II. Examining the “Felon in Possession” Laws

Mr. Martinez was found guilty of being a “felon in possession” not because he consciously engaged in illegal conduct, but because he was a dependable son and brother. When Mr. Martinez took legal responsibility of his sister and vowed to provide her with stable housing, he also became legally responsible for the items left behind by his parents. From the perspective of the federal prosecutor's office, someone needed to be punished for possessing a box of ammunition and solely--by virtue of his previous conviction and living situation--that someone was Mr. Martinez. Unfortunately, given the federal “felon in possession” statute, and courts' interpretation thereof, Mr. Martinez's conviction is not at all surprising. Indeed, given his race, and that this alleged offense occurred in a city with a dense population of minorities, convictions and circumstances like that of Mr. Martinez are overwhelmingly typical

A. Elements of the Crime: “Felon in Possession”

Pursuant to 18 U.S.C. § 922(g)(1), otherwise known as the “felon in possession” law:

It shall be unlawful for any person ... who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year ... to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

This federal offense has many elements, so it is important to begin by explaining what the government must prove to obtain a conviction. Indeed, what the government does not need to prove is quite telling about how courts have broadly interpreted this statute, and other connected statutes, to penalize a wide breadth of conduct.

The government need only prove three elements to convict someone under the “felon in possession” law. First, the government must prove that the defendant was previously “convicted in any court of, a crime punishable by imprisonment for a term exceeding one year.” “Any court” means any domestic state or federal court, not a foreign one. The actual sentence that the defendant received for the prior conviction is irrelevant; the only inquiry is “whether the prior conviction could have included a term of imprisonment exceeding one year, i.e., whether the statutory maximum was in excess of one year.” As the U.S. Supreme Court has held, even a sentence of probation falls under the purview of a qualifying conviction. Moreover, many circuits have held that the government does not need to prove that the defendant knew he had previously been convicted of a felony. Therefore, defendants who may have been confused about the outcome of a previous criminal case--perhaps because they received a sentence of probation rather than jail or prison time--cannot claim ignorance of the law and avoid a conviction under this statute.

Second, the government must prove that the defendant knowingly possessed the firearm or ammunition specified in the indictment. The “felon in possession” law states: “Whoever knowingly violates [this law] ... shall be fined as provided in this title, imprisoned not more than 10 years, or both.” Although a plain reading of this statute implies that a defendant must know that they committed the crime, many circuits have held that possession is the only element for which knowledge is required. Essentially, in regards to the mens rea, the government only needs to prove that the defendant knowingly possessed an instrument that he knew was a firearm or ammunition.

Third, the government must prove that the defendant's possession “was in or affecting interstate commerce.” To do so, the government need only demonstrate that the firearm or ammunition “travelled in interstate commerce,” which means that the firearm or ammunition “had once crossed a state line.” This can be accomplished by establishing that the firearm or ammunition “was manufactured in a state other than that in which it was found.” Because mens rea does not apply to this element, as discussed above, “a defendant's knowledge or ignorance of the interstate nexus is irrelevant,” and, therefore, the government need not prove that the defendant knew the firearm or ammunition he possessed had traveled in interstate commerce.

Within the second element of “knowingly possessed,” “firearm” and “possession” are sub-elements that must be explained further. To begin, for the purpose of this statute, “firearm” is defined as “any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive ....” As such, a defendant may be convicted as a “felon in possession” for possessing a firearm that is unloaded and seized without officers ever discovering ammunition to be used with that firearm. Moreover, in contemplation of the words “which will or is designed to,” each circuit that has considered the issue of whether an inoperable firearm falls within the statute's definition of a firearm has concluded that it indeed does. As the Second Circuit has explained:

Where a weapon designed to fire a projectile is rendered inoperable, whether on purpose or by accident, it is not removed from the statute's purview; although it is temporarily incapable of effecting its purpose, it continues to be “designed” to fire a projectile.
As such, a defendant who knowingly possesses a non-functioning firearm--and thus cannot cause harm--may nevertheless violate the “felon in possession” statute.

Next, courts have interpreted the statute's use of “possession” to comprise both “actual” and “constructive” possession. As the U.S. Supreme Court explained, “[a]ctual possession exists when a person has direct physical control over a thing,” and “[c]onstructive possession is established when a person, though lacking such physical custody, still has the power and intent to exercise control over the object.” Actual or constructive possession is not limited to one person; possession over an item can be joint with two or more people. Moreover, the length of time in which the defendant allegedly possesses a firearm or ammunition is irrelevant. As the First Circuit held, “[e]ven if the evidence established only that [the defendant] held the firearm for a few seconds, he could properly be convicted of possession within the meaning of [the statute].”

