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 asked our affiliated attorneys this question--
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. We will share the responses to this interesting question over the next two months’ journals.
John I. Harris III
Schulman, LeRoy & Bennett PC
3310 West End Avenue, Suite 460, Nashville, TN 37203
615-244-6670 Ext. 111
In Tennessee, each spouse is, absent other circumstances, fully vested with the rights under the Second Amendment. The fact that one spouse may have his or her rights suspended or terminated does not impair the right of the other spouse to continue to own firearms, possess firearms, carry firearms, or obtain civilian permits. This is true even if the spouses have a shared residence.
However, there are potentially additional risks that each spouse must be aware of and address. These involve frequently the issue of whether the disqualified spouse has either actual or constructive access to the firearms. Thus, if the spouse whose rights are not impaired keeps the firearm in easy access on a dresser, a nightstand, perhaps in an unsecured closet then an argument could be made if those facts become known that the disqualified spouse had actual or constructive possession of the firearm and that the other spouse aided, abetted or was negligent in allowing that access to occur. A similar problem arises when the spouses are traveling together and the spouse who can possess a firearm leaves a firearm unsecured with the other spouse in a motor vehicle, boat or RV, for example, while the possessory spouse exits the vehicle perhaps to pay for fuel, run in a store or even go to a rest stop. In all of these instances, it is important that both spouses take steps to make sure that any firearm is secured in a safe or locked device to which the disqualified spouse does not have the key, the combination or the access code.
If a family is dealing with this situation, it is strongly encouraged because of the potential felony consequences that they consult with an attorney on their specific facts and circumstances.
Steven M. Harris
14260 W. Newberry Road #320, Newberry, Florida 32669-2765
The July attorney question inquires about keeping a firearm in shared premises where the firearm owner is under legal disability, i.e., a state court order requiring dispossession, but the non-owner inhabitant (spouse) desires the availability of the firearm for lawful purposes. Of note is that such court orders and statutory disability provisions affect the right of possession, not ownership. I suspect state law varies greatly – whatever the judge who issued the disability order will allow.
I think the paramount concern would be what is known as “constructive possession” under Federal law (see 18 USC § 922(g)), if the state court order is one to which the statute applies. Unfortunately, the United Supreme Court punted by unanimous decision when it had the chance to explain or refute that ill-conceived judicial concept. See Henderson v. United States, 575 U. S. ____ (2015). So, counsel will have to examine the cases of the appropriate Court of Appeals and their District Court for guidance. A call to an attorney experienced in Federal criminal practice or the U.S. Pretrial Services or Probation Office may provide helpful information.
For counsel representing the unencumbered spouse, something like this could be considered: The spouse seeking to have the firearm available for his or her use should file a motion (under seal if possible) to have the state court judge approve a plan for lawful access by unencumbered third party. The proposal should state under oath that the disabled spouse will not have access because a single programmed fingerprint activated device (storage lock box) has been purchased by the affiant and the firearm will be stored in it; that no key or combination will be functional on the storage device, or if functional, be available to or known by the disabled spouse; that if required by the court, the disabled spouse will transfer ownership of the firearm to the affiant (through an FFL if necessary); that when the unencumbered spouse is not present in the residence the said storage lock box will be placed in a larger safe whose contents cannot be accessed by the disabled spouse; that the affiant will promptly notify the court should the disabled spouse request or attempt to gain access to the firearm.
Law Office of Brian Craig, PLLC
95 West 100 South, Suite 106, Logan, UT 84321
If the spouse of an armed citizen is under a 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 gun(s) in their shared residence?
Courts and legislatures must balance Second Amendment rights of non-restricted household members with the public safety goal in restricting firearm access to individuals convicted of certain crimes. Provided the restricted person does not “possess, use, or have under the person’s custody or control” the firearm, a non-restricted person in the same household may have a gun in the State of Utah. Utah’s statute placing restrictions on the possession of a firearm by certain persons, such as those convicted of a crime of domestic violence, is found in Utah Code § 76-10-503.
Utah Code § 76-10-503 states that a restricted person can be convicted when that individual “intentionally or knowingly purchases, transfers, possesses, uses, or has under the person’s custody or control” any firearm. The question boils down to interpretation of the words to “possess” or have under the person’s “custody or control.” When interpreting a statute, courts in Utah give effect to the legislative intent, as evidenced by the plain language, in light of the purpose the statute was meant to achieve; the court need look beyond the plain language only if it finds some ambiguity. See State v. Norton, 2003, 67 P.3d 1050 (Utah 2003).
In one Utah case, a claim that the defendant’s companion was the owner of the gun did not conclusively determine possession and control of the handgun and the Utah Supreme Court held that the jury was free to decide whether the defendant actually “possessed” the gun. See State v. Davis, 711 P.2d 232 (Utah 1985) (overruled by State v. Sanders, 2019 UT 25, 445 P.3d 453 (Utah 2019) on another issue).
While there is little case law in Utah state courts interpreting the meaning of “possess” in the context of Utah Code § 76-10-503, decisions by federal courts construing the companion federal criminal statute in 18 U.S.C. § 922 prohibiting possession of a firearm by a restricted person are helpful. Utah is located in the Tenth Circuit where decisions by the U.S. Court of Appeals for the Tenth Circuit are binding in Utah federal courts. Tenth Circuit decisions may be particularly persuasive in Utah state courts.
