Tag Archives: 18 usc 922(g)

Hallelujah! It’s Blog Post No. 1600 – Update for June 13, 2024

Leave a comment

1600240613For those of you keeping score—and I’m probably the only one—today’s installment is the 1,600th since I began posting news and comment on federal criminal justice issues back in 2015.

It’s probably not significant. If we had a Base 16 number system, it would only be Post 640. But the subject of this blog doesn’t often give us a reason to celebrate, so we had better take our wins where we find them.

SOMETHING IN THE AIR

thunderclap240613If you remember Thunderclap Newman’s single hit “Something in the Air” (1969)—like I do—you’re getting too old. The band was singing about the revolution, which, of course, never arrived, but a lot of us are thinking that something may be in the air about the constitutionality of the felon-in-possession statute before the month of June comes to a close.

United States v. Rahimi, the decision everyone’s waiting for, doesn’t deal with felon-in-possession at all, but rather subsection 8 of 18 USC § 922(g). That subsection prohibits someone subject to a court-imposed domestic protection order from possessing a gun or ammo. But in the wake of New York State Rifle & Pistol Association v. Bruen, a 2022 SCOTUS decision, it is likely that § 922(g)–which bans a whole list of people from felons to drug users to illegal aliens to people with DPOs from having guns–violates the 2nd Amendment.

That would be good news for Hunter Biden.

nickdanger220426It might be good news for a lot of people. The belief is that the Court will modify Bruen to add some “dangerousness” exception so that people who are proven to be dangerous with a gun can be prohibited. Such a decision would suggest that convicted felons who don’t have a history of dangerousness would not be subject to § 922(g)(1).

Some statutes are unconstitutional on their face, such as one, for example, that made insulting the President a felony. But others are only unconstitutional when applied to certain situations. The § 922(g)(1) felon-in-possession was unconstitutional when applied to Bryan Range, who had a single pretty minor food stamp felony that was 25 years old. The same statute might not be unconstitutional if applied to the Unabomber.

Zavien Canada was convicted of a § 922(g)(1) felon-in-possession, On appeal, he argued that his “felon-in-possession” offense should be thrown out because § 922(g)(1) is facially unconstitutional. Last week, the 4th Circuit cautiously rejected the argument, noting that there is something in the air.

“The law of the Second Amendment is in flux,” the 4th held, “and courts (including this one) are grappling with many difficult questions in the wake of Bruen. But the facial constitutionality of Section 922(g)(1) is not one of them. Indeed, no federal appellate court has held that Section 922(g)(1) is facially unconstitutional, and we will not be the first.”

gun160711The Circuit went on to suggest that if Zavien had raised an “as applied” challenge—that the felon-in-possession statute is unconstitutional as applied to his situation—the outcome might have been different: “Our decision is narrow. Because Canada has expressly disclaimed any sort of as-applied challenge, we “may” simply “assume for the sake of argument that there is some room for as-applied challenges” to Section 922(g)(1)…”

Rahimi will not settle the felon-in-possession debate, however the decision goes. However, it is likely to be a nail in the coffin (and a fairly large nail at that) for the constitutionality of the felon-in-possession statute.

United States v. Canada, Case No. 22-4519, 2024 USApp LEXIS 13271 (4th Cir. June 3, 2024)

New York State Rifle & Pistol Assn, Inc v. Bruen, 597 US 1 (2022).

– Thomas L. Root

Ninth Circuit Says 922(g)(1) Unconstitutional for Nonviolent Felons – Update for May 13, 2024

Leave a comment

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

9th CIRCUIT HOLDS NONVIOLENT FELONS MAY POSSESS GUNS

A 9th Circuit panel held 2-1 last week that a defendant with five prior nonviolent felony convictions was not subject to 18 USC § 922(g)(1)’s prohibition on possessing guns or ammo under the Second Amendment.

In what may be the biggest Second Amendment ruling since the 3rd Circuit’s Range v. Attorney General decision last June, the 9th found that the Supreme Court’s New York State Rifle & Pistol Ass’n v. Bruen decision of 2022 means that § 922(g)(1)’s application to people with nonviolent felony convictions violates the Constitution.

throwgun240513Steve Duarte had five prior felony convictions for fleeing and eluding, possession of a controlled substance, and California’s own  felon-in-possession law when the police pulled him over for erratic driving. Naturally, Steve fled (it had worked so well for him before), and just as naturally, the police caught him. But before he was finally pulled over, Steve tossed a handgun from the car window.

