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A Convicted Felon may still Transfer Guns without Constructive or Actual Possession

Facts: Tony Henderson used to be a U.S. Border Patrol agent before he was convicted of distributing marijuana. A magistrate judge ordered the surrender of all his guns to the FBI. A short time later, Henderson pleads to the charge and, as a result, 18 U.S.C. § 922(g) prevents his possession of the firearms. Following his release from prison, Henderson asked his guns be released to his friend and the government refused.

T1: The district court denied Henderson's motion asking that FBI transfer the guns to his friend because Henderson would then "constructively" possess the weapons. T2: The Court of Appeals (11th Circuit) affirms on the same ground, noting that Mr. Henderson asks the Court to do equity with unclean hands. The issue before the Supreme Court (T3) is "whether…§ 922(g) categorically prohibits a court from approving a convicted felon's request to transfer his firearms to another person…"

Law: 18 U.S.C. § 922(g) makes it unlawful for any person convicted of a felony to "possess in or affecting commerce[] any firearm or ammunition." The Supreme Court finds that such provision prevents a felon-owner, such as Henderson, from owning his guns. After comparing and contrasting actual versus constructive possession, the court finds that § 922(g) prevents "a felon from not only holding his firearms himself but also from maintaining control over those guns in the hands of others."

The government takes the position that the Court should deny the transfer to someone other than a licensed dealer or party who will sell the guns for him on the open market. The Court rejects this position. The Court finds that the government position divests Henderson of use as well as disposal of his property. While the former (divesting of use) is aligned with the purpose of 18 U.S.C. § 922(g), the latter is not. Indeed, "[w]hat matters here is not whether a felon plays a role in deciding where his firearms should go next: That test would logically prohibit a transfer even when the chosen recipient will later sell the guns to someone else. What matters instead is whether the felon will have the ability to use or direct the use of his firearms after the transfer. That is what gives the felon constructive possession."

Conclusion: "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."

The case is Henderson v. United States, 575 US __ (2015).

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