Expert: Robert P. Firriolo - 9/18/2011

Question
QUESTION: can a-spouse
or an-adult child
that live with a individual who has lost rights
possess in same household?,
even providing that they would maintain control over such weapon?

ANSWER: A spouse or adult child could theoretically keep firearms on the premises where a prohibited person lives if that prohibited person has absolutely no access to the firearms. However, doing so is very dangerous and the law may deem that the prohibited person nonetheless has "constructive possession" of those firearms, and thus is guilty of a federal felony under 18 USC § 922(g).  Proving that the prohibited person 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 the prohibited person is in possession of it in violation of the law. The burden shifts to the prohibited person to prove in court that he or 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).  

---------- FOLLOW-UP ----------

QUESTION: so if my dad (a Korean war vet 101st airborne)develops Alzheimer, and falls under that new rule for vets / mental illness (thx SELL OUT NRA)

mom and i have to not only take his 38 special away but remove it from house? disarms mom who can shoot and she cannot protect herself and is set up as potential victim great.

now if we do not dispose of weapon who gets arrested if he is restricted?

Answer
Being diagnosed with dementia does not make one a prohibited person. Under federal law, one who has been "adjudicated as a mental defective or has been committed to any mental institution" is a prohibited person.

However, currently, when a person has a fiduciary appointed to handle his or her veterans' benefits, the federal government considers that person to have been "adjudicated as a mental defective" and therefore prohibited from possessing firearms.

You would need to ascertain whether your father has had a fiduciary appointed to handle his veterans' benefits and or otherwise confirm whether the Veterans Administration has indeed classified your father as a "mental defective." If so, the cautions in the last response apply. You are not required by law to remove the gun from the house. However, you may be required to prove that your father has absolutely no access to the firearm should the issue ever arise with law enforcement.

Please also note that on September 9th, the U.S. House Veterans Affairs Committee passed an amendment as a part of a larger piece of veterans' legislation to try and address this issue.  The Veterans Second Amendment Protection Act, which was added to H.R. 2349 as an amendment, would provide individuals receiving veterans' benefits with added protection against loss of the right to possess firearms due to mental health decisions.

The NRA-backed amendment would provide that for purposes of the firearm prohibition, a person subject to a mental health decision by the Veterans Administration would not be considered "adjudicated as a mental defective" without a court finding that the person is dangerous.