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7th Circuit offers alternatives to destroying guns

November 19, 2009

The 7th Circuit Court of Appeals vacated a District judge's order that a defendant's guns be destroyed instead of returned to him, ruling that there were other alternatives than what the District Court considered.

In United States of America v. Leroy F. Miller, No. 09-2256, Leroy Miller appealed the decision to have the federal government compensate him for the 34 guns taken following his conviction of aiding and abetting the possession of firearms by a felon. Miller had asked for his guns to be returned because the government failed to timely file an order for forfeiture.

Miller can't possess his guns until his sentence is served. The District Court declined to allow a relative or friend to hold the guns for Miller because it would leave Miller in constructive possession of them. He then argued for the government to sell the weapons and give him the money, but the District Court instead ordered the guns destroyed and Miller reimbursed under the Tucker Act.

"It is hard to see how either the United States or Miller can be made better off by replacing an actual sale with litigation in which the parties will offer expert evaluations of the weapons' market value, and the Treasury will be out of pocket that amount (because destroying the guns does not produce any revenue to cover the cost of a judgment under the Tucker Act)," wrote Chief Judge Frank Easterbrook.

The District Court made that decision because it believed all other alternatives were unlawful, but the 7th Circuit saw otherwise. Miller could actually possess one of the guns because it is an antique. To solve the issue for the other guns, the Circuit judges proposed several options. The guns could be gifted to a friend or relative who would then be informed if they return the guns to Miller, they could be prosecuted for aiding and abetting unlawful possession, wrote Chief Judge Easterbrook.

The firearms could be transferred in a trust to a reliable trustee that will not return the guns to Miller unless he is legally able to possess them. The U.S. could also store the guns while Miller is unable to have them, the chief judge wrote.

"If the United States does not want to sell them for his account, then it must offer Miller some other lawful option," such as the ones listed by the Circuit Court, Chief Judge Easterbrook wrote.

The Circuit Court remanded for further proceedings consistent with the opinion.

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