We understand that many of our clients after restorations are lawful to purchase and possess a firearm, but for many people their partners, friends, or roommates might not be. Under Oregon law, it is unlawful for a prohibited person to have under their “possession or under the person’s custody or control any firearm.” See ORS 166.270. Most simplistically this can be broken down into two ways; actual possession or constructive possession.
ACTUAL
Oregon law makes clear that the word ‘possess’ includes “hav[ing] physical possession” of an object. The ordinary meaning of the word ‘possess physically’ when understood in the context of the remaining words of the statute, means “of or relating to the body.” Webster’s Third New Int'l Dictionary 1706 (unabridged ed. 2002). This can apply to holding the firearm, or a contained with a firearm inside. When a prohibited person placed his hands on the container containing the prohibited item and carried the container to his car, he physically possessed the prohibited item within the meaning of the statute. State v. Fries. This would include allowing the prohibited person to have possession of the unlocked and available container or bag with a firearm in it. That would constitute ‘possession’ and be against the law. That is the most obvious way to commit the crime by holding or having in their hands a firearm while being a prohibited person.
CONSTRUCTIVE
Other ways to commit this crime can be when the firearm is readily available in the home, workplace, or vehicle. Although the firearm may not be in physically possession or held Oregon can consider an alternative type of possession called ‘constructive possession’. For example, an Oregon Court found ‘possession’ when a prohibited item was located in cabinet behind a desk, in his office, in warehouse owned by corporation of which prohibited person was part owner. State v. Cossett. That attenuated possession in a building owned by the prohibited person was sufficient for the state to prove possession because the prohibited person could exercise control over property within their building. So placing a firearm readily available and not under lock and key in an outbuilding or space where there person has access to can be viewed as ‘constructive possession’.
Proving Control
To prove control, the state need only show that the firearm was available for the prohibited person’s use. State v. Marsh. If a firearm is across the house, and not locked or secured, it would be ‘available’ for use by the prohibited person therefore ‘constructive possession’ and unlawful.
A couple of additional things to be aware of, “possession need not be exclusive in order for a person, to be criminally responsible and may be exercised jointly with another person.” State v. Fries. This means two or more people could jointly ‘possess’ the firearm. An example of this type of possession would occur when a firearm was openly placed in between two seats of a vehicle, or in a motor home where either party could access. This would be ‘constructive possession’ it is unlawful.
Finally, as with every alleged crime, the State would have to prove that someone acted with the requisite mental state. For unlawful possession by a prohibited person, the possession must occur knowingly. State v. Coria. This means that a person cannot accidentally possess a firearm and it still be a crime. For example, if a firearm is left in a suitcase or duffel bag, and the prohibited person possesses that bag without knowing there is a firearm in it, they did not commit the crime. Not smart for someone to do, but not a crime.
CONCLUSION
What is the best practice for owning firearms around a prohibited person? You must ensure no actual or constructive possession occurs. This means firearms are securely locked outside the control of the prohibited person. This could include a gun safe, locked drawer, or locked cabinet. It is essential the prohibited person does not have the key, combination, or access. Would a cheap ‘trigger lock’ satisfy this? Probably not. Although there is no Oregon law on point, trigger locks are easily bypassed and do little to keep the prohibited person from having a functioning firearm in their possession.
Ammunition should follow these same rules as it is unlawful for a prohibited person to possess ammunition under state and federal law (depending on the conviction).
So long as the prohibited person does not have access to the firearms, and you do not aid or assist them in actually or constructively possessing the prohibited items both you and the prohibited person are following state and federal law.
Let us know if you have further questions or concerns about these kinds of situations.
*Nothing herein constitutes legal advice. You should obtain independent legal counsel regarding your specific factual situation.
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