Forfeiture, felons, and firearms in the Supreme Court

|The Volokh Conspiracy |

Despite all the attention forfeiture has received in recent months—including media exposes, congressional hearings, and late night comedy routines—few have noticed the issue's arrival at the Supreme Court. But arrive it has, in a case that may look on its face like it presents a routine question of statutory interpretation, but that in fact offers an important and unique opportunity for the Court to rein in the nation's forfeiture laws.

Tony Henderson was a United States Border Patrol Agent, charged with distributing marijuana. As a condition of his pre-trial release on bond, he surrendered his firearm collection to the FBI. After a guilty plea, he was convicted and served a six-month prison sentence.

As a convicted felon, he is subject to the federal felon-in-possession statute, 18 USC 922(g), which makes it unlawful for any person who has been convicted of a crime punishable by imprisonment for a term exceeding one year (as Henderson was) to "possess … any firearm or ammunition." He made a formal request that the FBI transfer his personal firearms to an unrelated third party who had purchased them or, in the alternative, to his wife. The FBI refused, and the Eleventh Circuit upheld the refusal, holding that (a) the statute prohibits a convicted felon from possessing firearms actually or "constructively"—"constructive" possession being established when a person "has the power and intention to exercise dominion or control over property, either directly or through others," and (b) allowing Henderson to transfer his non-possessory interests in his firearms to a third party would be tantamount to giving him "constructive possession" over them, and was therefore barred by the statute.

The Supreme Court granted cert (owing to a conflict among the circuits on this question of whether the prohibition on "possession" includes owner-directed transfers), and oral argument in the case (Henderson v. US) is on tap for this coming Tuesday (Feb. 24).

As part of its continuing battle against the epidemic of "civil asset forfeiture" in this country, the Institute for Justice submitted an amicus brief (which I authored, along with IJ's Rob Johnson) to the Court arguing for reversal. Henderson is not a "forfeiture" case in the strict sense—that is, it doesn't construe or apply any of the hundreds of provisions in federal law that deal expressly with forfeiture. But the 11th Circuit has imposed a de facto forfeiture on Henderson—he can't possess the firearms, he can't use the firearms, and if he can't transfer the firearms, what remains of his ownership interest in them?

As we point out in the brief, there is long-standing precedent from the Supreme Court—beginning with the fascinating 1939 case of U. S. v. One 1936 Model Ford V-8 De Luxe Coach (307 U.S. 219)—standing for the principle that forfeitures are not favored in the law, and that statutes should always be construed to avoid them unless they can be read no other way—a kind of "plain meaning" rule for statutes dealing with property deprivations. And because there are plenty of ways to read the felon-in-possession statute to avoid the "constructive possession" pit and to allow transfers of surrendered firearms to third parties—all other Circuits that have considered the question have come out this way—it should be read that way, and Henderson's transfer should not be barred.

There's an interesting additional wrinkle to the case. In its brief ostensibly defending the decision below, the government largely abandons it, and takes a position not too far from the one we are advocating. It now claims that the 11th Circuit did not decide as a matter of law that Henderson couldn't transfer his firearms to a willing buyer; rather, the government suggests, the court looked at the particular facts and circumstances surrounding the particular process that Henderson was proposing and decided that there was too much of a risk that he was, in fact, going to be exercising control over the firearms ("constructive possession") after the purported sale—that it was a kind of sham transaction, the request for which was properly denied.

So even in the government's view, the felon-in-possession statute should not be read to work de facto forfeitures, and it does not eliminate the felon's ownership right to transfer his/her property to third persons. That's a pretty substantial concession on their part—as I said, pretty much the result we were arguing for in our brief. [It appears to be inconsistent both with arguments the government made at earlier stages in the case, and with the actual language of the 11th Circuit opinion below, which does appear, in my reading, to hold that transfers for the felon's benefit are entirely barred—but I won't complain too much about that, because it gets the Court much closer to the right result.]

It makes this an even more perfect place for the Court to re-affirm that One Ford Coach principle, inasmuch as everyone now seems to be in agreement: that a construction of this statute that avoids a forfeiture is to be preferred to one that doesn't. Here's hoping the Court takes our invitation to re-assert that as a general principle (whichever way it comes out ultimately on whether, on the special facts of this case, Henderson's specific request had the ingredients necessary to avoid the "constructive possession" bar).

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