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  #1  
Old 04-13-2004, 10:24 PM
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Exclamation Felon in Possession of Firearm - What you should know if you have a felony!

I have been reading these laws and came across an interesting segment of the statute. Here is an excerpt:

"6.18.922 FELON IN POSSESSION OF FIREARM (18 U.S.C. § 922(g))



The crime of being a felon1 in possession of a firearm, as charged in [Count of] the indictment, has three essential elements, which are:

One, the defendant had been convicted of a crime punishable by imprisonment for a term exceeding one year;

Two, the defendant thereafter knowingly2 [possessed] [received] a firearm, that is (describe weapon); and

Three, the firearm was transported across a state line at some time prior to the defendant's possession of it."



Note where it specifically requires the firearm to be manufactured or transported over state lines at some point for it to be a crime to possess it. I'm just wondering if anyone has any experience with this because I used to be an avid hunter, and there are several firearms manufacturers in my state where a firearm could be purchased that never crossed state lines. There is a means to petition the court to restore state firearms rights where I live for nonviolent offenders convicted of felonies, so I'm just curious if there's any possibility of being able to hunt again at some point, seeing as congress killed our means of getting federal firearms rights restored.
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Old 04-14-2004, 11:58 AM
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All you need for the federal nexus is that some of the parts that were used to manufacture the gun - in your state - crossed state lines or were imported.
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Old 04-14-2004, 10:35 PM
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Is that something that has been decided by precident in the past? The law mentions nothing about individual parts unless there are other laws I didn't find. I've been looking for cases where people had been charged with a weapon that was never transported across state lines, and so far I haven't had much luck.

One other questions I was wondering is if they can charge you for having non-firearm related items, for example an air rifle like the pellet guns sold at Wal Mart or a Tazer type stun gun used for self defense.
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Old 04-14-2004, 11:29 PM
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The term "firearm" is defined in the statutes. Also ammunition carries similar penalties. Just stay away from guns and you won't be exposed to (another) 5 or more years.
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Old 04-15-2004, 07:13 AM
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Howard,
What happens if the felon is on supervised release living with their parents and the parents are civil war antique dealers and they have guns from that era ... Will that be a problem?
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Old 04-15-2004, 09:29 AM
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It most certainly can be. Please note that there are certain exceptions to the definition of prohibited firearms. I think that Black powder guns were excluded and maybe they still are. You should check with a good lawyer. The safest bet is to have the guns put in storage/sold or properly secured outside the house so as to avoid a problem. The feds can always say that even though the parents were the owners, the felon was "in possession" If they are dealers, perhaps it is possible to have them all kept at their shop or otherwise in places where the felon would not be. I wouldnt fool with this as the penalties are LARGE and the crime is easy to prove
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Old 04-15-2004, 06:44 PM
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If it is an approved residence - with the PO's knowledge of the situation, I'd get it in writing. I'd also tread lightly. To be avoided if possible.
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Old 04-15-2004, 07:08 PM
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BAD advice Howard. Very Bad .....and wrong. Can a PO write a letter that exempts someone from a provision of Title 18? Does a letter stop the FBI, ATF and the AUSA from charging someone with being a felon in possession of a firearm? Keep in mind that they dont have to have physical possession of the weapon to violate the law!!! Can a letter suspend the will of Congress? Would that be an affirmative defense that the PO said I can carry or possess a gun when Title 18 clearly and unequivocally says that NO felon shall possess a firearm. No Howard, you dont give legal advice to someone that suggests that they can be in possession of gun if they get a letter from their PO. Please be careful what you write and someone out there might tconfuse it for sound legal advice.
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Old 04-15-2004, 07:58 PM
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I don't disagree about a letter from a PO exempting your from prosecution, and maybe even them, but I think exactly what the question was is about an old non-functioning? firearm rather than a newer useable weapon. I think for safety's sake, I would get something from the judge or have my family put that antique in storage. My family had a number of 1800's revolvers and rifles and they had them stored away from the house while I was there.

Also, they don't have to find you guilty of actual physical possession.. Only "constructive possession", which means you, could gain access to the weapon. There are a lot of guys in the feds that didn't even know the guy was in the house they were at, and though completely innocent of the charge in my eyes, the federal judge decided otherwise. In one case, the guy was over 10 years into his sentence before he won his appeal... That really sucks..

