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Convicted Felons Can Transfer Guns to Approved Third Parties: Henderson v. United States

| May 27, 2015 | Federal Criminal Law

When an individual is convicted of a felony, he or she loses his right to lawfully possess firearms. If an individual is convicted of a felony drug offense or other felony, he is barred by federal law from possessing guns. The recent Supreme Court case  Henderson v. United States involved the question of whether or not convicted felons are allowed to dictate where their firearms go after their conviction. Can a felon sell his or her previously seized firearms, or does the felon’s gift or sale of those firearms constitute the possession that is prohibited by federal law? The Court ruled that a convicted felon can tell federal agencies to transfer his guns to third parties unless this transfer would allow the felon to later control or direct the use of those firearms.

What Happened in Henderson?

Tony Henderson was a Border Patrol agent who was charged with distributing marijuana, a federal drug crime. A Magistrate Judge ordered that he surrender his guns to the FBI in order to be released on bail. After Henderson pleaded guilty in federal court, he asked the FBI to transfer his guns to the custody of a friend who had agreed to purchase them. The FBI initially denied the request because it believed this would amount to Henderson’s “constructive possession” of the firearms, which is prohibited by law.

What is Active vs. Constructive Possession?

Actual possession is what is commonly understood as “possession.” It is when someone has direct physical control over an object. For example, if you have something in your hand, you are said to actually possess that item.

Constructive possession, however, is more theoretical. Under the theory of constructive possession,a person may not actually be touching an item, but he or she still has the power and intent to exercise control over that specific object. For example, you may have a firearm locked away in a safe for which you have the key. Though you are not actively touching the firearm at any given time, you do have the power to exercise control over the gun via the key to the safe.

What Did the Court Say?

The Supreme Court held that federal courts generally have the ability to return a defendant’s property unless doing so would result in a violation of the law. This power is what prevents courts from returning firearms to convicted felons, because to do so would violate the federal law that prohibits felons from possessing firearms.

However, the rule preventing possession does not prevent ownership. An individual can own an item without directly or constructively possessing it.

The Government argued that allowing convicted felons to control the next party to own the guns constitutes constructive possession because the felon is thereby exerting “control” over the gun by dictating where the gun goes. The Court disagreed, saying that a felon’s right to transfer ownership is not a possessory interest (control interest), but simply the right to sell or transfer without any indicia of control. In fact, included in the Court’s holding is the prohibition of any sale where the felon will have the ability to control the firearm after the transfer.

What Now?

Ultimately, Henderson means the Court will not allow law enforcement agencies to transfer a felon’s firearms to someone who will allow the felon to ever possess or constructively possess those guns. However, in so far as the felon will not regain any possession of those firearms, the transfer will be allowed because it does not qualify as possession. This means a convicted felon can sell or transfer items to an approved third party.

If you are a convicted felon or you are facing federal charges and your firearms have been seized by federal agencies, you still have the right to transfer those items. It is crucial to have an experienced criminal attorney help you protect your rights. Contact George Hildebrant, Attorney at Law, to help you protect your Constitutional rights, including your right to personal property.