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Tony Henderson v. United States, USSC No. 13-1487, cert. granted 10/20/14

Question presented:

Does a felony conviction extinguish all of a defendant’s property interests in a firearm, such that he or she may not even arrange for the sale or other transfer of any surrendered or seized firearms to another person because doing so would constitute “constructive” possession and thus violate 18 U.S.C. § 922(g)’s ban on possession of a firearm?

Lower court opinion: United States v. Henderson, Case No. 12-14628, 2014 WL 292169 (11th Cir. 2014) (unreported)


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Because this case involves questions about the application of federal statutes and rules of procedure, the Court’s decision will be of obvious interest to federal practitioners. The case will resolve a circuit split concerning the ability of a convicted felon to dispose of any firearms he or she legally owned before being convicted which were not used in the commission of the offense and which were surrendered or seized during the pendency of the felony prosecution. The Eleventh Circuit in this case, like the Third, Sixth, and Eighth Circuits, hold that the felony conviction extinguishes all of the felon’s property interests in the firearm. Moreover, they hold that the defendant has no ability to arrange for the sale or transfer of the guns to a third-party because by doing so the defendant is “constructively” possessing the guns, and thus violating § 922(g).

But as Henderson’s petition points out (at page 4), this reasoning “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 in significant, lawful household assets following conviction for an unrelated offense.” Other circuits—including our own, United States v. Miller, 588 F.3d 418 (7th Cir. 2009)—agree, and hold that the felony conviction deprives the defendant of only one “stick” out of the “bundle” of  property rights—namely, the right to possess the gun; the defendant doesn’t lose other, residual incidents of ownership, including the right to transfer his nonpossessory (i.e., monetary) interest in the gun. Thus, these courts hold that § 922(g) doesn’t bar the defendant from arranging for the guns to be sold to some unrelated third party.

The Court’s decision in this case will probably not affect state law, with one caveat. In Wisconsin, a defendant whose firearms have been seized under a search warrant may arrange to transfer ownership to another person who may legally possess them, and that person may seek return of the property under § 968.20City of Milwaukee v. Dyson, 141 Wis. 2d 108, 413 N.W.2d 660 (Ct. App. 1987)—as long as the defendant didn’t use the firearm in the commission of a crime. If the guns were used in a crime, the defendant can’t thereafter transfer ownership to a third party, and the third party can’t invoke § 968.20, because when it comes to guns used in the commission of a crime, the statute is limited to innocent owners who owned the gun at the time of the crime. State v. Williams, 148 Wis. 2d 852, 854-58, 436 N.W.2d 924 (Ct. App. 1989) (interpreting § 968.20(1m)(b) and distinguishing Dyson “because the guns which were transferred in that case were not used in the commission of a crime.”). Williams, 148 Wis. 2d at 858, also rejected the argument that due process requires that a person convicted of a crime be able to transfer his or her property interest in a firearm used in the commission of the crime, reasoning that confiscation and forfeiture of a firearm used in a crime is a legitimate exercise of the state’s police power. If the Court finds some fundamental property right to a seized or surrendered firearm regardless of whether it was used in the commission of a crime, the reasoning in Williams will be open to question. It is unlikely the Court will go that far, however, as it appears to be undisputed that Henderson didn’t use his surrendered firearms in the commission of the felony for which he was convicted.

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