Vol. 30 No. 12 U.S. Supreme Court Holds that a Convicted Felon May Transfer Firearms Owned by the Felon to a Third Party Under Certain Circumstances

On May 18, 2015, the U.S. Supreme Court ruled, unanimously, in the case of Henderson v. United States, that 18 U.S.C. section 922(g), which prohibits a felon from possessing a firearm, did not bar the transfer of firearms owned by the felon to a third party, unless the transfer would permit the felon to later control the firearms, so that he could either use them or direct their use.

In doing so, the Court reversed the Eleventh Circuit Court of Appeals, which had determined that such a transfer would violate Section 922(g) by providing “constructive possession” if the felon had the ability to direct the disposition of firearms owned by him.


The Federal government charged petitioner Tony Hen­derson, then a U. S. Border Patrol agent, with the felony offense of distributing marijuana. A Magistrate Judge required that Henderson surrender all his firearms as a condition of his release on bail. Henderson complied, and the Federal Bureau of Investigation (FBI) took custody of the guns. Shortly thereafter, Henderson pleaded guilty to the distribu­tion charge.  As a result of that conviction, Section 922(g) prevented him from legally repossessing his firearms.

Following his release from prison, Henderson asked the FBI to transfer his

guns to Robert Rosier, a friend who had agreed to purchase them for an unspecified price. The FBI denied the request. In a letter to Henderson, the FBI ex­plained that “´the release of the firearms to [Rosier] would place you in violation of [§922(g)], as it would amount to constructive possession´” of the guns.

Henderson then returned to the District Court that had heard his criminal case to seek release of his firearms. Invoking the court’s equitable powers, Henderson asked for an order directing the FBI to transfer the guns either to his wife or to Rosier. The District Court denied the motion, concluding that Henderson could not “´transfer the firearms or receive money from their sale´” without “´constructive[ly] possessi[ng]´” them in violation of Section 922(g).  Henderson appealed.

The Court of Appeals for the Eleventh Circuit affirmed on the same ground, reasoning that granting Henderson’s motion would amount to giving a felon “constructive possession” of his firearms.  The Supreme Court granted certiorari to resolve a circuit split over whether, as the courts below held, Section 922(g) categorically prohibited a court from approving a convicted felon’s request to transfer his firearms to another person.

The Court’s Opinion

The Supreme Court initially observed that a federal court had equitable authority, even after a criminal proceeding had ended, to order a law enforcement agency to turn over property it had obtained during the case to the rightful owner or his designee. The Court noted that Congress could limit a court’s equitable power in various ways.

As rele­vant to the case before it, the Court stated that Section 922(g) made it unlawful for any person con­victed of a felony to possess a firearm or ammunition. That provision prevented a court from ordering a law enforcement agency to return guns in its custody to a felon-owner, like Henderson, because that would place him in violation of the law. The Court stated that the question before it was how Section 922(g) affected a court’s authority to instead direct the transfer of such firearms to a third party.

The Court observed that Section 922(g) proscribed possession alone, including both actual and constructive possession. The Court opined that, “Actual possession exists when a person has direct physical control over a thing.” The Court further stated that, “Constructive posses­sion is established when a person, though lacking such physical custody, still has the power and intent to exercise control over the object.”  The Court noted that Section 922(g) “thus prevent[ed] a felon not only from holding his firearms himself but also from main­taining control over those guns in the hands of others.”

However, the Court found that the Government was interpreting these prohibitions too broadly when it took the position that, “§922(g) prohibit[ed] still more—that it bar[red] a felon, except in one circumstance, from transferring his firearms to another person, no mat­ter how independent of the felon’s influence. According to the Government, a felon ‘exercises his right to control’ his firearms, and thus violates §922(g)’s broad ban on posses­sion, merely by ‘select[ing] the[ir] first recipient,’ because that choice ‘determine[s] who [will] (and who [will] not) next have access to the firearms.’”

The Court further observed that the Government argued that “[t]he only time that is not true. . . [was] when a felon ask[ed] the court to transfer the guns to a licensed dealer or other party who will sell the guns for him on the open market.”

The Court stated that the Government’s position went too far.  Specifically, the Court found that, “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.”

The Court further stated that, “Accordingly, a court facing a motion like Henderson’s may approve the transfer of guns consistently with §922(g) if, but only if, that disposition prevent[ed] the felon from later exercising control over those weapons, so that he could either use them or tell someone else how to do so.”

In ruling upon such motions for transfer of weapons, the Court observed that lower courts, “In considering such a motion, . . . may properly seek certain assurances: for example, it may ask 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 §922(g) violation. . . .”

Moreover, the Court stated that, “Even such a pledge, of course, might fail to provide an adequate safeguard, and a court should then disap­prove the transfer. . . . But 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 Court stated that neither the District Court, nor the Eleventh Circuit Court of Appeals assessed Henderson’s mo­tion for a transfer of his firearms in accordance with these principles in mind. Accordingly, the Court vacated the judgment of the Court of Appeals and remanded the case for further proceedings consistent with its opinion.


Based upon this decision, your agency may receive orders from federal courts ordering the transfer of weapons in your possession to third parties.  This is particularly true when officers from your agency are working with federal law enforcement agencies and the decision is ultimately made, based upon the facts and circumstances of the case, that prosecution under federal law is more appropriate and your agency retains any seized firearms in its possession.

In addition, there is an analogous statute under California law – Penal Code section 29800 – which states that: “Any person who has been convicted of a felony under the laws of the United States, the State of California, or any other state, government, or country, or of an offense enumerated in subdivision (a), (b), or (d) of Section 23515, or who is addicted to the use of any narcotic drug, and who owns, purchases, receives, or has in possession or under custody or control any firearm is guilty of a felony.”

Accordingly, while the Supreme Court’s opinion in Henderson is based upon federal law, it may nevertheless open the door for felons who have been convicted under California law to file motions in state court[1] for the transfer of any weapons seized from them to third parties of the felon’s choosing.

As with all legal issues, it is imperative that you secure advice and guidance from your agency’s legal counsel.  If you wish to discuss this matter in greater detail, please feel free to contact me at (714) 446 -1400, or via email at jrt@jones-mayer.com.

Information on www.jones-mayer.com is for general use and is not legal advice. The mailing of this Client Alert Memorandum is not intended to create, and receipt of it does not constitute an attorney-client relationship.


[1] For example, a motion pursuant to Penal Code section 1538.5 at the conclusion of legal proceedings.