Prohibited Possessors and Host Liability
In United States v. Rahimi, the Supreme Court considered arguments from Rahimi’s counsel about the broad sweep of federal criminal prohibitions on gun possession by certain groups. For example, as I examined in an earlier post, Rahimi argued that doctrines of necessity or duress—which might allow an otherwise-prohibited person to temporarily possess a firearm in an acute self-defense scenario—are practically meaningless because courts have construed them to apply only in exceedingly narrow factual situations and required that a prohibited possessor immediately dispose of a firearm after employing it in self-defense.
Similar arguments have been raised by those challenging drug-related prohibited-person laws. Hunter Biden’s attorneys, for example, asserted that the federal ban on unlawful drug users possessing guns combined with a broad constructive possession doctrine might create a situation where “a person could run afoul of this prohibition by being able to possess a gun simply because their spouse or roommate owns a gun, or simply by visiting nearly half of the homes in America where such a gun could be obtained.” The broader point is that generally applicable legal doctrines might expand (or fail to alleviate) the scope of status-based disqualifiers.
One such doctrine is host liability, a theory normally invoked in tort law to pursue “a claim in negligence against a person (the host) who provides alcoholic beverages to another (the guest), without remuneration, where the guest then sustains injuries, or causes injury to a third person as a result of his intoxicated condition.” Does host liability have any relevance to firearms and, if so, could mere possession by a prohibited-person guest be sufficient to impose liability on a residential gunowner?
Here, I’d like to examine an older case that raises a particularly interesting fact pattern in this area: United States v. Stegmeier, where a criminal defendant raised a Second Amendment defense to his conviction under 18 U.S.C. § 922(d) for providing a firearm to someone disqualified from possessing a gun under federal law (specifically, a convicted felon and fugitive). Stegmeier was friends with Thomas Kelley, who was convicted on tax and financial charges but failed to appear for sentencing and went on the lam. Kelley asked Stegmeier for a place to stay and Stegmeier allowed Kelley to stay in his RV, which was parked outside of his home and later driven to job sites in the area. Stegmeier gave Kelley a tour of the RV and told him there was a handgun in the vehicle. When Kelley was located and arrested, Stegmeier was charged with harboring a fugitive, aiding Kelley’s failure to appear in court, and providing a firearm to a prohibited person. The jury found that Stegmeier knew of Kelley’s fugitive status, crediting testimony that Stegmeier was aware Kelley faced criminal charges, saw a posting that listed Kelley on a “most wanted” list, and discussed with Kelley that he was hiding from law enforcement. The jury convicted Stegmeier of harboring a fugitive and providing a firearm to a prohibited person.
On appeal to the Eighth Circuit in 2012, Stegmeier raised a Second Amendment defense and was supported in that effort by two gun-rights organizations as amici. The Second Amendment Foundation urged that Stegmeier had a constitutional right to keep a gun in his RV or temporary residence regardless of whether any guest to that location might be themselves prohibited from possessing the firearm. SAF’s brief asked the Eighth Circuit panel to apply strict scrutiny and argued that “the Government cannot show it has a compelling interest in proscribing a homeowner from having handguns in a home where there is a felon or fugitive as a house guest.” Another amicus, the Montana Shooting Sports Association, argued that allowing the conviction to stand would create the “absurd” situation whereby “every gun owner has a duty to inquire as to the prohibited status of everyone whom is allowed into his/her home, automobile, and/or place of business, in the fear that they might be prosecuted for constructively transferring a firearm to such a prohibited person.” And MSSA asserted that this would operate as a “prior restraint” on gun owners that would chill the exercise of a constitutional right.
The panel ultimately disposed of the Second Amendment arguments with little fanfare and upheld Stegmeier’s conviction. The panel found that:
“Host liability” is not raised by the facts of this case. Stegmeier did not violate the statute by merely inviting Kelley into his home. Rather, he gave Kelley control of the RV for approximately three months and specifically disclosed the location of the firearm. Because the facts of this case do not present the issue of host liability, this court need not entertain the constitutional implications of that argument. The conviction did not violate Stegmeier’s Second Amendment rights.
In other words, the panel determined that the amicus briefs were arguing that a different factual scenario than that actually presented in the case might violate the Second Amendment. On the unique facts in Stegmeier, however, the panel found that the “host liability” issue—whether there is a duty to confirm that anyone invited into a home with a firearm is not a prohibited possessor—was simply not implicated.
The Eighth Circuit’s decision in Stegmeier seems correct on the facts in that case. If, as the jury found, Stegmeier knew that Kelley was a convicted felon on the run from the law and nevertheless allowed him to occupy the RV for months, this appears to be a quite different situation from an unwitting homeowner who invites someone into his or her residence not knowing that the person is a felon, has just used drugs, or is otherwise disqualified from possessing a firearm. For one, knowledge of the prohibited status was a required element proven at trial in Stegmeier. Moreover, allowing someone to occupy an RV for months is far removed from inviting someone over to your home for dinner. Stegmeier is analogous to a situation where a homeowner invites a convicted felon to stay in a separate building on his or her property, tells the convicted felon where guns are located in that building, and then leaves the felon with the guns to do as they please (in other words, the constructive equivalent to providing a gun to someone the host knows is barred from possessing it). Similarly, unique issues may arise for someone who resides with a prohibited possessor on a long-term basis where the two are in an intimate relationship.
Stegmeier should not be read to endorse a broader form of “host liability” in the firearm context for normal houseguests, and efforts to suggest that the case sanctions such liability seem unduly alarmist. Such a broader approach would quickly create absurd consequences and the “duty to inquire” suggested by the MSSA brief. For example, would a Secret Service agent face liability for “keeping” a gun in the White House in the presence of a president who has been convicted of a felony offense and is thus disqualified from possessing that gun? And even where the resulting harms are more serious than mere possession—for example, when a prohibited person actually obtains a gun from the host’s residence and misuses it—only fact patterns like those in Stegmeier that suggest knowing disposal should support any type of criminal charges against the “host.”
It is not evident from the court’s recitation of the facts in Stegmeier how the firearm was stored. In such situations, it also probably makes sense to extend an affirmative defense to gunowners who secure a firearm so that a long-term house guest cannot access the gun themselves. Had Stegmeier locked the gun to make sure Kelley could not independently access it, that appears to negate the “disposal” piece of the criminal offense (Stegmeier would still be on the hook, of course, for knowingly harboring a fugitive). Using prohibited-person laws to create a prior restraint on gun owners—or the requirement to inquire of any house guest whether that person is legally able to possess guns—would be both unduly burdensome and potentially violative of Second Amendment rights. Encouraging the proper storage of firearms when an individual has reason to believe that a specific long-term guest might be prohibited under federal law from possessing guns, on the other hand, seems much more likely to be both constitutional and wise as a policy matter.