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View Full Version : Understanding the concept of "Constructive Possession"


Sander77
05-08-2007, 2:50 PM
Every time I read this term, I always assumed that it had something to do with having parts of an object that may be illegal when put together, but not when separated. Like having all the pieces of an AW in separate bags. Separated it's all legal. Built into a single rifle, it's illegal. I thought the "constructive" part actually had something to do with physical construction.

But in reading more, I now realize that it really doesn't have anything to do with that at all.

I think Wikipedia summed it up well...

Constructive possession is a legal fiction to describe a situation where an individual has actual control over chattels or real property without actually having physical control of the same assets. At law, a person with constructive possession stands in the same legal position as a person with actual possession.

For example, if your car is sitting in your driveway, you have physical possession of the car. However, any person with the key has constructive possession, as they may take physical possession at any time without further consent from you.



Just thought I'd throw that out for anyone else like me who'd read the term and assumed it meant something different.

Also, as I understand it, CA does not apply the concept of constructive possession to AWs.

If I'm off base on this one, please clarify! :)

6172crew
05-08-2007, 3:00 PM
I can see where it applies though, you have possesion of AW parts and you have Contructive possesion to a AW. Maybe Im not getting it right though.

Sander77
05-08-2007, 3:06 PM
Right, well using that same Wiki example, if you had an AW in the trunk of your car and had keys to the car, then while it's not in your physical possession, you do have constructive possession of it.

(I guess that would apply in a state other than CA...)

bwiese
05-08-2007, 3:13 PM
For our firearm purposes here, it means you illegally possess a certain banned firearm or configuration thereof, etc. when you have those parts under your control - whether or not you actually have mounted the parts together, assembled them together, or even if the gun works.

If I have an AR rifle lower in CA, and I have a 10" shorty AR upper in my vacation home in Maine (just for example; I don't have a vacation home, I'd rather spend the money on guns, ammo and steaks), I'd most likely be guilty of 'constructively' possessing an NFA-controlled SBR (short bbl rifle). [The only exception would be if I had an AR pistol lower as well, so that I had a legit possible use for the shorty upper.] Even though these are legal separately, their existence under my control makes me "constructively possess" an illegal SBR.

If I have an AR lower at home and M16 firecontrol suite in my workshop 10 miles away, I constructively possess a machinegun. Having a 14" shotgun bbl separate from a legal 870 would also be a no-no.

'Constructive possession' concepts apply both in CA *and* Federal law for machinegun, short-bbl rifle, short bbl shotgun and related NFA matters (I'm not sure about how they apply to 'cans' (suppressors)). People have gone to jail for this crap and lost their gun rights for a lifetime.

However, 'constructive possession' concepts DO NOT apply to California by-feature AW laws. (There's an opinion letter written by Dept AG on this.) There is no codified discussion of 'construction' in CA AW laws, - unlike those for SBR, MGs, SBSes, etc. elsewhere in CA law.

Keeping AW-related 'characteristic feature' items well-separated, that would otherwise be illegal if assembled together, is OK and there are legit reasons for such behavior. Various combinations of parts can be assembled legally in CA thru legal transitional rifle configurations; additionally, these items can all be transported, unassembled, to an out of state destination where they can be assembled, used, and disassembled before reentry back into California.

However, driving around with a gripless OLL under your seat (treated as a normal rifle, without other evil features attached) and a pistol grip in your center console may be going a bit far. Rationally, I'd keep such features well-away, and only transit them locked separately going to/from CA - DAs are easy to bait, they don't know crap, and it's your $$ to fight.

The term 'construction' can also be used in a slightly different but very related context, as an action required to get a firearm into a certain state. The fact that your fixed-mag OLL rifle has a mag that is removable (but not legally detachable as per 11 CCR 5469(a)) is moot: readiness or ability of a firearm to change into illegal AW status is moot, as long as you are not the person doing the changing by adding/removing a feature. The act of an attempt to change to prohibited configuration is a legal 'construction' - and since constructive possession concept does not apply, you do not have an illegal AW.

[BTW, for constructive possession to apply to the field of CA AWs, it would effectively prohibit service & repair on quite a few rifles.]

These concepts will arise in the case I announced today in very Northern Norcal. The SKS of the chargee was apparently a barreled action, and any/all other parts were well separated. There was, in fact, actual "construction" as the cops actually assembled the gun themselves. (I have no idea if they just ended up with a plain SKS or an illegally configured rifle, there's always a chance they think SKS = AK47 and they don't know about Harrott, etc.)

