Spouse of felon and firearms...

[Crosstimbers Okie]

Right. But once the issue is square with the state of conviction, it's square with the feds.

 

[cheerioki]

Wow! Seriously, I never imagined that i would receive so much valuable info! Thank you to you all! I have something to go on now. I
t looks as if a full pardon or expungement is our only hope. Sure hope the SDHTF before then! Thanks a bunch!

 

[cmhbob]

I seem to recall that there is recent federal case law that greatly restricts the use of "constructive possession." IIRC, the idea was that a spouse or family does not give up their right to self defense, and should not be forced to choose between keeping a firearm and keeping a felon.

 

[Crosstimbers Okie]

http://www.moga.mo.gov/statutes/C500-599/5710000070.HTM

Possession of firearm unlawful for certain persons--penalty--exception.
571.070. 1. A person commits the crime of unlawful possession of a firearm if such person knowingly has any firearm in his or her possession and:

(1) Such person has been convicted of a felony under the laws of this state, or of a crime under the laws of any state or of the United States which, if committed within this state, would be a felony; or

(2) Such person is a fugitive from justice, is habitually in an intoxicated or drugged condition, or is currently adjudged mentally incompetent.

2. Unlawful possession of a firearm is a class C felony.

3. The provisions of subdivision (1) of subsection 1 of this section shall not apply to the possession of an antique firearm.

http://www.moga.mo.gov/statutes/C500-599/5710000010.HTM

a) "Antique firearm" is any firearm not designed or redesigned for using rim fire or conventional center fire ignition with fixed ammunition and manufactured in or before 1898, said ammunition not being manufactured any longer; this includes any matchlock, wheel lock, flintlock, percussion cap or similar type ignition system, or replica thereof;

http://www.moga.mo.gov/statutes/C500-599/5620000011.HTM

Read the below very carefully. It is clear that a person is not guilty of an act that's performed by another nor is he in possession of a thing unless he knowingly procures or receives the thing possessed. So, it seems obvious that a person is not in possession of a thing that is being physically carried by another person and which he never touches, nor is he in possession of a thing which is stored in a locked container which he has no key or combination to.

Voluntary act.

562.011. 1. A person is not guilty of an offense unless his liability is based on conduct which includes a voluntary act.

2. A "voluntary act" is

(1) A bodily movement performed while conscious as a result of effort or determination; or

(2) An omission to perform an act of which the actor is physically capable.

3. Possession is a voluntary act if the possessor knowingly procures or receives the thing possessed, or having acquired control of it was aware of his control for a sufficient time to have enabled him to dispose of it or terminate his control.

4. A person is not guilty of an offense based solely upon an omission to perform an act unless the law defining the offense expressly so provides, or a duty to perform the omitted act is otherwise imposed by law.

(L. 1977 S.B. 60)
Effective 1-1-79

http://www.moga.mo.gov/statutes/C500-599/5620000016.HTM

Ignorance is a virtue...

Culpable mental state.

562.016. 1. Except as provided in section 562.026, a person is not guilty of an offense unless he acts with a culpable mental state, that is, unless he acts purposely or knowingly or recklessly or with criminal negligence, as the statute defining the offense may require with respect to the conduct, the result thereof or the attendant circumstances which constitute the material elements of the crime.

2. A person "acts purposely", or with purpose, with respect to his conduct or to a result thereof when it is his conscious object to engage in that conduct or to cause that result.

3. A person "acts knowingly", or with knowledge,

(1) With respect to his conduct or to attendant circumstances when he is aware of the nature of his conduct or that those circumstances exist; or

(2) With respect to a result of his conduct when he is aware that his conduct is practically certain to cause that result.

4. A person "acts recklessly" or is reckless when he consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow, and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation.

5. A person "acts with criminal negligence" or is criminally negligent when he fails to be aware of a substantial and unjustifiable risk that circumstances exist or a result will follow, and such failure constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation.

(L. 1977 S.B. 60)
Effective 1-1-79

 

[owassopilot]

I seem to recall that there is recent federal case law that greatly restricts the use of "constructive possession." IIRC, the idea was that a spouse or family does not give up their right to self defense, and should not be forced to choose between keeping a firearm and keeping a felon.

Certainly didn't do an exhaustive search by any stretch, but I did find this blog listing multiple cases where appeals courts ruled different from what you are thinking. I did confirm that the cases are real and his arguments seem valid. A family certainly doesn't give up their right to self defense (nor does the felon, by the way). This can be interpreted different ways. You can defend yourself with a baseball bat, tire iron, etc. It doesn't have to be a firearm. If you can find a case where a court dismissed an unlawful possession of firearm because of only living in the same house, then I'd love to read it.

http://en.allexperts.com/q/2nd-Amendment-Bear-Arms/2010/2/Gun-rights-convicted-felons.htm

 

[owassopilot]

http://www.moga.mo.gov/statutes/C500-599/5710000070.HTM



http://www.moga.mo.gov/statutes/C500-599/5710000010.HTM



http://www.moga.mo.gov/statutes/C500-599/5620000011.HTM

Read the below very carefully. It is clear that a person is not guilty of an act that's performed by another nor is he in possession of a thing unless he knowingly procures or receives the thing possessed. So, it seems obvious that a person is not in possession of a thing that is being physically carried by another person and which he never touches, nor is he in possession of a thing which is stored in a locked container which he has no key or combination to.




http://www.moga.mo.gov/statutes/C500-599/5620000016.HTM

Ignorance is a virtue...

You have a court case where courts interpreted it the way you state?? Federal cases I'm finding interpret "constructive possession" much more broadly.

 

[Crosstimbers Okie]

You have a court case where courts interpreted it the way you state?? Federal cases I'm finding interpret "constructive possession" much more broadly.

These are state statutes that the courts in Missouri will go by. True they won't protect you from the feds, but the case has to get into federal court first. And if it did, it would seem that the US Marshals who take custody of the "offender" in question will be guilty of providing a felon with the firearms on their hips since he, according to the standard being used, would also be in possession of their guns.

 

[cheerioki]

Thank you all so much. i have not been able to find anything with a dismissal of an unlawful possession of firearm due to the spouse or anyone else having a firearm in the home. Will keep looking, though! If I do find something, I will post a link. Again, thank you all!

 

[RaysZ71]

Wow! Seriously, I never imagined that i would receive so much valuable info! Thank you to you all! I have something to go on now. I
t looks as if a full pardon or expungement is our only hope. Sure hope the SDHTF before then! Thanks a bunch!

I don't know how it is in Nebraska or Missouri but here in oklahoma you must wait 10 years from the date of conviction to be eligible for expungement.

 

[owassopilot]

I don't know how it is in Nebraska or Missouri but here in oklahoma you must wait 10 years from the date of conviction to be eligible for expungement.

This is true; however, an expungement ALONE will NOT restore firearm rights. All an expungement does by itself is remove it from public record. The conviction will still be on file with law enforcement, FBI, etc. Unless it is pardoned by the governor, or the DA and judge agree to dismiss the case and overturn the conviction, the conviction stands, even if it's not on public file.