Criminal Possession of a Firearm
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.
When is possession, of a firearm a crime?
Whether you are “guilty” of a firearm possession crime depends on all the facts and circumstances. So, what factors are important?
Nature of the thing
Possession of certain forbidden items, or contraband can be made a crime. And their characteristics are key. Examples include certain guns and firearm possession.
Status of the person
The possession of things can also be a crime depending upon characteristics of the person. So, a felon in possession case could depend upon evidence that the person was prohibited to possess.
What then, does criminal possession mean?
A statute defines 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.
The prohibited act
First, is the prohibited act element.
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.
A crime requires both guilty “knowledge” and “intention” to do the prohibited act.
Knowledge is prerequisite; 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. Now, knowledge is a low-level of intent. But this is a minimum threshold; required, but alone 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.
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.
Another basic element of any crime is identity. So if someone did commit a crime, who did?
Identity of the contraband
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. So, did the person “possess a stolen firearm? Was it a firearm at all? Or just a BB gun, or air “gun?” 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 page: Gun With No Serial Number.
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.
What is firearm possession? (this page)
Firearm Possession Defense Attorney
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.