Kurtis Ray Minch, the defendant in this case, terrified his girlfriend with a starter pistol, which she believed was a real gun; at one point, he held the starter pistol to her head and pulled the trigger. She reported the incident to the Fruitport Township Police Department; the police obtained a search warrant and raided defendant’s home. They discovered and seized a large collection of firearms; all but one – a sawed-off shotgun – were legal to possess. Minch was charged with illegal possession of the sawed-off shotgun and possessing a firearm during the commission of a felony. The prosecutor did not bring forfeiture proceedings – a legal process for the state to take property that was obtained by or used in criminal activity – against the legally owned guns.
Minch pled guilty to the charges. After Minch was sentenced to prison (two years for felony-firearm and one day to five years for illegal possession), he asked for the non-contraband firearms to be turned over to his mother, who had power of attorney over his possessions. Over the prosecutor’s opposition, the circuit court judge ordered the police to turn over the firearms to the defendant’s mother.
The prosecutor appealed to the Michigan Court of Appeals, citing a Michigan statute, MCL 750.224f. This law, also known as the felon-in-possession statute, makes it illegal for anyone convicted of a “specified felony” to possess or distribute firearms in Michigan. Both Minch’s convictions – the illegal possession and the felony-firearm – qualify as “specified” felonies. According to the prosecutor, the circuit court’s order violates this law by forcing the police to act on behalf of the defendant – in other words, as his agents – in distributing the guns to another agent, the defendant’s mother, who has the authority to sell, keep, or distribute the firearms. A convicted felon cannot possess, distribute, or deliver weapons, and neither can any of his agents, the prosecutor contended.
But in a published decision, the Michigan Court of Appeals disagreed. The three-judge panel noted that the statute makes it illegal for a convicted felon to “possess, use, transport, sell, purchase, carry, ship, receive, or distribute a firearm in this state …” Under the statute, Minch could not have the guns returned to him, the panel reasoned, but he could designate someone else to receive them. The panel cited Banks v Detroit Police Department, 183 Mich App 175 (1990) and People v Oklad, unpublished opinion per curiam of the Court of Appeals, issued March 3, 2000 (docket number 206589).
In Banks, as in Minch, the police department had retained firearms and other items that were seized from the plaintiff during a raid; the plaintiff sought to have the property turned over to a third person. The police department opposed returning the guns, arguing that the plaintiff, a convicted felon, was prohibited by federal law from possessing or transporting firearms. The Court of Appeals in Banks acknowledged that, under the federal felon-in-possession statute, the plaintiff could not himself possess or transfer firearms. But without a forfeiture proceeding, withholding the guns amounted to depriving the plaintiff of his property without due process of law, the Banks court said. The panel therefore allowed the plaintiff to designate someone else to receive the firearms.
In Oklad, the Court of Appeals applied similar reasoning to a case involving Michigan’s felon-in-possession statute. The panel held that, although MCL 750.224f barred the defendant from legally possessing the firearms himself, he was entitled to designate another person to receive them. Without forfeiture proceedings, the police lacked a valid reason to keep the firearms, the Oklad court said.
The prosecutor in Minch appeals to the Michigan Supreme Court. He argues in part that the Court of Appeals should not have relied on Banks because later federal decisions hold that a convicted felon cannot have firearms returned or have a third party hold them in trust. The prosecutor also maintains that the legal consequences are the same regardless of whether Minch himself has the guns or his mother does. For example, if she sells the firearms, Minch is violating the statute because he is using his mother as his agent, the prosecutor contends.