An interesting decision, in People v. Javier A. (Cal. Ct. App. May 24). Javier A. was on probation, so when he was detained on suspicion of another crime, the police searched his home; Javier’s father, Emilio A., told the police there were two guns in the home. It turned out that one had been kept — apparently for just two days — in the entertainment cabinet in the living room, which was the room Javier was sleeping in. Javier also “told the officers that ‘he recently checked the gun [in the living room entertainment cabinet] to see if it was loaded.’” Based on Javier’s having handled the gun, he was convicted of “constructive possession” of the gun by a minor, in violation of Cal. Penal Code § 12101.
The prosecution had asked that Javier be placed in a juvenile “camp,” “placement in light of appellant’s gang involvement and prior history,” but the juvenile court sentenced Javier to probation and “house arrest” but with a condition: “I want no weapons anymore at your house. Dad, I’m sorry, no weapons, none.” (This apparently referred to “guns or other deadly or dangerous weapons.”) And the Court of Appeal upheld this, on the grounds that this was “reasonable in light of the facts that appellant was on probation at the time of the charged offense for possession of a firearm and had admitted to participating in gang activity.”
Note that the logic of this would apply not just to juveniles, but also to adults. Thus, if a husband is sentenced to probation, presumably the court could insist that his wife, with whom the husband lived, couldn’t keep guns at home, even in a locked case to which only she had access. Likewise, if an adult roommate is sentenced to probation, the court could insist that any roommates with whom he lives not keep guns in their house or apartment, even locked up in their own rooms.
Of course I see the logic of such conditions, since locked doors are sometimes unlocked, others’ keys might be available, and combinations could be shared. My point here is simply that the conditions end up burdening the self-defense rights of the other residents of the house and not just of the probationer. (For more on the related topic of how the statutory prohibitions on gun possession by some people, such as felons, might affect their spouses and other housemates, see PDF p. 57 of this article.)
The opinion does say that
Appellant also ignores the fact that the ‘someone’ on whose action appellant’s probation was dependent was not just anyone, but his father, who, as a parent, had various legal responsibilities in the disposition of the juvenile delinquency proceedings involving his minor child. These responsibilities certainly could include keeping weapons out of the home he provided for appellant.
But it seems to me that there’s no inherent reason why this would limit the logic of the rest of the opinion — plus of course the probation order applied to all guns kept in the house, not just those owned by the father but also by the other adult occupants who did not have legal responsibilities for the child (here, the grandmother, sister, and brother-in-law).
Dilan Esper says:
It seems to me that some form of reasonableness review is required here. Consider two situations:
1. Son “borrows” two guns from father’s unlocked gun safe, takes them out, and participates in his gang’s attempted armed robbery of a liquor store.
2. Son is convicted of possession of cocaine with intent to sell; father does have guns but keeps them in a locked safe with trigger locks.
Now, I would say that to impose this condition in situation (2) would be entirely outrageous and inconsistent with any sensible construction of the Second Amendment. But I might not say that about situation (1) even though the father’s gun rights are potentially implicated.
We need some good old fashioned line drawing from the courts here, it seems to me.
May 26, 2010, 3:55 pmEluchil says:
A friend of mine said that a similar thing happened to him. As a condition of his minor daughter’s probation she couldn’t have access to any weapons and he had to remove the guns he had stored in his home.
May 26, 2010, 3:56 pmRoscoe says:
I don’t think that the Judge’s order was intended to be binding on the dad, and there is no indication in the opinion that the Judge thought he could give orders binding a third party. I suspect that if dad had said “no, I am keeping my guns,” the Judge’s reaction would have been to say that in that case he wouldn’t sentence the kid to probation. So I don’t see anything wrong with what the Judge did.
May 26, 2010, 3:56 pmSteve says:
The logic of saying that the court could equally well impose this condition on roommates escapes me. How would the court have jurisdiction to order the roommates to do anything? The father is at least in the position of a caretaker. Presumably he could say “no, I don’t want to give up my guns, just send the kid to jail.” Presumably a wife (if the husband-wife hypothetical is even accurate) could say the same thing.
