Don't let felons distribute firearms

Henderson v. United States, 13-1487

FACTS

In 2006, Tony Henderson, a former U.S. Border Patrol agent, was charged with distributing marijuana, a felony, and later convicted. Shortly after his arrest, Henderson voluntarily surrendered 19 personal weapons to the FBI while his case was pending. Federal law prohibits convicted felons from possessing firearms. Though Henderson's conditions of bond required him to surrender law enforcement firearms and credentials, Henderson maintained that he surrendered the personal fi rearms for safekeeping.

Although the FBI refused to return the firearms after Henderson proposed to transfer them to a purported buyer in 2009, he submitted a bill of sale to the FBI, indicating that he had sold the guns to another man and asked the FBI to transfer them accordingly. The government refused, reasoning that doing so would amount to granting "constructive possession" of the guns to Henderson.

The district court and the 11th U.S. Circuit Court of Appeals have both denied Henderson's request for relief.

QUESTION

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?

Should a felon, once convicted, be able to determine who gets his or her guns? We know that as a matter of public safety the answer to that question is no. Congress banned felons from "possess[ing] ... any firearm" in 18 U.S.C. Section 922(g) because such persons "have demonstrated that 'they may not be trusted to possess a firearm without becoming a threat to society.'" Scarborough v. United States, 431 U.S. 563, 572 (1977).

The danger of a felon possessing a firearm extends beyond personal use of the firearm. A Bureau of Alcohol, Tobacco, Firearms and Explosives study from 2000 concluded that "convicted felons are heavily involved in firearms trafficking." The ATF study found that felons were involved in 45 percent of firearm trafficking investigations and comprised 25 percent of all firearms traffickers, and more than half of the investigations involved firearms used in crimes.

Similarly, in "Shady Dealings: Illegal Gun Trafficking From Licensed Gun Dealers," the Brady Center to Prevent Gun Violence documented numerous instances where this danger materialized, including many where felons trafficked firearms through straw purchasers to hide the felons' own roles in the transactions. One convicted felon managed to traffic over 250 handguns in Buffalo, N.Y. More than 80 of these handguns have been linked to crimes in Buffalo, including homicides, attempted homicides and robberies. Allowing convicted felons to decide who receives their guns presents the real danger they will transfer those firearms to individuals who will use the guns in violent crimes.

On Tuesday, the Supreme Court will hear oral argument in Henderson v. United States and determine whether federal law will be interpreted consistently with these important public safety concerns. The FBI refused Tony Henderson's request to arrange for a transfer of the firearms he voluntarily surrendered following his arrest for distributing marijuana. The 11th U.S. Circuit Court of Appeals agreed with the district court that this would amount to "constructive possession," which Section 922(g) prohibits.

The case turns on what "possess[ion]" means. Congress' prohibition on "possession" in other criminal statutes - for example, possession of drugs or of prohibited firearms like machineguns - provides useful guidance. Before the statute banning a felon's possession of firearms was enacted in 1968, courts had long understood criminal "possession" statutes to encompass actual and constructive possession, with constructive possession being defined as "dominion and control without physical custody." E.g., United States v. Hernandez, 290 F.2d 86, 90 (2d Cir. 1961).

Courts, moreover, had determined that the ability to control the transfer of property by "set[ting] the price for [the property], ha[ving] the final say as to means of transfer, or [being] able to assure delivery" constituted constructive possession. United States v. Wilkes, 451 F.2d 938, 940-41 (2d Cir. 1971). Cellino v. United States, 276 F.2d 941 (9th Cir. 1960), exemplifies this understanding of criminal possession. There, the 9th U.S. Circuit Court of Appeals upheld a jury verdict that the defendant had "possession" of narcotics where he arranged for a third party to sell heroin to an undercover agent, despite the fact that there was no evidence the defendant ever had actual possession of the heroin.

This interpretation of criminal possession makes good sense: It prohibits individuals from trafficking items they cannot lawfully possess, even if they devise a method by which they never have physical custody. Congress presumably intended this same settled understanding of criminal possession to apply to Section 922(g). Accordingly, the best interpretation of Section 922(g) is that it prohibits Henderson from controlling the transfer of his firearms, even if he never has physical possession of the firearms.

On the facts of his case, Henderson contends that he would not constructively possess the firearms because he merely nominated particular persons to receive his firearms; the government in the first instance, and later a court, had discretion whether to act on that request. According to Henderson, the government and courts must exercise their discretion to allow such transactions unless the government can prove the felon would continue to control the guns after the transfer.

This turns Section 922(g) on its head. Section 922(g) prohibits any act of possessing a firearm by a felon, including controlling the disposition of that firearm by selecting the recipient and terms of disposition. Section 922(g) does not allow such acts of possession to occur by default unless the government can prove such a transaction is dangerous. Nor would such a system be wise public policy. Felons often traffic firearms through seemingly innocent straw purchasers. A felon in Pennsylvania, for example, used a straw buyer to purchase six firearms and then used one of those guns to shoot and kill a police officer. Accordingly, in many cases, it may be difficult to prove the danger inherent in a felon's proposed disposition of his firearms.

Finally, it is important to understand the issues that are not presented in Henderson. Despite the protestations of some, including Henderson, this is not a case about de facto "seizure" or "forfeiture" in violation of the due process clause or the takings clause. Because the government did not seek criminal forfeiture of the firearms, Henderson is still the owner of the firearms. Thus, as the solicitor general has argued in his brief, the petitioner may still obtain the proceeds of a consignment sale of his firearms. What Henderson (or any other felon) cannot do, however, is determine who will get those weapons or on what terms. That result is compelled by federal law - and important to protect public safety.