What is Firearm Possession?

Estimated reading time: 8 minutes

Can the government define possession of a firearm to be a crime? Yes, courts and voters allow it. It’s a Prohibition Crime. But when can firearm possession be a crime in Minnesota?

This article is about gun possession; what it is, and how they try to prove it. And this key legal information can help you 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 jurisdiction, and evidence of all the facts and circumstances . So, what factors are important?

Nature of the thing

Characteristics 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.”

But these laws have a relatively short and troubled history, often causing the opposite of their intended effects. One defining 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

Characteristics of the person: Some people are more equal than others, if these laws are to be believed. The possession of things can also be made into 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, if someone did commit a crime, 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 possession. Just as you can possess a thing you do not own, 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 firearm transactions and possession, but does not limit “ownership” of firearms by prohibited persons. This covers the more than 99% of firearms in the U.S.A. that are non-NFA. But for “NFA firearms” (e.g., full auto, short-barrelled shotgun) the National Firearms Act does criminalize ownership for those not in compliance with the NFA, 26 U.S.C. Chapter 53.

Therefore, a Prohibited Person can own a non-NFA firearm lawfully, even though they may not lawfully possess it. For example, a Prohibited Person has an ownership interest in a non-NFA firearm inherited from a parent, but cannot lawfully possess it. If sold the true owner has the right to the sale proceeds. Or a Prohibited Person could own shares of stock in a company that makes and owns firearms.

Unknowing possession cannot be a crime, since the alleged “possessor” either did not know the item was within their possession, or did not know the nature or identity of the item. So, for a crime, as a threshold matter, the person have had criminal intent to possess – knowing possession at minimum, but more than that.

Criminalizing entirely passive, innocent non-conduct without a mens rea (guilty mind) violates due process clauses of the state and federal constitutions. See, State v. Blake, 481 P3d 521 (Washington Supreme Court 2021).

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 NW2d 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, alone that’s not a crime. 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:

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 our statutes contain different levels of criminal intent.

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 airgun? See:

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 serial number can be a crime. But the Minnesota Statute on Privately Made Firearm and Serial Numbers has been wrongly charged by prosecutors. And those may be unconstitutional violations of the Second Amendment: “the right of the people to keep and bear Arms, shall not be infringed.” See:

Why Privately Made Firearms don’t need Serial Numbers.

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. And 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 38 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 on Minnesota Gun Law.

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