Supreme Court to Hear U.Va. Law Clinic Case Involving Gun, Property Rights

The U.S. Supreme Court agreed Monday to hear a case championed by a University of Virginia School of Law clinic that will weigh individual property rights against government limits on firearms possession.

Henderson v. U.S., which likely will be argued in late February, marks the 12th case U.Va.’s Supreme Court Litigation Clinic has taken to Washington. Working in teams, students handle actual cases, from the seeking of Supreme Court review to briefing on the merits.

The case involves former U.S. Border Patrol agent Tony Henderson, a Florida man charged with selling marijuana in 2006.

“While he was being prosecuted, the judge encouraged him to give all his firearms to the government for safekeeping, and he did,” said U.Va. law professor Dan Ortiz, the clinic instructor, who will argue the case. 

Henderson gave the FBI his 19 guns and served six months for felony drug offenses.

“Knowing that his conviction barred him from ever possessing firearms himself, he later tried to arrange for the government to transfer the guns to someone who would pay him for them,” Ortiz said. “The government refused, saying that to do so would somehow attach constructive possession of the guns to our client.”

Ortiz said the case involves an interesting property rights issue: Can the government effectively deny a criminal defendant the value of his property, even when the property has no connection to the crime?

Former clinic student Gillian Giannetti, a 2014 U.Va. Law graduate, found the case last year while researching opinions from the 11th U.S. Circuit Court of Appeals.

“It’s incredibly satisfying to see all of the clinic’s work pay off. It’s a fascinating case,” Giannetti said. “I was intrigued by the clear circuit split, as well as the uniqueness of the question. I have never read a case before in which a convicted felon was seeking to transfer firearms he had legally owned prior to his conviction, when the firearms were completely unrelated to the offense committed.”

Though the case had potential, it was not a sure thing, she added.

“While many of the cases that make their way to the Supreme Court also stood out at the appellate level, Henderson was a very short non-precedential opinion, which on its face would make it an unlikely candidate for Supreme Court review,” she said. “Additionally, Mr. Henderson had represented himself in the court below. I think the fact that the court granted certiorari speaks to the talent and ingenuity of the clinic’s participants.”