Legality of this hypothetical

[Sgtusmc]

I need a ride from a friend. I'm carrying. Friend happens to be a felon from his teen years. The ride is only 20 minutes. Has my friend broken the law?

 

[HoughMade]

Are you planning on handing him your gun while he drives?

 

[Indy_Guy_77]

I need a ride from a friend. I'm carrying. Friend happens to be a felon from his teen years. The ride is only 20 minutes. Has my friend broken the law?

Answer: Maybe.


-J-

 

[Dead Duck]

I need a ride from a friend. I'm carrying. Friend happens to be a felon from his teen years. The ride is only 20 minutes. Has my friend broken the law?

Obviously at some point he broke the law. You yourself just said he was a Felon....





Tagging for answer.....in case I ever hang out with felons myself.

 

[Sgtusmc]

Are you planning on handing him your gun while he drives?

The hypothetical parameters would not include that. Obviously it's illegal for a felon to have a gun in the house even if it were owned by the wife who doesn't have a record. I'm just wondering if extenuating circumstances apply such as the hypothetical.

 

[Sgtusmc]

Obviously at some point he broke the law. You yourself just said he was a Felon....





Tagging for answer.....in case I ever hang out with felons myself.

Dont kid yourself, you might have a friend or two who haven't admitted to their history.

 

[Bunnykid68]

Him simply giving you a ride while you are armed will not cause him any trouble at all.

 

[Mr. Habib]

The hypothetical parameters would not include that. Obviously it's illegal for a felon to have a gun in the house even if it were owned by the wife who doesn't have a record. I'm just wondering if extenuating circumstances apply such as the hypothetical.

Actually, that's not true. The wife could own, and have guns in the house as long as they are not accessible to the husband ( felon). As long as you remain in possession of the gun both of you are perfectly legal.

 

[Sgtusmc]

Actually, that's not true. The wife could own, and have guns in the house as long as they are not accessible to the husband ( felon). As long as you remain in possession of the gun both of you are perfectly legal.

Thats not what I've read. Anyone else know the code for this?

 

[SteveM4A1]

Possession = ownership. Leave the firearm on your person and should be ok.

 

[Indy_Guy_77]

I'll stick with my above answer.

Maybe.

What are the terms and conditions of the parole?

Entirely possible there's something in there that'd be a sticky wicket for the friend.

 

[Mr. Habib]

Thats not what I've read. Anyone else know the code for this?

What code are you referring to? For it to be illegal the felon must be in possession. No possession, no crime. If the hypothetical wife keeps the firearms secured in such a way that the husband does not have access to them, then he is not in possession of them.

 

[Sgtusmc]

Found this: https://www.indianagunowners.com/fo...ding-felons-firearms-indiana.html#post3259810

 

[HoughMade]

Possession = ownership....

No it doesn't.

Longer post with citations coming soon.

 

[SteveM4A1]

No it doesn't.

Longer post with citations coming soon.

I anxiously await

 

[HoughMade]

-Let’s get this out of the way right now. I am not giving legal advice and I have not established an attorney-client relationship with anyone here. I am simply responding to a hypothetical question posed for intellectual curiosity. If you think you need actual legal advice, please consult your own attorney. I am not your attorney.-

OK, Remember there are state and federal laws at issue. While there may be some overlap, it can not be assumed that what the state law says goes for federal and vice-versa.

In Indiana- is the friend a “serious violent felon”? Look at Ind. Code. § 35-47-4-5. There’s a list. Assuming “yes”, and assuming your friend knows you are carrying (hard to knowingly or intentionally” possess something you don’t know exists, what is “possession”?

Possession of an item may be either actual or constructive. Henderson v. State, 715 N.E.2d 833, 835 (Ind. 1999). "Actual possession occurs when a person has direct physical control over the item." Id. As the firearms and cocaine at issue were neither on nor near Massey's person, he was not in actual possession of the items.

Constructive possession occurs when someone has "the intent and capability to maintain dominion and control over the item." Id. As we have explained:

“In order to prove constructive possession, the State must show that the defendant has both (1) the intent to maintain dominion and control and (2) the capability to maintain dominion and control over the contraband. To prove the intent element, the State must demonstrate the defendant's knowledge of the presence of the contraband, which may be inferred from either the exclusive dominion and control over the premises containing the contraband or, if the control is non-exclusive, evidence of additional circumstances pointing to the defendant's knowledge of the presence of the contraband. The capability requirement is met when the State shows that the defendant is able to reduce the contraband to the defendant's personal possession. Proof of a possessory interest in the premises in which contraband is found is adequate to show the capability to maintain control and dominion over the items in question. Possession of contraband by the defendant need not be exclusive and it can be possessed jointly.”

Iddings, 722 N.E.2d at 1015.

Massey v. State, 816 N.E.2d 979, 989 (Ind.Ct.App. 2004).

