Felon’s seized weapons focus of court case

Gun-rights, gun-control advocates spar in drug convict’s appeal.

WASHINGTON — Tony Henderson is getting his crossbow back, regardless of whether he wins or loses at the Supreme Court.

The former Jacksonville, Fla.area Border Patrol agent is also getting back his homemade muzzle-loading rifle, surrendered with the crossbow following Henderson’s 2006 arrest on drug charges. About this, there’s no longer any dispute.

But whether Henderson can get back other firearms held by the government for more than eight years is an intricate legal question that will confront the court on Tuesday. It’s also triggered another clash between gun-control advocates and champions of expansive constitutional protections for gun ownership.

“The NRA has a particular interest in this case,” National Rifle Association attorney James Baranowski wrote in a brief, warning against a ruling that “adversely affects law-abiding citizens in contravention of the Second Amendment.”

The Gun Owners of California and Kansas State Rifle Association, among others, also support Henderson. The Obama administration and the Brady Campaign to Prevent Gun Violence are on the other side.

“No constitutional doubts, much less serious ones, arise from a regulation of a felon’s possession of a firearm,” the Brady group wrote in a brief.

The case, Henderson v. United States, is unlikely to produce a landmark constitutional ruling, such as the Supreme Court’s 2008 decision that the Second Amendment protected an individual’s right to own firearms for lawful purposes.

Instead, the hourlong oral arguments will balance competing law enforcement ideas brought to light by Henderson’s long-running effort to retrieve his seized firearms.

Federal law prohibits convicted felons from possessing firearms. Immigrants in the country illegally, veterans who were dishonorably discharged from the military and individuals convicted of domestic violence, among others, are also prohibited from owning guns.

At the same time, federal rules call for property to be returned to its rightful owner once criminal proceedings are completed. The question is whether these competing principles might be squared by allowing third parties, such as an innocent spouse, to take possession of the seized firearms.

“Allowing felons to transfer their (property) interests to lawful purchasers poses no risk of putting firearms back in felons’ hands,” Henderson’s attorneys wrote in a brief. “It merely allows those who own guns to dispose of their remaining property interests in them.”

The Obama administration counters that turning over the firearms to Henderson’s friend or wife would still give the convicted felon “constructive” possession of something he’s not supposed to have.

The federal law, Solicitor General Donald Verrilli Jr.’s office summed up in a brief, prohibits Henderson “from having direct physical access to firearms” as well as “exercising control over firearms through others.”

Henderson is now represented by high-powered legal talent, including frequent Supreme Court practitioner John P. Elwood and members of the University of Virginia School of Law Supreme Court Litigation Clinic.

He started, though, with the street nickname of “Hollywood,” and for a time he was acting as his own lawyer.

Tipped off by an informant about Henderson’s activities in 2005, Gainesville, Fla.-based Drug Enforcement Administration agents set up a controlled buy and busted him.

Henderson pleaded guilty to one count of distributing marijuana and served a six-month term of incarceration and a period of supervised release.

Once free, Henderson sought return of his guns, including three old M1 Garand rifles, a collection of .22-caliber rifles and pistols, two shotguns, a carbine and several revolvers. While the FBI said it would return the crossbow and muzzle-loading rifle, because they aren’t considered firearms, officials said federal law prohibited it from returning the rest.

As an alternative, Henderson has variously proposed that the weapons be returned to another individual, such as his mother, his next-door neighbor or his wife.

Henderson still owns the firearms, which he surrendered while released on bond before his guilty plea. They haven’t been forfeited to the government.

“The fact that the government acquired Mr. Henderson’s firearms because of a voluntary surrender ... does not alleviate the concern that by granting Mr. Henderson actual or constructive possession of a firearm, a court would violate” federal law, the 11th U.S. Circuit Court of Appeals said in rejecting Henderson’s arguments.