Occasionally, members ask for information about the rights of a legally armed citizen who resides with a person who is prohibited by court order from possessing firearms. This month, we continue with a question we asked our affiliated attorneys in July --
If the spouse of an armed citizen is under court order that makes it illegal for the spouse to own or possess firearms, in your state may the armed citizen have his or her firearms in their shared residence?
If so, what safeguards do you suggest to prevent a claim that the prohibited spouse was in possession of firearms? What advice would you offer a young mother whose husband is ineligible to possess a firearm, for example, who wanted a gun to defend herself and her family?
We were delighted to receive a good number of responses from a variety of states. This month we share the second half of the responses to this interesting question, having started the discussion in our July 2021 edition.
Alex M. Ooley and E. Michael Ooley
Ooley Law, LLC
P.O. Box 70, Borden, Indiana 47106
812-967-4939
https://www.ooleylaw.com
In Indiana, the spouse who is not prohibited from possessing a firearm can have a firearm. However, this creates some risk because the prohibited spouse cannot own or possess the firearm. To understand why this can be problematic, it is important to know that there are two types of “possession,” constructive possession and actual possession. Actual possession is where the individual has dominion and control over the item. Constructive possession is where the individual has the intent and capability to maintain dominion and control over the item. As you can imagine, the concept of constructive possession could cause some pitfalls in a household where one spouse owns a firearm and the other spouse is prohibited from possessing a firearm.
The best way to mitigate this risk is to avoid situations where the prohibited possessor could be seen as having even constructive possession of the firearm. Basically, any time the firearm is not under the direct control of the spouse who is not prohibited from possessing the firearm, it needs to be locked in a safe for which the prohibited possessor has no access. The prohibited possessor cannot know the code or have a key to access the safe. The spouse wanting to keep a firearm in the home might even consider a biometric safe that is only accessible with the fingerprint of the spouse who can possess a firearm.
Thomas C. Watts III
Thomas C. Watts Law Corporation
8175 Kaiser Boulevard Suite 100, Anaheim Hills, CA 92808
714-364-0100
https://tcwatts.com
This is a subject that comes up quite a bit. Regrettably, I have to give the same advice to clients as my father gave to me about playing with fire: Don’t. There is a case or two where the ex-felon has beaten the charge by showing the weapon was in a safe that the husband could not access the weapon, but this was on the thinnest reasoning. The fact is that if a felon is charged as being in possession and the spouse is charged as an accessory, they wind up in the untenable position of having to prove themselves innocent rather than the reverse.
Bruce Finlay
P.O. Box 3, Shelton, WA 98584
360-432-1778
https://websitesbycook.com/brucefinlay/
In Washington state, there is no prohibition against the spouse from possessing firearms but there are practical considerations such as danger to the prohibited spouse.
Unless police have a reason to come into the house, they may never know that the prohibited person had guns in his house. But, if police do come to the house and see guns, or a person with a grudge against the prohibited person calls police and tells them about the guns, there will probably be problems such as a charge of unlawful possession of firearms, contempt of court, or a probation violation. All of those are avoidable through one of two simple methods: get the guns out of the house in someone else’s possession, or lock them in a safe that only the spouse who is not prohibited from firearms possession has access to.
The court or police cannot order the non-prohibited spouse to give up the constitutional right to possess firearms, but they can make the prohibited spouse’s life miserable. The safest thing to do is remove all guns from the house; however, if that is not a desirable option, the guns should be stored in a locked safe with only the non-prohibited spouse having access to the key or combination. The key should be kept in the non-prohibited spouse’s possession at all times and should not be left out where the prohibited spouse might find it and use it.
John R. Monroe
John Monroe Law, PC
156 Robert Jones Road, Dawsonville, GA 30534
678-362-7650
http://johnmonroelaw.com
My state (Georgia) has few provisions prohibiting possession of firearms that are greater than federal law, so my response is coexistent with what my response would be for both Georgia and federal law. The non-prohibited spouse may possess firearms as long as the firearms are not accessible to the prohibited spouse.
In the home, this is going to mean keeping the firearms on the non-prohibited spouse’s person or locked in a safe or storage facility to which the prohibited spouse does not have the key/combination/code.
In the vehicle context, the non-prohibited spouse should keep the firearms on his or her person. They could theoretically be locked in a vehicle in a way so as not to be accessible to the prohibited spouse, but I would avoid such scenarios – the likelihood of an encounter with law enforcement is too great in a car.
Jerold E. Levine, Esq.
Attorney At Law
5 Sunrise Plaza, Suite 102, Valley Stream, New York 11580
212-482-8830
https://thegunlawyer.net
New York law addresses this matter precisely. Penal Law § 265.45 (Failure to safely store rifles, shotguns, and firearms in the first degree) contains the following relevant language:
“No person who owns or is custodian of a rifle, shotgun or firearm who resides with an individual who...such person knows or has reason to know is prohibited from possessing a rifle, shotgun or firearm (handgun) pursuant to a temporary or final extreme risk protection order issued under (New York law), ...or 18 U.S.C. § 922(g)(1), (4), (8) or (9); ...or such person knows or has reason to know is prohibited from possessing a rifle, shotgun or firearm based on a conviction for a felony or a serious offense (certain New York misdemeanors), shall store or otherwise leave such rifle, shotgun or firearm out of his or her immediate possession or control without having first securely locked such rifle, shotgun or firearm in an appropriate safe storage depository or rendered it incapable of being fired by use of a gun locking device appropriate to that weapon. For purposes of this section ‘safe storage depository’ shall mean a safe or other secure container which, when locked, is incapable of being opened without the key, combination or other unlocking mechanism and is capable of preventing an unauthorized person from obtaining access to and possession of the weapon contained therein.”
Violation of the law is a misdemeanor, and local governments can impose their own additional storage restrictions as well.
At least one court has ruled on the meaning of “safe storage depository,” finding that a wooden gun cabinet with glass windows is not sufficient security.
The main concern for non-prohibited family members is that they do not allow the prohibited person any access to the storage depository. This means, at least, that the prohibited person does not know the combination to the safe, or have access to the key, etc. It must be made practically impossible for the prohibited person to gain access to the safe contents. And it should be a safe; specifically, something sold as a “gun safe.”
Lastly, the prohibited person never should be allowed to handle the guns. As part of any investigation by authorities, it will be asked of all involved whether the prohibited person ever handled the guns. That answer always must be no.
Thomas F. Jacobs, Esq.
Law Office of Thomas Jacobs
271 North Stone Avenue, Tucson, AZ 85701
520-628-1622
http://www.thomasjacobslaw.com/
In Arizona, the spouse of a prohibited possessor may have a firearm within a shared residence. While not illegal, it is not recommended absent appropriate safeguards to ensure 1) that the prohibited party does not have access to the firearm and 2) that the prohibited party is able to objectively demonstrate lack of access to avoid criminal exposure.
In the situation proposed, I would recommend that the firearm be stored in a locked container or area of the residence to which the prohibited party does not have access. For any firearms, a safe with a combination which is not provided to the prohibited party works. For pistols, a pistol lock box with fingerprint or combination lock access would be adequate. No matter what precautions are taken, however, it is never possible to eliminate all possibility that law enforcement may gain access to the firearms during a lawful search and accuse the prohibited party of having access. In such case any correspondence between cohabitants regarding the access codes or methods of access would create exposure to criminal prosecution.
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We extend a hearty “Thank you!” to our affiliated attorneys who contributed comments about this topic. Reader, please return next month when we discuss a new question with our affiliated attorneys.
To read more of this month's journal, please click here.