Forfeiture Arrives at High Court:

J. Justin Wilson
J. Justin Wilson · February 24, 2015

Arlington, Va.—As public awareness and outrage about the practice grows, the contentious issue of forfeiture has also arrived at the U.S. Supreme Court. This morning, the Supreme Court will hear oral argument inHenderson v. United States.

As the Institute for Justice explained in an amicusbrief submitted to the Court, the case could establish that lower courts are to read forfeiture statutes narrowly to ensure that private property is not wrongfully lost to overzealous law enforcement.

When Tony Henderson was charged with a marijuana-related offense, he voluntarily turned his personal collection offirearms—including some antiques valued by collectors—over to the FBI. Henderson pled guilty to a felony charge and served a six month jail sentence.

Because federal law makes it illegal for a convicted felon to “possess” firearms, Henderson arranged for a buyer topurchase his gun collection. However, the FBI refused to transfer the guns, essentially forfeiting Henderson’s ownership interest. The government took the position that, in order to transfer ownership of the firearms, Henderson would necessarily have to “possess”the firearms for some brief instant—even if they were never in his physical possession.

Henderson sued, and the Eleventh Circuit agreed with the government’s interpretation of the felon-in-possession law.
The Supreme Court granted certiorari in October 2014.

The amicus brief, which was co-authored by David Post, a retired Professor from Temple University’s law school and
a blogger at the Volokh Conspiracy,as well as Institute for Justice attorneys Scott Bullock and Robert Everett Johnson, linked Henderson’s case to the broader issue of asset forfeiture.

“The Supreme Court has said that forfeiture laws should be read ‘narrowly’ because they pose such a significant danger
to civil liberties,” explained Robert Everett Johnson, an attorney at the Institute for Justice. “But the court below did exactly the opposite—going out of its way to interpret the felon-in-possession law to strip Henderson of his property rights.”

A decision from the Supreme Court reaffirming the need to give a “narrow” reading to forfeiture statutes could influence
the lower courts’ interpretation of a broad range of forfeiture laws.

“People are beginning to understand that the forfeiture laws allow massive violations of Americans’ civil liberties,”
said senior attorney Scott Bullock. “Now the Supreme Court has an opportunity to help rein in those laws.”

To read the brief submitted by the Institute for Justice, visit: