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VOLUME 7 - CHAPTER 106
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106.4 Weapons Or Firearms Possession: Defenses And Defense Theories

    106.4.3 Possession Of Weapons: Lack Of Knowledge As Defense Theory

    106.4.3.1 Possession Of Weapons: Intoxication Or Mental Impairment May Negate Knowledge
    106.4.3.2 Possession Of Weapons: Lack Of Knowledge Of Character Of The Weapon As Defense Theory
    106.4.3.3 Possession Of Assault Weapons: Knowledge Requirement
    106.4.3.4 Dirk Or Dagger: Lack Of Knowledge That The Instrument Was A Dirk Or Dagger As Defense Theory [Reserved]
    106.4.3.5 Lack Of Knowledge That Numbers Were Altered As Defense Theory To Transportation of Firearms with Altered Serial Numbers
    106.4.3.6 Illegal Possession Of Specified Deadly Weapons: Lack Of Knowledge As Affirmative Defense
    106.4.3.7 Mistake Of Fact As Defense To Possession Of Loaded Weapon

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PRACTICE NOTE: A necessary element of many weapon possession crimes is "knowledge of the presence of the weapon." (See e.g., People v. Corkrean (CA 1984) 152 CA3d 35, 41 [199 CR 375].) Hence, it may be argued that this element can be negated by intoxication. (See State v. Galvin (VT 1986) 514 A2d 705, 707 [intoxication defense available to negate knowledge element in charge of assault on a police officer]; but see Shell v. State (MD 1986) 512 A2d 358, 370 [intoxication may not negate knowledge element of transporting weapons because the crime requires general intent only]; State v. Campos (NM 1996) 921 P2d 1266, 1278 [specific/general intent distinction precluded consideration of intoxication regarding knowledge element of second degree murder].)

    See also FORECITE National™ 107.3.1 [Possession Of Weapon By Exfelons: Lack Of Knowledge Or Intent Requirement As Defense Theory]; see also FORECITE National™ 256.6.1.15 [Intoxication Or Mental Impairment: Negation Of Knowledge Element]

See generally, FORECITE National™ 305.23.1 [Weapons Offenses].

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RATIONALE: When a statute punishes the possession of a special type of weapon it would unfair to convict a defendant who was unaware of the special nature of the weapon. Hence, when appropriate the jury should be required to decide whether the defendant knew that the weapon possessed had the special characteristics which the statute proscribes.

POINTS AND AUTHORITIES: The cases have consistently disapproved imposition of criminal liability based upon a "strict liability" interpretation of a statute in situations where the defendant is unaware of all the facts which bring the act committed within the criminal statute. (See FORECITE National™ 54.3 [Attempt To Commit A Strict Liability Offense Requires Intent To Bring About The Prescribed Result]; see also Lambert v. California (1957) 355 US 225 [78 SCt 240; 2 LEd2d 228]; U.S. v. Nguyen (9th Cir. 1995) 73 F3d 887, 890 ["... a person is not criminally responsible unless 'an evil-meaning mind' accompanies' an evil-doing hand' [Citation]"]; People v. Simon (CA 1995) 9 C4th 493, 519-22 [37 CR2d 278].)

    In the specific context of weapon possession offenses, this principle has been interpreted to require that the defendant have knowledge of the characteristics of the weapon that bring it within the statutory proscription. (See Bryan v. United States (1998) 524 US 184, 199 [118 SCt 1939; 141 LEd2d 197] [possession of unregistered machine guns statute requires proof that the defendant knew the weapon he possessed had the characteristics that brought it within the statutory definition of a machine gun]; Staples v. United States (1994) 511 US 600, 602 [114 SCt 1793; 128 LEd2d 608] [federal statute making it unlawful to possess an unregistered machine gun properly construed as requiring proof that defendant knew the characteristics of the firearm that he possessed met the statutory definition]; U.S. v. Tomlinson (4th Cir. 1995) 67 F3d 508, 513 [explicitly instruct juries, when appropriate, that the government must prove that a defendant knew of the particular features of a weapon that rendered its possession illegal]; People v. Daniels (CA 1953) 118 CA2d 340, 345 [257 P2d 1038] Shinn, J., concurring ["... I am convinced that complete lack of knowledge of the nature of an article, even a machine gun, possession of which is forbidden, would be a good defense"]; but see State v. Pelleteri (NJ 1996) 683 A2d 555, 557 [legislature intended to proscribe knowing possession, as distinguished from knowledge of the illegal character of the article possessed]; People v. Rubalcava (CA 2000) 23 C4th 322 [96 CR2d 735] [knowledge not required as to dirk or dagger].) 