Like you OnProb, I 'was' an avid hunter and I have grown up around firearms. For the last 100 years my family has had a 4 section ranch in West Texas.. Guns are just part of the terrain.. Unfortunately, I was on probation when I pawned my deer rifle and next thing you know I am doing 27 months for a .30-06 that has been in my family since before my father went to Vietnam.. They didn't care at all about the circumstances.. Heck, my probation was deferred... But the Govt. has a hard on for guns that isn't going to let up.. From what I have been told, if you have a federal felony, it no longer matters if the state is willing to give you back your rights.. You are perm. Prohibited from possessing a firearm in the U.S. until the day you die.. The only exception is if you can get a presidential pardon..

I'm sorry to say but it doesn't look good for those of us who like firearms, hunting and protecting ourselves, unless I am wrong about some of this, which I would love to be.
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Old 04-15-2004, 08:27 PM
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David are you saying that if a felon is over at someone's home who owns a gun they can be charged with "constructed possession"? Are we suppose to question everyone who's home we visit?? I'm sure not everyone who owns a weapon tells everyone that they have one in the home.
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Old 04-15-2004, 09:34 PM
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Thanks for ALL the valuable feedback ... I really appreciate the spirit of discussion ... It is afterall, very important and serious subject matter. Having said that, it can and does effect felons and their families.
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Old 04-16-2004, 12:05 AM
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I agree. It's nice to have a discussion about these things. I'll be the first one to admit that being able to possess a gun is one of the less severe disabilities of having a felony conviction, but it is something I feel strongly about. These laws were NOT designed by congress to throw nonviolent offenders in prison. IMHO They were designed to protect society from violent offenders. But as most federal laws, they are all encompassing and rigid and greatly abused by the ATF and AUSAs. I read an article a couple weeks ago from a state DA talking about all the draconian laws and penalties we have now, and he said something like "of course we could charge people with almost anything and seek maximum penalties, but we have to use reason in pursuit of justice." Is it reasonable to lock up somebody for up to 10 years that never committed a single act of violence in his/her life, much less anything having to do with a gun?

It would be nice to challenge the "Felon in Possession" law on a constitutional basis. The means exist to restore firearms rights through the ATF. Congress has just blocked any funds being used for it.

What really scares me is when I see people being charged when the gun isn't even theirs. Do I have to question the owners of every house I enter to see if they own a gun? That is simply ludicrous.

FedEx: I know how you must feel being excluded from family activities involving firearms. My family is from Louisiana very close to your area and they all have deer leases and go duck and dove hunting all the time. When I was down there at xmas, I had to sit alone at my uncle's house because I couldn't be near the guns. It was the first time in my life that I wasn't out there with the family hunting.
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Old 04-16-2004, 04:50 AM
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Fed ex, your on point as usual. There are definitions of which types of guns, black powder, historical, antiques that are exempt. As to non functioning, what does it take to make it functioning? I would hate for a federal judge to tell me via a lengthy sentence that the gun was functionable--meaning it doesnt take much to fix it. There is a lot of law on constructive possession---too much to discuss here---but suffice it to say it does not favor felons.

Yes, OntheroadAgain, you can be charged for having constructive possession of a gun when you are at someones else's house and there is a gun readily accessible. Frankly, I avoid going to houses with guns and discreetly make excuses and either leave or dont go to those environments. At a family Christmas party, a relative, who KNEW my background, wanted to show me his new gun. I declined and found an excuse to leave the get-together early. In my opinion, its just not worth the fight---or the consequences of being wrong. I understand for all you former hunters and people that grew up around guns, this is a problem, but what are the consequences?
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Old 04-16-2004, 09:04 AM
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Quote:
Originally Posted by John B. Webster
BAD advice Howard. Very Bad .....and wrong. Can a PO write a letter that exempts someone from a provision of Title 18? Does a letter stop the FBI, ATF and the AUSA from charging someone with being a felon in possession of a firearm? Keep in mind that they dont have to have physical possession of the weapon to violate the law!!! Can a letter suspend the will of Congress? Would that be an affirmative defense that the PO said I can carry or possess a gun when Title 18 clearly and unequivocally says that NO felon shall possess a firearm. No Howard, you dont give legal advice to someone that suggests that they can be in possession of gun if they get a letter from their PO. Please be careful what you write and someone out there might tconfuse it for sound legal advice.
First, let me say that personal attacks are inappropriate - especially in this forum.

Now, go back and read the request and my response in context.