The police recovered both the gun and Steve. The Feds picked up the case, with Steve being charged federally with § 922(g)(1) felon-in-possession. 

Steve went to trial and lost. But after Bruen was decided while his appeal was pending, Steve argued that his conviction was unconstitutional. He maintained that under Bruen, § 922(g)(1) “violates the Second Amendment as applied to him, a non-violent offender who has served his time in prison and reentered society.”

The 9th Circuit rejected its 2010 United States v. Vongxay holding that the Second Amendment doesn’t invalidate laws prohibiting convicted felons from possessing guns: “Vongxay is clearly irreconcilable with Bruen and therefore no longer controls because Vongxay held that § 922(g)(1) comported with the Second Amendment without applying the mode of analysis that Bruen later established and now requires courts to perform. Bruen instructs us to assess all Second Amendment challenges through the dual lenses of text and history….”

kidgun240125Applying Bruen, the 9th held that the handgun was an “arm” and Steve’s reason for carrying it–self-defense–“falls within the Second Amendment’s plain language.” The Circuit rejected the Government’s contention that the Second Amendment’s term “the people” excluded convicted felons “because they are not members of the ‘virtuous’ citizenry… Bruen and District of Columbia v. Heller foreclose that argument because both recognized the ‘strong presumption’ that the text of the Second Amendment confers an individual right to keep and bear arms that belongs to ‘all Americans,’ not an ‘unspecified subset’.”

Once the right is established, Bruen holds, the Government must prove that § 922(g)(1)’s prohibition as applied to the defendant in question “is part of the historical tradition that delimits the outer bounds of the” Second Amendment right. The Government could not show that disarming nonviolent felons had a “well-established and representative historical analogue” that “imposed a comparable burden on the right of armed self-defense” that was “comparably justified” as compared to § 922(g)(1)’s “sweeping, no-exception, lifelong ban.”

“We do not base our decision on the notion that felons should not be prohibited from possessing firearms,” the decision noted. “As a matter of policy, 922(g)(1) may make a great deal of sense. But ‘the very enumeration of the Second Amendment right’ in our Constitution ‘takes out of our hands… the power to decide’ for which Americans ‘that right is really worth insisting upon.”

The impact of Duarte may be attenuated, however, because the Supreme Court is expected to issue its decision in United States v. Rahimi sometime in the next six weeks. Rahimi, which focuses on whether §922(g)(8)’s prohibition on people subject to a domestic relations protection order possessing guns is constitutional after Bruen, is widely expected to further define the Second Amendment limits of § 922(g).

gunfreezone170330Writing in his Sentencing Law and Policy blog, Ohio State University law professor Doug Berman observed that “[t]he location and timing of this ruling is almost as interesting as its substance. Many hundreds of § 922(g)(1) cases are prosecuted in this big circuit each year, so the echo effects of this ruling could prove profound (though I would guess not that many involve persons with only nonviolent priors). And, we are likely only weeks away from the Supreme Court finally handing down an opinion in the Rahimi case to address the application of Bruen to a different section of § 922(g).

Berman observes:

Most folks reasonably expect the Rahimi ruling to provide more guidance on how the Bruen Second Amendment test is to be applied to broad federal criminal gun control laws. I would expect the coming Rahimi opinion will lead to the 9th Circuit reviewing this important Duarte ruling in some way, though whether that is in the form of en banc review or panel reconsideration might turn on what Rahimi actually says.

United States v. Duarte, Case No 22-50048, 2024 U.S. App. LEXIS 11323 (9th Cir, May 9, 2024)

New York State Rifle & Pistol Assn v. Bruen, 597 US 1 (2022)

District of Columbia v. Heller, 554 US 570 (2008)

Sentencing Law and Policy, Split 9th Circuit panel declares federal felon-in-possession criminal law unconstitutional as applied to non-violent offenders after Bruen (May 10, 2024)

– Thomas L. Root

Rahimi Could Be Watershed for § 922(g) Felon In Possession – Update for April 15, 2024

Leave a comment

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

CHRISTMAS SEASON AT THE SUPREME COURT


scotusxmas240415We’re entering what I always think of as Christmas season at the Supreme Court, the final 10 weeks of what is anachronistically called “October Term 2023.”  With 75% of the Court’s term done, only about 24% of its opinions have been issued. That’s common: there’s always a flurry of decisions issued in late April, May and June, with the most controversial decisions saved for last.

