NOTICE: This opinion is subject to
formal revision before publication in the preliminary print of the
United States Reports. Readers are requested to notify the Reporter
of Decisions, Supreme Court of the United States, Washington,
D. C. 20543, of any typographical or other formal errors, in
order that corrections may be made before the preliminary print
goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 13–1487
_________________
TONY HENDERSON, PETITIONER
v.UNITED
STATES
on writ of certiorari to the united states
court of appeals for the eleventh circuit
[May 18, 2015]
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. ___
(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 an-other
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 (CA11
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 an-other 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 (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 (CA10 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 –66 (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 (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 could not, for
example, place those guns in a secure trust for distribution to his
children after his death. He could not sell them to someone halfway
around the world. He could not even donate them to a law
enforcement agency. See Tr. of Oral Arg. 22. Results of that kind
would do nothing to advance §922(g)’s purpose.
Finally, the Government’s expansive idea of
constructive possession fits poorly with its concession that a
felon in Henderson’s position may select a firearms dealer or other
third party to sell his guns and give him the proceeds. After all,
the felon chooses the guns’ “first recipient” in that case too,
deciding who “next ha[s] access to the firearms.” Brief for United
States 24; see
supra, at 5. If (as the Government argues)
that is all it takes to exercise control over and thus
constructively possess an item, then (contrary to the Government’s
view) the felon would violate §922(g) merely by selecting a dealer
to sell his guns. To be sure, that person will predictably convey
the firearms to someone whom the felon does not know and cannot
control: That is why the Government, as a practical matter, has no
worries about the transfer. See Tr. of Oral Arg. 19–21. But that
fact merely demonstrates how the Government’s view of §922(g) errs
in its focus in a case like this one. What matters here is
not whether a felon plays a role in deciding where his
firearms should go next: That test would logically prohibit a
transfer even whenthe chosen recipient will later sell the guns to
someone else. What matters instead is whether the felon will have
the ability to use or direct the use of his firearms afterthe
transfer. That is what gives the felon constructive possession.
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 prevents the felon from
later exercising control over those weapons, so that he could
either use them or tell someone else how to do so. One way to
ensure that result, as the Government notes, 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. See,
e.g.,
United States v.
Zaleski, 686 F. 3d 90,
92–94 (CA2 2012). Indeed, we can see no reason, absent exceptional
circumstances, to disapprove a felon’s motion for such a sale,
whether or not he has picked the vendor. That option, however, is
not the only one available under §922(g). A court may also grant a
felon’s request to transfer his guns to a person who expects to
maintain custody of them, so long as the recipient will not allow
the felon to exert any influence over their use. In considering
such a motion, the court 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. See
id., at
94;
United States v.
Miller, 588 F. 3d 418, 420 (CA7
2009). Even such a pledge, of course, might fail to provide an
adequate safeguard, and a court should then disapprove the
transfer. See,
e.g.,
State v.
Fadness, 363
Mont. 322, 341–342, 268 P. 3d 17, 30 (2012) (upholding a trial
court’s finding that the assurances given by a felon’s parents were
not credible). 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.
Neither of the courts below assessed Henderson’s
motion for a transfer of his firearms in accord with these
principles. We therefore vacate the judgment of the Court of
Appeals and remand the case for further proceedings consistent with
this opinion.
It is so ordered.