If it’s lawful to deprive someone of guns as a condition of probation, then we have to take into account the reality that people do not live in a little individualized protective bubble. If other people have guns around the house, that may be perfectly lawful, but it renders the terms of probation ineffectual. In the case of roommates, who can’t be plausibly ordered to surrender their guns, the appropriate action for the court would be to rule “ok, I’m sentencing you to probation, but you have to find somewhere to live where there aren’t guns lying around.” That puts the burden where it belongs, on the lawbreaker himself.
May 26, 2010, 4:01 pmLaura(southernxyl) says:
My thought as well. You don’t have to be on probation. You can just go on to jail, or wherever.
May 26, 2010, 4:06 pmJackOfClubs says:
I agree with Roscoe. If the father (or the wife in the hypothetical) is willing to sponsor the probation, they can reasonably be held to its conditions. This presumably would not apply in the roommate hypothetical, since roommates typically do not have a relationship that goes beyond financial interest. If, however, they were willing to act as sponsors, they would also be obligated to the conditions of the probation. The only way I could see this being a problem is if the probation arrangements were mandated without the consent of the third parties. This would be more likely to occur in a family context, and would probably not withstand appeal. It would, however, result in significant injustice during the interim unless the order was suspended pending appeal.
May 26, 2010, 4:07 pmPatHMV says:
I’m a pretty strong gun-rights proponent, but I’m ok with this. Yes, it has some adverse consequences for people who choose to share living quarters with the criminal on probation, but that’s their choice to live with him.
As for the spouse scenario, why should we expect or believe that any spouse would not actually give the code to the gun safe to the criminal spouse on probation? Every day experience tells us that the spousal bond is stronger than most others.
In my prosecutor days, I worked on cases where convicted felons were not legally able to own interests in the gaming companies that were starting up in our state. Instead, they would put the companies in their wives’ names, and everybody would duly perjure themselves that “no sir, they never engage in ANY conversation with their spouse about the gaming business. No pillow talk about the day’s take, nothing at all, no sir.”
The scam was patently obvious. But absent one spouse turning on the other, or slipping up and having the convicted felon start giving orders to the company’s employees, there was no way to prosecute.
It puts me in mind of the old days when criminal defendants were allowed to speak on their behalf, but not to do so under oath, because it was assumed that any man would lie to save his own skin from incarceration or death.
The promise by other household occupants to keep the guns from the probationer is simply unenforceable in any practical sense and would leave a massive loophole available for exploitation by all sorts of violent felons who properly should be prohibited from possessing a firearm.
May 26, 2010, 4:12 pmJackOfClubs says:
Unless, of course, the lawbreaker is the home-owner and the roommates are his tenants, in which case they would have to find a new place to live. But, as that would presumably also be the case if he were sentenced to jail, this may not constitute an unreasonable burden.
May 26, 2010, 4:12 pmAngus says:
Agreed with what the others said — the father has agreed to certain responsibilities in order for his son to receive probation. That’s voluntary, and it could very well mean removal of guns for the duration of his son’s probation — particularly an easy conclusion in this case since it seems the father had no desire to secure the guns in his house.
It appears the father has 3 choices:
May 26, 2010, 4:13 pm1. Remove the guns until the probation ends
2. Find somewhere else for the kid to live and someone willing to take guardianship
3. Send the kid to jail
Smooth, like a Rhapsody says:
This is not analogizable to adults.
The Court in a juvenile case frequently/always includes an order for parental participation in its disposition. So an order binding on a parent or custodian is not out of line or even remarkable.
OTOH, it is a standard condition of every adult probation where I practice that the defendant not “possess any firearm, destructive device or dangerous weapon” as a condition of probation. How this would affect the ability of a spouse or a roommate to possess such articles has never occurred to me.
May 26, 2010, 4:13 pmDilan Esper says:
I don’t disagree about the sponsorship argument, but can’t you really read this sort of condition as “probationer is not allowed to live with someone who has guns in the home”? In other words, leaving aside the Second Amendment concerns I mention in my initial comment, if the condition is otherwise proper, can’t the court tell the probationer he can’t live in any house or apartment where he has access to guns?
