Actual vs. Constructive Possession of a Firearm Pursuant to Florida Law

The Florida legislature has sought to loosen gun restrictions throughout the state. These hasty legislative actions may come with some unintended consequences.

When Ron Desantis was elected governor on a wave on MAGA enthusiasm back in 2018, he promised, among other things, to strengthen Floridian's 2nd Amendment gun rights. This culminated in 2023's permitless concealed carry law, dubbed "Constitutional Carry". Under this new law, people can now carry a concealed handgun in public without a license or permit. However, this was not the first legislative change aimed at loosening gun restrictions in Florida.

In 2018 the Supreme Court Committee on Standard Jury Instructions proposed a rule change to standard jury instruction 10.15 – FELONS CARRYING A CONCEALED WEAPON OR POSSESSING A FIREARM. In that proposed amendment, the committee suggested removing the definitions of actual and constructive possession.

Until 2018, the standard instruction given to juries in a firearm possession cases defined 'Actual Possession' to mean:

• The object is in the hand of or on the person, or

• The object is in a container in the hand of or on the person, or

• The object is so close as to be within ready reach and is under the control of the person

  
  

'Constructive Possession' was defined as the object being in a place over which (defendant) has control, or in which (defendant) has concealed it. If an object is in a place over which (defendant) does not have control, the State establishes constructive possession if it proves that (defendant):

• has knowledge that the object was within (defendant's) presence, and

• has control over the object.

The distinction between 'Actual' vs. 'Constructive' possession may seem trivial since proof of either form of possession would seemingly satisfy the statutory elements of Carrying a Firearm by a Convicted Felon. However, Florida law provides for a minimum mandatory sentence of 3 years' prison for the felon convicted of 'Actual' possession. Florida Statute Section 775.087(2)(a)(1).

Since Florida law still punishes the felon in 'Actual' possession more severely, it may seem odd that the rules committee would remove the definitions from the standard jury instruction. Unless, of course, the move was intentional. The deletion of the definitions may not have been an oversight; Rather, this move may have marked the beginning of an intentional shift in Florida’s ever-loosening gun restrictions. And this was all unanimously approved by the Florida Supreme Court.

The removal of the ‘Actual Possession’ definition was an intentional recession from the strict gun laws that our new governor at the time deemed unconstitutional. There were concerns that the pre-2018 definitions cast too wide of a net in determining which type of possessions were deemed to be ‘actual’. An unintended consequence in this shift is that fewer people convicted of firearm charges will qualify for mandatory minimum sentencing.

The 2nd District Court of Appeals in Florida recognized that in certain situations a special jury instruction may be necessary to aide the jury's determination of what possessions may be 'actual' as opposed to 'constructive'. See, Christian v. State, 313 So.3d 725 (Fla .2nd DCA 2020).

There, although the State could not present a witness who saw Christian holding the firearm, they nonetheless argued that it was 'actual' possession because the firearm was found in the defendant's home and that his DNA was found on it as well. The Trial Court found that the newly updated instruction with the deletion of the 'actual possession' definition was sufficient, and denied the defendant's request for a special jury instruction which would have attempted to define the term.

In overturning the lower court's decision, the 2nd DCA noted, "[o]n the issue of whether Christian actually possessed the firearm for purposes of determining whether the enhancement applied, the standard instruction was inadequate; the jury had no definition of actual possession under which to consider the interrogatory and allow it to make an informed decision.

"The standard instruction was inadequate; the jury had no definition of actual possession under which to consider the interrogatory and allow it to make an informed decision."

Christian, at 728