Disposing of a Defendant’s Guns after a Felony Conviction

On Monday, the United States Supreme Court unanimously decided a case about the disposition of a defendant’s guns after the defendant has been convicted of a felony. The case is Henderson v. United States. This post discusses the case and its implications for North Carolina.

Background. Tony Henderson was a gun owner. He was charged with a felony drug offense in federal court. He surrendered his guns to the FBI as a condition of his pretrial release, and eventually pled guilty to a felony, rendering him ineligible to possess firearms under federal law. 18 U.S.C. § 922(g)(1). He asked the FBI to transfer the guns to a friend who, according to Henderson, had agreed to purchase them. The FBI refused, asserting that transferring the guns at Henderson’s direction would amount to giving him constructive possession of the guns. Henderson took the matter to court.

Ruling. The trial judge and the court of appeals sided with the FBI, but the Supreme Court reversed unanimously. It noted that federal law prohibits felons from possessing guns, not owning them. Possession includes constructive possession, so a court can’t order a felon’s guns transferred to someone who will allow the felon to access them or control their use. But so long as the recipient will not do that, it is an “incident of ownership” that the felon may “sell or otherwise dispose of” his or her guns as he or she sees fit. The Court also noted that reading section 922(g) to prohibit a felon from selling his or her guns would not advance the public safety purpose of the statute.

The Government suggested that a felon could transfer his or her guns to a licensed dealer for sale on the open market, and the Court agreed that was a permissible course of action. But it ruled that was “not the only [option] available,” so long as the sale or transfer did not leave the felon in control of the guns. (The Court suggested that a court could “ask the proposed transferee to promise to keep the guns away from the felon,” and could disapprove a transfer if dissatisfied with the likely outcome.)

Limits of the ruling. The decision doesn’t mean that all felons can direct the disposition of their guns. At least four limitations arise from the opinion. First, the decision involves the Court’s interpretation of a federal statute and the equitable powers of the federal courts and is directly binding only in federal proceedings. (The possible effect on state court is discussed below.) Second, as noted above, a court may not permit a felon to sell or transfer his or her guns to a person who will allow the felon to control them. Third, a felon who used his or her guns in a crime may not have the same right to dispose of them as Henderson did. Henderson’s drug offense “had nothing to do with his firearms,” and the Court suggested in footnote one that the unclean hands doctrine may have supported a denial of Henderson’s request had it been otherwise. This is particularly relevant for defendants who are convicted of possession of a firearm by a convicted felon. Fourth, the Court repeatedly expressed its view that a court may order a law enforcement agency to dispose of a felon’s guns at his or her direction, but never stated that a felon in Henderson’s position is legally entitled to direct the disposition of his or her firearms. Nonetheless, the opinion seems to assume that in the usual case, a court will allow a defendant in Henderson’s position to direct the disposition of his or her guns, and it seems to me that doing otherwise might amount to an unlawful taking. See United States v. Brown, 754 F. Supp. 2d 311 (D.N.H. 2010) (in a case in which the defendant was convicted of offenses that did not subject his firearms to forfeiture or confiscation as contraband, ordering the destruction of firearms lawfully owned by a defendant subsequently convicted of a felony “would seem to raise serious Takings Clause issues” because such guns “remain valuable tangible personal property belonging to the convicted felon” and the government may not “simply confiscate and destroy such valuable property without first affording due process and payment of just compensation”).

Applicability in state court. As noted above, Henderson directly concerns the authority of the federal courts. North Carolina law is different than federal law in at least two important ways. First, our felon-in-possession statute, G.S. 14-415.1, does prohibit felons from owning guns, not just possessing them. Second, G.S. 15-11.1, the statute concerning the disposition of evidence, gives a judge several options for disposing of firearms, and transferring firearms at the direction of the defendant is not among them. Thus, it does not appear that Henderson is directly relevant to North Carolina. However, some the concerns that animate Henderson may arise in North Carolina cases as well, and I am not at all certain that depriving newly-minted felons of the power to direct the disposition of firearms that they owned lawfully prior to their convictions is constitutionally permissible, even if it is authorized by statute, unless the guns are subject to forfeiture or confiscation as contraband.

7 thoughts on “Disposing of a Defendant’s Guns after a Felony Conviction”

  1. Guns seized pursuant to commission of a crime should be destroyed. Makes matters very simple and ensures the weapon will not be put back in circulation for future nefarious purposes.
    Our lawmakers in their infinite wisdom have removed that option, so now we’re stuck with all these time-intensive work-arounds.

    • I don’t see that this particular case seems to be related to your comment, unless the use of guns in his drug offenses was listed in more detail in the trial record. He was arrested for drugs, not gun related charges, so why should his guns be seized and destroyed if they’re unrelated to the charges?

  2. Unfortunately the Supreme Court did not address the Constitutional issues in this case. I do however think it gives a little hint as to how the Court may possibly view this issue in the future. The “Takings Clause” of the Fifth Amendment requires that the government observe due process and just compensation standards to the disposition of property taken from a citizen. Obviously contraband and property used in the commission of a crime or items subject to forfeiture for lawful reasons support by just cause would not apply, but there are a few situations where firearms in this state are continuously held in law enforcement custody or sold without compensation to the owners due to statutes that have good intentions, but are ripe for abuse or overly restrictive provisions.

