Henderson v. United States

[Tom Servo]

The Supreme Court granted cert last night. At issue is the disposition of a person's firearms once he's convicted of a felony.

The question presented is whether such a conviction prevents a court under Rule 41(g) of the Federal Rules of Criminal Procedure or under general equity principles from ordering that the government (1) transfer non-contraband firearms to an unrelated third party to whom the defendant has sold all his property interests or (2) sell the firearms for the benefit of the defendant. The Second, Fifth, and Seventh Circuits and the Montana Supreme Court all allow lower courts to order such transfers or sales; the Third, Sixth, Eighth and Eleventh Circuits, by contrast, bar them.

Henderson's argument is here [pdf].

The government's response is here [also pdf].

Henderson is not claiming he has a right to keep his firearms--he is claiming he has the right to be compensated for their value.

[Aguila Blanca]

I disapprove of dope dealers, especially when they are LEOs, but I disapprove much more strongly of theft under colour of law.

[JimDandy]

Wow this question is confusing. I've re-written and re-understood the question twice now. First I confused defendants/convicts, and victims over reparations, then I realized that either 1 and 2 are allowed some places, but barred in others and that was the problem, not that 1 is allowed here, but only 2 is allowed there.

Is this a 2A issue, or a 5A takings clause issue? If it's his property, and they're non-contraband (which I think means not seized as part of his crime?) Isn't it still his property and illegal to "take" without compensation? Now he likely can't ever possess them again, so he has to get rid of them through an agent of some sort, but the value of the firearms is still some metaphysical thing he has a right to, yes?

[KyJim]

It is not a 2A case nor IMO, a takings case. I say that because it appears Henderson requested relief under the federal rules authorizing return of property. I think the government makes a telling point when discussing cases which allow third parties (FFLs) sell surrendered firearms and give the proceeds to the now convicted felon. This would presumably compensate the defendant and eliminate any takings issue.

The issue will likely turn on what constitutes constructive possession The government argues that Henderson exercises a possessory interest in the firearms if he retains the right to determine to whom they are sold or transferred. Henderson refers to the landlord-tenant relationship but misses a key point, I think. A tenant, subject to contractual limitations, may be able to sell his possessory interest in the property but not the legal title. The landlord can sell the legal title but not the tenant's possessory interest. Henderson would seem to be in a situation similar to the landlord. He cannot direct the person holding possessory rights (here the government) to sell their possessory rights.

Since there needs to be a method of merging the legal and possessory title to the firearms, it seems like a sale by a third party would accomplish that.

[Frank Ettin]

Originally Posted by KyJim

...The issue will likely turn on what constitutes constructive possession The government argues that Henderson exercises a possessory interest in the firearms if he retains the right to determine to whom they are sold or transferred....

There is some authority to suggest that a convicted felon may lawfully have legal title to guns he can't physically possess.

In U.S. v. Casterline, 103 F.3d 76 (C.A.9 (Or.), 1996), the 9th Circuit set aside a conviction for being a felon in possession of a gun, because the conviction was based solely on evidence of ownership, but under circumstances in which the defendant could not possibly have had access to or possession of the guns. Casterline was in prison at the time, and the guns were in the sheriff's department evidence locker. As the Ninth Circuit wrote in Casterline, at 79 (emphasis added):

...The felon-in-possession statute is prophylactic, intended "to keep guns out of the hands of those who 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, 97 S.Ct. 1963 1968, 52 L.Ed.2d 582 (1977). Ownership without physical access to, or dominion and control over, the firearm does not constitute possession. If the felon owns a firearm, but does not actually possess or have dominion and control over it, then he does not possess the firearm for purposes of 18 U.S.C. § 922(g). ....

If dominion and control is the test, does dominion and control include the right to direct a sale and retain the proceeds? Will dominion and control be the test, or will it relate to physical access/possession?

[KyJim]

If dominion and control is the test, does dominion and control include the right to direct a sale and retain the proceeds? Will dominion and control be the test, or will it relate to physical access/possession?

I think that is the ultimate question. I'm not suggesting it is unlawful for a convicted felon to have an ownership interest (a legal interest) in guns unless there is also possession or dominion and control.

[JimDandy]

You're right, I was at least partially wrong to say Taking Clause.

There are two ways the 5A refers to property. You can't have your property taken without due process of law, and property can't be taken for public use without just compensation.

Which I suppose should have prompted my first question- what is the due process of law which gives the government the ownership of non-contraband firearms?

For that matter, does this happen in any other property? Is a drunk driver who loses his license subject to having his other cars seized? A computer hacker barred from having a computer while on parole losing any non-contraband computers?

[KyJim]

You're right, I was at least partially wrong to say Taking Clause.

Henderson did mention the Taking Clause. I just don't think it's his strongest argument.

what is the due process of law which gives the government the ownership of non-contraband firearms?

