This is a question that arises quite frequently. “If my (husband / wife / boyfriend / girlfriend / parent / roommate) is a prohibited person does that mean I can’t have my legally owned firearms in my own home?”
The answer, as is often the case with legal questions, is complicated. Let’s start with a few basic facts:
- Prohibited persons who have not had their gun rights restored are prohibited from possessing firearms or ammunition.
- Possession can be either actual or constructive.
- Constructive possession “exists when a person does not have actual possession but instead knowingly has the power and the intention at a given time to exercise dominion and control over an object, either directly or through others” and may be evidenced by “[p]roof that the person has dominion over the premises where the firearm is located” U.S. v. Hadley, 431 F.3d 484, 507 (6th Cir. 2005)
- A non-prohibited person does not lose their right to possess firearms or ammunition simply because they choose to live with a prohibited person but they are potentially subject to prosecution for aiding and abetting the possession of the prohibited person if they do not properly store their items. United States v. Huet, 665 F.3d 588 (3d Cir. 2012)
So … if you, as a law-abiding gun owner, wish to share a residence with a convicted felon (or any other category of prohibited person) then you will need to take great care to insure that they cannot be held to have either actual or constructive possession of any firearm or ammunition.
The safest way to do this is to store your firearms and ammunition in a gun safe and make sure the prohibited person does not know the combination nor have access to the keys if it is a keyed lock.
And do not forget the ‘and ammunition‘ part of the requirement. Prohibited persons cannot have actual or constructive possession of firearms or ammunition. Gun owners who are scrupulous about locking up their firearms may not be as stringent about ammunition storage. In the case of a housemate who is a prohibited person this could have severe legal consequences.
I should also add that, while such a storage plan should allow a prohibited person to argue successfully that they did not have actual or constructive possession, it does not insure that a circumstance might not arise where they are charged with being in possession and are forced to incur the cost of defending themselves in court.
In addition, if the gun owner is careless, it is the prohibited person who faces the greatest threat of prosecution while only the gun owner has the power to insure that all items are properly stored. All parties involved, especially the prohibited person, should understand the very real risks involved before moving in.
Disclaimer: This information is presented for educational purposes only and does not give rise to an attorney-client relationship. Additionally, I am licensed to practice law in the Commonwealth of Virginia and this answer may not be appropriate for other states.