Constructive possession encompasses many circumstances. It includes any situation in which another person actually possesses a firearm or ammunition and that person is “willing to give the felon access to [the firearm or ammunition] or to accede to the felon's instructions about the[] future use [of the firearm or ammunition].” Moreover, constructive possession can be established through circumstantial evidence if the defendant exercised dominion and control “over the premises in which the [contraband is] located.” Therefore, even if the defendant does not have the means of physical access-- such as the key to unlock a padlock or door--to the room/area in which the firearm or ammunition is kept, the court may still find that the defendant constructively possessed the firearm or ammunition if he exercised ownership, dominion, or control over the premises as a whole. In fact, some courts have chipped away at the government's evidentiary burden. The government is merely “required to show some nexus between [the defendant] and the firearms and ammunition.” As such, “the conviction depends on whether ‘there [is] some evidence supporting at least a plausible inference that the defendant had knowledge of and access to the weapon or contraband.”’

Finally, and perhaps most disconcertingly, the government may present a theory of “deliberate ignorance” in order to convict a defendant. Constructive possession requires that the defendant must have the power and intent to exercise control over the object, and thus “a defendant must, in fact, know of the [object's] existence in order to exercise dominion and control over it.” As a result, constructive possession requires a “knowing exercise of or the knowing power or right to exercise dominion and control over the [object].” Despite this clear law, “conscious avoidance” can be used to show that a defendant constructively possessed a firearm or ammunition; “knowledge of a criminal fact may be established where the defendant consciously avoided learning the fact while aware of a high probability of its existence.” Where the facts give rise to such an instruction, most circuits hold that the court give the following model federal jury charge:

In determining whether the defendant acted knowingly, you may consider whether the defendant deliberately closed his eyes to what would otherwise have been obvious to him. If you find beyond a reasonable doubt that the defendant acted with (or that the defendant's ignorance was solely and entirely the result of) a conscious purpose to avoid learning the truth ..., then this element may be satisfied. However, guilty knowledge may not be established by demonstrating that the defendant was merely negligent, foolish or mistaken. If you find that the defendant was aware of a high probability that ... and that the defendant acted with deliberate disregard of the facts, you may find the defendant acted knowingly. However, if you find that the defendant actually believed that ..., he may not be convicted.

Therefore, “knowing exercise of or the knowing power or right to exercise dominion and control over the [object]” can be proven if the defendant consciously avoided learning the truth about the existence of an object over which he possibly could have exercised dominion and control, had he not consciously avoided learning the truth about the existence of that object.

B. What These Laws Seek to Prevent and Punish: Criminalizing the Status of Being a Felon, Rather Than Harmful Action

The first federal statute preventing felons from possessing firearms was enacted in 1938, under the Federal Firearms Act. It prohibited the possession of a firearm or ammunition by any person who had been convicted of a “crime of violence” or was a “fugitive from justice.” A “crime of violence” was demarcated within this Act by several specific offenses, such as murder, manslaughter, rape, kidnapping, and assault with intent to kill, rape, or rob.

The Federal Firearms Act was amended in 1968 and replaced with the Gun Control Act includes the “felon in possession” statute as it exists today. The “history of the 1968 Act reflects a similar concern with keeping firearms out of the hands of categories of potentially irresponsible persons, including convicted felons.” In enacting this Act, Congress explicitly noted that those previously convicted of a felony “may not be trusted to possess a firearm without becoming a threat to society.” The assumption is:

[P]ossession of a gun gives rise to some risk that the gun may be used in an act of violence. By definition, without possessing a gun, one cannot use a gun for the commission of a violent act; with a gun, one can. Possession of a gun greatly increases one's ability to inflict harm on others and therefore involves some risk of violence.

Based on the assumptions underlying the “felon in possession” statute, it is clear that this statute criminalizes a possibility of harm rather than actual harm. Consequently, the statute “serve[s] as a means of regulating dangerous products,” and presumptively dangerous persons, “just as much as (if not more so than) dangerous conduct.” By regulating the simple possession of potentially “dangerous products” within only a distinct group of people, i.e., those who have previously been convicted of a felony, the statute proscribes a “status offense” rather than an “action crime.” A “status offense” is “[a] crime of which a person is guilty by being in a certain condition or of a specific character.” Those previously convicted of a felony--regardless of the underlying violent or non-violent conduct of that felon--are categorically considered a threat for the rest of their lives. Their status of being a criminal in turn makes otherwise lawful acts (like possessing a firearm or ammunition) unlawful.

