NFA and Constructive Possession: Myth or Reality?

Many individuals who own National Firearms Act firearms (Machineguns, suppressors, SBSs, SBRs, DDs, and AOWs) are concerned whether other individuals who live in their house can be charged with constructive possession for the NFA firearms. Pursuant to the NFA, only the person who is approved for the transfer/making of NFA firearm by the BATFE may possess the NFA firearm. A person is defined as a natural person, corporation, trust…etc. Hence, where a natural person owns the NFA firearm, only that natural person may possess. In a trust, any trustee or life beneficiary may possess.

The concern typically arises where the owner is a natural person and is worried that his/her spouse, significant other, and/or child could be charged with constructive possession of the NFA firearm. While the determination will always depend on all the circumstances, the general answer is YES.

Constructive Possession exists when a person knowingly has the power and intention at a given time to exercise dominion and control over an object, either directly or through others. US v. Turnbough, 1997 U.S. App. LEXIS 11886, *6. The government may establish constructive possession by demonstrating that the defendant exercised ownership, dominion or control over the premises in which the contraband is concealed. Id.

Thus, if the spouse, significant other, or child does not have the combination to the safe where the NFA firearms are kept, it would be virtually impossible for the prosecutor to show that the spouse, significant other, or child “knowingly has the power.” Moreover, the person would be unable to exercise dominion and control over the NFA firearms because they are locked in the safe.

However, where a spouse, significant other, or child has the combination to the safe, or otherwise can exercise dominion and control over the NFA firearm, the prosecution can charge that individual with constructive possession. In US v. Turnbough, when the police searched the defendant’s home pursuant to a valid search warrant and found a handgun, that did not have a serial number, in the master bedroom, the defendant argued that he could not be found guilty of constructive possession if his live in girlfriend and her child were not charged. While his argument was frivolous, the 7th Circuit Court of Appeals declared, “[In] viewing the evidence in the light most favorable to the government, at the least, a reasonable jury could conclude that all three parties exercised dominion and control over the gun. Possession may be either sole or joint.” Id. at *7. Thus, although the prosecutor did not bring a charge of constructive possession against the girlfriend and her child, the Court was amenable to the prosecutor bringing such charges.

While there aren’t any cases of a spouse, significant other, or child being charged with constructive possession, those familiar with the Olofson case (BATFE successfully prosecuted an individual for a malfunctioning firearm in direct contravention to precedent) should recognize that the tide is changing. The absence of such a case does not mean that the BATFE or a zealous prosecutor cannot charge constructive possession and convict based on it. Moreover, the absence of such a case does not mean that a zealous prosecutor hasn’t already threatened charging such an individual unless that person testifies against the individual that the prosecutor really wants behind bars.

So, what do you do to protect yourself and those in your household? If you own the NFA firearms as a natural person, then you, and only you, should have the combination to the safe. However, there are other options. If you want your spouse, significant other, or child over 18 years of age to be able to possess the firearms, a Gun Trust can afford you that flexibility without the concern of constructive possession.

UPDATE
A new constructive possession case has popped up, but it is somewhat different than the above constructive possession scenario. In this case, a gentleman had an H&K SP89 pistol, along with a front grip (which by itself would require the registering of the SP89 as an AOW) but also a stock, which would require that the pistol be registered as a short-barreled rifle. Unfortunately, the gentleman fell on hard times and sought to sell the SP89 with all of his “accessories,” which included the front grip and shoulder stock. Unbeknownst to him, he sold pistol and accessories to an undercover cop. For more info, see my post here.