The law is an ass that lawyers ride to work. What is possession in § 941.29(2)(a)
I-ANAL After reading the below and thinking on our OCDO controversy about proper transportation § 167.31, I would suggest that a felon not be in a car with a legally transported firearm on the mere chance that the proper owner of the firearm not have physical control of the firearm. As when the owner is pumping gas.
As always, YMMV and I'm a high mileage kind'a guy.
State v. Black, 2001 WI 31, 242 Wis. 2d 126, 624 N.W.2d 363, 99−0230
¶ 19. At the outset, we note the absence of any mens rea[5] requirement in this statute. That is, the statute makes no reference to intent and therefore creates a strict liability offense. State v. Dundon, 226 Wis. 2d 654, 664, 594 N.W.2d 780 (1999); State v. Coleman, 206 Wis. 2d 199, 207, 556 N.W.2d 701 (1996). As a result, the State is only required to show that the felon "possessed" the firearm with knowledge that it is a firearm. In this context, "possess," according to the legal definition, simply "means that the defendant knowingly had actual physical control of a firearm." Wis JI—Criminal 1343 (1997); see State v. Loukota, 180 Wis. 2d 191, 201, 508 N.W.2d 896, (Ct. App. 1993) (determining that this definition of possession was appropriately given and that Wis. Stat. § 941.29(2) does not require ownership, just mere possession). Furthermore, there are no temporal limitations in this statute. It does not specify what length of time a felon must possess the firearm in order to violate the statute. While to some it may seem unduly harsh that a felon who handles a firearm for a brief period violates this statute, such a result comports with the theory of strict liability. As we have explained:
143*143 The basic concept of strict liability is that culpability is not an element of the offense and that the state is relieved of the burdensome task of proving the offender's culpable state of mind....
....
... One of the objectives of the legislature in adopting the concept of strict liability in statutes designed to control conduct of many people, such as operating motor vehicles is to assure the quick and efficient prosecution of large numbers of violators.
State v. Brown, 107 Wis. 2d 44, 53-54, 318 N.W.2d 370 (1982). The statute at issue here, felon in possession of a firearm, applies to all felons and is designed by the legislature to control their conduct: it aims to prevent felons from possessing firearms. Wis. Stat. § 941.29(2). This is so "because the legislature has determined that felons are more likely to misuse firearms." Coleman, 206 Wis. 2d at 210. We have further recognized that this statute is "aimed not at punishment but at protecting public safety through firearm regulation." State v. Thiel, 188 Wis. 2d 695, 706-07, 524 N.W.2d 641 (1994). With this goal in mind, the legislature struck a balance between the possibility of a harsh result to an individual felon and the greater good of protecting the public from felons with firearms. We decline to upset this balance by rewriting the statute with an intent requirement. In the present case, the complaint stated that Black "handled the pistol," which is sufficient to show possession because such an action amounts to exercising actual physical control over the firearm, even though it may have been only for a brief period of time.