    Under state law it is illegal to possess a firearm upon becoming a convicted felon and as a general condition of probation under 15A-1343 even for misdemeanor convictions unless otherwise noted by the court, no person shall possess a firearm, but I am not aware of the court ordering surrender of firearms to law enforcement upon conviction nor am I aware of a North Carolina court ordering surrender of firearms as a condition of pretrial release as was the case in the Henderson decision. To the best of my knowledge (if someone knows otherwise please explain) the court does not order a newly convicted felon to surrender all firearms he previously legally owned to law enforcement or dispatch law enforcement to seize such firearms. The newly convicted felon should have executed a plan for legal disposition of all firearms before being convicted, but I am quite sure most new felons don’t comply with this. I would venture to say it would be rare for law enforcement in North Carolina to have seized firearms from individuals about to become new felons that would not be subject to the unclean hands doctrine. Under federal law, firearm possession is illegal after being convicted of domestic misdemeanors and all the court does in that situation in NC is provide a form notifying the defendant that it MAY be unlawful for them to possess a weapon under federal law after conviction of a misdemeanor involving violence where the victim and defendant were in a personal relationship (NC GS 15A-1336).

    So although I don’t see much of an issue here in regards to newly-minted felons, I do see other related issues. This case could have addressed Constitutional issues with firearm dispositions in this state, but ultimately it did nothing as the Henderson decision was extremely limited in its findings to federal rules and federal statutes.

    Consider the following example: Pursuant to NC GS 50B-3.1 (see form AOC-CV-320) a North Carolina court could deny a person possession or control over the disposition of his or her firearms that were seized pursuant to a valid Domestic Violence Protection Order. Take a hypothetical situation where John has a clean record and marries Jane. The relationship takes a turn for the worse, and Jane goes down to the local Magistrate’s office and obtains a criminal summons against John for pushing her. Jane also secures a DVPO against John and John is forced to surrender all of his firearms based on the judge’s findings. John is subsequently convicted in District Court of an assault on a female and is now no longer eligible to possess firearms under federal law. The DVPO eventually expires and the judge refuses to extend it. John then files a motion with the court for the return of his previously seized weapons; however it is denied due to the domestic violence conviction. The Sheriff’s Office then moves pursuant to 50B-3.1(H) and 14-269.1 to have John’s weapons sold and the proceeds provided to the school system. I don’t see this as an unclean hands issue unless there is evidence in the record to support a conclusion that John used the firearms in a crime against Jane. I also don’t believe the statutory authority found in 15-11.1, 50B-3.1(H) and 14-269.1 would be a valid defense to a lawsuit asserting the “Takings Clause” of the Fifth Amendment as John should be compensated for his valuable personal property that he legally possessed when it was seized.

    Consider another example: Many times law enforcement is called to deal with citizens with mental issues and suicidal actions. Law enforcement may conduct an emergency commitment or serve an involuntary commitment order against someone in possession of a firearm that the person legally possesses but is in no shape to continue possession of due to the underlying danger presented. Common law authority or statutory authority found in 15A-285 justifies the temporary seizure of firearms in such situations. Due to the very strict requirements regarding the disposition of firearms under 15-11.1, a citizen that had their firearm seized in such circumstances will need a court order to get their firearm back. It is likely that the person will have difficulty getting the weapon back or getting court authority for it be sold and compensation directed to them. If the person was involuntary committed, the weapon will essentially stay in law enforcement custody or law enforcement can get it ordered forfeited or sold without just compensation to the owner. The citizen that experienced a mental situation, could move pursuant to 122c-54.1 and form AOC-SP-211 to have his mental commitment bar of purchasing, possessing, and transferring firearms removed; however it is likely an uphill battle because what judge wants to sign an order giving a firearm back in such a situation. I don’t advocate for someone to get their weapon back except in limited situations, but I don’t believe the owner if they legally possessed such firearm before the mental bar should be deprived of just compensation for the value of their firearm that was seized by the government.

    • Regarding this report on The taking clause of the fifth amendment, In 1987 my husband ( then 25 ) was drinking (not drunk) and trying to get the attention of his then girlfriend, with which he had just had a terrible argument. He got his got gun out an threatened to shoot himself. The police were called and they took his gun based on what they claimed was to protect him and others around him, even though he told police he really wasn’t going to shoot himself, or anyone else. They tool him he could pick the gun up the next day at the police dept. He went in the next day to pick his gun up and was told the officer he needed to talk to was not there so they could not release the gun. The next day he was arrested for first degree murder because a murder had been committed using a gun like the one they had taken from him earlier. ( black powder pistol ) My husband went to court and was convicted of first degree murder even though they could not say that my husbands gun was the one that killed the woman 3 weeks before. Of course there is more to this story but my question is this, can I as his wife ask for the gun back or that he be compensated for the gun? If I got it back I would sell it. He is still in prison and we both know when he gets out he will not be allowed to have a gun, and we will gladly comply. thank you

  3. Question if your convicted for a drug charge and paid your debt to society now a hard working free man why am I not allowed to get a gun permit so that I can purchase a gun legally for protection I understand if I was convicted of a violent crime, but for narcotics chances are if I can get drugs on the street I can get a gun it just goes with the territory but here I am trying to be legal and do things the legal way and they say I can’t for all they know I could have been dealing for someone that now wants to cause me or my family bodily harm so I should have my constitutional right to bear arms

    • You can get your felony expunged after a pre-determined amount of time “after” you complete your probation period with no issues. This could be a 5 to 10 years to wait. Only after your felony is expunged at the approval of the court system would you be allowed to own a firearm or possibly get a conceal carry permit. It seems like a long wait, but remember, its up to the judge and your behavior that will determine this.


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