Legal question about visiting relative

[skyjerk]

Hello all,

My sister lives in MA, and she is prohibited from owning or possessing firearms due to multiple DUI convictions. She was sentenced to 2.5 years in jail, and served 2 of them.
she now lives 100% clean and sober

I live here in PA and I own several firearms.

1. Am I breaking the law if I allow her to come visit me if my firearms are locked in a gun safe and she has no access to them?

2. Is she breaking the law in this same scenario?

We would both really like for her to visit, but not if it puts either of us in legal jeopardy.

thanks,

Chris

[Rural Ruger]

Not a lawyer but them being locked away would by default prohibit her from possessing them

[Curmudgeon]

Not a lawyer but them being locked away would by default prohibit her from possessing them

^This. Keep your toys and all ammo locked up and obviously don't plan any range
trips with her. Good to go, have a great visit.

Also, IF she is on probation she should check her probation agreement.
There is probably something in it about firearms/weapons. Probation is
an agreement separate from or in addition to PA law. You don't want her
to be in violation of either one.

I went through this with my brother back when he was living here full time.
His probation officer didn't like it but was made aware of it, and also made
aware that we all knew the laws and risks, etc. It didn't make any difference,
my brother took it seriously and was a "good example" in every way he could
be, and it was never made to be an issue.

[bogey1]

Just keep it hush hush and you'll be fine.

[skyjerk]

Just keep it hush hush and you'll be fine.

While I'm certain that its highly unlikely that anyone would ever know, I actually fought (and won) an expensive, stressful, and long legal battle in court to restore my own 2A rights,
so I always adhere to the letter of the law.

You cant properly appreciate the value of our rights until you've lost them, and I wont risk losing them again by doing something stupid and easily avoided.

So I want to determine what the law says, not what I think I can get away with, if that makes sense

[knight0334]

So long as she has neither control or custody of the guns OR ammo, both you and her should be okay.

The guns AND ammo must be locked up.

[Curmudgeon]

While I'm certain that its highly unlikely that anyone would ever know, I actually fought (and won) an expensive, stressful, and long legal battle in court to restore my own 2A rights,
so I always adhere to the letter of the law.

You cant properly appreciate the value of our rights until you've lost them, and I wont risk losing them again by doing something stupid and easily avoided.

So I want to determine what the law says, not what I think I can get away with, if that makes sense

Having spent the first 48 years of my life living in Maryland it makes a lot of
sense to me. Again, good luck, have a great visit, and +rep sent.

[EFK]

So long as she has neither control or custody of the guns OR ammo, both you and her should be okay.

The guns AND ammo must be locked up.

Jsut for the sake of curiosity, why must they be locked up? Let's say he has them in a gun cabinet with no lock, or in a closet, or in multiple places within the house. As long as she's not holding one or touching one, she's not technically in possession since he bought them and owns them and she is simply visiting his home. If she's going to stay the night or two, provided there are none in the room she is staying in alone, again I don't see how she's in *possession.*

If she was prohibited from consuming alcohol as a condition of parole, for example, does that mean she can not visit someone who is drinking a beer in her presence, provided she is not consuming or touching it?

I realize the CYA approach is to lock them up, agreed, but if the specific terminology is "possession" then she is not possessing one unless she picks it up or is alone in a room with one (and even that may be debatable if she's not holding it).

I'd second or third or fourth to check about her parole though - very important.

[tl_3237]

Jsut for the sake of curiosity, why must they be locked up? Let's say he has them in a gun cabinet with no lock, or in a closet, or in multiple places within the house. As long as she's not holding one or touching one, she's not technically in possession since he bought them and owns them and she is simply visiting his home. If she's going to stay the night or two, provided there are none in the room she is staying in alone, again I don't see how she's in *possession.*

If she was prohibited from consuming alcohol as a condition of parole, for example, does that mean she can not visit someone who is drinking a beer in her presence, provided she is not consuming or touching it?

I realize the CYA approach is to lock them up, agreed, but if the specific terminology is "possession" then she is not possessing one unless she picks it up or is alone in a room with one (and even that may be debatable if she's not holding it).

I'd second or third or fourth to check about her parole though - very important.

She could be considered in "Constructive Possession" if there is unfettered access.

constructive possession


Constructive possession is the legal possession of an object that is not in the person*s direct physical control. Like other *constructive* meanings, constructive possession legally functions as actual possession in a variety of ways.

In criminal law, establishing constructive possession is often done to further prosecutions for possession crimes, such as possession of illegal drugs.
https://www.law.cornell.edu/wex/constructive_possession

Constructive possession[1] is a legal fiction to describe a situation in which an individual has actual control over chattels or real property without actually having physical control of the same assets. At law, a person with constructive possession stands in the same legal position as someone with actual possession.

For example, if one's car sits in one's driveway, one has physical possession. However, any person with the key has constructive possession, as they may take physical possession at any time without further consent from one.
https://en.wikipedia.org/wiki/Constructive_possession

Constructive Possession

Constructive possession is a legal theory used to extend possession to situations where a person has no hands-on custody of an object. Most courts say that constructive possession, also sometimes called "possession in law," exists where a person has knowledge of an object plus the ability to control the object, even if the person has no physical contact with it (United States v. Derose, 74 F.3d 1177 [11th Cir. 1996]). For example, people often keep important papers and other valuable items in a bank safety deposit box. Although they do not have actual physical custody of these items, they do have knowledge of the items and the ability to exercise control over them. Thus, under the doctrine of constructive possession, they are still considered in possession of the contents of their safety deposit box. Constructive possession is frequently used in cases involving criminal possession.
https://legal-dictionary.thefreedict...ive+Possession

[EFK]

So if her brother here has a carry permit and while driving detaches the holster and sticks the gun in the console for comfort, and his sister is a passenger, is that constructive possession?

I can see constructive possession if she is alone in a room with a gun in that room. In any other situation, if her brother who is the legal owner is present, I don't see how a constructive possession case could be made.

If she is walking down the street in PA and runs into a friend who has a carry permit and is carrying, and she is standing there talking to him, is that constructive possession?

I don't see how constructive possession would apply if the legal owner is present, because being the legal owner, he has possession. This isn't his car in his driveway and she has a key. This is not an illegal drug where nobody has legal right to possession. And it's not like driving around and getting stopped with an unopened beer in your cupholder whereupon it's fairly obvious you were going to crack that sucker.

As I said, to cover everyone's ass, I agree - lock the arms up. But short of her being alone in a room with an unlocked gun stored therein, I don't see how a constructive possession case could be effectively made. Charged? Maybe if someone really, really, really wants to be a prick. But I don't see how a prosecution survives.

Would love to hear from Gunlawyer on this one.