I am not advocating this position. In fact, I have cautioned this same poster multiple times regarding his seemingly unending insistence in maintaining some ability to associate with firearms after a conviction.

The first standard condition of supervised release is "violate no law" - the second is "follow the instructions of the probation officer." No the probation officer can't change the law - BUT - he/she also cannot prevent you from the only possible residence available (I do not know if this is the case here). That said, if you have to (for some reason) be around guns - AND I BELIEVE THAT THIS SHOULD NOT BE BY DESIGN, yu have the right to rely on the PO's advice/consent.

No, it does not change the law. No, this is not legal advice - enough information is not available.

For some reason - perhaps sexual - I have no idea some people feel as though they must be around guns. With a conviction - this will get you violated (if on supervision) and/or charged. It is not worth the 5 years of possible exposure - perhaps it is to some?
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Old 04-16-2004, 09:33 AM
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No Howard, Wrong advice is inappropriate. Your advice is clear and I'll quote it: "If it is an approved residence - with the PO's knowledge of the situation, I'd get it in writing. I'd also tread lightly. To be avoided if possible"

I'll say it again: You have no right to rely on the advice of a PO when that advice seemingly permits you to violate the law. No guns for felons REGARDLESS of what a PO says in writing or otherwise. As an aside, what PO in their right mind would send a letter saying "Dear Felon: It is Ok for you to have a gun." Why do you keep on insisting that you have a "right" to possess a weapon if the PO says its OK. Simply, put, this is wrong.

By the way, if you are going to run around this site dispensing legal advice, may I suggest you get a thicker skin, particularly if you are going to give out wrong advice.

As to the reason for people wanting to be around guns (sexual????), I think the matter as more do with the Second Amendment, the right to bear arms, protect one's property and loved ones; 375 years of American history,(217 with a Bill of Rights) two World Wars, numerous police actions, countless riots, and civil unrest, as well as a good dose of patriotism rather that your absurd implication of Freud's phallic symbolism. But thanks for the psychological insights into the 2nd Amendment.

Perhaps the NRA will suggest that we all give up guns and reach between our legs for protection.
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Old 04-16-2004, 05:22 PM
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What you quoted was far from advice. It was so objectively qualified that it amounted to: if you really want to have guns and your vPO goes for it, get a letter. Yeah, like that would happen. This guy clearly want a way to be near guns and have someone tell him it is OK, I won't do that!

Once again, your personal attacks are misplaced and inappropriate.
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Old 04-16-2004, 07:18 PM
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Howard: I quoted YOUR entire piece of advice. Now stop the nonsense; stop the backtracking and admit that you made a mistake. Bad advice is bad advice no matter how much spin and explaining you care to invoke. Nice try however.
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Old 04-16-2004, 07:27 PM
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As to inappropriate "attacks", I'm sorry you view them as an attack, when I correct your bad, improper and inappropriate legal advice, On that note, I cannot and will not stand by watching you day in and day out give incomplete, inaccurate, implausible and wrong advice while trolling for clients. THAT is inappropriate, in my opinion. You should focus on learning the law, before you start dispensing your self proclaimed expertise that will get people into some deep trouble.
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Old 04-16-2004, 07:49 PM
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Quote:
I'm just curious if there's any possibility of being able to hunt again at some point
Guys

Let's remember why we are here, for this member asking for advice or opinions.

Please refrain from argueing a case here, feel free to do so through pms.

Lets keep the forum a comfortable place to be for all!

Diane
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Old 04-16-2004, 08:52 PM
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Mr. Webster: Please refrain from your personal attacks, innuendo and opining on the veracity or efficacy of what you consider to be my advice, or on what you believe to be my practice. Your cooperation is both anticipated and expected.
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Old 04-17-2004, 07:52 PM
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Quote:
Note where it specifically requires the firearm to be manufactured or transported over state lines at some point for it to be a crime to possess it
I've been thinking on this, and recall coming across some type of newsletter or article on this....I just wish I could put my fingers on it now. Something to do with interstate commerce....I'll have to ask my guy if he still has the paper I sent him. Many thought they'd have a case to fight against, and this article just diminished the dream! Howard, you seem to cross a lot fo info, do you recall anything like this?

My guy is serving time now, for a felon in poss of gun, with priors it was enhanced to armed career criminal. No additional crimes committed, besides possession.

So...I do want to say...if I were you, I'd stay far away from any gun! Not sure of your priors, but 3 or more could land you in for what a min of 15? Is that correct John or Howard? No letter from a po is going to stand against a law! Be careful!