Part of it is the criminal trial and conviction, but that is not enough. While some courts have allowed third parties to sell firearms and relinquish the proceeds to the defendant, there appears to be no statutory provision that specifically addresses this situation. Thus, the Due Process argument might get some traction there. In addition, Henderson points out other statutory provisions on firearms which refer both to ownership and possession, strengthening his argument that the government cannot simply keep the firearms indefinitely or, presumably, to destroy them at some point.

[44 AMP]

leaving aside the legalese, if you become a prohibited person, is this saying you are not allowed to sell the property from which you are now prohibited?

Isn't that kind of a double punishment?

[2ndsojourn]

^^^
That is the case in some districts.

[JimDandy]

Part of it is the criminal trial and conviction,

That's the part that terminates at least his possessory interest. Where's the part that assigns that and more interest to the government, and not his "heir" for lack of a better term.

That's the part I think i being skipped over.

First it's his stuff.

Then he's not allowed to have his stuff.

What makes his stuff he's not allowed to have now the government's stuff, and not his Parent/Child/Closest Living Relative's stuff?

[Aguila Blanca]

The .gov doesn't take his house and/or car and/or hand tools and prohibit him from selling them ... how is a gun any different than a Skil Saw?

[KyJim]

leaving aside the legalese, if you become a prohibited person, is this saying you are not allowed to sell the property from which you are now prohibited?

Isn't that kind of a double punishment?

That is the position of the U.S. because the prohibited person is exercising control over it. However, they also cite cases which say it's okay for a third party, like an FFL, to sell the guns with the proceeds going to the prohibited person.

I think the Court may end up spending quite a bit of time discussing property law.

how is a gun any different than a Skil Saw?

Because convicted felons or "prohibited persons" are not disqualified from exercising dominion and control over a Skil Saw. They are prohibited from doing so with firearms.

And to be clear, I am not advocating the government's position, just trying to explain it.

[Aguila Blanca]

Originally Posted by KyJim

And to be clear, I am not advocating the government's position, just trying to explain it.

Oh, I understand it. I just don't agree with it.

I also understand the basis of the government's position in the Kelo v. New London case on eminent domain, but I likewise regard that whole concept as theft under colour of law -- irrespective of the fact that the Supreme Court bought into it.

I know a convicted felon is prohibited from "possessing" firearms. But IMHO the .gov can't just eradicate his/her ownership interest in them, any more than it can eradicate his/her ownership of a house or a car or a Skil saw. There are probably some due process ways that can be accomplished, if there are laws supporting such action, but I don't think the police just saying, 'We've got them and you can't have tham, nyah, nyah" qualifies as due process.

[44 AMP]

There appears to be quite the double standard.

The Govt routinely seizes property, from suspected people. After conviction sometimes the govt sells it. Including houses, boats, cars, airplanes etc.

In this case, it appears the govt didn't seize the guns.

Taking the position that having even the tiny amount of control of deciding to sell, vs give away or surrender the property (guns) is effectively prohibited by the same ruling that prohibits physical possession doesn't seem ethical to me.

The dope dealer's car that got seized, and gets sold at auction is not the same thing, I get that. I can even understand how the felon cannot sell his guns himself, personally. But I don't get the rest of it. Maybe that's why I'm not a lawyer....although I suspect other reasons played a larger part in that decision of mine...

[JimDandy]

The Govt routinely seizes property, from suspected people.

The seizure from suspected people is usually temporary until and unless they're found guilty, and the property is declared contraband - used in the crime and forfeit- as I understand it. When they seize - and keep - the drug dealer's house/car it's because he used it for his drug dealing.

If the government has the guns, they did seize them. Either by requiring their surrender, or via a warrant.

[KyJim]

Oral argument was held today in the Supreme Court. ScotusBlog has a detailed analysis at http://www.scotusblog.com/2015/02/ar...led-implosion/. It appears that Henderson is going to win his right to have the firearms sold/transferred, though the exact parameters may be decided by the lower courts. If the analysis is correct, even the "liberal" members of the court were on board.

It's hard to say what this will mean outside the narrow parameters of the facts at issue. We'll have to wait for the written opinion.

[Aguila Blanca]

Originally Posted by Frank Ettin

If dominion and control is the test, does dominion and control include the right to direct a sale and retain the proceeds? Will dominion and control be the test, or will it relate to physical access/possession?

The big problem I see with the government's position is that, if they are left to control any sale or disposition, there is nothing to ensure that the government will make any effort to sell at or close to fair market value. They could take a $2,000 AR-15, sell it for $100, and tell the convicted felon, "Here's your money."

So the government wants constructive possession to mean, on one hand, that if a person has in the same room with him -- irrespective of who owns them -- two firearms parts that, if combined, make an illegal firearm, that's constructive possession. Then they also want to claim that a person who has title to something but does NOT have possession is also in "constructive possession."

This sounds like an argument that might be put forth by the Red Queen from Alice in Wonderland.