In Henderson v. United States, a unanimous Supreme Court reversed the Eleventh Circuit Court of Appeals and held that 18 U.S.C. § 922(g) does not prohibit a court-ordered transfer or sale of a felon’s lawfully owned guns to a third party held by the Government.

18 U.S.C. § 922 entitled “Unlawful Acts”, prohibits any felon from possessing a gun, and provides in pertinent part,

“(g) It shall be unlawful for any person …(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year …to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.”

In Henderson, Tony Henderson, a former U.S. Border Patrol agent, pleaded guilty to Distributing Marijuana, in violation of 21 U.S.C. § 841, which prevented him from legally possessing guns.

Following his release from prison, Henderson made a request to the FBI, who had been in possession of Henderson’s guns as a condition of his pretrial release, that they transfer the guns to Henderson’s friend who had agreed to purchase them from him. The FBI denied Henderson’s request, advising him that his request would place him in “constructive possession” of the guns, thereby violating 18 U.S.C. § 922(g).

Henderson moved the sentencing District Court to invoke their equitable powers and order the FBI, per his request, to transfer his guns. The U.S. District Court denied his motion and the Eleventh Circuit affirmed, agreeing with the FBI, in holding that granting Henderson’s motion would amount to giving a felon “constructive possession” of his guns.

Constructive Possession” is defined by, as “having control of an item but not having actual possession of it”.

The U.S. Supreme Court reversed and held that a District Court may approve the transfer of guns consistent with 18 U.S.C. § 922(g) if, but only if, that disposition prevents the felon from later exercising control over the guns, so that he could either use them or instruct someone to use them.

The Court further held that absent exigent circumstances, there is no reason to disapprove a felon’s motion for the sale of his guns regardless of whether or not he has picked the buyer or seller.

Lastly, the Court advised that a District Court may also grant a felon’s request to transfer his guns to a person who will maintain custody and not allow the felon to exert any influence over their use and in considering such a motion should seek certain assurances, such as: request the proposed transferee to promise to keep the guns away from the felon and to acknowledge that allowing him to use them would aid and abet a 18 U.S.C. § 922(g) violation.

If you or someone you care about has any questions regarding the transfer of guns following a felony conviction, please contact Attorney Michael C. Hennenberg to schedule a consultation.