The most consequential criminal case yet to be decided, I believe, is United States v. Rahimi. In 2022, the Supreme Court in N.Y. State Rifle & Pistol Assn. v. Bruen – relying on the Second Amendment – invalidated a New York law that forbade individuals to carry a gun in public unless they could persuade a government official that they faced some extraordinary threat to their personal safety. Applying “originalism,” the judicial philosophy that legal text should be interpreted based on the original understanding at the time of adoption, SCOTUS reasoned that a right reserved to a tiny subset of the population (the right to carry a gun) was an encroachment on a “right of the people” that the Constitution says “shall not be infringed.”

But Bruen reaches further, holding that when defending a law that deprives an individual of the freedom to keep or bear arms, the government must show that the law “is consistent with the nation’s historical tradition of firearm regulation.” The absence of a historical regulation “distinctly similar” to a modern gun-control law is evidence of the modern regulation’s unconstitutionality.

Laws banning all felons from gun possession were not adopted until the 1960s.

In Rahimi, the 5th Circuit applied the Supreme Court’s Bruen decision, holding that 18 USC § 922(g)(8) – which prohibited people subject to domestic violence protection orders from possessing guns – violated the Second Amendment because, at the time the Second Amendment was adopted, no law keeping people subject to a domestic violence protection order was on anyone’s books.

whataburger230703Writing last week in the New York Times, George Mason University law professor Nelson Lund said, “Under Bruen’s originalist test, Rahimi should be an easy case. The government has not informed the Supreme Court of a single pre-20th-century law that punished American citizens, even those who had been convicted of a violent crime, for possessing a gun in their own homes. Not one.”

The problem is that the subject of the Rahimi case, Zackey Rahimi, is an awful defendant. His ex-girlfriend obtained a domestic violence protection order against him on the ground that he had assaulted her, and he has been charged with several crimes involving the misuse of firearms, including shooting up a What-a-Burger when his friend’s credit card was declined.

“If the court pretends that a historical tradition of such laws existed,” Lund wrote, “it will not be faithful either to Bruen’s holding or to the court’s repeated insistence that the right to keep and bear arms is not ‘a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.’”

But following the Bruen precedent could be tough on the Justices, because the outcry of letting the Zack Rahimis of the nation keep their guns will be fierce. Still, Rahimi may have a silver lining for the § 922(g)(1) felon-in-possession statute. If Zack wins, that just about guarantees that Garland v. Range – in which the 3rd Circuit ruled that Bruen means that a guy convicted 25 years before of a minor food stamp fraud is allowed to possess a gun – will be upheld. If Zack loses, I suspect SCOTUS will write some “dangerousness” exception into the Bruen standard. Even if that happens, many  § 922(g)(1) defendants will easily jump that hurdle.

toomuchguns240416Writing in his Sentencing Law and Policy blog last week, Ohio State University law prof Doug Berman said, “In the votes and voices of a number of Justices (and others), I sometimes notice that affinity for originalism starts running out of steam when the outcomes start running in concerning directions. Rahimi may prove to be another data point on that front in the coming months.”

United States v. Rahimi, Case No. 22-915 (Supreme Ct, argued November 7, 2023)

New York Times, The Fidelity of ‘Originalist’ Justices Is About to Be Tested (April 9, 2023)

Sentencing Law & Policy, Is Rahimi an “easy case” for any true originalist to rule for the criminal defendant and against the prosecution? (April 10, 2024)

– Thomas L. Root

The Short Rocket – Update for April 12, 2024

Leave a comment

rocket-312767We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

Today, some short odds to end the week…

Gun Cases Still Being Decided While Rahimi Await SCOTUS Decision: Holding that the government had not satisfied its burden to justify that 18 USC § 922(g)(1)’s prohibition on all felons possessing guns is “consistent with the Nation’s historical tradition of firearm regulation,” an Eastern District of Michigan US District Court judge threw out a § 922(g) indictment against Ron Williams in late February.

