Keeping Firearms in Your Home & Vehicle While Living with a Felon in Michigan?
How may a resident of Michigan, who wishes to keep firearms in a house and automobile, do so while minimizing the criminal liability of a cohabiting spouse or loved one who is forbidden from possessing firearms due to felonies on his or her criminal record?
What is the Law?Michigan
Under Michigan law, possession of firearms by felons is generally prohibited under MCL 750.224f. The statute dictates that any person with a felony conviction who possesses, uses, transports, sells, purchases, carries, ships, receives, or distributes a firearm is in violation of said statute.
18 U.S.C. ? 922(g)(1) states that any person convicted of a felony may not ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition.
Possession of a weapon may be actual or constructive. People v. Hill, 433 Mich. 464, 469-470; 446 NW2d 140 (1989). "[A] defendant has constructive possession of a firearm if the location of the weapon is known and it is reasonably accessible to the defendant." Id. at 470-471. The questions you raise deal with avoiding potential accusations of constructive possession.
Under federal law, a person has constructive possession if he or she "knowingly has the power and the intention at a given time to exercise dominion or control over a thing, either directly or through another person or persons...." Burch, supra at 629; see also United States v. Craven, 478 F.2d 1329 (CA 6, 1973).
Michigan courts essentially agree with this description. Here, constructive possession exists where there is proximity to the firearm as well as indications of control. People v. Davis, 101 Mich.App. 198, 300 N.W.2d 497 (1980). As with federal rulings, the issue in Michigan often depends on the defendant's knowledge of the weapon along with his reasonable accessibility over that weapon. People v. Terry, 124 Mich.App. 656, 335 N.W.2d 116 (1983). Further, the control required for the establishment of constructive possession may be direct or may flow indirectly through another person or persons. People v. Flick, 487 Mich. 1, 15, 790 N.W.2d 295, 304 (2010). If you are the one keeping actual possession of the firearm, it is crucial to demonstrate that your spouse or loved one has no control, either personally or through you.
AnalysisThe present question is how to keep possession of a firearm in your home and automobile without putting your loved one in danger of a conviction for felon in possession. While the courts have long adopted a view that constructive possession is equal to actual possession, there are steps that can be taken to remove your his or her potential accessibility, thereby eliminating a necessary element of felon possession required for conviction.
For your your loved one to be convicted of being a felon in possession, he or she would need to be charged by a prosecutor required to prove, beyond a reasonable doubt, all the elements of the crime, including constructive possession. The burden lies with the prosecutor to prove that the felon has knowledge of the weapon, intends to possess it, and that he or she may exercise reasonable control over it, whether directly or through someone else.
Prosecutions for this crime do not have a statutory framework upon which to determine where constructive possession does and does not exist. There are no laws stating the proper way a felon may occupy an abode or automobile and comply with laws prohibiting felon possession. For that reason, cases involving constructive possession of firearms are individually analyzed by prosecutors to specifically determine if the defendant had the required dominion and control. While a guarantee against prosecution is impossible, adequate steps may be taken to preemptively rebut any potential argument of your loved one's control over the firearm.
An effective strategy in your situation involves preventing a prosecutor in a hypothetical case against the felon with whom you live from proving that the weapon was reasonably accessible. If you are the one in actual possession of the firearm and it is kept in a locked safe, the prosecutor would need to show that your loved one had access to the firearm despite the lock or that your they had control over you sufficient to compel you to give them access to the locked firearm. Assuming the locking mechanism grants only you access, you would likely have created the necessary circumstances to deter even the most aggressive prosecutor.
RecommendationsIn order for you to protect the felon from prosecution, you must take steps to shield against any potential argument that the firearm was reasonably accessible. While predicting the actions of any particular prosecutor's actions is impossible, it is doubtful that one would pursue a felon in possession of a firearm charge if you took the following precautions:
1. Keep the firearm in a biometrically locked safe (available for less than $200), whether at home or while traveling by car. A combination lock, the combination to which only you would know, may be sufficient but the requirement of your fingerprint to gain access carries substantially more weight. It is difficult to imagine any prosecutor filing charges against your loved one if the safe could not be opened without your physical cooperation.
2. Execute an affidavit before storing the firearm that states your intention to keep it in a locked location within the house or automobile. State in the document that you are keeping the firearm in a safe, explain the method by which that safe is locked, state that you will not give the felon access to the contents of the safe, and state that you will not allow him or her to exert control over the firearm when it is on your person. Finally, the felon should sign a similar instrument acknowledging that he or she will have no access to the firearm and that he or she will not be given access to it.
Understand that any situation where there is ambiguity over your loved one's ability to exercise control over the firearm could potentially place him or her in greater jeopardy. At all times you should keep it locked in a biometric safe in the home, in a biometric safe in the car, or on your person.
I would additionally advise that the felon with whom you live petition the circuit court in which you live for a restoration of firearm rights in Michigan.