Aug. 2, 2023 – A felon who found himself mistakenly in possession of a firearm was not entitled to present an innocent possession defense because he didn’t immediately seek to return the firearm to the police, the U.S. Court of Appeals for the Seventh Circuit has ruled in U.S. v. Sorensen, No. 22-1801 (July 11, 2023).
When Steven Sorensen couldn’t start his car on March 5, 2021, he went to the apartment of a friend who repairs cars. Sorensen’s friend didn’t answer the door.
Sorensen encountered another one of his friends, Jake Berg, in the parking lot of the apartment building. Berg told Sorensen to get in a Subaru that was located nearby and follow him back to his house.
Sorensen drove the Subaru and followed Berg but soon lost him. Sorensen pulled over and went to sleep in the Subaru until the next day.
On March 6, Sorensen called Brandolyn Charles, the mother of his child, and invited her to lunch.
After lunch at a restaurant, Sorensen spotted a pistol in the interior of the driver’s side door of the Subaru. The sight worried Sorensen because he was a convicted felon and it was illegal for him to possess a gun.
Sorensen drove three-quarters of a mile from the restaurant to the parking lot of a Kohl’s store. Across the parking lot was a Goodwill store, where Sorensen knew a community center was located inside.
Sorensen thought there was a drop box in the community center where people could drop off illegal items. Sorensen went to the Goodwill store but the doors to the community center were closed.
Sorensen waited to see if someone would come out through the community center doors. Sorensen eventually tried to go into one of the center’s rooms but there was a meeting going on inside, so he exited.
Meanwhile, the police were looking for the Subaru.
The Subaru’s owner had called the police and reported the car stolen. He also told the police that a .38-caliber revolver and several rounds of ammunition were inside the compartment on the driver’s side door of the car.
Police officers found the Subaru in the parking lot by the Goodwill store; they also found Charles and arrested her. When Sorensen overheard Charles talking to the police officers, he flew into a panic.
Sorensen tried one of the doors to the community center again, with no luck. He slipped the gun onto the back of a shelf inside the Goodwill store, hoping that an employee would find the gun and take it to the community center.
Police officers arrested Sorensen after a Goodwill employee told them that a man, later determined to be Sorensen, was hiding in closet and ran out of the store upon being discovered. The police officers found the keys to the Subaru on Sorensen when they arrested him.
Indictment, Followed by Appeal
A grand jury indicted Sorensen on one count of possession of a firearm as a felon, in violation of 18 U.S.C. section 922(g)(1).
Sorensen filed a motion in limine to present a defense of innocent possession at trial. The U.S. District Court for the Western District of Wisconsin denied the motion.
Sorensen then pled guilty, on the condition that he reserved the right to appeal the denial of his motion in limine.
Justification Required for Defense
On appeal, Sorensen argued that the U.S. Court of Appeals for the Seventh Circuit should recognize an innocent possession defense to section 922(g)(1).
Writing for a three-judge panel, Judge Kenneth Ripple explained that the Seventh Circuit has recognized such a defense only in cases where the defendant establishes a justification defense – necessity or duress, for example.
Ripple also noted that the Seventh Circuit has, in dicta, said that if it were to recognize the type of innocent possession defense advocated by Sorensen, the defense would have the requirements established by the U.S. Court of Appeals for the District of Columbia: 1) the defendant innocently attained the firearm and possessed it without an illicit purpose; and 2) the defendant’s possession was transitory.
Consequently, Judge Ripple pointed out, the Seventh Circuit has held that a jury instruction on innocent possession is not warranted in a section 922(g)(1) case unless the defendant immediately tries to turn the gun over to the police.
Sorensen argued that the Seventh Circuit should modify the two-prong test employed by the D.C. Circuit and not require a defendant to immediately try to turn the firearm over to the police.
It’s dangerous for felons to approach a police officer to turn over a gun, Sorensen argued, so requiring defendants to do so immediately provides a disincentive to felons to turn in illegally possessed firearms.
Sorensen argued that to meet the second “transitory” prong of the D.C. Circuit’s test, it should be enough for a defendant to deliver or attempt to deliver the gun to someone he or she reasonably believed would be able to safely turn the gun over to the police.
Expanded Defense No Help
But Judge Ripple reasoned that the broader innocent possession defense advocated by Sorensen wouldn’t help him, even were the Seventh Circuit to adopt it, because nothing in the record showed that Sorensen took reasonable steps to turn the pistol over to the police, either directly or through a third party.
“Ultimately, he removed a loaded firearm from the door compartment of a car and left it on a bottom shelf in a Goodwill store that was full of people, including children,” Ripple wrote.
“He then hid from police officers in a maintenance closet and only revealed the location of the firearm to law enforcement after he was arrested. Furthermore, although Mr. Sorenson states that he believed that there was a drop box for contraband in the community center, there is no evidence that such a drop box existed.”