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Please clarify "possesion" in the home, if one is a prohibited person

Discussion in 'Legal' started by Rule3, May 21, 2020.

  1. Rule3

    Rule3 Member

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    This question is about a situation of Husband and Wife in Florida. I do not know if Fl community property has anything to due with it.?

    Under Federal 18USC 922 about felons not being able to "posses" a firearm or buy on etc.
    What happens if for example, a husband is convicted of a felony. can the firearms in the home be property of the Wife and he still be OK to live there with guns in the home.?

    Sort of like the Life Below Zero show where the husband had a case against him, but his Wife was OK to have the firearms (not sure if it was her Native American status)it was on the THR. That case was cleared up.

    Is there a way for the person to transfer the firearms to the spouse (say before the actual conviction?

    https://codes.findlaw.com/us/title-18-crimes-and-criminal-procedure/18-usc-sect-922.html
     
  2. MEHavey

    MEHavey Member

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    Rule3 likes this.
  3. Rule3

    Rule3 Member

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    Thanks for the link. Seems even "before" there is no realistic way living in the same home,
    constructive possession”
     
  4. MCFLYFYTER

    MCFLYFYTER Member

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    It just has to be inaccessible to the prohibited person.
     
  5. AlexanderA
    • Contributing Member

    AlexanderA Member

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    First of all, Florida is not a Community Property state. Not that formal ownership has anything to do with this question.

    In terms of federal gun law (felons possessing guns), the important thing is physical possession. If the husband is a convicted felon, and the wife is not, guns could be kept in the house if only the wife had access (such as by being the only one having the key or knowing the combination to the safe in which they are kept). This would imply a certain amount of distance and distrust between the spouses. It's hard to see how the husband really would not have access.
     
  6. RickD427

    RickD427 Member

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    Alexander pretty much hit it above.

    "Possession" and "Ownership" are two very different things. It's important not to confuse the two. There is a large body of case law holding that "Dominion" and "Control" over an object add up to "Possession." Restated in layman's terms, if the prohibited person has the ability to access the weapon and shoot it, then a court is likely gonna find "Possession", even if the weapon lies untouched by the prohibited person.

    At the same time, "Possession" is not defined simply by proximity to the weapon. One way to defeat "Possession" is to ensure that prohibited person has no ability to exert dominion and control over the weapon. A gun safe where only the wife has access would be a good way of doing that.

    But also keep in mind there are gonna be some practical issues involved. When the nice parole officer comes by to visit, they may be a little disbelieving that the prohibited person does not have access to the safe.
     
  7. Frank Ettin

    Frank Ettin Moderator Staff Member

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    1. There is some federal authority to suggest that a prohibited person may lawfully have legal title to guns he can't physically possess.

      • In U.S. v. Casterline, 103 F.3d 76 (C.A.9 (Or.), 1996), the 9th Circuit set aside a conviction for being a felon in possession of a gun, because the conviction was based solely on evidence of ownership, but under circumstances in which the defendant could not possibly have had access to or possession of the guns. Casterline was in prison at the time, and the guns were in the sheriff's department evidence locker. As the Ninth Circuit wrote in Casterline, at 79 (emphasis added):

      • There is also some federal authority to suggest that upon becoming a prohibited person one's rights to control disposition of the firearms he must dispose of might be subject to some constraints. See Henderson v. United States (Supreme Court, No. 13–1487, 2015) in which Henderson became a prohibited person and sought to direct the transfer of his guns. In finding in favor of Henderson, the Court said (Henderson, slip op at 7 -- 8, emphasis added):

    2. On the other hand, "possession" is very broad:

      • U.S. v. Booth, 111 F.3d 1 (C.A.1 (Mass.), 1997, at 1):

      • See U.S. v. Barron-Rivera, 922 F.2d 549 (C.A.9 (Wash.), 1991) in which Barron-Rivera's conviction for being an alien in possession of a firearm was affirmed without him even having had to touch a gun. Barron-Rivera's claimed reversible error in that the government failed to prove the necessary intent.

        The court of appeal noted, at 551:

        In affirming the conviction, the court of appeal found, at 551 -- 552:

      • See, also, United States v. Huet, 665 F.3d 588 (3rd Cir., 2012), in which the gun a prohibited person was charged with illegally possessing was not secured against the prohibited person's access, supporting both the prohibited person's conviction for unlawful possession of a gun and the indictment of his cohabitant. From the opinion (at pg. 593, emphasis added):
        So the gun Hall, a convicted felon, was indicted for unlawfully possessing, belonged to his cohabitant, Huet. It appears to have been undisputed that Huet could lawfully possess firearms. Nonetheless, she was indicted for aiding and abetting Hall's unlawful possession of gun because Huet's gun wasn't secured against access by Hall.

    State law could be more restrictive.

    And Rick is correct. Florida is not a community property State. There are only nine states in which the marital property laws are based on community property principles. The other States are common law marital property States. Some folks think that community property is some sort of synonym for marital property, but it is not. It is a particular set of legal principles for deciding property rights within marriage. It is distinct from the more ubiquitous common law marital property which are different particular principles for deciding property rights within marriage.

    But since marital property laws are about legal title they're not really relevant.
     
    shoobe01, alsaqr, Rule3 and 3 others like this.
  8. whm1974

    whm1974 Member

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    I would ask a lawyer just to be on the safe side.
     
  9. Sistema1927

    Sistema1927 Member

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    There, I fixed it for you. Your local divorce, personal injury, or tax attorney is probably not going to be much help.
     
  10. whm1974

    whm1974 Member

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    At best they might be able to refer you to an attorney that can help you.
     
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