Felon in Possession Under 922(g): What the Government Has to Prove

Felon in possession is one of the most frequently charged federal firearm offenses in Baltimore, and the name makes it sound like a simpler case than it usually is. It suggests two facts and nothing else: a prior conviction, and a gun. In practice the government has more to prove than that, and the places where these cases are genuinely contested are sometimes on other elements than the two facts the charge is named after.

This article walks through what 18 U.S.C. 922(g) requires, what the Supreme Court added to it in 2019, and where the real disputes tend to sit.

What Section 922(g) Actually Prohibits

Section 922(g) makes it unlawful for people in certain categories to possess a firearm or ammunition. The category most often charged is a person previously convicted of a crime punishable by more than one year of imprisonment, which is where the shorthand “felon in possession” comes from.

It is not the only category. The statute also reaches people who are fugitives from justice, unlawful users of controlled substances, people subject to certain domestic violence restraining orders, and several others. Cases involving the drug user category in particular have drawn a great deal of appellate attention in recent years, and the law in that area is unsettled enough that anything written about it should be checked against current authority.

This Is Not the Same Charge as 924(c)

These two statutes are often confused, and the difference matters a great deal because the exposure is not comparable.

Section 924(c) applies when a firearm is used or carried during and in relation to a drug trafficking crime or a crime of violence, or possessed in furtherance of one. It attaches to an underlying offense and carries consecutive mandatory time. We have written separately about how Section 924(c) works.

Section 922(g) needs no underlying offense at all. The prohibited status plus possession is the whole of it. A person with no other pending charge can face a 922(g) count on its own.

What the Government Has to Prove

A 922(g) prosecution generally requires the government to establish that the defendant was in a prohibited category, that the defendant knowingly possessed a firearm or ammunition, and that the firearm or ammunition had travelled in or affected interstate commerce.

The interstate commerce element sounds like it should be contested more often than it is. In practice it is usually satisfied by showing the firearm was manufactured outside Maryland and therefore crossed a state line at some point, which is true of most firearms recovered here.

The Knowledge Element After Rehaif

The most significant change in this area came in 2019. In Rehaif v. United States, the Supreme Court held that the government must prove the defendant knew he belonged to the prohibited category, not merely that he knowingly possessed the firearm.

For a defendant with a lengthy prior record and a substantial sentence served, that knowledge is often not seriously in dispute. It matters more in the less obvious categories, and in cases where the prior conviction carried a possible sentence over a year but the sentence actually imposed was much shorter, which is a distinction people are not always aware applies to them.

Where These Cases Are Genuinely Contested

Constructive Possession

This is where the substance of most 922(g) litigation sits. Actual possession, meaning the firearm on the person, is difficult to dispute. Constructive possession is a different question, and it arises constantly: a firearm in a shared vehicle, in a residence where several people live, in a common area, or in a bag that more than one person had access to.

Constructive possession generally requires knowledge of the firearm’s presence together with the ability and intention to exercise control over it. Proximity alone is ordinarily not enough. Where the evidence places several people equally close to a firearm, what separates them becomes the question, and the answer frequently turns on details like which items were recovered alongside the weapon and whose they were.

The Search

Federal firearm cases very often begin with a traffic stop, a warrant execution, or a protective sweep. The lawfulness of the stop, the scope of any search that followed, and whether officers had the justification they needed at each step are all subject to challenge. Where a search is found unlawful, the firearm may be suppressed, and the case can change shape.

The Prior Conviction Itself

Not every prior conviction qualifies, and the categorization is more technical than it looks. Whether a particular Maryland conviction counts as a predicate can require examining the statute of conviction rather than the offense’s name. Convictions that have been pardoned, set aside, or had rights restored may be treated differently.

The Armed Career Criminal Act

Where a defendant has three prior convictions for violent felonies or serious drug offenses committed on separate occasions, the Armed Career Criminal Act can convert a 922(g) count into a charge carrying a mandatory minimum of fifteen years. Whether particular priors qualify, and whether they were committed on separate occasions, are both heavily litigated questions with substantial appellate law behind them.

Why Maryland Cases End Up Federal

Firearm possession is a state offense in Maryland as well, and many of these cases begin with Baltimore City or county police. The decision to take a case federally can follow from a joint task force investigation, the defendant’s prior record, or the circumstances of the recovery.

The practical significance is that federal sentencing operates differently from state sentencing, with the guidelines and any applicable mandatory minimums doing much of the work. We cover the wider picture on our federal gun crimes page.

Speak With a Maryland Federal Gun Charge Lawyer

Because so much of a 922(g) case rests on possession and on how the firearm was recovered, the surrounding facts do a great deal of work, and they are examined most effectively early, while the record is still being built. Contact Walsh-Little Law to request a confidential consultation with David Walsh-Little.

This article is general information only. It is not legal advice, does not recommend a course of action in any specific case, and is not a substitute for advice from a lawyer who has reviewed the facts. Federal firearm law continues to develop, particularly in relation to which prohibited categories survive constitutional challenge, and any statute or holding referred to here should be confirmed against current authority. Outcomes depend on the individual circumstances. Reading this page or contacting Walsh-Little Law does not create an attorney-client relationship. Past results do not guarantee similar outcomes. David Walsh-Little is the attorney responsible for this website’s content.