Moreover, the “felon in possession” statute is in essence a strict liability crime. This offense penalizes the alleged possessor's status as a felon by criminalizing his presence in a home in which a firearm or ammunition is found. Although the government must prove that the defendant “knowingly” possessed the firearm or ammunition, this purported knowledge is assumed where the government demonstrates “some nexus between [the defendant] and the firearms and ammunition,” as discussed above. This nexus, which establishes constructive possession, is most commonly proven by a defendant's residency. As long as the government can show that the defendant resided in, or at some point “occupied,” the home in which the firearm or ammunition is found, the government need not prove any knowledge on the defendant's part that the firearm or ammunition was stored in the home. For example, “documents, receipts, photographs, and identification cards bearing [the defendant's] likeness and name” found in plain view during a search will provide sufficient evidence for constructive possession of a “handgun[found] inside a hall closet, concealed in a car battery having a false lid.” Similarly, a single “bill addressed to [the defendant] at the apartment,” where he presumably lived with his wife, is sufficient to link the defendant to the residence, and thus sufficient to prove constructive possession of a “pistol in a bedside table and a shotgun in a box in the kitchen pantry.”

In some cases, persons previously convicted of a crime will be convicted under the “felon in possession” statute for having a connection to the residence, even where their residency or occupation of the premises is not proven. Therefore, this offense penalizes the alleged possessor's status as a felon by criminalizing his relationship with those who live in the home in which a firearm or ammunition is found. In United States v. Spruill, the Second Circuit held that there was sufficient evidence to convict the defendant under the “felon in possession” statute. The government proved that the defendant “regularly stored his belongings in the attic; that additional garbage bags were found in the attic containing [his] clothing; and that nearby garbage bags were found in the attic containing a bulletproof vest, three handguns, and four boxes of ammunition.” Although the attic was in the building where the defendant's girlfriend lived, and not the defendant, the court found that based on this evidence of garbage bags only, “a rational trier of fact [could] find beyond a reasonable doubt that [the defendant] had the power and intention to exercise dominion and control over the firearms found in the attic.” In another Second Circuit case, the defendant's conviction was affirmed, even though the “dismantled .38 caliber revolver and three live .38 caliber bullets” were found in “a bag on top of a dresser” in the defendant's mother's home, and the defendant's mother testified that the firearm belonged to her. Constructive possession was based on the defendant's testimony that “he told the police his mother owned a revolver so as to cooperate with the investigation,” and his mother's testimony that the defendant occasionally spent the night at her home.

As exhibited, persons who have previously been convicted of a felony are assumed to pose a risk to others and to be engaging in criminal activity just by their status and “nexus” with a firearm and/or ammunition. Mere possession of a firearm or ammunition--especially of ammunition on its own or inoperable firearms--presents harm to no one, but is treated as presenting a harm to others because of the criminal history of the person who allegedly possesses the item. Puzzlingly, other federal statutes criminalize the sale or transportation, by persons other than licensed dealers, of inherently dangerous weapons, but not the mere possession of such weapons. These weapons are those which have no purpose other than to cause great injury or death to others: destructive devices, machine guns, short-barreled shotguns, and short-barreled rifles. Because mere possession encompasses such a broad range of conduct--much more than the sale or transportation of a weapon--these inherently dangerous weapons statutes underscore the paradox of the “felon in possession” statute: there is a hyper-concern for the passive and harmless conduct of felons, but a decreased concern for the intrinsically violent conduct of non-felons.

Finally, the fact that the “felon in possession” statute criminalizes merely a status rather than a harmful action is blatantly emphasized by the mandatory minimums of imprisonment imposed for offenses during which a firearm is present. Pursuant to the federal criminal code that sets out the penalties for each offense, there is a five-year mandatory minimum when the defendant possesses a firearm in furtherance of a crime of violence or drug trafficking, a seven-year mandatory minimum if the firearm is “brandished” during such a crime, and a ten-year mandatory minimum if the firearm is “discharged.” Any person sentenced under this provision a “second or subsequent” time faces a mandatory minimum of twenty-five years' imprisonment, regardless of how the firearm is used, i.e., possessed, brandished, or discharged. As for the inherently dangerous weapons discussed above, any person sentenced under this provision who possessed “a short-barreled rifle, short-barreled shotgun, or semiautomatic assault weapon,” faces a mandatory minimum of ten years' imprisonment, and if the person possessed instead a “machinegun or a destructive device,” he faces a mandatory minimum of thirty years' imprisonment. Where the person is convicted under this provision a “second or subsequent” time and possessed a “machinegun or a destructive device,” he will be sentenced to imprisonment for life.

Thus, a person previously convicted of a felony who uses or possesses a firearm to commit or during the commission of “a crime of violence or drug trafficking crime” is not only subject to conviction and the associated punishment under the “felon in possession” statute, but also faces a mandatory minimum of five, seven, or ten years' imprisonment for the use of that firearm. If he uses an inherently dangerous weapon, these mandatory minimums are even greater. If the fear is that persons previously convicted of a felony are more dangerous than others, and even more dangerous when able to possess a firearm and/or ammunition, or when in the presence of a firearm and/or ammunition, then the mandatory minimums provided under the federal criminal code sufficiently address this fear and deter possibly harmful conduct.