Wife interested in CHL, but Hubby is an ex-con...

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Wife interested in CHL, but Hubby is an ex-con...

#1

Post by seconds » Sat Aug 27, 2011 7:43 pm

Not my wife of course... Anyway, beyond the CHL issue, I am concerned that I give good information. They live together in a house they own (or making payments on) but he is a felon who completed his sentence and probation. If she bought a pistol, would it even be legal for her/them to have a firearm in the house? What does "in possession of" actually mean?

Thanks--
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Re: Wife interested in CHL, but Hubby is an ex-con...

#2

Post by Teamless » Sat Aug 27, 2011 8:10 pm

I believe that he cannot have access to it, which means to me, if it is not on her body, she would need to keep it secured in a place that he cannot get to, like a safe that he does not know the combination.
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Re: Wife interested in CHL, but Hubby is an ex-con...

#3

Post by Jumping Frog » Sat Aug 27, 2011 9:01 pm

There is a nice "Volokh Conspiracy" article on point. You'll have to read the article because it is far more detailed than I will ever get in a response. Second Amendment Protects Gun Possession by the Housemates of Felons
As I mentioned in my Implementing the Right to Keep and Bear Arms in Self-Defense article (PDF p. 57), “Bans on felon possession of firearms also affect their law-abiding spouses, girlfriends and boyfriends, and other housemates: Those people might be unable to safely possess guns in their homes because of the possibility that their felon housemate will be seen as ‘constructive[ly] possess[ing]’ the gun, and that they themselves will therefore be seen as criminally aiding this illegal possession.” “There are limits on the constructive possession doctrine [at least in the view of many courts], for instance if the housemate keeps the gun locked in a combination-locked safe. But such practices can substantially burden the housemate’s gun possession, both by making guns hard to access in an emergency and by increasing the cost, especially for long guns that require large safes.” (See also PDF p. 28 of my nonlethal weapons article, n. 121, and United States v. Hadley, 431 F.3d 484, 507 (6th Cir. 2005), and United States v. Kitchen, 57 F.3d 516, 520 (7th Cir. 1995).)

Here’s a long excerpt from Monday’s decision in United States v. Huet, which deals with this very issue. The court concludes that the government didn’t introduce evidence that Huet purposefully helped her boyfriend, who lived with her, possess her gun. (Some states and some federal courts allow aiding and abetting liability based on conduct that the defendant merely knows helps someone else commit a crime, but this court is one that seems to require a showing that the defendant had the conscious object of helping the person commit a crime.) But the court also concludes that such a result is mandated by the Second Amendment (some paragraph breaks added):
Bottom line, she left the firearms in plain sight. They were theoretically accessible to the felon, but she did not overtly furnish them. She was found innocent. There are nuanced risks of getting charged depending upon firearms handling, behavior, LEO attitude, jurisdiction, etc., but she could also be found innocent in court.
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Re: Wife interested in CHL, but Hubby is an ex-con...

#4

Post by hirundo82 » Sun Aug 28, 2011 6:36 am

Jumping Frog wrote:Bottom line, she left the firearms in plain sight. They were theoretically accessible to the felon, but she did not overtly furnish them. She was found innocent. There are nuanced risks of getting charged depending upon firearms handling, behavior, LEO attitude, jurisdiction, etc., but she could also be found innocent in court.
The girlfriend was found not guilty, but the ex-con boyfriend served two years for felon in possession.

Safest bet for all concerned is to get a quick-access safe to which the SO does not have access to store the gun when not in her immediate possession.
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Re: Wife interested in CHL, but Hubby is an ex-con...

#5

Post by Jumping Frog » Sun Aug 28, 2011 6:41 am

hirundo82 wrote:The girlfriend was found not guilty, but the ex-con boyfriend served two years for felon in possession.

Safest bet for all concerned is to get a quick-access safe to which the SO does not have access to store the gun when not in her immediate possession.
I'd forgotten about that part, and didn't re-read the article. Good point!
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Re: Wife interested in CHL, but Hubby is an ex-con...

#6

Post by seconds » Sun Aug 28, 2011 2:26 pm

Good answers. I am not surprised about the "he in more trouble than she" part... And a quick access safe is always a good investment.

seconds

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Re: Wife interested in CHL, but Hubby is an ex-con...

#7

Post by Jumping Frog » Sun Aug 28, 2011 4:19 pm

hirundo82 wrote:The girlfriend was found not guilty, but the ex-con boyfriend served two years for felon in possession.
Re-reading it, sounds like the boyfriend got hosed. He was held in jail for almost two years awaiting trial. Then he evidently had a plea bargain where he pled guilty and was released for time served. There was never any evidence that he had touched or handled the SKS.
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Re: Wife interested in CHL, but Hubby is an ex-con...

#8

Post by hirundo82 » Wed Aug 31, 2011 10:44 am

Jumping Frog wrote:Re-reading it, sounds like the boyfriend got hosed. He was held in jail for almost two years awaiting trial. Then he evidently had a plea bargain where he pled guilty and was released for time served. There was never any evidence that he had touched or handled the SKS.
No doubt he got hosed. He was in prison longer awaiting trial longer than he could have been sentenced if convicted. At that point, it's no wonder he decided to take a plea that would let him out immediately rather than put up with the time and expense of a trial where the jury would have decided to convict him the minute they heard he was already a felon.
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Re: Wife interested in CHL, but Hubby is an ex-con...

#9

Post by TexasGal » Tue Sep 06, 2011 3:04 am

It all depends on the local jurisdiction and how they interpret "access". A lawyer familiar with their interpretation should be consulted. Some jurisdictions consider them being on the property anywhere or in her possession while in his presence to be "access". Our opinions may make sense, but the courts where you are may not agree at all. Unfortunately, this is one of the most frustrating things about having a spouse that has lost his/her 2A rights. It can mean you essentially lose yours too unless you want your loved one to risk getting into a lot of trouble.
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