Constitutional Law

Order re: defendant transfers rights to his firearms before conviction

Here's an interesting recent district court ruling regarding firearm confiscation.

A gunowner named Edward Brown faced the fact that he might be convicted of felony tax fraud. If he was convicted, at that instant he becomes a prohibited person and the firearms are subject to forfeiture. As a condition of bail he turned his guns in to Federal authorities, to await the outcome. He then signed a document saying that if he became unable to possess firearms, his guns were to be turned over to a Bernhard Bastian. He was convicted, and Bastian asked for the guns.

A motion was filed, and a federal magistrate ruled that the guns might be turned over. Later, the government moved to forfeit the guns as substitute property (I assume meaning as part of the bail, which Brown had violated by fleeing).

The federal District Judge ruled that the magistrate's order was binding, since the government had not appealed it. It also finds that the order was valid. The government cited cases saying that a convicted felon cannot transfer his guns after conviction because that would be exercising "constructive possession" of them -- controlling them even tho they are not in his hands. The District Court rejects this idea, and also notes that Brown had transferred ownership before he was convicted. It notes that applying that idea to a transfer of ownership while the owner could legally transfer would raise Fifth Amendment issues (taking of property without compensation). It cites cases saying that, even after conviction, a defendant should be able to transfer ownership of non-contraband guns.

Full post as published by Of Arms and the Law on April 14, 2010 (boomark / email).