    In other words, lack of knowledge of the character of the weapon (e.g., that the bullets contained explosives) is equivalent to a mistake of fact which negates the requisite knowledge necessary for criminal intent. (See e.g., People v. Hernandez (CA 1964) 61 C2d 529, 535 [39 CR 361] [lack of knowledge as to the age of the victim in a statutory rape charge]; see also FORECITE National™ 252.8.2.3 [Unreasonable Mistake May Negate Criminal Intent Or Mental State]; see also FORECITE National™ 252.8.1.5 [Mistake Of Fact: Negation Of Knowledge Element].)

    Nor is there a public policy precluding such a defense. (Compare People v. Olsen (CA 1984) 36 C3d 638, 642-49 [205 CR 492] [lewd conduct with child under 14]; People v. Williams (CA 1991) 233 CA3d 407, 410-12 [284 CR 454] [sale of narcotics to minor].)

    Accordingly, a statute which applies to specific types of weapons should include a requirement that the defendant be aware of the characteristics of the instrument or weapon that bring it within the statutory proscription.

    See FORECITE National™ 256.6.1.15 [Intoxication Or Mental Impairment: Negation Of Knowledge Element].

    See FORECITE National™ 106.4.3.3 [Possession Of Assault Weapons: Knowledge Requirement].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

See generally, FORECITE National™ 305.23.1 [Weapons Offenses].

RELATED FEDERAL MODEL INSTRUCTIONS:

See generally FORECITE National™ 106.1.2 [Possession Or Transportation Of Weapons: Federal Circuit Model Instructions And Notes].

SAMPLE INSTRUCTION # 1:

*Add to standard instruction as element of the weapon charge:

    The defendant knew that the instrument possessed was a ____________ (insert type of weapon, e.g., undetectable firearm, bullet containing an explosive, blackjack).

[Source: FORECITE National™.]

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PRACTICE NOTE: When a statute proscribes possession of an "assault weapon," it may be argued that the defendant must know the weapon he possessed had the characteristics that brought it within the statutory definition of an assault weapon.

   See also FORECITE National™ 106.4.3.2 [Possession Of Weapons: Lack Of Knowledge Of Character Of The Weapon As Defense Theory].

    See also FORECITE National™ 256.6.1.15 [Intoxication Or Mental Impairment: Negation Of Knowledge Element].

See generally, FORECITE National™ 305.23.1 [Weapons Offenses].

RELATED FEDERAL MODEL INSTRUCTIONS:

See generally FORECITE National™ 106.1.2 [Possession Or Transportation Of Weapons: Federal Circuit Model Instructions And Notes].

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VOLUME 7 - CHAPTER 106

    106.4.3.4    Dirk Or Dagger: Lack Of Knowledge That The Instrument Was A Dirk Or Dagger As Defense Theory [Reserved]

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VOLUME 7 - CHAPTER 106

    See FORECITE National™ 106.2.4 [Knowing Transportation of Firearms with Altered Serial Numbers (19 USC 922(k))].

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    See FORECITE National™ 106.4.3.2 [Possession Of Weapons: Lack Of Knowledge Of Character Of The Weapon As Defense Theory].

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PRACTICE NOTE: See State v. Anderson (WA 1989) 773 P2d 882 [mistake as to whether weapon is loaded].

    See also FORECITE National™ 252.8 [Mistake Of Fact].

See generally, FORECITE National™ 305.23.1 [Weapons Offenses].