StukaJr
05-08-2007, 3:14 PM
Then a plumber's wrench + Mini-14 = Assault weapon with forward grip :mad:

50 Shooter
05-08-2007, 3:14 PM
Sorry but I'm not relying on Wikipedia to keep me out of jail.:rolleyes:

bwiese
05-08-2007, 3:27 PM
Sorry but I'm not relying on Wikipedia to keep me out of jail.:rolleyes:

Fine, but the above gun-related summary will.

Sander77
05-08-2007, 3:36 PM
Bill, thanks for clarifying...

50 Shooter
05-08-2007, 3:37 PM
I can live with that Bill but some people like to push to far and like you said, "have lost their gun rights forever".

bwiese
05-08-2007, 3:50 PM
I can live with that Bill but some people like to push to far and like you said, "have lost their gun rights forever".

Yup. That's why I won't even take hold of a 14.5" *barrel* (i.e, not an upper) even though I'd be putting a brake/hider on it to get it to 16".

Other people seem to just blindly order these, pin the brake on and then build it onto their upper.

It's unclear where some stuff starts/stops so it's good to step well back.

dfletcher
05-08-2007, 4:08 PM
I'd like to get some opinions regarding constructive possession regarding AWs by description. This touchs on Bill's reference to the AR in CA and the shorty bbl in Maine. By the way, as a New Englander "visiting" CA for the past 20 years I highly recommend a vacation home up north.

Can constructive possession apply to a CA by feature AW if the only weapon that can be derived from those assembled parts is an AW? For example, if a person owns a 1911 model Mech Tech carbine only and a 1911 fully functional receiver only since the parts can be assembled as only an AW by feature can constructive possession apply?

Same thing with a Ruger Mini 14. If you have the folding stock & barreled action separate - and don't own a regular stock - could constructive possession apply?

Or would asserting you're waiting for some other parts, such as a 1911 slide & bbl or a standard Mini stock, be sufficient to defeat constructive possession?

HK fan
05-08-2007, 4:08 PM
but has that opinion of that D.A.G. that is no longer even around ever been tested? What would an actual Judge say about it??

hoffmang
05-08-2007, 4:12 PM
The AW law only concerns itself with an actual rifle configuration. In point of fact, its not clear that unassembled listed rifles are AWs - though one should not try to test that.

-Gene

Jicko
05-08-2007, 4:17 PM
The AW law only concerns itself with an actual rifle configuration. In point of fact, its not clear that unassembled listed rifles are AWs - though one should not try to test that.

-Gene


Oops... there goes our RRA LAR-15 lowers...

Cuz... "RRA CAR A2" is on the list... hence AW.... and if you disassemble a "RRA CAR A2", you will get the RRA LAR-15 marked lower receiver.... "unassembled listed rifle"..... in question.... :confused:

bwiese
05-08-2007, 4:52 PM
Can constructive possession apply to a CA by feature AW if the only weapon that can be derived from those assembled parts is an AW? For example, if a person owns a 1911 model Mech Tech carbine only and a 1911 fully functional receiver only since the parts can be assembled as only an AW by feature can constructive possession apply?

I would indeed be wary of items that have as their sole purpose being an AW.
That's why I was initially worried about AK setups when OLL stuff started - I hadn't thought about nonsemiauto manual cycled versions yet, and wasn't sure how practical a fixed-mag version could be in terms of loading. (I think I said back then "...you always want at least one path to a legal configuration to exist...").

However, possession of 1911 frame is rational on its own and its commonality helps. May make sense to have a 1911 slide, though. Also, a MechTech setup would be OK toploaded thru a pinned mag.

Same thing with a Ruger Mini 14. If you have the folding stock & barreled action separate - and don't own a regular stock - could constructive possession apply?

I wouldn't bait anything. I think those are cases you win, but if cops are on the scene they may not 'get it'.


Or would asserting you're waiting for some other parts, such as a 1911 slide & bbl or a standard Mini stock, be sufficient to defeat constructive possession?

In that situation I would not be talking other than saying constructive possession does not apply and you don't have intent to have an illegal AW. Most folks talk themselves into jail.

bwiese
05-08-2007, 4:56 PM
Oops... there goes our RRA LAR-15 lowers...


No, why? LAR15s are not banned by make/model.

Cuz... "RRA CAR A2" is on the list...

