Expert: Robert P. Firriolo - 4/14/2010

Question
I am facing a felony DWI charge.  I am desperately trying to get it reduced to a misdemeanor, but in the meantime, I am worried about what a conviction would do to our household.  My 11 and 8 year old sons own a 22 rifle, a 30.06 and 410 shotgun that they use frequently for hunting.  They are stored in a locked closet that only I have access to for their safety, but the guns were each presents for the boys on different birthdays, Christmases, etc.  I do not want my boys to suffer for my stupidity. Will I be allowed to keep the rifles on the property for them to hunt with (accompanied by their uncle,) or will they have to be stored somewhere else? If so, for how long? Does any felony conviction in Texas permanently exclude me from possessing a firearm? If I kept them in a locked closet that I had no access to and gave the key only to my live in boyfriend could they stay in the house?  If I receive probation for this offense do I have to have them out of the house during probation if I do not have access?  Any advice is welcome.....

Answer
If you are eventually convicted of a felony in any US state or federal court, then you will be prohibited by federal law from possessing firearms or ammunition. That prohibition will remain unless and until you get the conviction expunged or you receive a pardon. Whether you would be prohibited from keeping guns in your home if your charges are reduced to a misdemeanor and you receive probation will be up to the court and/or probation department that sets the terms of your release.

A convicted felon could theoretically keep firearms on the premises if she has absolutely no access to them. However, doing so is very dangerous and the law may deem that she nonetheless has "constructive possession" of those firearms, and thus is guilty of a federal felony under 18 USC § 922(g). Without any doubt, the safest course of action for a convicted felon is to remove the firearms entirely from the home. Proving that she does not in fact have any access may be very difficult.

In US v. Mabry, 3 F.3d 244, 247 (8th Cir. 1993), police seized two unloaded shotguns from a second floor bedroom in Mabry's home. Although Mabry was not present during the search, he arrived shortly thereafter and admitted that the residence was his home. The US Court of Appeals held that proof of constructive possession, that is, proof that the defendant "exercised ownership, dominion or control over the firearms or dominion over the premises," will support a § 922(g) conviction. In the absence of evidence refuting the normal inference of dominion, showing that a firearm was discovered at the defendant's residence sufficed to prove constructive possession.

Mabry relied on his mother's testimony that the shotguns had belonged to Mabry's deceased grandfather and were kept in a room accessible only through her locked bedroom. However, her testimony was "quite contradictory, and there was other evidence that she sold PCP at the home in Mabry's absence, and that he had been seen carrying a .38 revolver at the home. Viewed in its entirety, the evidence was sufficient to permit the jury to find Mabry guilty of possessing the shotguns. In addition, the fact that the shotguns were old and unloaded and that no ammunition was discovered on the premises do not preclude a § 922(g) conviction."

Another instructive case is US v. Balanga, 109 F.3d 1299 (8th Cir. 1997). Balanga argued on appeal that there was insufficient evidence to support his conviction for being in possession of a .22 caliber rifle and ammunition found in his basement. Balanga argued that he did not possess a key to his basement door's padlock while another person stored a rifle and ammunition in Balanga's basement. Balanga admitted that he knew of the .22 caliber rifle and the ammunition that was stored in his basement, but argued that because he did not have a key to the basement, he did not have access to the rifle and the ammunition, and therefore did not possess them.

The court disagreed, finding that to convict Balanga of being a felon in possession of a firearm, the government had the burden of proving beyond a reasonable doubt that he "'exercised ownership, dominion or control over the firearms or dominion over the premises'" where the firearms were stored. The court ruled that, "In this case the jury could have reasonably concluded that Balanga failed to refute the normal inference of dominion over his own home. While there was some testimony at trial to support Balanga's assertion that he did not have a key to his own basement during the period in question, there was also evidence that Balanga in fact retained a key."

So, the mere presence of a firearm in the home of a convicted felon (where she has "dominion") will raise a presumption that she is in possession of it in violation of the law. The burden shifts to the prohibited person to prove in court that she had no access whatsoever to the firearm. From the cases, this appears to be a very heavy burden.

Even momentary or fleeting possession of firearm may constitute “possession” for purpose of this statute. See U.S. v. Mercado,  412 F.3d 243 (1st Cir. 2005).