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Criminal Possession of a Firearm

Can the government define possession of a firearm as a crime? Yes. But when can firearm possession be a crime? This page is about gun possession – what it is, and how they 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?

The 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.

The 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 the person was ineligible to possess.

**What is firearm possession in Minnesota?**

**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’s 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 her 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?

Constructive possession: Where the person did not actually possess; prosecutors have some up with a theory of “constructive possession.”

What is possession of a firearm in Minnesota? Gallagher Criminal Defense Minneapolis explains. — **What is possession of a firearm in Minnesota? Gallagher explains.**

“Constructive” means circumstantial evidence. Constructive firearm 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.

Criminal Intent

A crime requires guilty knowledge and intention to do the prohibited act.

**Knowledge is a prerequisite; but not enough to prove intent.**

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 did not criminally “possess” it. So, knowledge is a low-level of intent. But this is a minimum threshold; required but not sufficient for a crime.

So even if she has knowledge, that’s not enough. She must also have “dominion and control,” to be in constructive possession.

Compare Minnesota’s current Negligent Storage of a Firearm criminal statute, Minn. Stat §609.666, with Minnesota’s Ineligible 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 Ineligible 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.

Identity

Another basic element of any crime is identity. Even if someone did commit a crime, who did?

**Identity of the contraband – part of the act or intent elements**

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 intend to knowingly possess?

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 the serial number 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.