Court of Appeals Rejects Necessity and Innocence Defenses to Unlawful Possession of Ammunition

The Eighth Circuit Court of Appeals has handed down an interesting decision that rejects a defense of innocent possession of ammunition by a felon.  James Baker of Wichita claims that he was in possession of a speed loader with bullets because he found it on the ground outside of a party and was in the process of turning it in.  Here is the description of the case and claim from the opinion: 

At approximately 4:00 a.m. on November 1, 2005, James Baker was sitting in a car in a parking lot outside his stepdaughters’ apartment complex.  Officer Richard Bachman of the Wichita, Kansas Police Department was patrolling the area and thought that the vehicle, which was parked with its lights on, looked suspicious.  He turned his patrol car’s lights on the vehicle.  As he did so, Mr. Baker got out of the car and approached the patrol car.  Officer Bachman instructed Mr. Baker to stop moving and asked Mr. Baker for identification, which he provided.  The dispatcher ran a routine records check on the vehicle, which revealed that the tag had been reported as lost or stolen.  Based on this information, Officer Bachman detained Mr. Baker.  The dispatcher then reported that a records check on Mr. Baker revealed the existence of two active city bench warrants for his arrest.  Officer Bachman therefore arrested Mr. Baker.  During a search incident to the arrest, Officer Bachman found a speed loader with six rounds of live ammunition in Mr. Baker’s pocket.  It was later discovered that the ammunition had been stolen earlier that night during a burglary of Doc’s Steakhouse in Wichita.  Mr. Baker was charged in a two-count indictment with being a felon in possession of ammunition, in violation of 18 U.S.C. § 922(g)(1), and with possession of stolen ammunition, in violation of 18 U.S.C. § 922(j).  He pleaded not guilty, and the case went to trial.  During the trial, Mr. Baker testified that he saw the ammunition on the ground after leaving a Halloween party at an apartment complex.  According to Mr. Baker, he picked up the ammunition so that he could turn it into the police; he did not want to leave it on the ground because he was worried that a child might find it.  Before Mr. Baker drove to the police station, however, he and two other individuals drove to another apartment complex.  He testified that he was sitting in the car in the complex’s parking lot when he saw Officer Bachman in the patrol car.  Mr. Baker figured he could hand the bullets over to Officer Bachman rather than go to the police station, so he got out of the car and approached Officer Bachman, who had exited the patrol car. Officer Bachman immediately started questioning Mr. Baker about the reason he was in the parking lot, and before Mr. Baker could give him the bullets, Officer Bachman placed him under arrest and discovered the bullets.  Mr. Baker also testified that he only had the ammunition for about ten minutes before he was arrested.

Notably, the Court does not question the account, but looks at the question of whether (even if true) such a thing could be a defense to the crime and require a jury instruction. The Court ruled that it did not. It held that the crime was knowing not willful possession. It further rejected the use of a necessity defense: that a violation of the law was unavoidable to protect the public. Necessity defenses remain controversial in criminal law, though they are more common in tort.For a copy of the opinion, click here