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Can the government define “possession” of a firearm as a crime? Yes. It’s yet another Prohibition Crime. But when can firearm possession be a crime in Minnesota? This page is about gun “possession” – what it is, and how they try to prove it. And this is basic legal information that can help and your criminal defense attorney ultimately win your case.
When can firearm possession be a crime?
Whether the government has prima facie (rebuttable) evidence that you are “guilty” of a firearm possession crime depends on the criminal laws of the jurisdictions, and evidence of all the facts and circumstances . So, what factors are important?
Nature of the thing
Possession of certain, defined, forbidden items, or contraband can be made a crime. And so their characteristics are key. Examples include certain guns and firearm possession. Criminal laws that prohibit possession of a thing are called “Prohibition laws.” And these laws have a relatively short and troubled history, often causing the opposite of their intended effects. One characteristic of these laws is that they do not apply, either by law or in effect, to certain, privileged people. In the case of gun prohibition laws, the government seem to have exempted itself, and would have them only apply to “The People,” us.
Status of the person
The possession of things can also be a crime depending upon characteristics of the person. So, certain government officials may be above the law, according to the law. But a felon in possession case could depend upon whether the government has evidence that the person was prohibited to possess; and of course, whether their evidence is correct. It may not be.
What is “criminal possession?”
A statute must define every crime. And courts interpret those statutes. Each statute specifies several “elements” to a crime.
The government lawyer must first produce evidence supporting an inference that each “element” of the firearm possession crime existed. And then the prosecutor tries to convince the jury that their evidence is true and convincing beyond all real doubt.
Identity
A basic element of any crime is identity. So, first, did anyone commit a crime? If so, who did?
The prohibited act
The prohibited act element defines what act the law would punish. In a criminal possession case, we see two types.
Actual possession: Did the accused person actually possess, the contraband? What evidence is there to suggest that the person actually possessed a thing? If police find an item in their pocket, would that be evidence suggesting actual possession? No doubt the state would argue this. But what if police find an item, not on the person, but in some proximity; some distance away?
Constructive possession: Where the person did not actually possess; prosecutors have come up with a theory of constructive possession. “Constructive” means circumstantial evidence. Court cases distinguish “constructive possession” from “actual possession.” So constructive possession is not actual possession.
Dominion and control: Courts require evidence of “dominion and control” to prove constructive possession. Dominion implies proximity and physical boundaries. Control implies power.
But ownership is not the same as possession. You can own a thing that you are not legally allowed to possess. For example, 18 U.S.C. § 922, the central section within 18 U.S.C. Chapter 44, the Gun Control Act of 1968 (GCA), details unlawful firearms transactions and possession, but does not limit “ownership” of firearms by prohibited persons. But for “NFA firearms” (e.g., full auto, short-barrelled shotgun, etc.) the National Firearms Act does criminalize ownership for those not in compliance with the NFA, 26 U.S.C. Chapter 53 INTERNAL REVENUE CODE. The vast majority of firearms in the USA are non-NFA. So a Prohibited Person conceivably could own a non-NFA firearm lafully, so long as they never possessed it. For example, a Prohibited Person has an ownership interest in a non-NFA firearm inherited from a parent, but cannot lawfully possess it. It remains in someone else’s possession, beyond the “dominion and control” of the Prohibited Person. If sold the true owner would still have the right to the sale proceeds.
And unknowing possession cannot be a crime, since the “possessor” either did not know the item was within their possession, of did not know the nature or identity of the item. So, for a crime, the must be criminal intent to possess – knowing possession, but more than that.
Criminal Intent
A crime requires both guilty “knowledge” and “intention” to do the prohibited act.
Knowledge required; but not enough
Prerequisite: Where the prohibited act is possession of an item, the person cannot be guilty where she did not know. If she didn’t know the item was there, or what it was, then she could not “criminally possess” it. The Minnesota Supreme Court holds that the State has to prove knowledge of possession of a pistol as an element of crimes of possession of a pistol. State v. Ndikum, 815 NW 2d 816 (Minn. Supreme Court 2012).
Now, knowledge is a threshold requirement, but alone is not enough to prove criminal intent. So even if she has knowledge about an object, that’s not enough. She must also have “dominion and control” of that object, to be in constructive possession.
Compare Minnesota’s current “Negligent Storage of a Firearm” criminal statute, Minn. Stat §609.666, with Minnesota’s Prohibited Person in Possession of a Firearm crime. The criminal intent in the negligent storage crime is “negligent storage of a loaded firearm” + “child access.” We can describe that as a type of gross negligence level of criminal intent. For more see our page: Negligent Storage of a Firearm + Child Access.
But the “Prohibited Person in Possession” crime has an even lower level of intent “knowing possession” + “ineligible person.” Every criminal statute must have some level of criminal intent. But we have different levels of criminal intent in our statutes.
Contraband Identity
In criminal firearm possession cases, a different kind of identity can also be a key issue. This is the identity of the contraband. And in a gun crime case, sometimes the identity of the firearm can be critical.
Prohibited act? So, did the person “possess a stolen firearm? Was it a firearm at all? Or just a BB gun, or air “gun?” See our page: BB gun in Minnesota Criminal Laws.
Knowing, criminal intent? And did the defendant knowingly possess, or know what it was? Evidence of the identity of the contraband would be part of the act or intent elements of the criminal statute.
Privately Made Firearm Possession
Some Minnesota and federal statutes say that possession of gun with an obliterated or no serial number can be a crime. But the Minnesota Statute on a Gun With No Serial Number is being wrongly charged by prosecutors. And they may be unconstitutional violations of the Second Amendment: “the right of the people to keep and bear Arms, shall not be infringed.”
See our article: Gallagher wins Gun With No Serial Number case.
Firearm possession defense
In a gun possession case, we can defend by analyzing the prosecution evidence. So, does it prove anything? Or is it just circumstantial evidence proving nothing about the innocent accused?
When it comes to criminal possession law, evidence may relate to both the elements of criminal intent, and prohibited act. For example, what if you legally bought a gun, but did not know it was stolen? Does that raise the issue of criminal intent or, of “identity of the item?” Both.
What about “transitory possession” of an item that does not belong to you, but to someone else? Dominion and control may be lacking; or intent to exercise dominion and control may be lacking. Just because you’ve touched something, does not prove that you possessed it. So, DNA-touch evidence is not conclusive.
And, touch-DNA can transfer your DNA to a person, to an object; and then to yet another person of object. So your DNA on a gun is not even proof that you touched it.
Gun pages: Firearm Possession
- Gun Crimes Defense Attorney
- Prohibited Person in Possession of a Firearm
- Restoration of civil rights to firearms
- Minnesota Carry Permit Law
Question? Call Attorney Thomas Gallagher: 612 333-1500
If you’re facing firearm possession charges, you should have an expert criminal attorney who knows guns and gun laws.
Minnesota gun possession attorney Thomas Gallagher is a best-rated Minnesota defense lawyer. And he has a 35 year track record of success. And Attorney Thomas Gallagher is a firearms enthusiast; as well as a recognized expert on gun laws.
See the Continuing Legal Education classes Thomas Gallagher has taught; including this Minnesota Gun Law CLE.
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