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Supreme Court Says Convicted Felons Can Sell Their Guns

May 18, 2015

Supreme Court Ruling Authorizes Gun Owners To Transfer Firearms To Third Parties Following Prohibiting Convictions

A unanimous Supreme Court ruled Monday in Henderson v. United States that the government can’t prevent a convicted felon who is barred from possessing firearms from selling or transferring his guns after they are confiscated by authorities.

The justices sided with Tony Henderson, a former U.S. Border Patrol agent who was required to turn over his collection of 19 firearms to the FBI after he was arrested and charged with distributing marijuana.

After he pleaded guilty, Henderson wanted to sell the firearms (valued at more than $3,500) to a friend, or transfer them to his wife. But the lower courts found that doing so would technically give Henderson “constructive possession” of the weapons in violation of the law.

Constructive possession is a court-created legal fiction used by courts to find illegal “possession” where physical possession does not actually exist. This allows police to prosecute individuals when the inference of physical possession is strong, but there is no actual physical possession of illegal property. To find constructive possession, courts must do a fact-specific analysis and examine the totality of the circumstances to determine whether there is substantial evidence that the person has “dominion and control” over the firearm.

Up to this point, most courts to consider the issue have acknowledged that a finding of dominion and control must be based on more than speculation.

Nonetheless, the lower court in Henderson inappropriately used speculation about theoretical “risk” of future dominion and control over the firearms as the basis for finding there would be constructive possession of them. The court did not articulate how a sale of the guns to an unrelated third party would actually put Henderson in constructive possession of the firearms, and there was no evidence that Henderson actually would, or could, exert “dominion and control” over his guns once they were transferred. Instead, the court used the mere risk of Henderson gaining dominion and control after the transfer to find that the guns would be constructively possessed if transferred.

After hearing oral arguments in February, the Supreme Court had its opportunity to resolve the issue.  Specifically, the Court was tasked with deciding whether a felony conviction extinguishes all of a defendant’s property interests in a firearm, such that he or she may not even arrange for the sale or transfer of any surrendered firearms to another person because doing so would amount to constructive possession.

NRA and CRPA filed two important amicus briefs with the Supreme Court in this case.  Ultimately, the Court agreed with the positions advanced by both NRA and CRPA.

Writing for the unanimous court, Justice Elena Kagan explained that convicted felons are permitted to sell or transfer their firearms as long as they won’t retain dominion or control over the firearms after the transfer.

The Supreme Court found that the district court could have ordered the guns be turned over to a federally-licensed firearms dealer, who would sell them with proceeds going to Henderson.

Justice Kagan also explained that the lower court could allow Henderson to transfer the guns to another person who will not allow him “to exert any influence over their use.”

The Court made clear that the government’s reading of the law went too far in suggesting Henderson would illegally “possess” the firearms just by being allowed to sell them. It concluded that the mere act of transferring the firearms would not place the individual in constructive possession.

The Court’s decision clears up a circuit split on the issue of whether someone who becomes prohibited from owning firearms can transfer their firearms to a third party, rather than be forced to forfeit them.

Some jurisdictions that are hostile to Second Amendment rights had been using the lack of clarity on this issue as another gun grabbing tool.  For years, certain police agencies have forced citizens to forfeit legally owned firearms by seizing them overzealously, then making it practically impossible to get them back or even to sell them. These forced firearms forfeitures are just one example of a much larger national problem of abusive property seizures and compelled asset forfeitures by the government.

Taking home seized firearms used to be an officer’s unofficial “perk.” More recently, the raw number of firearms seized is used to secure grant money and has become the inappropriate yardstick promoted as the way to measure the success of crime control efforts. It’s a game police and politicians play. Carefully spun press releases about getting guns “off the streets,” along with photo-ops with guns being melted into rebar, are used to mislead the public into believing that lots of guns are being seized from gangs and violent criminals. But in reality, most guns are seized from harmless people who are not aware that they have become prohibited from possessing firearms by California’s complicated gun laws, or from otherwise law-abiding, clean-record gun collectors targeted with enticing “stings” to buy rare guns at cheap prices.

The United States Supreme Court has now righted at least some of these wrongs with its
unanimous decision in Henderson v. United States.

Supreme Court Ruling Authorizes Gun Owners To Transfer Firearms To Third Parties Following Prohibiting Convictions

A unanimous Supreme Court ruled Monday in Henderson v. United States that the government can’t prevent a convicted felon who is barred from possessing firearms from selling or transferring his guns after they are confiscated by authorities.

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