Comm2A files an Amicus in Henderson v. US

terraformer

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Here is Comm2A's page on the case including links to the briefs.
http://www.comm2a.org/index.php/55-projects/218-henderson

We drove the bus on this brief (we enlisted the other orgs for the reasons in the brief, plus it helped share costs) because early on we noticed this case, if granted cert, was super important for §129D (Jarvis v. VV) and also more general issues in MA's licensing scheme.

Here is a synopsis on the case.
Supreme Court of the United States

Issue: Whether a felony conviction, which makes it unlawful for the defendant to possess a firearm, prevents a court 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.

Filed December 15, 2014
Tony Henderson v. United States
In 2006, Tony Henderson was charged with federal marijuana distribution in a Federal Court in Florida. Shortly after his arrest by the FBI and release on bond, Mr. Henderson also surrendered nineteen of his own personal firearms to the FBI. He pled guilty to the marijuana charge the following year and served time in prison.
Following his conviction, Mr. Henderson twice requested the FBI allow him to transfer his firearms to another party and both times the FBI refused, citing that Mr. Henderson was a convicted federal felon and was thus unable to legally possess firearms under federal law. Mr. Henderson petitioned the federal court to compel the FBI to return the firearms, eventually taking his case to the United States Court of Appeals for the Eleventh Circuit. The Appeals Court upheld the FBI’s refusal to return the guns, reasoning, as the FBI did, that Mr. Henderson was a federally-prohibited person. Mr. Henderson then appealed to the Supreme Court of the United States which agreed to hear his case.
The single question in this case is whether the statute barring convicted felons and other federally-prohibited persons from possessing firearms under 18 U.S.C. §922(g) has the effect of also extinguishing all of a prohibited person’s property rights to firearms. Federal appeals courts and state supreme courts have reached differing results on the same question.
Even in spite of Mr. Henderson’s previous wrongdoing, Comm2A along with three other gun rights organizations has filed an amicus brief on his behalf, submitted by Attorney David Jensen, recognizing the enormous impact this case could have on gun owners in jurisdictions like Massachusetts, where a license is needed merely to own firearms, as well as the potential impact on owners of NFA-registered items nationwide.
Throughout our legal history, the concept of property ownership is considered to encompass a number of different rights—for instance, the right to sell or transfer, the right to mortgage, as well as the right to physically possess and control. In this case, the Federal government is attempting to confound the right to possess with ownership as a whole, claiming that they essentially are one in the same. Should this same logic be applied in jurisdictions where a license is needed merely to possess a firearm (Massachusetts, Illinois, New York, and Washington, D.C.) or in circumstances involving NFA items where a party can still own but can no longer possess the said item, mere revocation of such a license would then have the effect of extinguishing all of a gun owner’s property rights in his firearms or NFA items. Considering both the legitimate and erroneous ways the authorities might summarily revoke a gun owner’s license in these states—on the basis of fraudulent restraining orders or retaliatory suitability revocations, for example—a ruling in favor of the government in this case could lead to freighting scenarios where authorities could seize a person’s property while depriving them of the ability to even recoup the value of those guns, even in cases where the gun owner did nothing wrong.
The brief, submitted by Attorney David Jensen, was filed on behalf of Commonwealth Second Amendment, Inc. in conjunction with New York State Rifle & Pistol Association, Illinois State Rifle Association, and Illinois Carry.
 
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Thanks for the summary - hopefully the court is reasonable about this.

Off topic, but I didn't see an easy way on the comm2a website to increase the level of monthly donation - say switching from silver to gold, or to just tack on another $20/month. Any insight in how to do this so it is still just one transaction per month would be great
 
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Oral arguments are this Tuesday. For more information see SCOTUSblog.

The court's decision in this case could have HUGE ramifications for Massachusetts gun owners and that's the reason that Comm2A decided to take the lead role in our amicus effort. We're very proud of our work here, this is the first time that we've actually initiated an amicus filing with the Supreme Court. We must have hit a nerve because the Bradys referenced our brief twice in theirs.
 

terraformer

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So, Henderson had his day in court. Transcript is here. I can't answer questions today but will tomorrow.
http://www.supremecourt.gov/oral_arguments/argument_transcripts/13-1487_4g25.pdf

Short version of this is that the court recognized the .gov screwed up the case by basically calling uncle after it had been granted cert. The justices were pissed. Enough of them seem to understand that because none of this had been briefed before, that my hope is this bull shit the .gov is asking for (requiring the use of an FFL) will not be held as a hard rule by the court. I am hoping for a very basic remand granting the District Court the right to use equitable principles to figure out a solution. It would be better that the court basically say that none of this is constructive possession but that's a stretch wish. The long term impact of that remand I suspect will happen is that this topic will end up back in front of the court again for them to create a hard and fast rule. But that's not a bad thing. Also, Congress could fix this and it would never be back to the court in this context. But congress doesn't get squat done so unlikely.