May 26, 2010, 4:14 pmanon lawyer says:
It is pretty standard…but it seems like the spouse/roommate would have to be particularly careful if the defendant wanted to avoid being in violation of probation due to the ever elusive constructive possession idea. Not in all jurisdictions–some require fairly substantial proof of dominion/control, which could be taken care of fairly easily by the roommate or spouse. But some jurisdictions define the concept quite loosely and could, arguably, lead toward probation violations.
May 26, 2010, 4:21 pmPhilistine says:
Just on a quick search, the Yamhill County Oregon standard probation conditions for juvenile drug court contain this one:
Link
May 26, 2010, 4:37 pmEugene Volokh says:
Folks: I should just note again that the order did not just limit gun possession by the father as “sponsor” or as a person responsible for the minor. The probation order applied to all guns kept in the house, not just those owned by the father but also by the other adult occupants who did not have legal responsibilities for the child (here, the grandmother, sister, and brother-in-law).
Now of course if the father owned the home, or the lease was in his name, he would have the legal right to insist that no-one else keeps guns in his home. And in any event, I expect that Javier’s other family members would be willing to give up their guns in order to keep their grandson, brother, or brother-in-law out of juvenile camp. But the point remains that the probation order affected the self-defense rights not just of the father, but of other adult residents of the house as well.
May 26, 2010, 4:42 pmCJ-in-Weld says:
At least in Colorado, juvenile delinquency proceedings are a whole ‘nother animal from adult criminal cases. Parents are named respondents in the petition. The juvenile court has statutory power to impose certain conditions on the respondent parents, including payment of restitution, useful public service, and participation in the delinquent child’s treatment programs. So I don’t know about California – but in Colorado, there would be a very real and principled distinction between the parent of a juvenile delinquent and the roommate of an adult criminal.
May 26, 2010, 4:42 pmMike says:
It seems as though under that statute the parents of a child under probation would also be required to remove all kitchen knives from the premises, as well as baseball bats and extra chains? Where is the line drawn on weapons? Do children’s toys count as replicas? Just seems like a very broad statute there if you actually enforced it fully. Does my dog, who once bit someone accidentally count as a dangerous animal?
May 26, 2010, 4:48 pmCheckEnclosed says:
Wow. Juveniles on probation in Yamhill County Oregon can’t stay in houses that have knives (specifically defined as weapons, below)in them, or replicas of knives (e.g., letter openers). And what the heck is a dangerous animal? (SWAT teams in Missouri apparently think it includes Corgis)
“You are not to posses any weapon of any description including but not limited to firearms, knives, nunchucks, or martial arts weaponry. You are not to possess any ammunition or weapon replicas. You are not to possess any dangerous animal. You are not to involve yourself in activities in which weapons are used, including but not limited to hunting or target shooting without prior permission from a probation officer. You are not to remain in any vehicle, dwelling or building wherein anyone possesses a weapon, ammunition, weapon replica or dangerous animal.”
May 26, 2010, 4:51 pmJordanS says:
Perhaps I’m just missing something here, but if the father is not a party to the criminal complaint, how can the court bind his conduct legally? As Eugene had noted, this could be applied in other circumstances such as having an adult roommate. But in that situation, how does the court have the power to bind a party that is not subject to a court action? If roommate A is on probation and the judge says “No guns in your house” and roommate B has a ton of firearms but is not in court and has no relation to party A except for living together, I don’t see how the court could have the power to bind person B.
This all seems very trivial to me, especially that a minor could be convicted of constructively possessing a firearm, in his own home, that is owned by his father. If the father was a smoker/drinker, the child must have also been constructively possessing cirgarettes and alcohol as well. Terrible.
May 26, 2010, 4:51 pmwikipedia reader says:
To echo other commentators, this doesnt seem distinct in any way from the standard adult probation/supervised release terms in fed dist. court. Of course here the judge specifically told the father, you have to get rid of the guns in your house. In supervised release or bond releases in federal court, the judge might ask – im only going to let you go on bond if you can meet the conditions, i.e. have a land line phone, sign the bond of 25K, dont have any guns or destructive devices in the house, and have the prob. officer stop by and make sure you have complied with these terms. But the end result, and the shared understanding of everyone in the courtroom, is that the other person living in the house (be it parent, spouse, children) have to get rid of their guns.
