POSSESSION

Henderson v. United States

Issues

May a court order the government to transfer or sell firearms to a third party on behalf of a convicted felon, who may not possess firearms under 18 U.S.C. § 992(g)?

In this case, the Supreme Court of the United States will have the opportunity to resolve a circuit split and determine whether a convicted felon may request that the government transfer possession of a felon’s non-contraband firearms to a third party. Henderson, a convicted felon, requested that the FBI transfer possession of the firearms to a third party interested in purchasing the firearms. The FBI denied his request, asserting that convicted felons may not possess firearms and that a transfer to a third party would give Henderson constructive possession in violation of federal law. Henderson, however, argues that his inability to possess firearms under federal law does not terminate his entire ownership interest in non-contraband firearms. The Supreme Court’s ruling will implicate ownership rights of convicted felons’ non-contraband firearms.

Questions as Framed for the Court by the Parties

“The general rule is that seized property, other than contraband, should be returned to its rightful owner once * * * criminal proceedings have terminated.” Cooper v. City of Greenwood, 904 F.2d 302, 304 (5th Cir. 1990) (quoting United States v. Farrell, 606 F.2d 1341, 1343 (D.C. Cir. 1979) (quoting United States v. La Fatch, 565 F.2d 81, 83 (6th Cir. 1977))). 18 U.S.C. § 922(g), however, makes it “unlawful for any person * * * who has been convicted in any court of[] a crime punishable by imprisonment for a term exceeding one year * * * to * * * possess * * * any firearm.”

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.

Petitioner Tony Henderson is a former Border Patrol Agent who was charged with distributing marijuana, a felony under 21 U.S.C. § 841(a)(1). See U.S. v. Henderson, 555 Fed. Appx. 851, 852 (11th Cir. 2014). He was arrested on June 7, 2006.

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United States v. Ali Danial Hemani

Issues

Does the Second Amendment prohibit a ban on the possession of firearms by all “unlawful users” of any drug?

This case asks the Supreme Court to decide whether a federal statute that prohibits any “unlawful user” of drugs from possessing firearms, even when not presently intoxicated, provides sufficient notice of the conduct it prohibits and comports with the Second Amendment. The United States argues that the statute comes from a long history of regulations which prohibit dangerous persons from possessing firearms. Ali Danial Hemani counters that the categorical ban goes much further than any historical law. This case presents public safety, gun rights, and government efficiency issues. 

Questions as Framed for the Court by the Parties

Whether 18 U.S.C. § 922(g)(3), the federal statute that prohibits the possession of firearms by a person who “is an unlawful user of or addicted to any controlled substance,” violates the Second Amendment as applied to respondent.

In 1968, Congress passed the Omnibus Crime Control and Safe Streets Act, which, among other provisions, restricted certain categories of persons from possessing firearms. Pub. L. No.

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