Henderson v. United States

• Decision Date: 18 May 2015
• Docket Number: No. 13–1487.,13–1487.
• Citation: 575 U.S. 622,135 S.Ct. 1780,191 L.Ed.2d 874
• Parties: Tony HENDERSON, Petitioner v. UNITED STATES.
• Court: U.S. Supreme Court

575 U.S. 622

135 S.Ct. 1780

191 L.Ed.2d 874

Tony HENDERSON, Petitioner

v.UNITED STATES.

No. 13–1487.

Supreme Court of the United States

Argued Feb. 24, 2015.

Decided May 18, 2015.

Daniel R. Ortiz, Charlottesville, VA, for Petitioner.

Ann O'Connell, Washington, D.C., for Respondent.

John P. Elwood, Vinson & Elkins LLP, Washington, DC, Daniel R. Ortiz, Counsel of Record, Toby J. Heytens, University of Virginia School of Law Supreme Court Litigation Clinic, Charlottesville, VA, Mark T. Stancil, Robins, Russell, Englert, Orseck, Untereiner & Sauber LLP, Washington, DC, David T. Goldberg, Donahue & Goldberg LLP, New York, NY, for Petitioner.

Donald B. Verrilli, Jr., Solicitor General, Counsel of Record, Leslie R. Caldwell, Assistant Attorney General, Michael R. Dreeben, Deputy Solicitor General, Ann O'Connell, Assistant to the Solicitor General, Vijay Shanker, Attorney, Department of Justice, Washington, D.C., for Respondent.

Justice KAGAN delivered the opinion of the Court.

Government agencies sometimes come into possession of firearms lawfully owned by individuals facing serious criminal charges. If convicted, such a person cannot recover his guns because a federal statute, 18 U.S.C. § 922(g), prohibits any felon from possessing firearms. In this case, we consider what § 922(g) allows a court to do when a felon instead seeks the transfer of his guns to either a firearms dealer (for future sale on the open market) or some other third party. We hold that § 922(g) does not bar such a transfer unless it would allow the felon to later control the guns, so that he could either use them or direct their use.

I

The Federal Government charged petitioner Tony Henderson, then a U.S. Border Patrol agent, with the felony offense of distributing marijuana. See 21 U.S.C. §§ 841(a)(1), (b)(1)(D). 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. Soon afterward, Henderson pleaded guilty to the distribution charge; as a result of that conviction, § 922(g) prevents him from legally repossessing his firearms.

Following his release from prison, Henderson asked the FBI to transfer the 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, it 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. App. 121.

Henderson then returned to the court that had handled 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 (as the FBI had) that Henderson could not "transfer the firearms or receive money from their sale" without "constructive[ly] possessi [ng]" them in violation of § 922(g). No. 3:06–cr–211 (MD Fla., Aug. 8, 2012), App. to Pet. for Cert. 5a–6a, 12a. 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. 555 Fed.Appx. 851, 853 (2014) (per curiam ).¹

We granted certiorari, 574 U.S. ––––, 135 S.Ct. 402, 190 L.Ed.2d 289 (2014), to resolve a circuit split over whether, as the courts below held, § 922(g) categorically prohibits a court from approving a convicted felon's request to transfer his firearms to another person.² We now vacate the decision below.

II

A federal court has equitable authority, even after a criminal proceeding has ended, to order a law enforcement agency to turn over property it has obtained during the case to the rightful owner or his designee. See, e.g., United States v. Martinez, 241 F.3d 1329, 1330–1331 (C.A.11 2001) (citing numerous appellate decisions to that effect); Tr. of Oral Arg. 41 (Solicitor General agreeing). Congress, however, may cabin that power in various ways. As relevant here, § 922(g) makes it unlawful for any person convicted of a felony to "possess in or affecting commerce[ ] any firearm or ammunition." That provision prevents a court from instructing an agency to return guns in its custody to a felon-owner like Henderson, because that would place him in violation of the law. The question here is how § 922(g) affects a court's authority to instead direct the transfer of such firearms to a third party.