The Tenth Circuit has held that possession under the federal statute in 18 U.S.C. § 922(g)(1) can be actual or constructive. Actual possession occurs where “a person has direct physical control over a firearm at a given time.” Thus, to convict on actual possession, the defendant must have held the firearm “for a mere second or two” during the time specified in the indictment. United States v. Adkins, 196 F.3d 1112, 1115 (10th Cir. 1999). Constructive possession occurs “when a person not in actual possession knowingly has the power and intent to exercise dominion and control over [a firearm].” United States v. Little, 829 F.3d 1177, 1182 (10th Cir. 2016). Knowledge, dominion, and control can be inferred when a defendant has exclusive control over the premises in which the firearm was found. When a defendant jointly occupies the premises on which the firearm is found, the Tenth Circuit requires the government to show a “nexus between the defendant and the firearm.” United States v. Benford, 875 F.3d 1007, 1015 (10th Cir. 2017).
In United States v. Samora, 954 F.3d 1286, 1291 (10th Cir. 2020), the government presented expert testimony that the firearm contained DNA from at least three individuals and that the defendant contributed the most DNA to the firearm, making his DNA the “major profile” on the gun. Because the defendant’s DNA matched the major profile on the firearm, the DNA expert concluded the defendant likely handled the gun at some point. The Tenth Circuit affirmed the conviction concluding that the DNA on the gun combined with defendant’s proximity to the firearm—as he was the sole occupant of the vehicle on the day the firearm was found in the center console of a vehicle—was sufficient to establish the defendant’s constructive possession of the firearm.
Therefore, a non-restricted person, such as a spouse, who lives in the same household as a restricted person, may own and possess a firearm as long as the restricted person does not “possess” the firearm.
If so, what safeguards do you suggest to prevent a claim that the prohibited spouse was in possession of firearms? For example, what advice would you offer a young mother who wanted a gun to defend herself and her family, but whose husband is ineligible to possess a firearm?
First of all, the restricted person should never hold or physically touch any firearm or ammunition. If the restricted person has touched the firearm, the firearm should be thoroughly cleaned with the removal of all DNA and fingerprints. Consider selling or trading the gun that the restricted person has physically touched. The non-restricted household member with guns should consider purchasing a gun safe that only the non-restricted person can access. A biometric gun safe that only the non-restricted person can access is best. In the alternative, a combination gun safe or combination trigger lock could be used if the restricted person does not know the combination. A key safe should be avoided because keys can be copied or easily accessed by other household members. A biometric safe that only the non-restricted household member can access and where are all guns are safely secured would provide a viable defense in a criminal prosecution that the restricted person “possessed” a firearm.
Timothy A. Forshey
Timothy A. Forshey, P.C.
1650 North First Ave., Phoenix, AZ 85003
This issue seems to come up more often than you would think. It’s important to recall that you do not lose your Second Amendment (or Fourth Amendment, for that matter) rights when the person you share your life with gives up theirs. That said, the ice can be pretty thin here, so let’s tread carefully.
Leaving a firearm where a prohibited possessor can “readily access” (and guess who defines that—here’s a hint—it ain’t you) it can get both them and you in serious trouble. Felony, prison-type trouble. Here in Arizona, that would be a Class 4 felony for the prohibited possessor, with their sentence (presuming a prior felony, which is likely why they were a prohibited possessor in the first place) from 6-10 years. Strangely enough, it’s even more serious for the provider of the firearm—a Class 3 felony, which, even with no priors in Arizona will still net you between 2-8.75 years in prison. Serious stuff.
I feel the best advice here is to keep all firearms (except the one legally on your hip) verifiably and always locked in (a) safe(s) with the combination unknown to the prohibited possessor, with both of you able to readily pass a polygraph verifying that fact. If you keep your carry gun in a purse, briefcase, etc., get home from a long day, casually leave it on the table to make dinner when your partner’s probation officer drops by for a warrantless site check, you may really regret having been so cavalier. I have a client who is still incarcerated for just that.
If you share your life with someone who is legally handicapped in this manner, make sure they are worth it!
Kevin L. Jamison
2614 NE. 56th Terrace, Kansas City, MO 64119
I would advise that the gun be in a locked container and only the innocent spouse have the key/combination. Property of the convicted spouse must not be in the same locked box as that would create suspicions. All cases I’ve seen have involved knowledge of the firearm presence and access. I saw one case where the defendant was not convicted of guns in his wife’s purse, seemingly on the theory that no man knows what is in his wife’s purse.
This is not a point where chances should be taken. These are easy cases for prosecutors to win and thus add to their conviction statistics. There was a probation officer who declared that if guns were in a locked safe in a locked room that was not sufficient. I advised the gun owner of cases on the subject and did not hear back. I hope that justice prevailed but probation officers can be unreasonable and get away with it. Persons on probation are considered to be in a very large and lightly supervised prison and the rules are correspondingly arbitrary.
We extend a hearty “Thank you!” to our affiliated attorneys who contributed comments about this topic. Reader, please return next month when we publish the second half of all the various responses to this question.
To read more of this month's journal, please click here.