illinois, where I live and which is not "fire-arm friendly," no DA will bring charges against a felon whose wife (or husband) has a FOID card. The reason they do not is because if they were, then the non-offending spouse would be put at an unfair disadvantage (have his/her rights infringed). It will come down to a jury finding; who is in possession? The non-offending spouse, or the ex-felon? Well, who's gun is it, the ex-felon or the spouse who has the FOID?

Your logic is extremely flawed, and has no basis in legal reality. It is not an either or situation. Two people can and often do possess the same item. Often at different times, and even both at the same time. The government must only prove that the felon possessed the gun, and it is irrelevant that the non-prohibited spouse may also have possessed the same gun. While a non-prohibited person, spouse or not, claiming sole ownership (and sole possession) of a firearm could make prosecution difficult, I have participated in many criminal investigations where a felon was proven beyond a reasonable doubt to have possessed a firearm despite a spouse, friend, or other relative claiming sole ownership/possession of that firearm.

Any 1st year law student can win a simple possession case which is why the state won't even bring charges around here.

I've seen MANY seasoned and top notch lawyers agree to plead out, or lose at trial, simple possession cases. Because the reality is it is often very easy to prove actual or constructive possession of contraband, including firearms by prohibited persons such as felons.

As a matter of law, not just fact, nothing in Illinois law prevents me from allowing an ex-felon from shooting my guns under my supervision.

I can't speak to Illinois law, but I have direct experience with prosecution of felons under Title 18, United States Code Section 922(d) and Section 922(g)(1). "As a matter of law" and "fact" it would be illegal for you to allow a previously convicted felon to shoot your guns under your supervision. You would be guilty of violating 18USC922(d) for knowingly transferring a firearm and/or ammunition to a previously convicted felon, and the felon would be guilty of violating 18USC922(g)(1), possession of a firearm and/or ammunition by a felon.

I'd feel comfortable arguing that one in court with a bad hair cut, a hangover & chiggers.

Again, I won't pretend to be intimately familiar with Illinois law, but I guarantee that the scenario you describe is a federal crime, and many people have been convicted of those crimes in scenarios similar to what you have described.

Please refrain from giving such horrible legal advice.

I'll also add, no one should simply take my word on this matter. If you feel this issue could affect you, you should consult with a competent attorney who has knowledge and experience in the applicable federal, state, and local firearms laws.

 

[TexasRifleman]

Again, I won't pretend to be intimately familiar with Illinois law, but I guarantee that the scenario you describe is a federal crime, and many people have been convicted of those crimes in scenarios similar to what you have described.

Please refrain from giving such horrible legal advice.

But if it's a Federal crime, why is the exact same thing NOT a Federal crime when I rent a machine gun? That's where there seems to be some problem with the argument about what "possess" means.

If 2 people can possess something at the same time why does Knob Creek never get shut down? If that were the case every person who rents an MG would be in illegal possession of a machine gun.

Not arguing, just confused.

 

[DMF]

It's an issue of caselaw. The courts treat the NFA weapons that are being rented to someone that is not prohibited from possessing firearms or ammunition, differently than someone who is absolutely prohibited from ever possessing any firearms and ammunition. Why? I haven't the foggiest idea as I haven't bothered to research it.

However, logically one can see a difference between a person or company, that maintains control over the property while supervising the use of the property by someone for whom it is possible to legally possess the property, as opposed to the use of the property by someone who cannot legally possess the property.

 

[DMF]

Missed this one before:

G Gordon Liddy has made several comments like (before his wife passed away) "I don't own any guns because I can't, but Mrs Liddy has a very nice collection that she allows me to shoot under her supervision".

This has come up many times before, and I'll same the same thing now that I did then:

Liddy is a blowhard idiot who says things his audience WANTS to hear, regardless of whether or not they have any attachment to reality/truth. His comments about firearms, his wife, and his access to them are a primary example of his nonsense.

Federal law prohibits the POSSESSION of firearms and ammunition by persons convicted of crimes punishable by more than a year in prison. Possession, not ownernship, and that includes constructive possession.

If Liddy claims about having access to his wife's gun are true despite being a prohibited person under federal law, then he has violated 18USC922(g)(1), because he constructively possesses those firearms.

A little lesson in the reality of constructive possession:

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; ". . . 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."

As I have said before on this forum:

If this is more than mere idle curiosity, my advice is that you contact a competent attorney who is familiar with both federal and state firearms laws. If this is anything other than a hypothetical it's too important a question to be left to the internet pundits, including me.

 

[wishin]

The consequences to you could be serious enough to where it would be well worth it to pay a local lawyer for his advice here.

 

[Old Fuff]

I think the opinions expressed on this thread have proven one point...

When faced with a question like this one, forget the Internet and ask a lawyer that has a practice within the state where you live.

 

[The Lone Haranguer]

This is how I understand it

Twenty five years ago or so he was hanging out with the wrong people in his youth, and was convicted along with them of breaking and entering in Mississippi (a felony, I believe). He is under the impression that because of that conviction, he cannot be around my firearms under any circumstances.

B&E ( burglary) is definitely a felony. Unless this "youthful indiscretion" happened when he was a juvenile and was expunged, it will be on his permanent record. There should, however, be no problem with his simply living with you, as long as he does not touch your guns. I assume he will have his own bedroom? I would lock them up in your bedroom, in a safe to which only you have the combination/key, or otherwise make them unavailable, to prevent any inadvertent violation.