The Volokh Conspiracy
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Felon's Living with Family Members Who He Knows Own Guns Doesn't Itself Show "Possession" Under State Ban on Felons Possessing Guns
So concludes the Louisiana Supreme Court, though my sense is that other courts may well have decided this differently.
From State v. White, decided by the Louisiana Supreme Court Thursday, in an opinion by Justice John Michael Guidry
The State charged the defendant with three counts of possession of a firearm by a convicted felon after parole officers found [two] guns in the house where he lived with family members….
Defendant was convicted as to these two guns, and sentenced to seven years in prison, but the Louisiana Supreme Court reversed:
To convict [under state felon-in-possession law], the State is required to prove, beyond a reasonable doubt, that the defendant had: 1) possession of a firearm, 2) a prior conviction for an enumerated felony, 3) an absence of the ten-year statutory period of limitation, and 4) a general intent to commit the offense…. Defendant's 2020 drug conviction and the fact that the ten-year cleansing period between the prior conviction and the current offense did not lapse are undisputed….
Possession … can be either actual or constructive…. "'[C]onstructive possession' is a term of legal art, describing the situation in which a person, not in physical possession of a thing, can, nevertheless be considered to be in legal possession of the thing." Constructive possession of a firearm occurs when the firearm is subject to the defendant's dominion and control, even if only temporarily or shared….
The court concluded there wasn't enough evidence of defendant's dominion and control over the guns:
The jury found the defendant guilty of attempted possession of the firearm found in the master bedroom that he shared with his wife. Notably, the gun was found in a dresser drawer that contained clothing items that in color and design appeared to belong to a woman. Kimberly, the defendant's wife, testified that the drawer containing the gun also contained {her underwear, bras, and girdle} and an electronic gaming device she stated belonged to her.
To establish the defendant's dominion and control over the gun found in the dresser drawer, the State offered the testimony of Officer Cook, who stated that the dresser was located in the bedroom that the defendant shared with his wife and that the defendant's parole paperwork was found in another drawer of the same dresser in which the gun was found. Photographs introduced into evidence by the State, however, display the gun and the parole paperwork in what appear to be two separate dressers. Kimberly likewise testified that the parole documents were in a different "chest of drawers" than the one that contained the gun….
Herein, there was no evidence to prove that the gun found in the defendant's bedroom was subject to his dominion and control…. [T]he defendant moved into the home, which had been procured by Kimberly, merely three weeks before his arrest for possessing the gun found in the dresser. The rest of his family had been residing in the home for well over a year.
Moreover, the dresser drawer appeared to be within the exclusive control of Kimberly. The gun was found in a drawer full of Kimberly's belongings, and while Officer Cook testified that the defendant's parole papers were found in the same dresser, Officer Cook's testimony is refuted by the State's own photos showing that the parole papers were in an entirely different dresser. … [T]he evidence offered by the State failed to exclude the hypothesis that Kimberly owned and never informed the defendant about the gun in the dresser, which she had placed there over a year before he moved into the home….
As for the gun found in the living room couch in the instant case, although in a common area of the home, the couch was also [the] designated bed [for defendant's son, Jordan, because he had no separate bedroom in the house]. {Jordan … testified that the gun in the [living room] couch belonged to him…. } While there was no evidence presented that Jordan had the exclusive use of the couch, there is no dispute that the couch was solely being used by Jordan prior to the gun being found…. Notably, Jordan's testimony that he kept the gun in his truck or in the couch established that the gun was generally subject to Jordan's dominion and control. There was no evidence presented to show that the gun was accessible to the defendant while it was in the couch, as none of the witnesses testified that the defendant was seen or found near the couch or in the living room prior to being detained by the parole officers. Hence, while the evidence clearly establishes the gun in the couch was subject to Jordan's control, it falls far short of establishing that the gun was ever jointly subject to the defendant's dominion and control….
And the court also found there wasn't enough evidence that the possession was intentional:
[A]s the State provided no [sufficient] evidence to prove that the defendant was aware of the gun in the dresser in the master bedroom, we find the State failed to produce sufficient evidence to prove the defendant intended to possess that gun.
[As to the gun in the couch,] conceding the defendant admitted to Officer Cook his awareness that his son still had a gun in the house, he did not disclose any intent to use or take possession of the gun….
Chief Justice John Weimer joined in the majority opinion, but wrote separately to add:
[T]he family lived in a small, modest home in a high crime area. There had been a recent break-in at the family's home, and defendant's son was shot. Many hold the "right to bear arms" of the Second Amendment and the related provision of the Louisiana Constitution sacrosanct. There is no evidence the other family members had forfeited their right to bear arms, and the facts of this matter unfortunately demonstrate the need to protect themselves.
A contrary decision in this matter would adversely impact the rights of the other family members in the household and force on them the choice of exercising their constitutional rights or requiring a father/husband to live off the premises. The facts indicate defendant had only weeks before being found worthy of being released on parole.
Justice Cade Cole agreed with the majority and with Chief Justice Weimer's Second Amendment point; he added, "the standard for parole revocation is different from the standard for securing a criminal conviction. At oral argument in this case, both defendant and the state agreed that this defendant's parole could have validly been revoked under that more lenient standard." (This might be because, as the majority noted, "the presence of any gun in the home may have been a violation of the conditions of the defendant's parole"; query how that would affect the Second Amendment question.)
Justice William Crain dissented:
The jury was free to assess the credibility of the witnesses and weigh the evidence presented…. [J]uries [have] vast discretion to decide what inferences to draw from the evidence presented at trial, requiring only that jurors draw reasonable inferences from basic facts to ultimate facts. It was reasonable for the jury to infer the defendant had constructive possession of the two guns and the requisite criminal intent to commit the charged offenses…. The majority errs in reweighing the evidence, assessing the credibility of the witnesses, and substituting its own opinion for that of the jury….
For some other cases on the subject, see p. 1499 of my Implementing the Right to Keep and Bear Arms in Self-Defense.