May 26, 2010, 4:54 pmHouston Lawyer says:
I just spent good money on a gun safe. The manufacturer says its safes have never been broken into. The order should have said that the kid can’t have access to firearms, not that they can’t be in the house. Can they be kept in the non-attached garage?
If you live with someone under probation, you are necessarily going to be subject to some limiations. I don’t see a problem with this.
May 26, 2010, 5:05 pmChris Travers says:
The vagueness in that order is incredible. Of the prohibited items, only ONE is reasonably clear (ammunition). For example, does a machete count? And how is the individual to know if a given animal is dangerous?
May 26, 2010, 5:10 pmOrenWithAnE says:
Or, you know, an 18 year old can get a job and his own residence …
May 26, 2010, 5:20 pmLaura(southernxyl) says:
Is the judge ordering roommate A to live with roommate B?
May 26, 2010, 5:22 pmDave N. says:
As explained by another commenter above, in many states the parents or legal guardians, as a matter of law, are parties in juvenile cases and the juvenile courts have authority to issue binding orders on the parents.
By the way, outside the juvenile context, I believe the onus is on the probationer to make sure that he or she is not running afoul of the probation terms, even if that means the probationer has to move.
May 26, 2010, 5:31 pmAnon Y. Mous says:
What if the facts of the case were a little different, and the kid was engaged in computer hacking. Would it be reasonable for the judge to order that all computers must be removed from the home, or is it more likely that the order would just be that the kid was prohibited from using them. Or, how about alcohol? Is it legit for the judge to order all alcohol removed from the home? If the answer to both is no, then why is it different in the case of a gun?
May 26, 2010, 5:36 pmChris Travers says:
Easy solution: Put the guns and knives in the wood shed and require the juvenile to be out of the house when someone is cooking. Oh and state as a matter of house rules that the wood shed is not to be entered by the juvenile. Therefore the parents are not party to any constructive possession……
Not that such a solution is wise… But silly problems call for silly solutions.
May 26, 2010, 5:40 pmBoonton says:
I have a niece-in-law who is in something called drug court which is like a hyped up probation. She is not allowed to be near alcholol. This means she can’t take a job at a bar or place that serves drink. It also means her mother (with home she lives), isn’t supposed to keep anything in the house.
It’s a risk when living with someone. Their lawbreaking may impact your living situation. You are free to not live with them, so I’m not sure it’s really an infringement on freedom. Technically you’re not free to not live with your minor child but you are obligated as a parent to take care of a minor child. If that means you may have to remove something from your home that would otherwise be legal, well that’s kind of the breaks. Some people have kids who become doctors and give them free medical care.
May 26, 2010, 5:40 pmChris Travers says:
What’s the penalty if the mother decides to have company over and buys a bottle of wine to go with dinner? Is the court likely to hold person A in violation of probation due to actions by person B which Person A had no control over?
May 26, 2010, 5:45 pmScott says:
So, you must immediately leave the courthouse; if arrested, you must escape at once before being put in a car with an armed police officer; under no circumstances must you allow anyone to take you into a police station, courthouse, or jail. I think that someone did not think this one through.
May 26, 2010, 5:46 pmtheBruce says:
I don’t see this as much different than sacrificing some 4th Amendment protections when one willingly houses a probationer with a search condition in one’s home. House a probationer, lose a little 2nd Amendment protection. Or has been suggested above, make him live on his own.
May 26, 2010, 5:46 pmPatHMV says:
Eugene, do you have a practical alternative to offer that would allow the potentially violent juvenile to remain on probation living in the same house but also effectively deny him prompt and ready access to the firearms belonging to the others in the house?
May 26, 2010, 5:49 pmD.O. says:
I remember that Chief Justice Roberts found some years ago that if you live with someone in the same dwelling you automatically lose part of your 4th Am. rights. The housemates might consent to a search for you. It is not unreasonable than that you can also lose part of your 2nd Am. rights. IANAL etc.
