Today, the United States Supreme Court handed down its decision in Henderson v. U.S., No 13-1487, 575 U.S. _____ (2015), holding that while a convicted felon is prohibited from “possessing” firearms pursuant to 18 U.S.C. 922(g), nothing strips the individual of his/her property interest in the firearms and the individual retains “the right merely to sell or otherwise dispose of their firearms,” provided the felon lacks all control over the firearms.
Justice Kagan writing for the unanimous Court declared that the issue before the Court was “what §922(g) allows a court to do when a felon instead seeks the transfer of his guns to either a firearms dealer (for future sale on the open market) or some other third party.” In responding to that question, the Court held “that § 922(g) does not bar such a transfer unless it would allow the felon to later control the guns, so that he could either use them or direct their use.”
This case stemmed from a U.S. Border Patrol Agent, Tony Henderson, being charged with a felony count of distributing marijuana. After the charges were filed, in deciding the terms of bail for Mr. Henderson, the Magistrate Judge required Henderson to relinquish all of his firearms to the Federal Bureau of Investigation. Mr. Henderson would later plead guilty to the charges, which would prohibit him under § 922(g) from possessing firearms. After his release from prison, he requested that his firearms be transferred to a friend of his, who had agreed to purchase them. The FBI denied the request stating that such would constitute “constructive possession.” Mr. Henderson then petitioned the District Court to have the court direct the FBI to transfer the firearms to his friend. The District Court denied his request and the 11th Circuit Court of Appeals affirmed the decision.
In vacating the 11th Circuit’s Decision, the Court explained that
Section 922(g) proscribes possession alone, but covers possession in every form. By its terms, §922(g) does not prohibit a felon from owning firearms. Rather, it interferes with a single incident of ownership—one of the proverbial sticks in the bundle of property rights—by preventing the felon from knowingly possessing his (or an-other person’s) guns. But that stick is a thick one, encompassing what the criminal law recognizes as “actual” and“constructive” possession alike. (Emphasis in original)
While acknowledging that “§922(g) prevents a court from ordering the sale or other transfer of a felon’s guns to someone willing to give the felon access to them or to accede to the felon’s instructions about their future use,” the Court declared that nothing prohibits the individual’s “right merely to sell or otherwise dispose of that item.”
In responding to the Government’s arguments that Mr. Henderson’s request should be denied, the Court stated
Yet on the Government’s construction, §922(g) would prevent Henderson from disposing of his firearms even in ways that guarantee he never uses them again, solely because he played a part in selecting their transferee. He could not, for example, place those guns in a secure trust for distribution to his children after his death. He could not sell them to someone halfway around the world. He could not even donate them to a law enforcement agency. Results of that kind would do nothing to advance §922(g)’s purpose.
A court may also grant a felon’s request to transfer his guns to a person who expects to maintain custody of them, so long as the recipient will not allow the felon to exert any influence over their use.
In this regard, it is extremely interesting that the Court specifically acknowledged that a “secure trust,” which I refer to as a prohibited person trust, is a lawful mechanism for family heirlooms to be held for future generations, provided the prohibited person does not have access to the firearms.
In determining the proper considerations for return of the firearms, the Court directed that a court is to seek certain assurances, such as, “it may ask the proposed transferee to promise to keep the guns away from the felon, and to acknowledge that allowing him to use them would aid and abet a § 922(g) violation.” Once these assurances are met, the court is to direct return of the firearms consistent with § 922(g).
You can find a copy of the fully decision here.
If you are a prohibited person and are seeking return of your firearms to an FFL or third-party, contact us today to discuss your legal options.