Felons can’t lawfully possess guns — does it mean they can’t even arrange for their sale, and that the court may just order them destroyed? That seems to have been the government’s view in United States v. Brown (D.N.H. Apr. 9, 2010), and at least one court has apparently taken this view, but the court in this case disagreed (some paragraph breaks added):
Before he was indicted, Edward L. Brown, a defendant in the underlying criminal tax-fraud and money-laundering case, owned a number of firearms. As a condition of his release on bail, Brown voluntarily surrendered those firearms and agreed both that the firearms would be held by Riley’s Sport Shop, Inc., pending resolution of the charges, and that he would pay all storage charges incurred. Brown was subsequently convicted of several felonies, all unrelated to the surrendered firearms….The government relies on several decisions from other circuits and districts that seem to adopt the proposition that a convicted felon cannot lawfully divest himself of mere legal title to firearms that he can no longer lawfully possess, without thereby “constructively possessing” those firearms. Those decisions stretch the concept of “constructive possession,” as the term is used in the criminal statute prohibiting possession by felons (18 U.S.C. § 922(g)), much too far, in my view, essentially equating criminal constructive possession with even the most minimal exercise of an indicia of ownership-transferring legal title (and, ironically, thereby divesting title to personal property that the owner may not lawfully possess).
The government’s main point … is this: A person who lawfully owns, say, a valuable gun collection just before a jury returns an unrelated felony guilty verdict (e.g., for mail fraud) can, thereafter, no longer sell, give away, or transfer legal title to that collection. But, strictly speaking, the decisions relied upon by the government are not so clear — they do generally accept that a defendant in such a predicament cannot unilaterally direct or “dictate” the specific disposition of owned firearms, but they do not, for example, hold that title to the firearms cannot be conveyed, or that a court cannot order an appropriate disposition of such firearms, for the benefit of the defendant.
The Third Circuit’s unpublished and brief decision in United States v. Roberts, 322 Fed. App’x 175, 176 (3rd Cir. 2009), relied upon by the government, supports the notion that courts may exercise equitable power to dispose of firearms owned by felons, but it takes an additional, and questionable, step. In Roberts, the Third Circuit affirmed a district court’s order permitting the government to destroy firearms owned by a convicted felon. Roberts is not controlling in this circuit, and its conclusion with respect to disposition of the firearms is unpersuasive on several grounds.
For example, the ordered destruction would seem to raise serious Takings Clause issues. Firearms subject to neither lawful forfeiture nor confiscation as contraband (as in this case) remain valuable tangible personal property belonging to the convicted felon. I doubt the government’s right to simply confiscate and destroy such valuable property without first affording due process and payment of just compensation, even if it is accepted that the felon-owner cannot unilaterally transfer his ownership rights following a felony conviction. In Cooper v. City of Greenwood, 904 F.2d 302 (5th Cir.1990), for example, the Fifth Circuit recognized that even one convicted of illegally possessing firearms does not lose his or her property interest in the firearms by virtue of the conviction alone. That property interest cannot be simply taken by the government without affording the property owner due process of law….
I reject the idea that firearms lawfully owned must, following the owner’s unrelated felony conviction, sit wherever they may be, unalienable and wasting, not subject to forfeiture, not subject to confiscation as contraband, and not subject to disposition by the owner, or by anyone else, or by the court for the owner’s benefit. I also reject the notion that such property is subject to government confiscation and destruction in the absence of due process or payment of just compensation.
Senior Judge Longstaff’s pragmatic solution to this problem is the appropriate one: the court, exercising equitable powers, may order the transfer of title to firearms lawfully owned by a person later convicted of a felony (which are not subject to forfeiture or confiscation as contraband) for the felon-owner’s benefit. See United States v. Approximately 627 Firearms, 589 F.Supp.2d 1129, 1140 (S.D.Iowa 2008) (quoting Cooper, 904 F.2d at 306 (“We see no reason that a court … could not order a sale for the account of a claimant who … legally could not possess firearms, were forfeiture to be denied for any reason.”)); United States v. Seifuddin, 820 F.2d 1074 (9th Cir.1987) (convicted felons retain a non-possessory interest in seized firearms). That approach precludes convicted felons from constructively possessing firearms (to the extent that term can be teased to include transferring mere legal title); it precludes a convicted felon from unilaterally dictating or directing disposition, as some courts have found objectionable; it avoids serious constitutional issues arising under the Takings Clause; and it fully protects the felon-owner’s legitimate property interests in a manner consistent with applicable criminal law.
uh_clem says:
It seems that there is some confusion between the terms “possession” and “ownership”.
