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If you are a convicted felon, then you are no doubt aware that one of the main rights you lose even after you serve your time is the right to own a firearm. This includes “possessing” a gun even if the gun belongs to someone else. If you are found to possess a gun as a convicted felon, you can face further federal felony gun possession charges under 26 U.S. Code § 5861, as well as state criminal charges which can send you to prison for years.

But what about a situation where another person in your house owns a gun? After all, the Second Amendment does provide citizens with the right to own firearms. Although it is not per se illegal for a felon to live in a home with a gun owned by a spouse, significant other, or housemate, felons do run a risk of being found to have possessed the firearm, and may even put the person they live with in serious danger of aiding and abetting their illegal possession.

You Can Be Convicted of Constructive Possession

Again, possession is not the same as ownership, and you can be convicted for possession of a firearm as a felon if you exert control over the firearm, such as by carrying it with you or shooting it. But simply avoiding contact with the gun itself is not enough to keep you in the clear, and you may face possession charges where you never actually exerted control if you are found to have had constructive possession of the firearm.

In general, courts can find that a felon had constructive possession of a firearm where:

  • The felon knew that the firearm was in the home; and
  • Had the ability and opportunity to exert control over the firearm

Thus, if your wife keeps a gun unlocked in her nightstand, and you know it is there, a prosecutor may well charge you with possession of the firearm even if you never touched the gun.

Your Housemate May Be at Risk of an Aiding and Abetting Charge

To add to this, the other person in the house who did legally own the gun can be found to have aided and abetted your possession of the gun so long as that person knew of the felon’s possession or constructive possession and acted with intent to allow that possession. While the government may face challenges in proving intent, an aiding and abetting charge is a serious criminal violation and thus precautions should be taken.

Taking Precautions

While the safest route to avoiding criminal charges is for a felon and his or her housemates to avoid having a gun in the house altogether, the Second Amendment does protect the right of non-felons to own a gun and to protect themselves and so the law will allow them to do so. That said, doing so creates a high risk of prosecution and strict precautions should be taken to avoid the felon having possession or constructive possession of the firearm, such as keeping the gun in a locked safe (to which the felon does not have access) at all times the felon is present. It is best to speak with an experienced criminal defense attorney to determine what precautions are necessary to avoid state and federal criminal charges.

Contact a New York Criminal Defense Attorney Today

The Henry Law Firm PLLC provides criminal defense to individuals and businesses throughout New York. Contact us today to schedule a confidential consultation regarding your matter.