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There are a number of ways an individual can lose their firearm rights or become a “prohibited person”. Most commonly, people lose their right to purchase or possess a firearm after being convicted of a felony offense, misdemeanor punishable by more than two years confinement, or a misdemeanor involving domestic violence.
Under federal law and most state law, even though the statutes vary widely, it is typically a serious crime for a prohibited person to possess a firearm.1 Often, individuals receiving a prohibitive conviction already own firearms, or have friends or family members that possess firearms. A common question is whether a prohibited person may be in the vicinity of weapons possessed by others in their home or vehicles.
The safe and sound answer to that question is no. However, there are a number of scenarios that are fact specific to each circumstance in which it theoretically could be legal. Nevertheless, most often prohibited individuals believe that they are not in “possession of a firearm,” when in reality they are likely in violation of federal and state law and are putting themselves and their family at risk.
Under the federal law prohibiting possession by banned individuals, it is not required that the individual own the gun or that they literally have the gun on their person. To be guilty, the individual must merely have what the law calls “constructive possession” of the firearm. Constructive possession of firearms or ammunition is when the possessor has control over the place where the firearm was located, or control, ownership, or dominion over the firearm itself. It is not required that the prohibited person intend or plan to use the firearm.2 That wordy legal definition simply means that there are all sorts of ways that prohibited individuals could be found to be in possession of a firearm or ammunition and subject to criminal liability.
A common example, a man was found guilty of being a felon in possession of firearms in his home, despite his wife’s claims to be the owner the weapons.3 In another case, a prohibited individual was found in constructive possession of firearms when firearms were found in the trunk of a car that the person had borrowed. 4 In neither of these instances was the prosecution required to prove that the defendants had ever even held the weapons. .
If you or someone you know recently received a firearm prohibitive conviction and owns a firearm, it is imperative to take immediate action to protect against further criminal prosecution. Have a friend or family member take all of the weapons, ammunition, and weapon accessories out of the home. All weapon(s) and ammunition should be kept someplace in which the prohibited person has absolutely no access. Any transfers to family members or friends or anyone else, should be done through an authorized firearms dealer.
If you are prohibited from possessing a firearm, but those you live with wish to possess weapons for their personal use, you should reconsider your current situation. Those who are found to have aided another in the unlawful possession of a firearm or ammunition also face criminal liability. Theoretically, your wife or roommate could keep the weapons in their own room or individual closet, with a gun safe that only they have the key or combination to. But, are you emotionally and financially prepared to litigate those facts in court?
For more information on record clearing and record expungement, visit our free expungement and record clearing information page or take our free online eligibility test.
1 See 18 U.S.C.A. § 922 (g)
2 See United States v. Approximately 627 Firearms, more or less, 589 F. Supp. 2d 1129 (S.D. Iowa 2008) and United States v. Ledford, 443 F.3d 702, 705 (10th Cir. 2005)
3 United States v. Boykin, 986 F.2d 270 (8th Cir. 1993)
4 United States v. Eldridge, 984 F.2d 943 (8th Cir. 1993)