The Third Circuit Court of Appeals, which encompasses Pennsylvania and New Jersey, has reversed a dismissal of an indictment that a housemate facilitated a felon’s possession of firearms. The courts argument would seem to be that since the charge was facilitating, not her own possession, the case should go to trial to discover the facts in the case. From a strictly legal reasoning point of view, I can understand where the court is coming from. But I’m uncomfortable with the ruling as the effect it will have on the rights of those who live with prohibited persons. Think about a battered spouse who seeks a firearm to protect herself in an abusive relationship with a convicted felon.
In this instance any spouse, domestic partner, or roommate of a prohibited person runs legal risk keeping a gun in the home for self-protection. If the prohibited individual is ruled to have been in possession, the housemate can also be charged. That seems like a poor way to treat someone’s constitutional rights.
I think in this case the court got it wrong. There needs to be evidence that the person purposefully helped aid in the possession of the prohibited person. Otherwise the housemate is deprived of their constitutional right without due process.
I made the same assumptions until I read the decision in full along with the merits briefs. It really is a decision regarding the sufficiency of the facts needed for carrying an aiding and abetting charge. Basically, the court has a generous to the prosecution policy for sufficiency of facts to carry an indictment on aiding and abetting (facts is the wrong words, more like assertions).
The prosecution will still have to prove she intended to facilitate his possession and that she acted specifically in furtherance of that goal. If they don’t and a directed verdict or a conviction occurs, then lets see what the 3rd circuit does. But until then, we don’t know what they have. This dude Hall she was living with was a class A scumbag and your above hypothetical is reaching given the facts of this case.
I assume this one will end up at SCOTUS at some point in the future.
Been following this at Volokh. terraformer is correct. The Court didn’t rule on the merits, nor did they say “possession = facilitating”, they said the lower Court erred by not allowing the prosecution to even present the facts to a jury for an indictment to determine at trial if the lady did or did not really “facilitate” anything.
It will be the grand jury presentation by the prosecution that will determine if the state is actually making any claims that “safe storage” or something that would infringe on the RKBA should be required of legally possessing housemates of prohibited persons. Until then we don’t know what kind of legal risks might be being considered.
As it stands the prosecution might have iron-clad evidence that she loaded the gun, handed it to him, and sent him out the door with a pat on the ass saying “go get ’em tiger”. The lower Court’s ruling is preventing them from even presenting that evidence.
I think this ruling is unlikely to go to the Supremes, though I agree this case may, depending on what the prosecution is actually trying to demand of legally possessing roommates.
I thought there had already been an indictment. Admittedly, I only had time to skim the ruling briefly.
Whoops, you’re right.
The successful indictment was dismissed. It was the facts at trial that would determine if the prosecution was trying to criminalize possession (not allowed under 2A), as the defendent alleged, as opposed to “facilitation” as the prosecution.
http://volokh.com/2012/01/06/the-second-amendment-and-housemates-of-felons/
From the ruling…
“We disagree. We cannot say that an indictment which properly alleges aiding and abetting a felon in possession under 18 U.S.C. § 922(g)(1) and § 2 violates the Second Amendment under Heller. Applying Marzzarella [a recent Third Circuit precedent –EV], a properly-brought aiding and abetting charge does not burden conduct protected by the Second Amendment. The District Court’s characterization of the Indictment as seeking to criminalize the otherwise legal possession of a firearm by a non-felon simply because she lives with a felon is misleading. The Indictment does not allege that Huet’s possession of the SKS rifle violated the law; rather, it alleges that Huet aided and abetted Hall to possess the firearm.
We are mindful of the risk that felon dispossession statutes, when combined with laws regarding accomplice liability, may be misused to subject law-abiding cohabitants to liability simply for possessing a weapon in the home. However, in this case, the District Court’s determination that the Government overreached was premature. Huet’s arguments regarding the circumstances of her possession must await further development of the evidentiary record.”
I’m not sure what the proper course of action is here. If a convicted felon lives in a house with a gun, he has access to it. In the case of a girlfriend or wife, if she locks it in a safe then it does her no good if she’s afraid of the man she’s living with (tip to battered spouses: leave) but if she doesn’t lock it up then he has access to it. I’m thinking of a common scenario where a felon has a gun in the house but when the cops come calling he says, “Oh no, that belongs to my old lady.” You see the problem? I had a situation once where a guy came in to buy a gun from me but failed the background check. The next day a woman came in and asked to buy the same gun. Guess where she lived? Same place as the man who’d tried to buy it the previous day (not the smartest straw buyer, I’ll grant you.)
On the macro level of getting laws where one size fits all situations, this is very tough to figure out.