Supreme Court Defines Equitable Power of Courts in Approving Transfer of Firearms by Convicted Felons


By: Andy Treese and Charles Reed, Jr.

Law enforcement and other government agencies have been given considerable power in confiscating and otherwise prohibiting the use of property owned, used or possessed by persons suspected of criminal activity. What happens to guns owned by a person who lawfully owned them until he was convicted of a felony?  This week, the United States Supreme Court ruled unanimously that convicted felons may transfer their firearms to third parties by court order, when the court is satisfied that the transferee will not give the felon access to the firearms or allow the felon to direct or control their future use.

In Henderson v. United States, 575 U.S. ___ (2015), Henderson was charged with federal drug trafficking offenses. While his felony drug charges were pending, Henderson surrendered his firearms to the Federal Bureau of Investigation.  Henderson eventually pled guilty to the drug charges and, as a result, his firearms could not be returned to him due to his status as a convicted felon pursuant to 18 U.S.C.A. § 922(g). 18 U.S.C.A. § 922(g) provides, in relevant part, “it shall be unlawful for any person– who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year; to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.”  Henderson requested that the FBI transfer the weapons to a friend who had agreed to buy them, but the FBI denied Henderson’s request giving as a rationale that such a transfer request operated as “constructive possession” in violation of section 922(g). Henderson sought an order from the United States District Court directing the FBI to transfer the weapons, but the District Court adopted the FBI’s rationale in denying the transfer request.  On appeal, the Eleventh Circuit also affirmed the FBI’s rationale for denying Henderson’s transfer request.

Recognizing a split in circuit decisions over whether section 922(g) prohibited a court from approving a convicted felon’s transfer request, the United States Supreme Court held that “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.” Citing the legislative purpose of section 922(g), i.e., to keep firearms away from convicted felons who might use the weapons irresponsibly, the Court rejected as overbroad the Government’s attempt to restrict the lawful owner of weapons to divest ownership only through transfer to a licensed gun dealer for sale in the open market.  The Court found that section 922(g) proscribed “possession” of a firearm, but did not proscribe “owning” a firearm. Because possession is only “one of the proverbial sticks in the bundle of property rights,” the Court held that what “matters here is not whether a felon plays a role in deciding where his firearms should go next…[w]hat matters instead is whether the felon will have the ability to use or direct the use of his firearms after the transfer.” Since neither the Eleventh Circuit nor the district court assessed whether Henderson’s transfer request would allow him to retain control over his weapons, the Court remanded the case.

While Henderson involves issues related to the proper analysis of firearm transfer requests under a specific federal statutory authority, this case is a reminder of the balance between individual property rights and the limitations of government as it relates to those property rights. Law enforcement agencies should continue to treat property seized during law enforcement operations as the personal property of the arrestee until directed by a court order otherwise.