Section 922(g) proscribes possession alone, but covers possession in every form. By its terms, § 922(g) does not prohibit a felon from owning firearms. Rather, it interferes with a single incident of ownership—one of the proverbial sticks in the bundle of property rights—by preventing the felon from knowingly possessing his (or another person's) guns. But that stick is a thick one, encompassing what the criminal law recognizes as "actual" and "constructive" possession alike. 2A K. O'Malley, J. Grenig, & W. Lee, Federal Jury Practice and Instructions, Criminal § 39.12, p. 55 (6th ed. 2009) (hereinafter O'Malley); see National Safe Deposit Co. v. Stead, 232 U.S. 58, 67, 34 S.Ct. 209, 58 L.Ed. 504 (1914) (noting that in "legal terminology" the word "possession" is "interchangeably used to describe" both the actual and the constructive kinds). Actual possession exists when a person has direct physical control over a thing. See Black's Law Dictionary 1047 (5th ed. 1979) (hereinafter Black's); 2A O'Malley § 39.12, at 55. Constructive possession is established when a person, though lacking such physical custody, still has the power and intent to exercise control over the object. See Black's 1047; 2A O'Malley § 39.12, at 55. Section 922(g) thus prevents a felon not only from holding his firearms himself but also from maintaining control over those guns in the hands of others.

That means, as all parties agree, that § 922(g) prevents a court from ordering the sale or other transfer of a felon's guns to someone willing to give the felon access to them or to accede to the felon's instructions about their future use. See Brief for United States 23; Reply Brief 12. In such a case, the felon would have control over the guns, even while another person kept physical custody. The idea of constructive possession is designed to preclude just that result, "allow[ing] the law to reach beyond puppets to puppeteers." United States v. Al–Rekabi, 454 F.3d 1113, 1118 (C.A.10 2006). A felon cannot evade the strictures of § 922(g) by arranging a sham transfer that leaves him in effective control of his guns. And because that is so, a court may no more approve such a transfer than order the return of the firearms to the felon himself.

The Government argues that § 922(g) prohibits still more—that it bars 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." Brief for United States 24. And that remains so even if a felon never retakes physical custody of the guns and needs a court order to approve and effectuate the proposed transfer. The felon (so says the Government) still exerts enough sway over the guns' disposition to "have constructive possession" of them. Id., at 25. The only time that is not true, the Government claims, is when a felon asks the court to transfer the guns to a licensed dealer or other party who will sell the guns for him on the open market. See id., at 20–22; Tr. of Oral Arg. 18–21. Because the felon then does not control the firearms' final destination, the Government avers, he does not constructively possess them and a court may approve the transfer. See ibid.

But the Government's theory wrongly conflates the right to possess a gun with another incident of ownership, which § 922(g) does not affect: the right merely to sell or otherwise dispose of that item. Cf. Andrus v. Allard, 444 U.S. 51, 65–66, 100 S.Ct. 318, 62 L.Ed.2d 210 (1979) (distinguishing between entitlements to possess and sell property). Consider the scenario that the Government claims would violate § 922(g). The felon has nothing to do with his guns before, during, or after the transaction in question, except to nominate their recipient. Prior to the transfer, the guns sit in an evidence vault, under the sole custody of law enforcement officers. Assuming the court approves the proposed recipient, FBI agents handle the firearms' physical conveyance, without the felon's participation. Afterward, the purchaser or other custodian denies the felon any access to or influence over the guns; the recipient alone decides where to store them, when to loan them out, how to use them, and so on. In short, the arrangement serves only to divest the felon of his firearms—and even that much depends on a court's approving the designee's fitness and ordering the transfer to go forward. Such a felon exercises not a possessory interest (whether directly or through another), but instead a naked right of alienation—the capacity to sell or transfer his guns, unaccompanied by any control over them.³

The Government's view of what counts as "possession" would also extend § 922(g)'s scope far beyond its purpose. Congress enacted that ban to keep firearms away from felons like Henderson, for fear that they would use those guns irresponsibly. See Small v. United States, 544 U.S. 385, 393, 125 S.Ct. 1752, 161 L.Ed.2d 651 (2005). Yet on the Government's construction, § 922(g) would prevent Henderson from disposing of his firearms even in ways that guarantee he never uses them again, solely because he played a part in selecting their transferee. He...