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SCOTUS: Firearm owner convicted of felony may transfer firearms without violating ban on possession

Henderson v. United States, USSC No. 13-1487, 2015 WL 2340840 (May 18, 2015), reversing  United States v. Henderson, Case No. 12-14628, 2014 WL 292169 (11th Cir. 2014) (unreported); Scotusblog page (includes links to briefs and commentary)

The Supreme Court unanimously holds that a defendant convicted of a felony retains “a naked right of alienation” in any firearms he or she owns and therefore may arrange for a court-supervised sale or transfer the guns without violating 18 U.S.C. § 922(g)’s ban on possession of a firearm.

Henderson was charged with a felony offense and, as a condition of bail, surrendered his firearms to the FBI. After conviction, he asked the FBI to transfer the guns to a friend who had agreed to buy them; when the FBI refused, Henderson asked the district court to transfer the guns, but the court also denied the request because Henderson’s transfer of the guns or receipt of proceeds from their sale would violate § 922(g), which covers actual and “constructive” possession, with the latter denominating the power and intent to exercise control over the object. (Slip op. at 1-2). The Government defended the denial of Henderson’s request on the same “constructive” possession ground, but also argued a defendant could avoid violating the statute by asking a court to transfer possession of the firearms to a selected licensed dealer or other approved party who would then sell them for the defendant on the open market. (Slip op. at 3-5).

The Court agrees a felony conviction deprives the defendant of one important “stick” out of the “bundle” of  property rights—namely, the right to possess the gun, whether directly or “constructively,” through another person. But it holds that conviction doesn’t deprive him of another residual incident of ownership—namely, the “naked right of alienation—the capacity to sell or transfer his guns, unaccompanied by any control over them.” (Slip op. at 6). The Government’s argument “wrongly conflates the right to possess a gun with another incident of ownership, which § 922(g) does not affect: the right merely to sell or otherwise dispose of that item.” (Slip op. at 5). The Government’s argument is also at odds with its concession that a felon may select a firearms dealer or other third party to sell his guns and give him the proceeds, for its assertion that the defendant “constructively” possesses the gun is based on the defendant’s selection of the person who next has access to the firearm. Thus, the Court says:

What matters here is not whether a felon plays a role in deciding where his firearms should go next: That test would logically prohibit a transfer even when the chosen recipient will later sell the guns to someone else. What matters instead is whether the felon will have the ability to use or direct the use of his firearms after the transfer. That is what gives the felon constructive possession. (Slip op. at 7).

Accordingly, a court facing a motion like Henderson’s may approve the transfer of guns consistently with § 922(g) if, but only if, that disposition prevents the felon from later exercising control over those weapons, so that he could either use them or tell someone else how to do so. One way to ensure that result, as the Government notes, is to order that the guns be turned over to a firearms dealer, himself independent of the felon’s control, for subsequent sale on the open market. See, e.g., United States v. Zaleski, 686 F.3d 90, 92–94 (C.A.2 2012). Indeed, we can see no reason, absent exceptional circumstances, to disapprove a felon’s motion for such a sale, whether or not he has picked the vendor. That option, however, is not the only one available under § 922(g). 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 considering such a motion, the court may properly seek certain assurances: for example, 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. See id.at 94; United States v. Miller, 588 F.3d 418, 420 (C.A.7 2009). Even such a pledge, of course, might fail to provide an adequate safeguard, and a court should then disapprove the transfer. See, e.g., State v. Fadness, 363 Mont. 322, 341–342, 268 P.3d 17, 30 (2012)(upholding a trial court’s finding that the assurances given by a felon’s parents were not credible). But when a court is satisfied that a felon will not retain control over his guns, §922(g) does not apply, and the court has equitable power to accommodate the felon’s request.

This decision resolves a split between the federal circuit courts of appeal. In Miller our circuit took the approach adopted by the Court.

As for Wisconsin law, our post on the cert grant notes that whether a convicted defendant may dispose of firearms to or through a third party depends on whether the firearms were used in the commission of a crime, and that State v. Williams, 148 Wis. 2d 852, 436 N.W.2d 924 (Ct. App. 1989), had rejected a defendant’s claim that he had due process right to transfer his property interest in a seized firearm used in the commission of a crime. While the Court refers to the defendant’s retention of his or her “naked right of alienation,” that may not be enough to undo the holding of Williams, for two reasons. First, the Court doesn’t describe the right to alienation as fundamental or otherwise protected by the due process clause. Moreover, Henderson’s request was addressed to the equitable powers of the trial court, and the Court notes that an equitable claim may be denied if the defendant has “unclean hands”—e.g., if he used the firearms in furtherance of a crime (slip op. at 2 n.1). That logic seems consonant with Williams‘s reasoning that confiscation and forfeiture of a firearm used in a crime is a legitimate exercise of the state’s police power.

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