Spouse of felon and firearms...

[cheerioki]

I am married to a man with a felony. We live in Missouri. He was convicted in Nebraska. I understand that under federal and state law a felon cannot own nor have possession of a firearm. However, does anyone have any experience or information concerning how that law is applied in the case of a non-felon spouse who owns a firearm and resides in the same home? My question is, "Is the felon considered to be in 'possession' of a firearm if the firearm is in a locked safe in the home he resides in and he has no access to the key?"

 

[SMS]

Welcome to OSA>

What does MO law say? There can be many aspects...is he on probation or parole? Pre-trial release, deferred conviction pursuant to completion of a program like Drug Court etc? Lots of angles.

If he is on probation, parole, pre-trial or deferred then he needs to ask his parole/probation officer or his program coordinator.

The operative term I believe is "Constructive Possession". If it can be proved he has control over the area where the firearm is kept I imagine it could cause trouble.

 

[ripnbst]

Yeah, I don't know about that. If I were sitting on a jury, you'd have a REALLY hard time convincing me that your husband truly did not have access to the key.

 

[cheerioki]

to SMS...Hi and thanks for the info... none of the three situations apply. He served four years probation without incident. That was three years ago. I will investigate "constructive possession" a little further.

 

[Buzzgun]

Don't know about Missouri, but it would be illegal in Oklahoma.


TITLE 21 § 1283 CONVICTED FELONS AND DELINQUENTS

A. Except as provided in subsection B of this section, it shall be unlawful for any person convicted of any
felony in any court of this state or of another state or of the United States to have in his or her possession or
under his or her immediate control, or in any vehicle which the person is operating, or in which the person
is riding as a passenger, or at the residence where the convicted person resides, any pistol, imitation or
homemade pistol, altered air or toy pistol, machine gun, sawed-off shotgun or rifle, or any other dangerous
or deadly firearm.

 

[spd67]

The answer would be yes...he would be guilty of possession of a firearm even if it is yours.

 

[Crosstimbers Okie]

Not if it's not under the felon's "immediate control." Not anymore than the felon would be in possession of an LEO's gun if he were sitting in the back of a police car.

Check out www.missouricarry.com . They'll know the details for Missouri.

 

[owassopilot]

You might contact an attorney in Nebraska and have them investigate whether his firearm rights were restored after he completed probation. It is a common misconception that federal law prohibits felons from possessing firearms. That is not entirely accurate. It only states a person convicted of a crime punishable by imprisonment exceeding one year. No mention of felonies in Federal law. However, Missouri law DOES prohibit anyone convicted of a felony from possession.

As best I can tell, Missouri will only recognize a full pardon in restoring state rights to possession. Therefore, he would have to receive a pardon from the governor of Nebraska. What you need to do is have an attorney investigate if there was some type of deferred sentence involved where the charge was actually dismissed. If it truly was a conviction, then only a pardon will restore his rights. I would agree with others that you would have a hard time defending him against possession charges if you had a firearm in the house.

Here is an excerpt from Federal law regarding control and possession:

"Possession of a firearm may be either actual or constructive. The latter has been defined as
follows: “Constructive possession exists when a person knowingly has the power and intention at
a given time of exercising dominion and control over the object or over the area in which the object
is locate....” (See U.S. v Booth, et.al. 111 F.3d 2 [1st Cir. September 1997]). If you know the
firearm is present in your residence, vehicle, etc., and if it can be shown that you have the ability to
access and exercise control over that firearm personally or through another individual, then you
could be considered to have constructive possession of the firearm. You would then be subject to
new criminal charges and/or revocation of supervision. For these reasons, all firearms are to be
removed from your residence during the term of supervision."

http://www.rip.uscourts.gov/rip/supervision/firearmpossession/FirearmPossessionProhibition.pdf

 

[Crosstimbers Okie]

http://www.atf.gov/firearms/faq/general.html#firearms-relief

QUOTE:

Q: How can a person apply for relief from Federal firearms disabilities?
Under the provisions of the Gun Control Act of 1968 (GCA), convicted felons and certain other persons are prohibited from possessing or receiving firearms. The GCA provides the Attorney General with the authority to grant relief from this disability where the Attorney General determines that the person is not likely to act in a manner dangerous to the public safety and granting relief would not be contrary to the public interest. The Attorney General delegated this authority to ATF.
Since October 1992, however, ATF’s annual appropriation has prohibited the expending of any funds to investigate or act upon applications for relief from Federal firearms disabilities submitted by individuals. As long as this provision is included in current ATF appropriations, the Bureau cannot act upon applications for relief from Federal firearms disabilities submitted by individuals.
[18 U.S.C. 922(g), 922(n) and 925(c)]
Q: Are there any alternatives for relief from firearms disabilities?
A person is not considered convicted for Gun Control Act purposes if he has been pardoned, had his civil rights restored, or the conviction was expunged or set aside, unless the pardon, expungement, or restoration expressly provides the person may not ship, transport, possess, or receive firearms.
Persons convicted of a Federal offense may apply for a Presidential pardon. 28 CFR 1.1-1.10 specify the rules governing petitions for obtaining Presidential pardons. You may contact the Pardon Attorney’s Office at the U.S. Department of Justice, 500 First Street, N.W., Washington, DC 20530, to inquire about the procedures for obtaining a Presidential pardon.
Persons convicted of a State offense may contact the State Attorney General’s Office within the State in which they reside and the State of their conviction for information concerning any alternatives that may be available, such as pardons and civil rights restoration.
[18 U.S.C. 921(a)(20) and (a)(33)]

 

[owassopilot]

http://www.atf.gov/firearms/faq/general.html#firearms-relief

QUOTE:

Q: How can a person apply for relief from Federal firearms disabilities?
Under the provisions of the Gun Control Act of 1968 (GCA), convicted felons and certain other persons are prohibited from possessing or receiving firearms. The GCA provides the Attorney General with the authority to grant relief from this disability where the Attorney General determines that the person is not likely to act in a manner dangerous to the public safety and granting relief would not be contrary to the public interest. The Attorney General delegated this authority to ATF.
Since October 1992, however, ATF’s annual appropriation has prohibited the expending of any funds to investigate or act upon applications for relief from Federal firearms disabilities submitted by individuals. As long as this provision is included in current ATF appropriations, the Bureau cannot act upon applications for relief from Federal firearms disabilities submitted by individuals.
[18 U.S.C. 922(g), 922(n) and 925(c)]
Q: Are there any alternatives for relief from firearms disabilities?
A person is not considered convicted for Gun Control Act purposes if he has been pardoned, had his civil rights restored, or the conviction was expunged or set aside, unless the pardon, expungement, or restoration expressly provides the person may not ship, transport, possess, or receive firearms.
Persons convicted of a Federal offense may apply for a Presidential pardon. 28 CFR 1.1-1.10 specify the rules governing petitions for obtaining Presidential pardons. You may contact the Pardon Attorney’s Office at the U.S. Department of Justice, 500 First Street, N.W., Washington, DC 20530, to inquire about the procedures for obtaining a Presidential pardon.
Persons convicted of a State offense may contact the State Attorney General’s Office within the State in which they reside and the State of their conviction for information concerning any alternatives that may be available, such as pardons and civil rights restoration.
[18 U.S.C. 921(a)(20) and (a)(33)]

That's only how to restore federal rights. Does not apply to any state laws. Missouri appears to only recognize a full pardon. Nothing less.