Diane
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Old 04-17-2004, 08:45 PM
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Felon in possession of a firearm is a specific affense. here is the instruction given to a jury on that offense:

6.18.922 FELON IN POSSESSION OF FIREARM (18 U.S.C. § 922(g))


The crime of being a felon1 in possession of a firearm, as charged in [Count of] the indictment, has three essential elements, which are:

One, the defendant had been convicted of a crime punishable by imprisonment for a term exceeding one year;

Two, the defendant thereafter knowingly2 [possessed] [received] a firearm, that is (describe weapon); and

Three, the firearm was transported across a state line at some time prior to the defendant's possession of it.

[You are instructed that (list convictions of the defendant, e.g., burglary, robbery) [is] [are each] [a] crime[s] punishable by imprisonment for more than one year under the laws of (list jurisdiction, e.g., State of Missouri).]3

[You are instructed that the Government and the defendant have stipulated, that is, agreed, that the defendant has been convicted of a crime punishable by imprisonment for more than one year under the laws of (list jurisdiction, e.g., State of Missouri), and that therefore, you must consider the first essential element as proven.]

If you have found beyond a reasonable doubt that the firearm in question was manufactured in a state other than (name state in which possession occurred) and that the defendant possessed that firearm in the State of (name state in which possession occurred) then you may, but are not required to, find that it was transported across a state line.4

The term "firearm" means any weapon (including a starter gun) which will or is designed to or may be readily converted to expel a projectile by the action of an explosive.5

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)



Committee Comments



See Scarborough v. United States, 431 U.S. 563 (1977); Barrett v. United States, 423 U.S. 212, 215 n.4 (1976); 2 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Criminal §§ 36.07-36.115 (4th Ed. 1990).



The Firearms Owners' Protection Act of 1986 amended prior section 922 by incorporating with it related provisions of 18 U.S.C. App. § 1202(a)(l). See House Rep. #99-495, reprinted in 1986 U.S. Code Cong. & Admin. News 1327, 1349. See generally Hardy, The Firearms Owners' Protection Act: A Historical and Legal Perspective, 17 Cumb. L. Rev. 585 (1987), for an extensive discussion of the legislative history of this amendment.



In amending section 922(g), Congress intended both to "enhance the ability of law enforcement to fight violent crime" and to "relieve the nation's sportsmen and firearms owners and dealers from unnecessary burdens under the Gun Control Act of 1968." House Report at 1327. These potentially conflicting goals, coupled with a long and, at times confusing, legislative history, can make interpretation of this statute difficult.



Pursuant to the statute, it is unlawful for any person who has been convicted of a crime punishable by imprisonment for a term exceeding one year to possess or receive a firearm where the required interstate commerce nexus is established. The Eighth Circuit has held that the knowingly mental state applies only to the defendant's underlying conduct, not to his knowledge of the illegality of his actions. United States v. Lomax, 87 F.3d 959, 961 (8th Cir. 1996) (citing United States v. Farrell, 69 F.3d 891, 893 (8th Cir. 1995), cert. denied, ___ U.S. ___, 116 S. Ct. 1283 (1996)). Section 921(a)(20) defines such a crime and indicates that what constitutes a conviction is to be determined by reference to the law of the jurisdiction in which proceedings were held. Moreover, the section provides that, where a conviction has been expunged or set aside, or where a person has had his or her civil rights restored, there is no conviction for the purposes of this statute.



With regard to restoration of civil rights, the Eighth Circuit has held that substantial, not total, restoration is required to remove a defendant from the reach of the statute, but further held that disqualification from serving as a juror and in certain law enforcement positions did not constitute substantial restoration. Presley v. United States, 851 F.2d 1052 (8th Cir. 1988). State law determines the effect of any state restoration of civil rights. For a person to have his civil rights restored for the purposes of this section, the relevant state must actually have restored the felon's right to possess firearms. United States v. Dockter, 58 F.3d 1284, 1290 (8th Cir. 1995). The mere absence of a statute prohibiting firearm possession by ex-felons does not constitute a restoration of civil rights for purposes of section 921(a)(20). United States v. Moore, 108 F.3d 878 (8th Cir. 1997).