Meanwhile, a Northern District of Illinois court has dismissed a § 922(g)(5) case against Heriberto Carbajal-Flores for possessing a gun while illegally or unlawfully being in the United States. Heriberto had had two prior motions denied, but the court reversed itself based on the 3rd Circuit’s Range v. AG and 7th Circuit’s Atkinson v. Garland decisions.

The government has appealed both cases.

United States v. Williams, Case No. 23-cr-20201, 2024 U.S. Dist. LEXIS 30849 (ED Mich., Feb 22, 2024)

United States v. Carbajal-Flores, Case No. 20-cr-00613, 2024U.S. Dist. LEXIS 40974 (N.D.Ill. Mar 8, 2024)

BOP Proposed Social Media Ban Draws Fire: Two civil rights groups blasted the BOP last week for a proposed crackdown on imprisoned peoples’ access to social media—including a possible ban on accounts run by family on the outside. The ACLU and Knight First Amendment Institute at Columbia University said the proposed procedures would violate the Constitution.

socialmedia240412Inmates’ rights advocacy groups say that the rule would restrict the 1st Amendment rights of not only prisoners but also people not in BOP custody. Ebony Underwood, whose nonprofit We Got Us Now works with the children of incarcerated parents, called the social media proposal “archaic and so inhumane.”

Knight wrote in reply comments:

For the nearly 2 million people who are incarcerated in U.S. jails and prisons, maintaining connection with loved ones and communities is associated with better physical and mental health outcomes, reduced recidivism, and successful reentry into society. Social media is increasingly becoming an important part of that connection. As one formerly incarcerated journalist recently recounted, using social media through his wife allowed him to pursue a writing career, stay in touch with his community, and give him hope of reintegration upon release.

The public comment period closed on April 1. The federal register website shows that the proposed rule received 219 comments, though only 22 have been posted online.

The Appeal, Civil Rights Groups Decry Proposed Federal Prison Social Media Crackdown (April 4, 2024)

Techspot, US prison system proposes total social media ban for inmates, sparking First Amendment concerns (April 2, 2024)

Knight 1st Amendment Institute, Comment re: BOP social media rules (April 1, 2024)

BOP Dumps ACA: After being blasted by the DOJ Inspector General last November for its conflict-riddled relationship with the American Correctional Association, the BOP last week announced that it would not renew its $2.75 million contract with the accreditation organization.

ACAaward240307The ACA, which accredits prisons, first started accrediting BOP facilities in 1980. However, the Bureau said on Monday it has decided to part ways. However, a report issued by the Dept of Justice Inspector General found that instead of providing an independent evaluation of BOP facilities, the ACA “instead relied on the prisons’ own internal reports during reaccreditation reviews.” In other words, as the DOJ put it, “it appears the BOP is, in effect, paying ACA to affirm the BOP’s own findings.”

In an announcement last week, the BOP said it “has decided to explore other options to ensure continued improvement and innovation in correctional standards for the well-being of adults in custody and the FBOP’s workforce. The FBOP remains committed to a rigorous assessment of its policies and practices involving all levels of leadership to inform continuous organizational improvement.”

Law360, BOP Drops Accreditation Org After IG, Sens. Raise Concerns (April 1, 2024)

DOJ Office of Inspector General, Audit of the Federal Bureau of Prisons’ Contract Awarded to the American Correctional Association (Nov 2023)

– Thomas L. Root

Lurching Toward A Dangerousness Standard for Bruen – Update for January 25, 2024

Leave a comment

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

BRUEN CONTINUES TO EXPAND GUN RIGHTS

aliengun240124For the first time, a West Texas federal judge last month ruled that 18 USC § 922(g)(5)(A) – which prohibits aliens in the country unlawfully from possessing guns or ammo – violates the 2nd Amendment in the wake of the Supreme Court’s 2022 New York State Rifle & Pistol Ass’n v. Bruen decision. The West Texas decision, which the government has appealed to the 5th Circuit, is noteworthy, as is the judge’s lament at the outset of her opinion:

The Court pauses to join the choir of lower courts urging the Supreme Court to resolve the many unanswered questions left in Bruen’s wake… In the estimate of one legal scholar who reviewed more than 300 decisions applying Bruen, “lower courts have received Bruen’s message to supercharge the 2nd Amendment, but they have not yet located its Rosetta Stone. Their collective decisions in the months since the ruling have been scattered, unpredictable, and often internally inconsistent…” Against this backdrop of uncertainty, the Court “applie[s] Bruen as well as possible in evaluating the constitutionality of” the gun laws that Sing-Ledezma is charged with violating.