May 26, 2010, 5:54 pmyankev says:
Steve, I tend to agree with you. On the other hand, aspects of this are troubling. Probation can also be conditioned on staying away from alcohol, or drugs. Suppose the court were to condition probation on the parents making sure there is no alcohol in the home? Or getting rid of the drugs that were prescribed for one parent’s chronic condition, so that the kid will not be tempted to abuse or sell the drugs? If the kid had a history of illegal driving, or using a car to commit crimes, should the court order the parents to get rid of their car?
Given the variety of things that can be used or ada[pted as weapons, is there anything the court could NOT bar from the home?
May 26, 2010, 5:55 pmJoe Dunbar says:
Well, I think the key fact here is that the kid, in fact, touched/handled the weapon. So, if the father had some guns and kept them locked in a safe, and there wasn’t any evidence that he had touched them, then I think its a different case. Further, the kid was being sentenced because he had previously touched the guns. Given the circumstances, it is a reasonable condition by the judge. If, on the other hand the kid was being sentenced to probabation on the first, underlying (and presumably non-gun related) crime, and the father testified that his guns were always in a locked safe that the kid didn’t know how to open, then you have could have a different result.
May 26, 2010, 5:58 pmLarryA says:
“I wasn’t fleeing from my probation officer, Your Honor. I was staying away from his gun, just like you told me to.”
May 26, 2010, 5:59 pmChris Travers says:
Or, “Officer, I have to tell you my probation order says I cannot remain in a car when another occupant has a gun. Please release me or leave your gun to someone who will not be in the car with us. Otherwise, I’m legally required to try to escape.”
May 26, 2010, 6:29 pmBC says:
I do. It’s a marvellous invention known as a safe.
May 26, 2010, 6:35 pmMalvolio says:
Why? Because we have a Constitution and that Constitution guarantees us the right to keep and bear arms. We do not have an enumerated right to have a computer or a beer.
If the juvenile in question poses such a danger to the community that his mere proximity to a weapon creates an unacceptable hazard, he shouldn’t be on probation. He might walk past an armed security guard and that inexplicable firearm mojo would cause the pistol to jump from the guard’s holster to his hand and wham! Or he might get a firearm illegally.
This is clearly not such a case. He touched a gun. He didn’t shoot anyone, he didn’t threaten anyone, he touched the gun. Yes, he may have broken his parole; if so, he should be punished, but it isn’t as if there were a real danger.
May 26, 2010, 6:47 pmBruce Hayden says:
I read the opinion, and found it unremarkable. The alternatives were that the kid live in a camp, or he could live at his father’s house if there weren’t any guns there. And, given his admitted illegal gun use and gang ties, that is a wholly reasonable condition to place on the parole.
Yes, the father was inconvenienced. But it was his choice to allow his kid to live there on parole. He had to essentially weigh his right to have guns in the house with his desire for his kid to live there, and not in a camp. He chose the later.
Besides, if the appellant had won this one, then what was next? Spouses?
May 26, 2010, 6:56 pmBruce Hayden says:
Sorry, I meant “probation”, not “parole”. Probation routinely has conditions set for it. Note all of poor Lindsay Lohan’s problems with her probation. The judge there can require that she wear an alcohol monitoring bracelet as a condition for her probation. Why is Javier A. any different?
May 26, 2010, 7:04 pmShelbyC says:
Am I reading right? The kid found a gun in a cabinet in the room were he was sleeping, checked to see if it was loaded, and they convicted him of a crime? Does anybody in charge have an ounce of common sense?
May 26, 2010, 7:24 pmChris Travers says:
I don’t know about you but removing all computers from my house would be a real, genuine hardship, but removing weapons would impact my ability to follow my religious ceremonies.
May 26, 2010, 7:29 pmAngus says:
ShelbyC,
From my reading, the kid was already on probation. Police caught him outdoors smelling of marijuana and then brought him home where they found out about the gun access.
