Gun Owning Spouse Married to Prohibited Possessor

Posted 1 year ago — Ooley Law Blog

If the spouse of an armed citizen is under a court order that makes it illegal for the spouse to own or possess firearms, in your state may the armed citizen have his or her gun(s) in their shared residence?

 

If so, what safeguards do you suggest to prevent a claim that the prohibited spouse was in possession of firearms? For example, what advice would you offer a young mother who wanted a gun to defend herself and her family, but whose husband is ineligible to possess a firearm?

 

In Indiana, the spouse who is not prohibited from possessing a firearm can have a firearm. However, this creates some risk because the prohibited spouse cannot own or possess the firearm. To understand why this can be problematic, it is important to know that there are two types of “possession,” constructive possession and actual possession. Actual possession is where the individual has dominion and control over the item. Constructive possession is where the individual has the intent and capability to maintain dominion and control over the item. As you can imagine, the concept of constructive possession could cause some pitfalls in a household where one spouse owns a firearm and the other spouse is prohibited from possessing a firearm.

 

The best way to mitigate this risk is to avoid situations where the prohibited possessor could be seen as having even constructive possession of the firearm. Basically, any time the firearm is not under the direct control of the spouse who is not a prohibited person to possess the firearm, it needs to be locked in a safe for which the prohibited possessor has no access. The prohibited possessor cannot know the code or have a key to access the safe. The spouse wanting to keep a firearm in the home might even consider a biometric safe that is only accessible with the fingerprint of the spouse who can possess a firearm.