Citing Bruen, the judge deemed the law prohibiting people here illegally from possessing a gun “facially unconstitutional” and “an outlier that our ancestors would never have accepted.”

Last week, the 3rd Circuit joined in the “supercharging,” ruling that a Pennsylvania law that bans 18-to-20-year-olds from carrying guns outside their homes during a state of emergency violates the 2nd Amendment.kidgun240125 The 3rd ruled that 18-to-20-year-olds, like other subsets of the American public, are “presumptively among ‘the people’ to whom 2nd Amendment rights extend…. The Commissioner cannot point us to a single founding-era statute imposing restrictions on the freedom of 18-to-20-year-olds to carry guns… At the time of the 2nd Amendment’s passage, or shortly thereafter, the minimum age for militia service in every state became eighteen… We understand that a reasonable debate can be had over allowing young adults to be armed, but the issue before us is a narrow one. Our question is whether the Commissioner has borne his burden of proving that evidence of founding-era regulations supports Pennsylvania’s restriction on 18-to 20-year-olds’ 2nd Amendment rights, and the answer to that is no.”

The ”Rosetta Stone” that the Western District of Texas court seeks – at least for people serving sentences for being felons-in-possession under 18 USC 922(g)(1) – may come in United States v. Rahimi, the 5th Circuit case now awaiting a decision from the Supreme Court. The 3rd Circuit’s Range v. Attorney General en banc ruling – that held 18 USC § 922(g)(1), as applied to a nonviolent ex-felon, violated the 2nd Amendment – is on hold at the Supreme Court until Rahimi is decided.

In a thoughtful law review note to be published in the next few weeks, Jamie McWilliam argues that

in the context of felon disarmament, the primary group of laws that the government has put forward involve disarming classes that the government deemed dangerous… [embodying] a broad theme of dangerousness… [T]o determine the scope of the dangerousness standard, courts should look to the principles embodied by the 2nd Amendment itself—in particular, defense against immediate personal violence. Ultimately, this essay suggests that only those who have actually created the kind of danger that the amendment was meant to protect against—i.e., who have perpetrated physical violence—should be disarmed. This standard may defend against potentially prejudicial discretion, while simultaneously upholding 2nd Amendment rights and protecting our community.

nickdanger220426Many expect the Supreme Court to adopt such a dangerous exception to Bruen, an adoption that should advance the argument that many felon-in-possession convictions – where the dangerousness of the defendant is nonexistent – violate the 2nd Amendment.

United States v. Sing-Ledezma, Case No, EP-23-CR-823, 2023 U.S. Dist. LEXIS 223028 (W.D. Tex, December 10, 2023)

Law360, For Immigrants, Gun Rights Debate Goes Beyond Firearms (January 19, 2024)

Lara v. Commissioner, PA State Police, Case No. 21-1832, 2024 U.S. App. LEXIS 1159 (3d Cir., January 18, 2024)

McWilliam, Jamie, Refining the Dangerousness Standard in Felon Disarmament (December 4, 2023). 108 Minn. L. Rev. Headnotes (publication forthcoming ,2024)

– Thomas L. Root

Supreme Court Teeing Up Some Significant Criminal Law Decisions – Update for January 15, 2024

Leave a comment

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

SUPREMES’ JANUARY LOOKING CONSEQUENTIAL FOR CRIM LAW HOLDINGS

alicewordsmeanhumpty231122The first argument of the current Supreme Court term last October, Pulsifer v. United States, ought to be yielding an opinion in the next few weeks. The First Step Act “safety valve” case – that considers whether “and” means “and” or simply “or” – has increased importance for a lot of people who might otherwise qualify for the zero-point sentence reduction under the new USSG § 4C1.1.