May 26, 2010, 7:31 pmShelbyC says:
Well, if he did other stuff wrong, convict him of that. Don’t convict him of BS because you think he’s a bad kid.
May 26, 2010, 7:41 pmCDR D says:
>>>We do not have an enumerated right to have a … beer.<<<
True, but once upon a time, long ago, it took an amendment to the Constitution to tell us we couldn't have a beer.
May 26, 2010, 7:44 pmMichael Ejercito says:
How true.
May 26, 2010, 8:39 pmMaureen001 says:
His original offense was gun-related and gang-related.
May 26, 2010, 9:30 pmMaureen001 says:
If the father continues to keep his guns, who exactly is in violation of the court order?
Just curious.
May 26, 2010, 9:31 pmbbbeard says:
As a parent, I would have to assess carefully all the different risks associated with different strategies. There is a risk to my child associated with placing him in the hands of the so-called “system of justice”. If I lived in a bad neighborhood, there is a risk associated with being stripped of defense weapons. If I considered lying to the judge about getting rid of weapons and kept them anyway, there is a risk of legal repercussions. If I kept the weapons and my son, I would have to weigh the risks of having the weapons readily available, versus having them under lock. I would also weigh the risks that my son posed to others were he to access my firearms…. What I would not do is to assume that the judge has the best interests of my family at heart — that’s not his job.
In any case, it sounds like a good reason to oppose mandatory gun registration.
May 26, 2010, 9:48 pmSteve says:
Am I reading right? The kid found a gun in a cabinet in the room were he was sleeping, checked to see if it was loaded, and they convicted him of a crime? Does anybody in charge have an ounce of common sense?
No, that’s not accurate. He was already in violation of his probation because there was a gun in the house he had unrestricted access to, and thus “constructive possession.” The fact that he admitted to taking it out of the cabinet and checking to see if it was loaded was evidence of the fact that the gun was there for him to pick up any time he wanted, which was the real issue. Even if he had never touched it, though, he was still in violation.
May 26, 2010, 10:42 pmPhilistine says:
The kid.
From the opinion:
May 26, 2010, 10:48 pmChris Travers says:
Under the probation order does the kid have an option to reside outside his parents’ house? I mean if the probation order becomes impossible to meet, then why punish the kid for that?
May 27, 2010, 12:17 amChris Travers says:
This is the only reason to see this as a requirement for probation. However, I wonder if the court could take some action against the parents on the constructive possession issue. I mean, if a gun was improperly secured in the house, that’s a good reason not to have the kid returned to that house. However punishing the CHILD because the PARENT doesn’t live up to some condition strikes me as truly absurd, esp. if like many juvenile probation programs, the child is required to live with the parents.
May 27, 2010, 12:20 amSeaDrive says:
I’ve seen postings about cases persons who have had their guns summarily confiscated because someone else who lived in the same place was put under a restraining order. They were not allowed to make some alternate arrangement, i.e. store them at a gun club or pay a gun dealer to store them.
May 27, 2010, 9:45 amuh_clem says:
I’ve seen postings about the Loch Ness Monster and Elvis dining at the Burger King in Kalamazoo.
May 27, 2010, 10:38 amMichael Ejercito says:
Name one case.
May 27, 2010, 11:16 amFrank Drackman says:
What if your hands were registered with the Police as “Deadly Weapons”??? would they have to go all Saudi Arabia to let you out of jail?? Or even to let you in jail, since most jails I’ve been in don’t really approve of prisoners having weapons, registered or not.
And I know, Police Departments won’t really register someones hands as deadly weapons, except maybe as an honorary thing like those deputy badges they give to celebrities and politicians, at least everyone I’ve ever met who said their hands were registered never can show me their carry permit…
Frank
May 27, 2010, 11:38 amShelbyC says:
He was convicted of possession of a gun by a minor, simply because his dad had guns in the house. The fact that he was already on probation is irrelevant.
So the legislator makes it a crime for a minor to remain in his house if an adult brings a gun into it, right? No common sense there, maybe some will be used in the exercise of prosecutorial discression? Not in this case. So why in the world would anybody expece common sense to be used it the interpretation of these conditions?