Felons are prohibited from possessing guns – if they borrow a shotgun from their buddy, they’re violating the law even though they don’t own the gun. Likewise, it’s possible to own something without possessing it – for instance all those shares of companies in my retirement account.
Seems to me that if the guns are in the custodial care of a third party, it wouldn’t violate the prohibition on possession.
April 14, 2010, 4:32 pmShelbyC says:
Well, it sounds like the govt is saying that if you exert any control based on that ownership, like selling the guns, he is also possessing them. Sounds like a stretch to me, but hey, if the govt wants to criminalize any control over somebody’s personal property, that sounds to me like a taking for which just compensation is required.
April 14, 2010, 4:37 pmChem_geek says:
Me too, but then again I don’t believe that guns are evil totems with mystical powers.
Constructive possession law needs a thorough review…
April 14, 2010, 4:38 pmChris Travers says:
Fascinating case. I agree entirely with the court here. I am further troubled that other courts would hold that a conviction for a felony automatically includes the destruction of an arbitrary quantity of property that was previously legally owned, as mere collateral damage to the conviction…..
April 14, 2010, 4:41 pmShelbyC says:
Lots of issues come to mind. What if a minor inheirets a firearm as part of a state? Also, could a felon (non-incarcerated) sail into international waters, where he presumably could possess a firearm, and transfer title?
April 14, 2010, 4:53 pmMatthew Carberry says:
In this case it’s even more nonsensical. The guns were being held by an FFL, Brown couldn’t have taken physical possession if he’d wanted to.
At least not without committing another felony (assuming Riley, who was apparently aware of the situation, was also willing to break the law and/or Brown passed the NICS check post-conviction).
April 14, 2010, 4:54 pmCMH says:
Wouldn’t everyone be better off with a forced sale? In those cases (which I suspect are very common) that a fine is imposed and the defendant otherwise lacks the resources to pay, a mandated sale simultaneously cures the possession problem and provides a fund for the government to recover its fine. I fail to see how it is in anybody’s interest to simply order otherwise valuable property to be destroyed.
April 14, 2010, 4:59 pmTim says:
I agree totally.
I’m not sure that’s so clear. Do I need a background check to get my firearms returned to me after I send them for repair, or take them to a gunsmith for inspection? Often, the answer is “no.”
I can’t see how it’d be any different for someone who consigns or stores firearms with an FFL, necessarily.
I wonder if a similar case to this one could be used to challenge 18 U.S.C. § 922(g) anyway, because there really is no rational relationship between mail fraud, money laundering, or tax-fraud and dangerous crimes for which 18 U.S.C. § 922(g) was enacted. It seems to me that even in the pre-Heller world this challenge would have some merit.
It also seems to me that if there is any reason to prohibit firearm possession by any free man, there are much more compelling reasons to prohibit someone who has a dozen misdemeanor battery convictions that someone with a single felony conviction for tax evasion.
April 14, 2010, 5:01 pmMatthew Carberry says:
Minor in possession would depend on the state law, Fed only cares about purchase from licensed dealers. Most states allow for gifts from lawful possessors. Here in Alaska, for example, there’d be no problem assuming the parent or guardian approved.
If a prohibited person takes the firearm into international waters they have still been in possession in US waters and have committed a felony, if not several. Regardless of that I think the new lawful possessor would be okay to return with the firearm, but there might be a Customs or import law angle since it wasn’t theirs when they left US waters.
For being so “unregulated” there are a surprising amount of laws that apply in most situations involving firearms, we usually don’t need more.
