It is a story I have heard many times, or at least some version of it: The defendant is walking through a playground when he notices a firearm lying by the jungle gym. The defendant picks up the weapon to prevent it from falling into the wrong hands. He is headed to the police station to turn it over when he is stopped by the police.
The innocent or momentary possession of a firearm is a valid defense in Washington, D.C. However, even assuming you can overcome credibility problems with the judge or jury, it is by law a narrowly circumscribed defense. In fact, the D.C. Court of Appeals cases that deal with the defense are notable for all finding that the defendant failed to bring himself within the statutory exception.
Hines v. United States, 326 A.2d 247, sets out the current standard: In order to assert the defense of innocent or momentary possession, the defendant must show “not only an absence of criminal purpose but also that his possession was excused or justified as stemming from an affirmative effort to aid and enhance social policy underlying enforcement. This requirement is entirely consistent with the well-established principle that the showing of a legally valid excuse or justification will negate liability for doing of an act normally held criminal.”
The defendant in Hines testified that he had found a pistol in an alley near his apartment building and took it inside to show his girlfriend: “Well, I had to take it to somebody. You don’t find things like that and not show it.” His girlfriend panicked when she saw the gun and tried to grab it, causing the weapon to fire twice. Both the defendant and his girlfriend were injured, and the defendant tried to hide the gun on his person when a security guard responded to the shots. In holding that the defendant had not met his burden, the court noted that the defendant’s actions of showing the firearm to his girlfriend did not serve any valid law enforcement purpose.
In Logan v. United States, 402 A.2d 822 (1979), the defendant claimed that he took a firearm and some drugs from his cousin because he was afraid his cousin would “do something to somebody, or whatever.” He said that he planned to store the gun at his home until the cousin was “in a better frame of mind.” He also testified that he planned to throw the drugs away. He was walking to his girlfriend’s house when police officers saw the gun sticking out from his waistband and arrested him, recovering both the firearm and the drugs.
The court held that “[a]lthough we can conceive of very limited circumstances in which a defendant properly might invoke the defense of innocent possession…, this is not one of them.” The emergency created by his cousin’s possession of the gun vanished the moment the defendant left the house. There was a “rigid limit” on the time the defendant had to turn the gun over to police, and as the defendant himself testified that he was planning to store the gun at his home, his request for a jury instruction on innocent possession was properly denied.
In Mitchell v. United States, 302 A.2d 216 (1973), the defendant claimed that he had found a pistol on the ground and put it in his waistband to prevent it from being used by others, with the intent of turning it over to the police at the first opportunity. Significant to the court’s decision against the defendant in this case was the fact that the defendant was approaching a hostile group of people at the time of his arrest.
In Bieder v. United States, 707 A.2d 781 (1998), the defendant turned over a loaded gun to security guards at the U.S. Capitol. Licensed to carry the firearm in New York, the defendant was sight-seeing with his daughter in D.C. and did not want to leave his firearm in an attended vehicle. Because the defendant put the weapon into a plastic bag and handed it to the security guard for safekeeping before attempting to enter the building, the court suggested it might have ruled in his favor had he not first loaded the weapon:
To carry a loaded pistol in this manner cannot be conceived of as aiding or enhancing the social policy underlying law enforcement. To the contrary, once [the defendant] struck out on the public way, there was a new peril, that presented by [the defendant] to the community at large, resulting from the presence of a fully loaded, loosely concealed pistol on the grounds of the Capitol. Our firearms statutes cannot be construed to excuse this sort of behavior. (Citations and internal quotation marks omitted.)
Finally, in Carey v. United States, 377 A.2d 40 (1977), the court ruled against a defendant who had recovered a firearm from an aborted burglary of his apartment. Significant to the court’s holding in this case was the fact that the defendant discussed the possibility with his friends of keeping the weapon and then “retained it for more than twelve hours, and then carried it, still loaded, on the street.”
So what about our guy who found the firearm by the jungle gym at the playground and who was heading down to the police station to turn it over when he was arrested? Considering that his possession was momentary and his intentions were pure, he probably could satisfy the Hines standard. His problem would be in getting a judge or jury to believe him.