Transfer OK Only If Felon Has No Control Over Weapon
Overview: A court-ordered transfer of a felon’s lawfully owned firearms from government custody to a third party is not barred by federal law prohibiting a felon to be in possession of firearms, the U.S. Supreme Court held this week. The felon may choose the third party his weapons are transferred to, so long as the court is satisfied that the recipient will not give the felon control over the firearms such that he or she could either use or direct their use.
Training Points: This case provides guidance to law enforcement agencies about how to handle confiscated firearms. The agency should not refuse to transfer lawfully owned firearms to a third party of the felon’s choosing if the transaction was approved by the court. The court will determine whether the transfer would be likely to grant the felon access to the firearms, such that he or she may use or direct their use. Beyond that, felons are free to seek transfer of their firearms to whomever they choose, whether it is a seller of firearms or another third party who will deny the felon actual or constructive possession of the weapons.
Summary Analysis: In Henderson v. United States, the defendant was required to turn over firearms that he lawfully owned after pleading guilty to the felony offense of distributing marijuana. He then asked the FBI, which had custody of his firearms, to transfer them to a friend, which the agency refused to do. The government argued that allowing Henderson to transfer his firearms to a third party of his choosing would give him constructive possession over the weapons, which is prohibited by federal law. The Court disagreed, however, holding that federal law does not bar such a transfer unless it would allow the felon to later control the guns so that he could either use or direct their use.
The Court held that the government’s view conflates possession, which is prohibited by law, with an owner’s right to alienate his property, which is not prohibited by the law. Accepting the government’s argument would expand the scope of the law far beyond its purpose, preventing a felon from disposing of his firearms, even in ways that would guarantee he never uses them again. The Court held that reading of the law does nothing to advance the statute’s goal of keeping firearms away from felons, and that it is thus beyond the scope of the law. The law 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.
What matters, the Court decided, is not whether a felon plays a role in deciding where his firearms should go. What matters is whether the felon will have the ability to use or direct the use of his firearms after the transfer. That ability to use or direct the use of the weapons is what constitutes constructive possession, not the ability to determine which third party gains possession of the firearms.
