Years ago, back when I was a junior public defender in Philadelphia and believed almost everything clients told me, I interviewed a client charged with being a felon in possession of a firearm.
“I was walking down the street that day,” the client told me. “As I walked by this playground, I saw a gun in the bushes close to where some children were playing. I couldn’t let anything happen to these innocent children. So I picked up the gun, even though I know I am not allowed to possess a firearm, and I was headed to the police station to turn it in. That is when the officers arrested me.”
“Good for you,” I responded. “You did exactly what you needed to do.”
I have subsequently heard many versions of this story over the years and, although I am tad bit less gullible than I used to be, there is in fact such a defense. In D.C., it is called the “innocent possession of a firearm” defense.
As the D.C. Court of Appeals put it in Hines v. United States, 326 A.2d 247 (D.C. 1974), the defense of innocent or momentary possession requires a showing not only that there was an absence of criminal purpose but also that the possession “was excused or justified as stemming from an affirmative effort to aid and enhance social policy underlying enforcement.”
The Court of Appeals dealt most recently with this issue in Saeve Evans v. United States, 304 A.3d 211 (D.C. 2023). Building on previous caselaw dealing with this defense, the issue in this case was how long a defendant is justified in possessing a firearm after the threat that justified the possession has subsided.
The defendant in Evans was convicted of Unlawful Possession of a Firearm (Prior Felony) for returning gunfire, presumably in self-defense, after he himself was fired upon. The court instructed the jury, over defense objection, that the justification for Evans’ possession of the firearm expired the moment the need for self-defense had dissipated: “he was required to drop the firearm where he stood the instant he appreciated that the danger had passed, and was not even permitted the time necessary to relinquish the firearm in a more responsible manner (such as returning it to a lawful owner or unloading it and rendering it inoperable before disposing of it).”
Disagreeing with the trial court’s ruling, the D.C. Court of Appeals reversed the conviction: “The justification permitting possession of an otherwise unlawful in self-defense is not so illogically rigid. To interpret it that strictly would eviscerate it.”
The Court continued:
We hold that persons who procure a firearm in lawful self-defense are not criminally liable for possessing it so long as they dispossess themselves of the weapon with reasonable promptness after the need for self-defense has subsided. What amounts to reasonable promptness in the particular circumstances is often a question for the jury to decide, though it is generally limited to mere seconds or minutes after the right to self-defense has subsided, and does not extend to the hours or days thereafter.
In short, reasonably prompt, rather than instantaneous, dispossession is required.
Of note: The question addressed in Evans arose because of a jury question during their deliberations: How long after the shooting might Evans have been justified in possessing the firearm?
As a result, limiting its opinion to this specific issue, the court did not address – except in dicta – the timeframe during which Evans’ possession of the firearm in advance of the danger might also have been excused.
After all, as the government argued, it would have been implausible to believe that Evans had, by “random coincidence,” found a firearm on the ground at the precise time he needed to use it for self-defense.
The Court did note, however, “the right of self-defense does extend to some seconds or minutes before any strict necessity materializes as well. Our precedents are clear that the right of self-defense is triggered so long as a threat is ‘imminent’; it need not be present.”