ETA: I can't stress how the .gov changing their position really caused a lot of issues here. No one on the side of Henderson briefed ANYTHING on this and Henderson's lawyers couldn't deal with it in the reply because a) they don't know the subtleties and b) they needed their allotment of space to deal with their case in chief.
 
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The gov't position was very poorly conceived. The attorney arguing for the gov was all over the place and got caught up on the aburd positions over and over. The whole obama admin is incompetent. Clown show.
 

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ETA: I can't stress how the .gov changing their position really caused a lot of issues here. No one on the side of Henderson briefed ANYTHING on this and Henderson's lawyers couldn't deal with it in the reply because a) they don't know the subtleties and b) they needed their allotment of space to deal with their case in chief.

My head hurts after reading the transcript. Counsel for the government seemed to be making it up as she went along. The government's position seems to be that the felon must sell the guns ONLY through an FFL, but that the felon could nominate a particular FFL to do the transfers. Which, at least to me, would still be "constructive possession" to the extent that the felon directed which FFL was to do the sales. By extension, the felon could tell people whom he wanted to buy the guns which FFL to go to, although it's arguable that the felon could not set the price. Speaking of which, if he is required to sell them only to a FFL, then he is going to suffer a substantial financial loss compared to selling directly.

I think the government muddied the waters with their change in position. Maybe that was their intent.
 
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My head hurts after reading the transcript. Counsel for the government seemed to be making it up as she went along. The government's position seems to be that the felon must sell the guns ONLY through an FFL, but that the felon could nominate a particular FFL to do the transfers. Which, at least to me, would still be "constructive possession" to the extent that the felon directed which FFL was to do the sales. By extension, the felon could tell people whom he wanted to buy the guns which FFL to go to, although it's arguable that the felon could not set the price. Speaking of which, if he is required to sell them only to a FFL, then he is going to suffer a substantial financial loss compared to selling directly.

I think the government muddied the waters with their change in position. Maybe that was their intent.

The government kind of came off like the dog that chased and caught the car.

Their position is kind of an unacceptable bone they're throwing to Henderson. They've changed their position from forfeiture to taking by eminent domain. He's should lose his stuff and have no say in its disposition, but at least he'll be compensated? That's only a marginally better position than what started out with.
 
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My head hurts after reading the transcript. Counsel for the government seemed to be making it up as she went along. The government's position seems to be that the felon must sell the guns ONLY through an FFL, but that the felon could nominate a particular FFL to do the transfers. Which, at least to me, would still be "constructive possession" to the extent that the felon directed which FFL was to do the sales. By extension, the felon could tell people whom he wanted to buy the guns which FFL to go to, although it's arguable that the felon could not set the price. Speaking of which, if he is required to sell them only to a FFL, then he is going to suffer a substantial financial loss compared to selling directly.

I think the government muddied the waters with their change in position. Maybe that was their intent.

It was funny, yeah they looked to be making it up on the spot. And the assistant solicitor would only think one step with her statement, then the judges ripped that argument apart. The judges must have laughed like crazy after that stuff.
 

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It will be interesting to see what The Court decides. None of the Justices, even the liberal ones, seemed particularly happy with the government's position or answers to their questions. Of course that doesn't mean anything one way or the other.

The government kind of came off like the dog that chased and caught the car.

Their position is kind of an unacceptable bone they're throwing to Henderson. They've changed their position from forfeiture to taking by eminent domain. He's should lose his stuff and have no say in its disposition, but at least he'll be compensated? That's only a marginally better position than what started out with.
 

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The WSJ weighs in on the case, http://www.wsj.com/articles/high-co...allow-felon-to-sell-gun-collection-1424808784

y
Jess Bravin
Updated Feb. 24, 2015 7:27 p.m. ET
23 COMMENTS

WASHINGTON—The Supreme Court appeared ready Tuesday to allow a felon to sell his firearms collection, with justices across the ideological spectrum skeptical of government arguments that such transfers should be strictly limited.

The collection of nearly 20 guns—which includes three M1 rifles from World War II and the Vietnam War, along with several handguns and shotguns—belongs to Tony Henderson, a former U.S. Border Patrol agent in Florida who sold marijuana on the side until his 2006 arrest....snip
 

terraformer

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SCOTUSblog said:
Having directed a bright light on a previously dim corner of the law, the Court has already done most of its work in this case, with just some details to be worked out. Perhaps this sense of inevitability explains why Justice Scalia expressed concern about being “unfortunate enough to get assigned this opinion.



[rofl][laugh2][rofl]
 
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Holy crap - Did the Chief Justice really invoke Indiana Jones when asking whether the .gov dispositions seized weapons or simply warehouses them? [rofl]
If nothing else, all of the justices are really funny people. I also like Kagan's "lucky you" comment.

