May a felon sell rather than give his guns to the government?

Posted by & filed under U.S. Supreme Court, Weapons Crimes.

 

Henderson vs. United States: May a felon sell rather than give up his guns?

By: Elizabeth B. Carpenter — Firearm Defense Attorney New Orleans

 

The Unites State Supreme Court has agreed to examine this issue during the present session in the case Henderson vs. United States.

 

 

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This case centers on Tony Henderson, a former U.S. Border Patrol agent who was charged with selling marijuana in 2006, and later convicted of a felony.

 

Federal law prohibits felons from possessing firearms, and Henderson turned 15 personal weapons over to the FBI while his case was pending.

 

Two years later, he submitted a bill of sale to the FBI, indicating that he had sold the guns to another man and asked the FBI to transfer them accordingly. The government refused, reasoning that doing so would amount to granting “constructive possession” of the guns to Henderson.

 

The questions before the court are:

 

Whether a felony conviction, which makes it unlawful for the defendant to possess a firearm, prevents a court under Rule 41(g) of the Federal Rules of Criminal Procedure* or under general equity principles from ordering that the government (1) transfer non-contraband firearms to an unrelated third party to whom the defendant has sold all his property interests; or (2) sell the firearms for the benefit of the defendant.

 

Henderson’s case was governed by precedent in the 11th U.S. Circuit Court of Appeals that says allowing a felon to transfer guns is tantamount to giving him constructive possession of the weapons in violation of the law. U.S. Courts of Appeals for the 3rd, 6th and 8th Circuits are in accord.

 

“Requiring a court to return firearms to a convicted felon would not only be in violation of a federal law, but would be contrary to the public policy behind the law,” that 11th Circuit argued.

But Henderson says the weapons had nothing to do with his crime.

 

Three other appeals courts reject that position, reasoning that the guns can be transferred because the felon has an interest in the firearms apart from a possessory interest.

By denying his sale of the guns, the government is trampling on his property rights, his lawyers argued in a petition seeking Supreme Court review of the case.

“It allows the government — based on a statutory prohibition on mere possession — to bypass formal forfeiture procedures and effectively strip gun owners of their entire ownership interest in significant, lawful household assets following a conviction for an unrelated offense,” petitioners say.

 

In this case, I agree with Henderson. If his criminal offense involved a weapon, then perhaps I would feel different – I see no reason for the government to deprive him of his right to transfer his ownership in this property. Of course, I will be following this case — I am curious to see what the Supreme’s think.

 

*Motion to Return Property. A person aggrieved by an unlawful search and seizure of property or by the deprivation of property may move for the property’s return. The motion must be filed in the district where the property was seized. The court must receive evidence on any factual issue necessary to decide the motion. If it grants the motion, the court must return the property to the movant, but may impose reasonable conditions to protect access to the property and its use in later proceedings.

 

 

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