May 27, 2010, 12:12 pmSeaDrive says:
Michael Ejercito: It’s not my area of expertise, and I may have conflated a couple different posts. I did my best to look up what I saw, but forum software does not have the world’s best search facility.
One post I did find is really about parole (the original topic here) but has an RO connection which may have confused me:
There are many posts about the subject of an RO having his guns “seized” or “confiscated”, but there appears to be some latitude to transfer or sell them. There are also a lot of posts to the effect that you will never be made whole again after a RO is issued, even if any claim of harassment or stalking is completely false.
May 27, 2010, 1:55 pmPhilistine says:
Almost assuredly not.
To the extent it became an issue–e.g. the dad said he’d rather have his guns than his kid in the house–the Court might allow the kid to have an alternate residence, assuming someone would be willing to have him that the Court considered sufficiently responsible.
May 27, 2010, 1:57 pmzippypinhead says:
In my limited experience, the spouse or roommate couldn’t be prohibited from keeping the weapons, but whether the probationer would be in violation of the term would be a factual question that turns on the legal definition of “possession” or “constructive possession” in the jurisdiction. I remember a couple of §922(g)(1) felon-in-possession cases where the defendants were prohibited persons under Federal law. The defendants allegedly transferred ownership of their firearms to their live-in significant others. But the firearms never moved from their previous places of honor in the shared home and remained accessible to the defendants. The juries didn’t seem to have a very hard time returning guilty verdicts after following the Court’s constructive possession instruction.
Even more fun was the case of the idiot who, to celebrate his release from the penitentiary, accompanied his buddies on a late night deer hunting expedition. Using a spotlight. From the bed of a pickup truck driving down a public road. The night before hunting season opened. On state game lands. Almost inevitably, they drove right into a game warden sting, and one of his buddies shot a fiberglass decoy deer. The wardens didn’t actually see the idiot holding a rifle, but there were 3 people in the bed of the truck and 3 rifles. The constructive possession jury instruction once again did the trick.
On the other hand, I also recall a supervised release violation hearing where the defendant got off because his former firearms had been legally transferred to his live-in girlfriend through a FFL with NICS check (which wasn’t required for a private transfer, but was apparently done on the advice of his counsel), and the girlfriend then bought a gun safe, put the guns inside, and kept the only key in her purse. The complaining Probation Officer’s theory was that the defendant could swipe the key from his girlfriend’s purse at any time and thus had constructive possession. In the absence of any evidence the defendant had ever actually taken the key, the Judge found no violation.
May 27, 2010, 5:03 pmGlen says:
All this order reflects is a lack of self-defense and gun rights in California (the California constitution has no analog to the U.S. Constitution’s Second Amendment). So it is only natural that a California judge would rule as if gun possession were simply a privilege regulated by the state, as that is precisely what it is today in California. A complete analysis could not draw any other conclusion.
A similar ruling in another state with strong constitutional protections for gun rights might validate Eugene’s hypothesis. Or further (unchallenged) rulings of this sort in California after the Second Amendment is incorporated against the states via McDonald v. Chicago.
May 27, 2010, 7:24 pmilbob says:
The kid deliberately violated the agreement he made in this case. One might argue about the other side of it, but the kid has no excuse.
This situation sounds a lot like the parent may have been playing fast and loose with the rules to give his kid some access to firearms he was not supposed to have.
May 28, 2010, 9:45 amBrooks Lyman says:
While the legal logic (and perhaps common sense, depending on the situation) suggests that it is okay to require that the father remove all guns, etc. from the house, I think there is another, more complex issue here.
The father may be an upstanding citizen whose son got into bad company, but the son’s gang connections may bring trouble of one sort or another to that household, even if the son walks the straight and narrow. So requiring the father to remove potential weapons of self/home defense from the premises could put him and his family in danger from gang-motivated home invasion, etc.
Seems to me, that the court should have allowed the option of a gun safe with no access for the son. It also seems to me, that if the father did allow the son access to the guns in the safe while under probation, that he should be legally liable.
May 31, 2010, 12:41 am