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View Full Version : SCOTUS Grants Cert in Guns & Drugs case - GOA files Amicus


ToldYouSo
10-07-2013, 3:28 AM
The US Supreme Court granted Cert in a case which asks the question:

"Whether the offense of aiding and abetting the use of a firearm during and in relation to a crime of violence or drug trafficking crime, in violation of 18 U.S.C. 924(c)(1)(A) and 2, requires proof of (i) intentional facilitation or encouragement of the use of the firearm, as held by the First, Second, Third, Fifth, Seventh, Eighth, Ninth, and Eleventh Circuits, or (ii) simple knowledge that the principal used a firearm during a crime of violence or drug trafficking crime in which the defendant also participated, as held by the Sixth, Tenth, and District of Columbia Circuits."

Depending on how SCOTUS answers that case could make it easier or harder to challenge California's "Assault Weapons" and other firearms possession laws.

In the year 2000, the California Supreme Court held that if a defendant charged with possessing an unregistered assault weapon "knew or reasonably should have known" that the characteristics of the weapon brought it within the registration requirements of the AWCA then he is guilty.

In short, even if someone had no idea the weapon was banned then he's guilty so long as a jury concludes that "he should have known."

Worse, in California and in the 9th Circuit, one was does not even have to have ever even touched the "assault weapon" (or any firearm) to be convicted of possession. Simply being in the same house where a friend or relative has an illegal unlocked gun in a closet and "presto" you are in "possession." That is just one example of what the courts call "constructive possession.

The case is Rosemond v. United States. Here is the SCOTUSblog link to the case with pdf of the briefs-> http://www.scotusblog.com/case-files/cases/rosemond-v-united-states/

Anonymous Coward
10-07-2013, 7:45 AM
Worse, in California and in the 9th Circuit, one was does not even have to have ever even touched the "assault weapon" (or any firearm) to be convicted of possession. Simply being in the same house where a friend or relative has an illegal unlocked gun in a closet and "presto" you are in "possession." That is just one example of what the courts call "constructive possession.


Please cite the relevant statute or case law.

ToldYouSo
10-07-2013, 5:40 PM
Please cite the relevant statute or case law.

There are many, here is a citation to a recent one -> IN RE YL, Cal: Court of Appeal, 4th Appellate Dist., 3rd Div. 2012

Here is a link where you can knock yourself out searching case law, for free -> http://scholar.google.com/

Anonymous Coward
10-08-2013, 6:45 PM
There are many, here is a citation to a recent one -> IN RE YL, Cal: Court of Appeal, 4th Appellate Dist., 3rd Div. 2012

Here is a link where you can knock yourself out searching case law, for free -> http://scholar.google.com/

I found your cited case: http://www.leagle.com/decision/In%20CACO%2020121126045 . However I don't think it supports your example here:

Worse, in California and in the 9th Circuit, one was does not even have to have ever even touched the "assault weapon" (or any firearm) to be convicted of possession. Simply being in the same house where a friend or relative has an illegal unlocked gun in a closet and "presto" you are in "possession." That is just one example of what the courts call "constructive possession.

It says:
Constructive possession does not require direct physical control over the item `but does require that a person knowingly exercise control or right to control a thing, either directly or through another person or persons.'

So in your example, if you don't know about the illegal unlocked gun or be told "Here you can use it", you're not in constructive possession.

The defendant in that case told police "his father allowed him to use the gun for protection, and he would use the gun if someone shot at him". So he clearly was given right to control and basically handed the prosecution all the evidence they needed... :confused:

ToldYouSo
10-08-2013, 7:12 PM
I found your cited case: http://www.leagle.com/decision/In%20CACO%2020121126045 . However I don't think it supports your example here:



It says:


So in your example, if you don't know about the illegal unlocked gun or be told "Here you can use it", you're not in constructive possession.

The defendant in that case told police "his father allowed him to use the gun for protection, and he would use the gun if someone shot at him". So he clearly was given right to control and basically handed the prosecution all the evidence they needed... :confused:

I understood your question/comment to be what is constructive possession and the case I cited provided a clear and concise definition.

It does not matter if one actually knows that a firearm is illegal. If you know its there and have access to it (under this citation) you're sunk.

Should you follow the link and do your own research, you will find that the Federal courts do not even require that one have access to the firearm. Third party possession is all that is required. Such as if the person who possesses the firearm is an employee, such as a bodyguard.

Anonymous Coward
10-08-2013, 7:49 PM
I understood your question/comment to be what is constructive possession and the case I cited provided a clear and concise definition.

It does not matter if one actually knows that a firearm is illegal. If you know its there and have access to it (under this citation) you're sunk.


I believe that "control or right to control a thing" from definition that the California Court of appeals applies would not cover mere access without permission.

press1280
10-12-2013, 4:38 AM
This just goes to show sometimes how deep the circuit splits(and state supreme courts) must be before SCOTUS takes a case. In comparison, if you accept that Moore and Aguilar are a split from Kachalsky and the others, you'll have 2 ruling one way (2A outside the home) and 3 ruling the other way (2A NOT protected outside the home). This case had 8 circuits going one way, 3 going the other.