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. 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. For example, a felon in possession crime would depend upon proof that the person accused was a person legally ineligible 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’s lawyer must first produce evidence supporting an inference that each “element” of the firearm possession crime existed.
And then the prosecutor must try to convince the jury that her evidence is true and convincing beyond all real doubt.
The prohibited act
First, is the prohibited act element.
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.
What if police find an item, not on the person, but in some proximity?
Where the person did not actually possess the item, prosecutors have some up with the theory of “constructive possession.”
“Constructive” means circumstantial evidence. Constructive firearm possession is not actual possession.
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.
A crime requires guilty knowledge or intention to do the prohibited act.
Knowledge is a requirement, 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 it is a minimum threshold, required for a crime.
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. In a gun crime case, sometimes the identity of the firearm can be critical. Did the person “possess a stolen firearm? Was it a firearm at all? Or just a BB gun, or air “gun?” Did the defendant know or intend to possess?
Firearm possession defense
In a gun possession case, we can defend by analyzing the prosecution evidence. 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.
Gun pages on Liberty-Lawyer.com
Gun Crimes Defense Attorney
Self-defense Law in Minnesota
Ineligible Person in Possession of a Firearm
What is firearm possession? (this page)
Restoration of civil rights to firearms
Minnesota Carry Permit Law
Carrying under the influence
Gun Possession Defense Attorney
If you’re facing firearm possession charges, you should have an expert criminal attorney who knows guns and gun laws.
Minneapolis gun possession attorney Thomas Gallagher is a best-rated Minnesota defense lawyer. He has a 30 year track record of success.
And Attorney Gallagher is a firearms enthusiast and a recognized expert on gun laws.
Take a look at all of the Continuing Legal Education classes Gallagher has taught, including this recent Minnesota Gun Law CLE.
Question? You can call Firearm Possession Attorney Thomas Gallagher at 612 333-1500