Direct Physical Control as Sufficient for Actual Possession: Clarifying the Standard in 18 U.S.C. § 922(g)(1) Offenses

Introduction

The case of United States v. Thompson reached the Tenth Circuit on appeal from the District of Utah after Brandon Keith Thompson, a convicted felon, was found in possession of a law enforcement officer’s firearm during a roadside struggle. The incident began at an AT&T store in Sandy, Utah, where employees suspected Mr. Thompson of tampering with merchandise. When confronted and later pursued by police, Mr. Thompson grabbed Officer Johnson’s holstered weapon, discharged it accidentally, and was subdued. Convicted under 18 U.S.C. § 922(g)(1) for felon-in-possession of a firearm, he challenged (1) the jury instruction on actual possession, (2) omission of his defensive theory in the charge, (3) sufficiency of evidence for knowing possession, and (4) the constitutionality of § 922(g)(1) under the Commerce Clause.

Summary of the Judgment

The Tenth Circuit affirmed the conviction in all respects.

The court held that “actual possession” under § 922(g)(1) requires only direct physical control, not exclusivity or the power to exclude others.
The trial court did not err by denying instructions on exclusive actual possession or on “momentary” or “attempted” possession; the charge as given adequately stated the law and conveyed the defense theory.
Viewing the evidence in the government’s favor, a rational jury could find that Thompson knowingly and physically controlled the firearm long enough to discharge it.
The constitutionality of § 922(g)(1) under Congress’s Commerce Clause power remains settled and was reaffirmed.

Analysis

Precedents Cited

Henderson v. United States (575 U.S. 622, 2015): Defined “actual possession” as direct physical control and distinguished it from constructive possession (power and intent to control without physical custody).
United States v. Johnson (46 F.4th 1183, 2022): Explained that exclusivity can inform constructive possession and noted that brief control suffices for actual possession, but did not import exclusivity into actual possession’s definition.
United States v. Samora (954 F.3d 1286, 2020): Discussed inference of knowing possession from dominion and control in the constructive-possession context.
United States v. Coleman (9 F.3d 1480, 1993): In a § 924(c) “use” context, held that wrestling for a gun constituted sufficient control to “use” it—even a brief struggle.
Scarborough v. United States (431 U.S. 563, 1977) and United States v. Urbano (563 F.3d 1150, 10th Cir. 2009): Upheld § 922(g)(1) as a valid exercise of the Commerce Clause power.

Legal Reasoning

The panel began by distinguishing actual possession (“direct physical control”) from constructive possession (“power and intent” without custody). Citing Henderson, the court emphasized that exclusivity is relevant when the item is hidden among co‐occupants (constructive), but not when a defendant physically seizes an object. The Tenth Circuit concluded that requiring exclusivity for actual possession would contradict Supreme Court and Tenth Circuit precedent, which unequivocally hold that even one or two seconds of direct control suffice.

On jury instructions, the court found no abuse of discretion. Thompson’s proposed “exclusive dominion” instruction was unnecessary and could mislead the jury into conflating actual and constructive possession. Likewise, the district court’s charge implicitly covered “attempted” control by requiring “direct physical control” and noting that even fleeting control meets the standard.

Regarding sufficiency, the panel applied the familiar standard of reviewing evidence in the light most favorable to the government. Video footage and eyewitness testimony confirmed that Thompson grasped and pulled on the officer’s gun, unlocking its holster and pulling the dual-stage trigger. Given the stipulation that Thompson knew he held a firearm and knew its operation, the proof easily met the knowing-possession element.

Finally, the court reaffirmed that § 922(g)(1) regulates conduct that in the aggregate substantially affects interstate commerce—an indisputable point under longstanding Commerce Clause jurisprudence.

Impact

This decision clarifies that in the Tenth Circuit:

“Actual possession” under § 922(g)(1) hinges solely on direct physical control; defendants need not exclude others.
Trial courts may refuse instructions imported from constructive-possession doctrine if they muddy rather than clarify the law.
Prosecutors can rely on brief but forceful seizures of firearms to establish knowing possession.
§ 922(g)(1)’s constitutionality is firmly settled, limiting future attacks on the statute’s scope under the Commerce Clause.

Complex Concepts Simplified

Actual vs. Constructive Possession:
- Actual: You hold it in your hand or control it physically.
- Constructive: The object is hidden where you live or work, and you could access it.
Exclusive Control: In constructive-possession cases, the jury can infer control if only one person has access. Not required for actual possession, where you simply must grab or hold the item.
Commerce Clause: Congress can regulate guns because buying, selling, or moving firearms across state lines is part of interstate commerce.

Conclusion

United States v. Thompson solidifies the principle that “actual possession” under 18 U.S.C. § 922(g)(1) requires nothing more than direct physical control over a firearm, even if only momentary. The ruling guides trial courts on proper jury instructions, underscores the sufficiency of brief yet intentional seizures, and reiterates the unquestioned constitutionality of federal felon-in-possession laws. Going forward, this decision will streamline prosecutions and defense strategies by narrowing disputes about possession doctrines to the core question: did the defendant truly grip and control the weapon?