Quote Originally Posted by SCOTUSblog
Having directed a bright light on a previously dim corner of the law, the Court has already done most of its work in this case, with just some details to be worked out. Perhaps this sense of inevitability explains why Justice Scalia expressed concern about being “unfortunate enough to get assigned this opinion.
[/FONT][/COLOR][rofl][laugh2][rofl]
I caught that too. I think they're pissed. The government prosecutes and wins this case and then changes it's tune when they go before the court? The justices were all expressing a collective WTF????? This could be a 9-0. Maybe they'll issue a per curiam decision so none of them has to do it.
 

bigblue

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Am I the only person here surprised that Florida didn't just use Civil Asset Forfeiture to take possession of the firearms in question?
 

terraformer

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Am I the only person here surprised that Florida didn't just use Civil Asset Forfeiture to take possession of the firearms in question?

A) it wasn't florida, but the feds who prosecuted him. B) They can't. The guns were not used in the crime. Therefore they were not the fruits of the illegal activity or in use in furtherance of the illegal activity. Hence, they remained his property.
 
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Winning:

Held: A court-ordered transfer of a felon’s lawfully owned firearms from Government custody to a third party is not barred by §922(g) if the court is satisfied that the recipient will not give the felon control over the firearms, so that he could either use them or direct their use. Federal courts have equitable authority to order law enforcement to return property obtained during the course of a criminal proceeding to its rightful owner. Section 922(g), however, bars a court from ordering guns returned to a felon-owner like Henderson, because that would place the owner in violation of the law. And because §922(g)bans constructive as well as actual possession, it also prevents a court from ordering the 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. The Government goes further, arguing that §922(g) prevents all transfers to a third party, no matter how independent of the felon’s influence, unless that recipient is a licensed firearms dealer or other third party who will sell the guns on the open market. But that view conflates possession, which §922(g) prohibits, with an owner’s right merely to alienate his property, which it does not. After all, the Government’s reading of §922(g) would prohibit a felon from disposing of his firearms even when he would lack any control over and thus not possess them before, during, or after the disposition. That reading would also extend §922(g)’s scope far beyond its purpose; preventing a felon like Henderson from disposing of his firearms, even in ways that guarantee he never uses them again, does nothing to advance the statute’s goal of keeping firearms away from felons. Finally, the Government’s insistence that a felon cannot select a third-party recipient over whom he exercises no influence fits poorly with its concession that a felon may select a firearms dealer or third party to sell his guns. The Government’s reading of §922(g) is thus over broad.

Accordingly, a court may approve the transfer of a felon’s guns consistently with §922(g) if, but only if, the recipient will not grant the felon control over those weapons. One way to ensure that result is to order that the guns be turned over to a firearms dealer, himself independent of the felon’s control, for subsequent sale on the open market. But that is not the only option; a court, with proper assurances from the recipient, may also grant a felon’s request to transfer his guns to a person who expects to maintain custody of them. Either way, once a court is satisfied that the transferee will not allow the felon to exert any influence over the firearms, the court has equitable power to accommodate the felon’s transfer request. Pp. 3–8.
555 Fed. Appx. 851, vacated and remanded.
KAGAN, J., delivered the opinion for a unanimous Court.
 

bigblue

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This passage seems particularly pertinent for MA proceedings:

"a court, with proper assurances from the recipient, may also grant a felon’s request to transfer his guns to a person who expects to maintain custody of them. Either way, once a court is satisfied that the transferee will not allow the felon to exert any influence over the firearms, the court has equitable power to accommodate the felon’s transfer request. "


And that is for a FELON not even a simple restraining order.
 

rep308

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How it it being reported in the media:
Supreme Court Says Convicted Felons Can Sell Their Guns

http://abcnews.go.com/Politics/wireStory/supreme-court-convicted-felons-sell-guns-31121570

A unanimous Supreme Court ruled Monday that the government can't prevent a convicted felon who is barred from possessing firearms from trying to sell his guns after they are confiscated by authorities.

The justices sided with Tony Henderson, a former U.S. Border Patrol agent who agreed to turn over his collection of 19 firearms to the FBI as a condition of release after he was arrested and charged with distributing marijuana......
 

terraformer

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Keep in mind here, the major win here isn't that Henderson gets to retain ownership of his guns, though that is good. The key was to prevent any negative blowback by this decision. And on that front, this was a major score. The decision was not negative to gun rights one iota.
 

Garys

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Keep in mind here, the major win here isn't that Henderson gets to retain ownership of his guns, though that is good. The key was to prevent any negative blowback by this decision. And on that front, this was a major score. The decision was not negative to gun rights one iota.

I imagine that this might well have implications in MA regarding police confiscation and the use of Bonded Warehouses. Not without litigation, but it's an opening.
 
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