A condition of § 4C1.1 is that “the defendant did not receive an adjustment under § 3B1.1 (Aggravating Role) and was not engaged in a continuing criminal enterprise…” So does that mean the defendant is qualified unless he has a § 3B1.1 adjustment AND a CCE conviction? Or is he disqualified if he has a § 3B1.1 OR a CCE violation? There are a lot of § 3B1.1 enhancements out there, but not nearly as many CCE convictions.

Even without the § 4C1.1 angle, Ohio State University law professor Doug Berman said last week in his Sentencing Law and Policy blog that Pulsifer may “prove to be the most interesting and impactful sentencing case from the current SCOTUS Term.”

Meanwhile, other interesting Supreme Court developments are happening largely unseen. Last November, the Court granted review in Erlinger v. United States, a case which asks whether the Constitution requires that a jury (instead of the judge) find beyond a reasonable doubt that an Armed Career Criminal Act defendant’s three predicate offenses were “committed on occasions different from one another.”

May you rest in peace, Betty... stealing America's hearts did not make you ACCA-qualified.
May you rest in peace, Betty… stealing America’s hearts did not make you ACCA-qualified.

(The ACCA, for those who got here late, is a sentencing enhancement contained in 18 USC § 924(e)(2) which provides that the punishment for a felon-in-possession conviction under 18 USC § 922(g) begins with a mandatory 15 years and goes to life imprisonment if the defendant has three prior convictions for serious drug offenses or crimes of violence committed on occasions different from one another. Erlinger explores the collision of those elements with the 6th Amendment: can a judge find the ACCA applies to a felon-in-possession by a simple preponderance of the evidence, or must those elements be found by a jury beyond a reasonable doubt?)

The curious development in Erlinger is that both the Solicitor General and defendant Erlinger agree that after the Supreme Court adopted the current “standard for determining whether offenses occurred on different occasions [set forth] in Wooden v. United States” in 2022, the issue of whether the predicates were “committed on occasions different from one another” implicates a defendant’s Apprendi v. New Jersey rights to have facts that raise the statutory minimum and maximum must be decided beyond a reasonable doubt by a jury.

When both parties in a Supreme Court case agree on how the case should come out, the Court appoints a lawyer to argue the other side. SCOTUS has appointed one in this case, who will file a brief next month opposing the briefs Erlinger and DOJ have already filed.

Erlinger is important not only for the ACCA issue presented but because some on the Court have argued that where an enhanced penalty (like 21 USC § 851 drug enhancements) requires a showing of a prior conviction, due process requires that the fact of the conviction be decided by a jury. The Supremes ruled the other way in the 1998 Almendarez-Torres v. United States decision, a holding that was unaffected by the subsequent Apprendi ruling. Justice Clarence Thomas especially has criticized Almendarez-Torres, believing it is wrong, and the fact of prior convictions should be a jury question. Erlinger may give a holding that is expansive enough to address the Almendarez-Torres holding.

expert160905Last week, the Court heard argument in Smith v. Arizona, addressing whether a defendant’s 6th Amendment right to confront witnesses means that the lab expert who prepared a report on drug purity must be put on the stand to verify the report. Many courts currently permit another expert who did not conduct the test to testify as to drug purity based on the report’s findings.

The  Court seemed sympathetic to Jason Smith, an Arizona prisoner who contends that the expert’s testimony – based on a drug purity test performed by someone who wasn’t present to testify – contravened the 6th Amendment’s confrontation clause, which gives defendants in criminal cases the right to “be confronted with the witnesses against him.”

Finally, the Court will hear the argument tomorrow in Loper Bright Enterprises v. Raimondo, the case that could end Chevron deference – the notion that courts must defer to agency interpretation of statutes and rules. A change in Chevron deference could affect the Sentencing Guidelines, court deference to agency interpretation of gun laws, and court deference to BOP policies, among other changes.

Sentencing Law and Policy, Top side SCOTUS brief now files in Erlinger v. US, the case considering Apprendi’s application to part of ACCA (January 9, 2024)

Almendarez-Torres v. United States, 523 U.S. 224 (1998)

Erlinger v. United States, Case No. 23-370 (S.Ct., awaiting decision)

Smith v. Arizona, Case No. 22-899 (S.Ct., argued January 10, 2024)

SCOTUSBlog, Court appears to favor Arizona man’s confrontation clause claim (January 10, 2024)

Loper Bright Enterprises v. Raimondo, Case No. 22-451 (S.Ct., awaiting argument)

– Thomas L. Root

Straight Shooting on Felon-In-Possession – Update for January 9, 2024

Leave a comment

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

HOW ABOUT THOSE “NEW LAWS” ON FELON-IN-POSSESSION?