April 14, 2010, 5:03 pm_____ says:
Judge Easterbrook recently dealt with a similar issue: the relationship between Fed. R. Crim. P. 41(g) motions for return of property and the 922(g)(1) felon-in-possession rule. See:
http://caselaw.lp.findlaw.com/data2/circs/7th/092256p.pdf
April 14, 2010, 5:10 pmShelbyC says:
I’m not talking about taking the firearm into international waters, I’m talking only about the act of transfering title, since the govt’s claim is that this act constitutes possession.
April 14, 2010, 5:12 pmMatthew Carberry says:
Tim,
As I understand it, possession by a gunsmith for the purpose of repair/modification is a special case under ATF regs. When a normal FFL takes a gun into their possession for consignment they are required to enter it into their bound book. Under ATF regs they cannot release that weapon, even to the actual owner, without doing a form 4473 and a NICS check.
Since he gave them to an FFL to “store”, not a gunsmith for the purpose of repair, I’m pretty sure consignment rules apply. State licensee laws may also apply.
http://www.atf.gov/firearms/faq/
Q: Is an ATF Form 4473 required when a gunsmith returns a repaired firearm?
No, provided the firearm is returned to the person from whom it was received.
[27 CFR 478.124(a)]
Q: Must a dealer record firearms received on consignment?
Yes. Firearms received for sale on consignment must be entered in the dealer’s “bound book.”
Sales of the firearms are handled in the same manner as other firearm sales. Return of the remaining firearms by the licensee to the consignor is entered in the dealer’s disposition record. An ATF Form 4473 and a NICS check must be completed.
April 14, 2010, 5:16 pmyankev says:
A friend who is a pawn broker and FFL once told me that whenever any of his customers wanted to get her gun out of hock, the pawnshop first had to run a check. Whether this was a federal requirement of part of the the useless City of Columbus transaction registration process(complete w/14 day waiting period), I cannot say.
April 14, 2010, 5:22 pmcityduck says:
Eugene,
What Second Amendment issue or discussion is embodied by this decision? I sure don’t see any reference to the Second Amendment in your excerpt.
[In fact, as an aside, if this case was about a car would the Takings Clause analysis be any different? I'd think not.]
April 14, 2010, 5:33 pmTim says:
So, as I said, it’s ambiguous.
If they weren’t consigned, I would imagine they were logged in for general gunsmithing. And if that’s the case, they could have been returned to him without a NICS check.
I’m not aware of any state statute in my state that’d require a more restrictive rule. In fact, I’ve even sent guns within my home state for repair, and had them returned to me without a NICS check of any kind.
Regardless, the transaction has to go in the bound book. I would even have to log my C&R firearms off of my own bound book to send them for repair to another FFL.
But there’s nothing I’ve ever heard of requiring a NICS check if someone merely stores their firearm with an FFL.
I really think it could go either way.
April 14, 2010, 5:43 pmPintler says:
From the Easterbook decision linked above:
While I don’t like the prospect of a violent criminal saying ‘just give all my TEC-9s to the one member of my gang who doesn’t have a felony record’, I can’t see the logic above working either. If that theory was correct, wouldn’t Miller be in possession if one of his relatives already owned a firearm on their own? That can’t be right – almost every felon with an extended family in Montana would surely be ‘in possession’.
April 14, 2010, 5:47 pmHauk says:
What nonsense. He possessed the firearms illegally and should have to forfeit them to the government as a result, without any “just compensation.” Should the government be required to reimburse those convicted of illegal possession of narcotics for whatever quantity of narcotics are seized?
April 14, 2010, 6:01 pmMatthew Carberry says:
Tim,
I guess it comes down to facts not in evidence.
Licensee’s have to do it for pawned and consigned guns. If Brown didn’t specifically give the firearm for repair (for which there is no evidence in the ruling, nor that Riley was a gunsmith) I think NICS would apply. I can’t find anything in the ATF licensee letters to suggest there’s a third option of “storage”. ATF has always seemed “if it isn’t allowed it’s forbidden” to me.
In any event, like you, I’ll stick with my cruffler license. =)
April 14, 2010, 6:06 pmShelbyC says:
He did? When?
