Supreme Court Potpourri: Disposal of Guns by Felons, Prisoners’ Rights to File Civil Suits, ADA’s Applicability to Arrests
The U.S. Supreme Court, on May 18, issued three opinions of interest to defense counsel.
In unrelated decisions, the Court explained how persons convicted of felonies may dispose of their guns which are held by police, limited how many civil suits prisoners can file at no cost, but ducked deciding, for now, whether the Americans With Disabilities Act applies to police arrests.
Disposal of Guns
Defense attorneys often represent clients whose guns are seized by police during an arrest or as a bail condition. If the clients are later convicted of a felony, a dilemma has been what, if anything, the clients can do to dispose of the guns.
In Henderson v. United States, the Supreme Court held that, at least under federal law, a client may seek a court order directing that a gun be transferred to a third party chosen by the client, who may sell the gun for the client or own the gun independently of the client.
Henderson was charged with a felony. He surrendered his gun to law enforcement as a bail condition.
After conviction, Henderson sought a court order to transfer his gun to a friend who would buy it. The District Court and 11th Circuit refused, holding this arrangement constituted “constructive possession” of the gun by Henderson and ran afoul of 18 U.S.C. 922(g)’s prohibition on possession of firearms by a felon.
The Supreme Court, however, held that 922(g) “does not bar such a transfer unless it would allow the felon to later control the guns, so that he could either use them or direct their use.”
A person convicted of a felony cannot evade 922(g) by arranging a “sham transfer that leaves him in effective control of his guns,” the Court said.
But 922(g) does not affect “the right merely to sell or otherwise dispose” of the guns, the Court held. So long as the “felon has nothing to do with his guns before, during, or after the transaction in question, except to nominate their recipient,” the felon may ask – and the court may direct – who can receive the guns, and the felon may receive any proceeds from sale of the guns.
In crafting an order for disposition of guns, the Court held that judges may require promises from the proposed third party that they will keep the gun away from the felon, and require the third party to acknowledge that allowing the felon to use the gun would constitute aiding and abetting a 922(g) violation. Even with such a pledge, however, a judge may disapprove a transfer if the judge is not satisfied that the third party will prevent control of the gun by the felon, the Court said.
Prisoners’ Right to File Civil Suits Without Cost
In Coleman v. Tollefson, the Court limited how many civil suits prisoners can file without cost.
18 U.S.C 1915’s “three strikes” provision bars a court from affording in forma pauperis status where a prisoner-litigant “has, on 3 or more prior occasions … brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim on which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.”
Coleman, a prisoner, had previously filed three civil suits which had been dismissed as frivolous, malicious or as failing to state a claim. One of these suits, however, was still pending on appeal when Coleman sought to file new, additional suits in forma pauperis.
Coleman contended that because he had appealed the dismissal of his third case and that appeal was still pending, it should not count as a “third strike” until the appeals court ruled. The majority of circuits which had considered this issue had held that a prior dismissal does not count as a strike while an appeal of that dismissal remains pending.
But the Supreme Court disagreed. Coleman’s third suit counts as a strike, even though the dismissal was pending on appeal, the Court held.
The Court held that the literal language of the statute requires this result. The statute does not speak in terms of an “affirmed dismissal,” and the term “dismiss” does not normally include subsequent appellate activity, the Court noted.
The Court held that counting each dismissal furthers the statute’s goal of weeding out bad prisoner suits while facilitating consideration of meritorious ones.
Expressly left open by the Court’s ruling is the question of whether an appeal from a third dismissal counts as a “strike,” causing the indigent appellant to lose the ability to appeal in forma pauperis. The Solicitor General conceded that, in such a circumstance, the prisoner should be permitted to appeal in forma pauperis.
But the Court refused to decide that, because Coleman was not appealing from a third-strike trial-court dismissal. Instead, Coleman was appealing from denial of in forma pauperis status to his new, additional suits. “If and when the situation [of an appeal from a third strike dismissal] does arise, the courts can consider the problem in context,” the Court said.
ADA’s Applicability to Police Arrests
In City and County of San Francisco v. Sheehan, the Court had granted cert. to decide whether the Americans With Disabilities Act requires police to provide accommodations to a mentally ill suspect in the course of taking the suspect into custody.
After briefing and oral argument, the Court ultimately dismissed the case for cert. being improvidently granted. But the Court’s opinion and a concurrence suggest that the Court wants to decide the issue in the future.
Sheehan, who suffered from mental illness, lived in a group home for mentally ill people. One day, Sheehan became violent, ordered a social worker out of Sheehan’s room, and threated to kill the social worker.
The social worker then sought to have Sheehan detained for temporary evaluation and treatment on grounds she was a danger to herself and others. The social worker called police to take Sheehan to a secure mental facility.
Police knocked on Sheehan’s door and said they wanted to help her. When they entered her room, she reacted violently and threatened to kill them. Police left the room momentarily.
Police then decided to re-enter the room. Sheehan yelled at them to leave and held a knife. Police used pepper spray on Sheehan, but she did not drop the knife. Police then shot Sheehan at least twice. She fell, and an officer kicked the knife out of her hand.
Sheehan sued San Francisco and the police, alleging that police violated the ADA, 42 U.S.C. 12101, by subduing her in a manner that did not reasonably accommodate her disability.
The District Court granted summary judgment for the police. But the Ninth Circuit reversed and held that because the ADA covers public “services, programs, or activities,” 42 U.S.C. 12132, the ADA’s accommodation requirement covers “anything a public entity does.”
The Supreme Court granted cert., but after briefing and argument, was dismayed that the city and police conceded at the high court that the ADA “may” require police to accommodate mentally ill suspects in taking them into custody.
“Whether [the ADA] applies to arrests is an important question that would benefit from briefing and adversary presentation,” the Court said. “But [all the parties] argue (or at least accept) that Sec. 12132 applies to arrests. No one argues the contrary view. As a result, we do not think it would be prudent to decide the question in this case.”
In a concurring opinion, Justices Scalia and Kagan chastised the city for inducing the Court to grant cert., but then essentially changing the issue on appeal by concession. “We were thus deprived of the opportunity to consider, and settle, a controverted question of law that has divided the Circuits,” they said.
The opinion and concurrence suggest we have not heard the end of this issue.