Supreme Court Unanimously Finds that Convicted Felons May Transfer Firearms from Law Enforcement Custody to a Third Party

In a decision that mandated an involved analysis of the definition of “constructive possession,” the Supreme Court decided that a convicted felon’s weapons may be transferred from law enforcement custody to a third party designated by the felon. In the unanimous opinion, Justice Kagan writes that constructive possession is only established when a person maintains the power and intent to control an object. 18 U.S.C. § 922(g) prohibits felons from possessing firearms, but does not prohibit ownership of firearms. The government had argued that transferring the firearms to a third party was exercising control over the weapon, and therefore constituted constructive possession and was prohibited. Importantly, Justice Kagan makes clear that ownership cannot be confused with constructive possession, and then explores a theoretical but likely scenario in which the guns would be released from government control to any third party without the felon gaining any influence over the weapons, despite the third party being one designated by the felon.

In this case, Tony Henderson was a Border Patrol agent that was arrested for felony marijuana distribution. As a condition of his bail, he surrendered his nineteen firearms to the federal government. He would later plead guilty to his charges, and, after being released from prison, requested that the government release his guns to a friend that was purchasing them. When the FBI refused, he asked the District Court to order the release of the weapons to either his wife or his friend. The District denied his motion, and the 11^th Circuit Court affirmed. With the Supreme Court’s decision, it is established that if the intended recipient properly assures the court of his or her intentions to deny the felon any influence over the firearm, such a transfer is within the felon’s rights, and does not violate § 922(g). For a complete review of the case, click here.