Significant Property Rights Case Awaits Supreme Court Decision
When defendants are arrested for felonies, it has become a standard condition of bond in many courts that they cannot possess firearms while on bail. But what happens to those firearms after conviction has become a heated issue of litigation that will be decided by the Supreme Court.


The case of Tony Henderson has been flying under the radar despite raising a significant gun rights issue. The former U.S. Border Patrol agent was arrested in 2006 and charged with marijuana distribution. The Government requested, and a U.S. Magistrate agreed, that Henderson surrender his gun collection to the Government as a condition of bond release. Henderson turned over a total of eighteen firearms to the Government—most of which had been in his family for years and some dating back to World War II—valued at $3,570.92. The former federal agent ultimately pleaded guilty to the drug offense and was given a six-month sentence.


Upon completion of his prison sentence, Henderson requested that the FBI release the gun collection to a third party who had purchased them. The FBI refused. Henderson filed a motion in the court of conviction asking for an order instructing the FBI to release the weapons to the third party, or, alternatively, to his wife. Henderson himself was not able to possess the firearms because he was a convicted felon.


The court denied the request, and the subsequent decision by the Eleventh Circuit Court of Appeals held that Henderson did not have a “non-possessory interests” in the gun collection, since it was now illegal for him to posses a firearm, and to extend such an interest to him would amount to giving him “constructive possession” over them. In layman’s terms, since Henderson was a convicted felon, he could not possess the firearms and similarly could not transfer the firearms to a third party.


Led by the Fifth Circuit, two federal circuits (and the Montana Supreme Court) have adopted the “the general rule “…that seized property, other than contraband, should be returned to its rightful owner once … criminal proceedings have terminated.” A legal problem arises in a gun case because Section 922(g) of Title 18, United States Code, provides that it is “unlawful for any person … who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year … to possess … any firearm.”


The inherent friction between the two rules of law prompted the Eleventh Circuit in 2005 to fall on the side of Section 922g by holding the statute prohibits the Government from transferring firearms owned by a felon to a third party. The appeals court, and three other federal circuits, rejected the Fifth Circuit’s lead on this issue in which, in 1990, that court held that a felon’s “claimed ownership interest in his [non-contraband] firearms survived his criminal conviction and could not be extinguished without according him due process of law.”


The Supreme Court will now decide which legal principle should prevail. The National Rifle Association in an amicus curiae brief staunchly supports the Fifth Circuit position, saying the Eleventh Circuit position adversely affects the Second Amendment gun ownership rights of law-abiding citizens. The five-million strong gun rights organization specifically told the Court that the Government’s “ … unsubstantiated speculation that Henderson might somehow retain control over the firearms he had sold to a third party, the Government seeks to distinguish the proposed transfer from other potential sales of firearms on behalf of convicted felons, such as a situation in which firearms are transferred ‘to a federally licensed gun dealer who would sell them, comply with any procedures required by the court, and remit the proceeds to the defendant.’ The Government’s argument on this score thus has nothing to do with the character of the felon prohibited from possessing firearms, but rather focuses on the non-felon, non-possessor’s relationship to that felon. The result is that the Second Amendment rights of certain law-abiding, responsible citizens – such as family members or friends of individuals who have been convicted of a felony – are accorded less weight than the Second Amendment rights of other law-abiding citizens, including those who do not propose to use the firearms in question for the purpose of self-defense in the home.”


The National Association of Criminal Defense Lawyers also sided with Henderson in an amicus curiae brief. The NACDL informed the Court that it has “an interest in protecting the right of persons convicted of crimes to assign ownership rights to non-contraband property that they may no longer lawfully possess to third parties or to reap the proceeds of a judicial sale of the property.”


The Supreme Court is asked to hear some 7,000 cases each year. It agrees to hear only 70 of them. The Henderson case will be used to clarify the “property” rights of individuals convicted of a felony when the property is clearly non-contraband.