Understanding the Consequences of Weapons Charges in Missouri: Criminal Defense in St. Louis

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And so naturally you think of possession like in a football game. You have possession of the ball if you have the football in your hands and you have two feet in bounds or whatever. It's like some form of it being within your hands. But that is not how the law works in Missouri with regards to possession of almost anything, including your criminal-related charges such as possession of an illegal firearm, felon in possession of a firearm, or any drug-related possession cases. When we talk about possession, we're talking about actual possession. The actual holding of the firearm, but you could also be talking about constructive possession, which is kind of goofy.

We never think of constructive possession in real life, but constructive possession is essential that you know that it is within your presence. So if it is within your vehicle and you are the sole occupant of the vehicle, a jury may be allowed to presume that you possessed the firearm.

Now that's not necessarily the case. I have cases where the individual has gotten charged with possession of the firearm, or with some relation to the possession of the firearm, as a sole occupant of a vehicle. But just because they could presume that it was there doesn't mean that it is a guaranteed fact that they presume it's there. They still got to be able to prove that you would've known that it was there. Imagine you're driving someone else's car and it's in the trunk under a bag, which is not yours, under some clothes. If you're the sole occupant of the vehicle now, theoretically, the prosecutors might be able to put on a case that you were in constructive possession of the firearm. There is some question in there, but are they going to be able to prove beyond a reasonable doubt, certainly that you did possess the firearm, some questions are going to be asked.

Just because you have been convicted of a felony does not mean that it impinges upon another's constitutional right to own a firearm under the second amendment. Let's say a husband and a wife. The wife is a convicted felon for stealing, for instance. It doesn't have to be weapons-related. And the husband has firearms, which are registered to his name. Can you punish the wife because the husband exercises his constitutional rights to own the firearms? The answer is most likely not. I don't necessarily deal with certainties because the law as a practice is more of an art than a science in that it might be the case that you could live with another individual and they might have firearms and you're not allowed to have firearms. Of course, then if you're in close enough proximity or you're showing, or you're exercising control of the firearm, you're going to be able to be proven to have that firearm.

We talk about the sole occupant of a vehicle. If you are the sole occupant of a vehicle, you're the driver and it is in your center console, right. Or it is on your driver's side on the floor or in the side pocket. Do you think the police, or more importantly, the prosecutor is going to be able to prove that you could exercise control of that firearm? Probably. Is it possible that a jury could disbelieve it? Possibly. Have I had cases similar to that where it was disbelieved or there was some sort of evidence that went against possession? Yes. Those are the type of factors that they look at. How close are you to it and what's your access to it?

I would say the general answer to that is no with the exception, although this is not the law per se. There are instances where an individual could be charged or could be a felon in possession of a firearm and act in self-defense. It's happened. So the fact that you are a felon may not preclude you from preventing someone from killing you. That's such a gray area. It may be that even under the law, technically you might be able to be charged, but it's unlikely that would happen.

So if somebody is, just using this fake example here, but let's say an active shooter is out and about, and they're out shooting bullets everywhere. Somebody pulls out a gun and shoots the active shooter, but if the person that shoots the active shooter happens to be a felon while defending themselves and others, are they going to be subject to a charge? Under the law, it is possible. In reality, they probably won't be. But it is one strange exception, which I have seen applied in real life before.

In Missouri, a person commits the offense of unlawful possession of a firearm if such person knowingly has any firearm in their possession and such person has been convicted of a felony under the laws of this state, or of a crime under the laws of any state or of the United States which, if committed within this state, would be a felony; or such person is a fugitive from justice, is habitually in an intoxicated or drugged condition, or is currently adjudged mentally incompetent.