When Tony Henderson was a U.S. Border Patrol agent, he was charged with distributing marijuana and released on bail. One of the conditions of his bail was that he surrender to the Government the collection of weapons that he lawfully owned, which he did. He was eventually convicted of the felony charge.

Because Henderson is now a convicted felon, 18 U.S.C. §922(g) makes unlawful his possession of his own firearms. So Henderson made arrangements to sell the firearms in a private sale to a friend of his. When he requested the Government to deliver his firearms to that friend, the Government refused on the grounds that §922(g) means a felon cannot designate the next recipient of his weapons. However, Henderson had some arguments in his favor. First, the collection of weapons is still legally Henderson’s property. Second, everyone agrees that the purpose of §922(g) is to prevent a felon from accessing firearms or ammunition. So, when the Government presented its side of the case, it conceded that its transferring those weapons to a licensed dealer who intended to sell them would be allowable since, in that scenario, the felon couldn’t access them.

What did the Supreme Court say?

The Supreme Court ruled unanimously that a court (such as the federal district court that heard the case) has the authority to rule that the Government turn over firearms owned by a felon to someone that felon designates. The court that so rules may require the proposed designee to promise to not let the felon have access to the guns. If the court is not reassured by the designee’s promises, the court may decline a request for a particular designee so that the felon must find another recipient.

What was the Supreme Court’s reasoning?

The Government had argued that 18 U.S.C. §922(g) takes away a felon’s capacity to specify who the recipient of his firearms would be. By their argument, specifying a recipient gives a felon too much control over his firearms. However, when the Government conceded that a felon could have his firearms transferred to a licensed dealer who intended to sell them, that weakened its case.

The Supreme Court said that when firearms in the Government’s possession are transferred to the owner’s designee, the owner is not really in possession of them because he does not know when or where the transfer will happen and is not involved in the mechanics of the transfer in any way. Such a transaction would be outside the scope of what §922(g) forbids.

In the third footnote in the opinion, the Supreme Court points out that this decision and rationale only apply to transfers of firearms in which the Government has possession of the firearms. This would not apply when the Government did not have possession of the firearms and the felon, without actually touching the guns, controlled where and when they would be transferred through a third party. (Controlling something without actually possessing it is known as “constructive possession.”)

What implications does this have?

This case has some interesting implications. First, the scope of 18 U.S.C. §922(g) is clarified: a felon no longer has the right to possess his (or her) firearms, but he still has the right to sell the firearms that he legally owns and get the proceeds.

Second, this means that when the Government has seized property that belongs to a criminal but was not involved in a crime, the convicted felon can ask for help from the courts to get the property back. In our experience, one of the difficulties involved in seized property is showing that the property was not involved in crime. Since Henderson was convicted of distributing marijuana but did not face gun charges, this aspect was fairly straightforward.

For further analysis of this case, see Richard M. Re’s article on SCOTUSBlog, “Opinion analysis: An equitable result in Henderson v. United States.”


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