So, if your friend does not personally possess the gun, is there evidence that he had “(1) the intent to maintain dominion and control [over it] and (2) the capability to maintain dominion and control over the [gun]”? My guess is “no”, but heck, I don’t know how close you guys are.


Federal-

(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.

18 USCS § 922(g). So we already see that the feds don’t care if your friend is a “serious violent felon” or not....just a felon qualifies. So, what’s possession under federal law?

Here’s a decent case about the federal standard for “possession”:

The concept of possession in criminal cases has undergone considerable elaboration in recent years, as when we read in a section 924(c) case decided by the District of Columbia Circuit that "possession, of course, can be either actual or constructive. Constructive possession requires evidence supporting the conclusion that the defendant had the ability to exercise knowing dominion and control over the items in question. Mere proximity to the item at the time of seizure is not enough; but proximity coupled with evidence of some other factor . . . is enough to sustain a guilty verdict."...

* * *

We don't deny the utility of the distinction—though it would be clearer, certainly to a jury, if the terms "actual possession" and "constructive possession" were replaced by "custody" and "possession"—when the physical possession is by the defendant's agent, as in the National Safe Deposit case, which involved the storage of a person's property in a safe-deposit box in a bank. 232 U.S. at 68. As explained in United States v. Rawlings, 341 F.3d 657, 658-59 (7th Cir. 2003), "'Possession,' a concept much elaborated since its introduction into Western law by the Romans, has never just meant clasping something in your hands. The owner of an automobile possesses it even when it is parked in a garage and he is miles away. A tenant possesses the apartment he has rented even when he is away on a trip. A thief has custody of the goods he steals, but the owner retains possession. (That is, the thief does not have the rights of a possessor; he still has the liabilities, for example as a felon in possession . . . .) To decide whether a person . . . possesses a gun, therefore, it is not enough to ask whether the gun is in his hand or his pocket or even under his pillow or in his desk drawer. Had [the defendant] said to one of his coconspirators—'You hold this gun that I've bought but never touched, because I'm a felon and I don't want to be charged with being a felon in possession, if we are caught'—this would not negate his possession of it" (emphasis in original).

These are cases in which custody and possession are divided (for the owner of the property would certainly describe it as his possession), which strikes us, as we said, as a clearer articulation of the distinction than "actual" versus "constructive" possession.... Morris sold drugs in the living room of his small (one-bedroom) apartment, and two loaded guns were found under the cushions of the living room couch, where he was sitting when police unexpectedly appeared and arrested him. 977 F.2d at 619. Obviously the guns were his possessions. He lived there by himself. (Compare the discussion of the complications created by joint residence in United States v. Griffin, supra, 684 F.3d at 695-97.) What could "constructive" as distinct from "actual" possession of the contents of one's own apartment mean when no one else resides in or even has access to the apartment? When sitting on his couch was Morris merely in "constructive" possession of it? If so does that mean that a couch can't be "actually" possessed, except maybe by moving men? Does one "actually possess" a gun only when one is holding it in one's hand? Does one lose possession of one's home when one is commuting to work?

Much as in Morris, our defendant's gun was found in his SUV (corresponding to Morris's small apartment), which he was sitting in. He possessed it, along with the other contents of the car (such as the items in his glove compartment and trunk), even though the gun was several feet away from him (though closer than the items in his trunk) and it would have taken him a half minute or so to grab hold of it. Once one recognizes that "possession" is not limited to holding something in one's hand, the occasions for invoking the term "constructive possession" diminish, as the parties in this case sensibly recognize.

United States v. Brown, 724 F.3d 801, 804-805 (7th Cir. 2013)[emphasis added]. Possession- dominion, control over, actual or constructive.

So here's my take...again, this is not legal advice- When a felon is driving a car and a passenger riding in the car is carrying a firearm, if the driver does not own, have access to, or have the ability to exercise dominion or control over the firearm, the driver is not in possession. However, if that firearm leaves the carrier's person and is stored anywhere in the car....there may be a problem.

Govern yourselves accordingly (I never get to use that anymore)

 

[ArmedProgrammer]

So after all of the lawyer-speak is done - it boils down to a) if you're just carrying, then likely no issue. b) If you want to stick your Glock in the glove box or something - probably a very bad idea. c) If you guys are headed to the range or someplace with the intent of him shooting it - REALLY bad idea.

 

[HoughMade]

So after all of the lawyer-speak is done - it boils down to a) if you're just carrying, then likely no issue. b) If you want to stick your Glock in the glove box or something - probably a very bad idea. c) If you guys are headed to the range or someplace with the intent of him shooting it - REALLY bad idea.

Basically....hypothetically. But still, while carrying yourself, it depends on how "close" you and the felon are....issues of "dominion and control" don't ya know.

...not that there's anything wrong with that.

 

[You'll shoot your eye out]

G. Gordon Liddy says that Mrs. Liddy owns an extensive firearms collection.