Yes, and RRA receivers say "LAR15".

Also RRA CAR-A2 model would only apply if the whole rifle were an RRA rifle.

Surely an RRA LAR15 with a Stag 16" A2 upper is not an RRA CAR-A2!

I'm sure RRA wouldn't offer warranty coverage on a homebrew buildup :)

And from a practical standpoint no one would ever question it being a "CAR A2" since the rifle says RRA LAR-15.

If the DOJ wanted to ban RRA rifles by make/model they could have banned them with "RRA LAR-15 (CAR-A2)" terminology, etc. They chose to surrender listing authority instead.

xenophobe
05-08-2007, 6:52 PM
Can constructive possession apply to a CA by feature AW if the only weapon that can be derived from those assembled parts is an AW?

No. Constructive possession does not apply to 'Assault Weapons' in California, and the DOJ have already opined this.

Mssr. Eleganté
05-08-2007, 7:55 PM
One thing to bring up is that constructive possession prosecutions are based on the idea that certain firearms parts that you control have no other legitimate use.

As Bill already mentioned, if you have control over an AR rifle lower and a short barrelled AR upper then you can be found guilty of "constructively possessing" a short barrelled rifle, even if the parts aren't put together. But if you have control over those same two items and a AR pistol lower then you won't be prosecuted because you have a legitimate legal use for the short barrelled upper. You could just as easily use the parts to build up an illegal short barrelled rifle, but the courts have said that you are OK as long as there is at least one way to use all of the parts in a legal configuration.

It would seem that Californians who "constructively possess" firearms that might violate the California AW ban have a way to use all of the parts in a legitimate legal manner when they travel to another State to shoot their rifles. This might be one of the reasons why CalDOJ doesn't try to apply the idea of constructive possession to assault weapons.

bwiese
05-08-2007, 9:38 PM
It would seem that Californians who "constructively possess" firearms that might violate the California AW ban have a way to use all of the parts in a legitimate legal manner when they travel to another State to shoot their rifles. This might be one of the reasons why CalDOJ doesn't try to apply the idea of constructive possession to assault weapons.

The main reason why DOJ doesn't do constructive possession is it's simply not codified.

By contrast, the way the MG (and I think SBR/SBS) laws specifcally formulate constructive possession for separated parts up in the earlier parts of the PC 1220X...

SigShooter
05-09-2007, 10:17 AM
No, why? LAR15s are not banned by make/model.



Yes, and RRA receivers say "LAR15".

Also RRA CAR-A2 model would only apply if the whole rifle were an RRA rifle.

Surely an RRA LAR15 with a Stag 16" A2 upper is not an RRA CAR-A2!

I'm sure RRA wouldn't offer warranty coverage on a homebrew buildup :)

And from a practical standpoint no one would ever question it being a "CAR A2" since the rifle says RRA LAR-15.

If the DOJ wanted to ban RRA rifles by make/model they could have banned them with "RRA LAR-15 (CAR-A2)" terminology, etc. They chose to surrender listing authority instead.

So should someone with a RRA LAR-15 OLL, worry about attaching a RRA CAR-A2 upper? Would that now make it a CAR-A2 or since the 4473 lists the "firearm" purchased as a LAR-15 does it remain so?

bwiese
05-09-2007, 10:35 AM
So should someone with a RRA LAR-15 OLL, worry about attaching a RRA CAR-A2 upper? Would that now make it a CAR-A2 or since the 4473 lists the "firearm" purchased as a LAR-15 does it remain so?

You do have an interesting point.

I don't think anyone will see it as a non-LAR15 however. I do not think anyone can tell an RRA upper from another similar quality upper unless it's marked specially.

The whole make/model thing is a mess of non-clarity anyway.

Just a few months ago the DOJ was jumping btwn dual standards of listing anyway due to the Evan's/GBsales welded-up AR fiasco - Iggy & crew have apparently been saying Colt Match Targets are not Match Targets because they're really MT6730 models. What is a model vs. submodel? What is a series?

xenophobe
05-09-2007, 3:39 PM
Yes, there are a bunch of little factors a lot of us only glossed over in the past year about configuration being part of AW status with Roberti-Roos/Kasler named rifles, RRA and Colt specifically.

Apparently configuration may indeed play a role in whether or not these named rifles may actually be banned or not, even if you disregard SB-23 definition.

And yes, CADOJ would love to codify constructive possession with AWs. It would make their jobs a lot easier.