April 14, 2010, 6:07 pmdisintelligentsia says:
First, he didn’t actually physically possess them – they were stored with an FFL. “Constructive possession” is a legal fabrication where the government gets to pretend that the person possesses them. Secondly, narcotics would have been illegal for a person to possess at all, this person possessed his guns legally until the moment the jury returned the finding of guilt. The reason a felon isn’t permitted to possess a gun, putatively, is that such a person is of bad character and giving a person of bad character a gun is dangerous to society. Granted, the premise is flawed, but that’s the argument behind the ban on felons possessing firearms. Your analogy to narcotics is fundamentally flawed.
April 14, 2010, 6:10 pmhattio says:
Does anybody know whether the Federal government actually destroys the guns, or do they sell them? I know lots of states and city governments sell the guns and keep the proceeds (which in my view is actually worse, as it gives them an incentive to seek forfeiture of the guns in many situations when guns are not necessarily central to the crime).
April 14, 2010, 7:19 pmChris Travers says:
I think there are cases where constructive possession would be a problem. For example, if I am a convicted felon and I get my wife to purchase a handgun in her name so that I can use it to defend the house, that would be constructive possession.
Similarly, I could see an argument that the government’s interest is in ensuring that the convicted felon doesn’t try to sell the firearms to someone close to him just so he can remain in control over them. However, this is a strange case because it doesn’t seem to be the allegation.
My own view would be that constructive possession of firearms by a felon should be limited to circumstances where the felon can reasonably be expected to use the elements of control he has to gain physical control over the firearm in question. However, if the firearm was sold to a licensed gun dealer, or sold through a dealer on the open market, I can’t see how that would be a problem.
April 14, 2010, 7:37 pmKirk Parker says:
yankev,
Yes, it’s a federal requirement.
April 14, 2010, 8:59 pmAnthony says:
No he didn’t. Up to the point of arrest (where he gave up possession) it wasn’t illegal for him to have them (presumably; otherwise they would have been confiscated and held as evidence, not placed in a gun shop).
I can see how selling a weapon would be ‘constructive possession’ if you were allowed to decide who would purchase the weapon, but the court ruling addresses that issue, so it seems correct to me.
April 14, 2010, 9:04 pmJardinero1 says:
This is not the issue under discussion but personally, I don’t have a problem with felons, even violent felons, possessing firearms after their sentence is completed. I think a felon has a right to defend himself or go bird hunting or go to the firing range as much as anyone else. I reason that if a felon is deemed too dangerous to possess a gun then why is he being turned loose in the first place? Additionally, pragmatically, the police are wholly ineffectual at keeping guns away from felons anyway.
April 14, 2010, 9:42 pmJardinero1 says:
I wish to add that if society deems a felon too dangerous to possess a firearm then why are they turning him lose on the public in the first place. Perhaps the incarceration of the felon should be extended until he is safe for society.
April 14, 2010, 9:50 pmBrett Bellmore says:
For most courts, the “guns are different” rule kicks in here; Any opportunity to punish somebody who dared to own guns must be taken, no matter how absurd the reasoning. Kudos to this judge for treating guns, at least, like normal property.
April 14, 2010, 9:56 pmSun Tzu's Nephew says:
They destroy them, unless someone in the AFTE office thinks it’s particularly nice in which case it goes into their ‘library’ or is signed out to an agent for ‘training’ – after which it’s ‘stolen’ from the agents official vehicle.
April 14, 2010, 10:08 pmSun Tzu's Nephew says:
They destroy them, unless someone in the AFTE office thinks it’s particularly nice in which case it goes into their ‘library’ or is signed out to an agent for ‘training’ – after which it’s ‘stolen’ from the agents official vehicle.
He’s entitled to possess them up until they are convicted.
April 14, 2010, 10:10 pmRobert says:
Actually, that would be a straw purchase, which is itself a felony. And if you took possession of the firearm physically, it’s not constructive, it’s just simply possession.