In Old Chief v. United States, ___ U.S. ___, 117 S. Ct. 644 (1997), the Supreme Court held that it was error for the trial court to refuse to accept a defendant's offer of stipulation to the fact of a prior felony conviction over the objection of the prosecution in any case "in which the prior conviction is for an offense likely to support conviction on some improper ground." In appropriate cases, under Old Chief, the trial court may be compelled to accept an offer to stipulate to the fact of a prior felony conviction. See, e.g., United States v. Blake, 107 F.3d 651 (8th Cir. 1997); but see Old Chief, 117 S. Ct. at 658 (Justice O'Connor dissenting).



The defendant need not know the firearm was transported across state lines. In United States v. Valiant, 873 F.2d 205 (8th Cir. 1989), the court implicitly interpreted section 922(g) as amended to incorporate the interstate commerce nexus according to prior law. The court's citation of United States v. Gillies, 851 F.2d 492 (1st Cir.), cert. denied, 488 U.S. 857 (1988), which explicitly held that the Scarborough standard applies to the amended statute, reinforces this view. This position is also consistent with decisions in other circuits. See United States v. Dancy, 861 F.2d 77, 81 (5th Cir. 1988); United States v. Sherbondy, 865 F.2d 996, 1001-03 (9th Cir. 1988). The Eighth Circuit has repeatedly rejected challenges to section 922(g) (that Congress did not have constitutional authority to criminalize possession of a weapon by a felon just because the weapon had been transported in interstate commerce) raised under United States v. Lopez, 514 U.S. 549, 115 S. Ct. 1624 (1995). See, e.g., United States v. Monteleone, 77 F.3d 1086 (8th Cir. 1996); United States v. Rankin, 64 F.3d 338, 339 (8th Cir. 1995); United States v. Mosby, 60 F.3d 454, 456 (8th Cir. 1995).



The Eighth Circuit has not decided whether justification and coercion can be defenses to a charge under section 922(g). See United States v. Blankenship, 67 F.3d 673, 677 (8th Cir. 1995) for a discussion of the elements of both defenses. See United States v. Lomax, 87 F.3d 959 (8th Cir. 1996) concerning the justification defense to a section 922(g) prosecution.



Notes on Use



1 A misdemeanor crime involving domestic abuse may also cause an individual to lose his rights to possess a weapon. See 18 U.S.C. §§ 921(33)(A) and 922(g)(9). This instruction is not designed for use in such cases.



2 "Knowingly" is found in the penalty section of the statute, § 924.



3 Crimes included are defined in section 921.



4 Adapted generally from the instruction used in Barrett v. United States, see 2 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Criminal § 36.14 (4th Ed. 1990).



5 This definition is taken from 18 U.S.C. § 921(a)(3). Other portions of this definition should be used where appropriate.
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Old 04-17-2004, 09:42 PM
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Thats not was I was actually thinking of...but it is a good addition and I do thank you for posting that Howard.

I believe it was something written....in some legal paper available online,written by lawyers or federal public defenders (I could send everyone on a wild goose chase here, lol).

It did mention the Scarborough case...as that was one I had seached before.

There could have been another case out of PA.....Coward, not sure that is it.
Forget it...my mind is blank so I will just hush for now! If I think of it, or find it I will post it. I think it could be of help here.

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Old 04-26-2004, 04:32 PM
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Quote:
Originally Posted by ontheroadagain
David are you saying that if a felon is over at someone's home who owns a gun they can be charged with "constructed possession"? Are we suppose to question everyone who's home we visit?? I'm sure not everyone who owns a weapon tells everyone that they have one in the home.
Sorry about the delay, and someone may have answered this, but I am catching up.

OTRA, that is a toss up, but yes, they definitely could charge you and you could end up doing time on it. It probably depends how much access you had to the weapon and how well you knew the people you were visiting. If it is your girlfriends house and you are around there enough to have "possibly" known there was a weapon, I would say yes..

What I do know are the facts of the case relating to the guy that got time and served a great deal of it before getting it finally overturned..

I would be very careful about anyone you do more than occassionally vist having guns..
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Old 04-26-2004, 04:35 PM
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Originally Posted by OnProb
FedEx: I know how you must feel being excluded from family activities involving firearms. My family is from Louisiana very close to your area and they all have deer leases and go duck and dove hunting all the time. When I was down there at xmas, I had to sit alone at my uncle's house because I couldn't be near the guns. It was the first time in my life that I wasn't out there with the family hunting.
Yeah, been there, missed that.. It really stinks.. I'm no bow hunter either and not sure if I will ever get into that..
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