A provision of federal law — 18 U.S.C. §922(g) — makes it illegal for certain convicted felons to possess firearms, either in the actual sense or indirectly — such as by having the firearms located in a place, like a home or a car, where he can still exercise control over them should he choose to do so (this is referred to as “constructive” possession). The law seems straightforward in its prohibition, but the US Supreme Court is currently considering the the question of whether a person convicted of a felony, but whose firearms were not seized by the government, can transfer them to the custody of someone else if he cannot regain possession of them himself.

The case, Henderson v. United States, concerns a man — Tony Henderson — who was convicted of selling illegal drugs in 2006, a conviction that triggers the prohibition against a convicted felon possessing firearms. He has since completed his sentence. Before his conviction, Henderson had voluntarily surrendered his collection of firearms to the FBI instead of waiting for the federal government to seize them after the conviction. Because of the voluntary nature of the transfer of the weapons, Henderson is arguing now that the firearms — which are still in the custody of the FBI — at least technically remain his property.

The issue before the Court is Henderson’s claim that a conflict exists between the federal law precluding him from possessing firearms and Rule 41(g) of the Federal Rules of Criminal Procedure. The rule that Henderson refers to allows a person to petition to the court that the government return his property. Henderson is arguing because the firearms in question are still his property, he should be allowed to transfer them to a third party that he knows, such as his wife, or his neighbor.

The FBI has agreed with Henderson, up to a point. It is allowing him to have back a crossbow and a homemade muzzle-loading rifle that turned over along with his other firearms, because these do not constitute “firearms” in the legal sense of the definition.

But attorneys for the federal government argue that when it comes to actual firearms, the type of transfer that Henderson seeks would still constitute constructive possession of the firearms by him; that the law should not allow such a transfer; and that the government should retain possession of the weapons. The U.S. 11th Circuit Court of Appeals agreed with the government attorneys and denied Henderson’s appeal to have the FBI release the firearms.

The case, which had oral arguments before the Supreme Court Justices scheduled for February 24, 2015, may be of limited utility in its scope. The key fact is that Henderson did not wait for the government to seize his weapons; had he done so, they would no longer be his property and he would have relinquished his firearm possession rights – the discrepancy between the federal law and the federal rules would not have arisen for the Court to consider.

But if the Court rules in favor of Henderson, the decision may open a possibility for those facing federal felony charges in Oklahoma to voluntarily surrender their firearms before conviction, and then exercise at least some control over the disposition of those firearms once they have completed their sentence.

If you are charged with an Oklahoma Gun Charge, contact the attorneys at the Hunsucker Legal Group at 405-231-5600 for your free consultation.