Finally, IIRC it’s perfectly legal for a spouse of a convicted felon to own a firearm, so long as it is not readily accessible to the felon (i.e., in a safe that the felon does not have the combination to).
April 14, 2010, 10:43 pmSun Tzu's Nephew says:
The wife would be guilty of a strawman purchase. You would be guilty of conspiracy. And as G. Gordon Liddy proved, the wife of a felon is allowed to go shooting with felons :)
April 14, 2010, 11:01 pmAnthony says:
Incidentally, how is the 2nd amendment involved in this case? It doesn’t seem like the outcome would be any different if the property in question were not a weapon.
April 15, 2010, 2:49 amBrett Bellmore says:
That’s what made the ruling in this case so unusual. If the property in question weren’t a weapon, the ruling would be just what you’d expect. It’s just that judges tend NOT to treat guns like any other property, even in contexts where it would make sense to.
April 15, 2010, 6:51 amcboldt says:
– It doesn’t seem like the outcome would be any different if the property in question were not a weapon. –
April 15, 2010, 7:25 amIt wasn’t in this case, but this case cites a contrary decision in the 3rd Circuit.
Houston Lawyer says:
My neighbor’s house and all of the contents thereof were seized on Tuesday. The constable standing watch said that the house and all the contents had apparently been fraudulently obtained. Clearly, they should have just burned it all to the ground and salted the earth.
April 15, 2010, 9:17 amTakings Clause and the Second Amendment | Snowflakes in Hell says:
[...] Eugene Volokh takes a look at the case of US v. Edward L. Brown. The question seems to be whether the Court can order a collection destroyed after the collector is convicted of a felony, or whether the collector is permitted to transfer the collection: For example, the ordered destruction would seem to raise serious Takings Clause issues. Firearms subject to neither lawful forfeiture nor confiscation as contraband (as in this case) remain valuable tangible personal property belonging to the convicted felon. I doubt the government’s right to simply confiscate and destroy such valuable property without first affording due process and payment of just compensation, even if it is accepted that the felon-owner cannot unilaterally transfer his ownership rights following a felony conviction. In Cooper v. City of Greenwood, 904 F.2d 302 (5th Cir.1990), for example, the Fifth Circuit recognized that even one convicted of illegally possessing firearms does not lose his or her property interest in the firearms by virtue of the conviction alone. That property interest cannot be simply taken by the government without affording the property owner due process of law…. [...]
April 15, 2010, 1:53 pmRyan Waxx says:
The law is an ass.
April 15, 2010, 5:11 pmLarryA says:
The Brady folks will disagree.
April 15, 2010, 7:09 pmBrooks Lyman says:
One of the problems with guns is that they can often be collectors items, works of art or have historical value. To simply destroy them because they were taken from someone convicted of a felony, seems to me to be wrong in a moral/cultural sense if not a legal sense. Would one destroy a painting by Rembrandt if it were confiscated from a felon who hid illegal drugs behind it (to pick a poor example)?
April 16, 2010, 12:02 amPension Dood says:
Technical note from a pension nerd: If you are talking about a 401(k), you neither possess nor own the shares in your “account.” As a technical matter, the shares are owned and possessed by the trustee. You have authority under the plan to direct the investment of the assets allocated to your account, but the trustee (or named fiduciary of the plan) can override your directions (and in some cases, may be required to).
April 16, 2010, 8:32 amNon-Sequiturs: 04.15.10 | Monthly Legal Services | Retainer Lawyer says:
[...] * Let’s say you love guns and hate criminals. After the criminal has paid his debt to society, should he be able to purchase a gun? Should he be able to arrange for the sale of a gun? [The Volokh Conspiracy] [...]
April 16, 2010, 3:43 pmRich Rostrom says:
Are there other categories of property which a person might be prohibited from owning as a result of conviction for some crime, or some other change in legal status?
If so, does the owner in this other cases also immediately lose any ownership interest in the property?
And what of an individual who lawfully owns some property when such a restriction is enacted?
If he is allowed to sell the property, is he deprived of it? (If not, then clearly he is.) Is he deprived without due process by the enactment?
April 16, 2010, 4:15 pm