I had yet another email last week – and there have been a lot of them – asking for information about any “new laws” on 18 USC § 922(g)(1) felon-in-possession.

We need to get some things straight.

dunce240109Remember those high school government classes you skipped? The teacher explained that a new “law” has to be passed by Congress and signed by the president, in this case by the notoriously anti-gun President Biden. When will that happen?

We are now into an election year in which Americans will elect one new president, 435 new members of the House and 33 new senators. Democrat voters, by and large, don’t like guns and hate the 2nd Amendment. Republican voters, by and large, love the 2nd Amendment but don’t think convicted felons should be allowed to do or have anything. Most people (77% of Americans and 92% of Republicans) think the crime rate is rising when, in fact, violent crime dropped 8% last year over 2022, the murder rate has plummeted, and the property crime rate fell 6.3% to what would be its lowest level since 1961.

Less than two years ago, Congress passed the Bipartisan Safer Communities Act as a response to mass shootings at a Buffalo supermarket and a Uvalde, Texas, school. The bill – passed the House 55-45% but was approved in the Senate by a 2-1 margin – tightened background checks, toughened straw-purchaser laws, and increased the maximum for a simple, non-Armed Career Criminal Act felon-in-possession from 10 to 15 years.

So you tell me: who in Congress would vote to walk back felon-in-possession laws so soon after toughening them? Who in Congress would want to face attacks during a reelection campaign that he or she made it easier for criminals to get guns?

If you answered “no one,” you’re pretty close.

Federal law prohibiting anyone with a felony conviction from ever possessing a gun or ammo has only been around since 1961. But among politicians, it is untouchable. Every change to 18 USC § 922(g) in the last 63 years has only increased the classes of people prohibited from having guns or increased the penalties for violating the statute.

gun160711There is action on felon-in-possession, but it’s taking place across the street from the Senate and House chambers at the Supreme Court. Back in June 2022, the Supreme Court ruled in New York State Rifle & Pistol Assn v. Bruen that when the 2nd Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. Only if a statute limiting firearm possession is consistent with “this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the 2nd Amendment’s ‘unqualified command’.”

Bruen has led to a cascade of 2nd Amendment attacks on 18 USC § 922(g). Most notably, the 3rd Circuit ruled in Range v. Attorney General, an en banc decision last June, that § 922(g)(1) felon-in-possession is unconstitutional as it applies to people convicted of nonviolent felonies. Range came only a week after the 8th Circuit ruled in United States v. Jackson that the § 922(g)(1) felon-in-possession ban remained a lawful limitation on gun possession even after Bruen.

whataburger230703Meanwhile, the government convinced the Supreme Court to take up United States v. Rahimi, a case in which the 5th Circuit ruled that § 922(g)(8) – which prohibits someone subject to a domestic protection order from possessing a gun – was unconstitutional. Oral arguments in Rahimi last fall did not go all that well for the defendant, chiefly because  Zackey Rahimi is a bad actor who threatened to kill his girlfriend, opened fire on a motorist in a road rage incident, and tried to shoot up a What-a-Burger because his friend’s credit card was declined.

Meanwhile, the Range petition for cert, also filed by the government, appears to be on hold pending the Rahimi decision.

Now add to that a petition filed on December 21 by Melynda Vincent, who passed a $492.00 counterfeit check while battling a drug addiction 15 years ago. Melynda sued the government in 2020 for the right to own a gun. The 10th Circuit ruled last fall that Bruen did not change the fact that felon-in-possession was constitutional. The government plans to oppose Melynda’s petition, but the issue – whether a sympathetic nonviolent offender whose crime was committed years ago can constitutionally be denied the right to possess a gun – is much like Bryan Range’s case.

vincent240109Melynda is as ideal a petitioner as Zack Rahimi is a poster child for gun control. Her federal judge gave her probation 15 years ago and challenged her to turn her life around. Melynda did that and more. She earned a bachelor’s degree in behavioral science followed by a master’s degree in social work and a second master’s degree in public administration. She is the founder and executive director of the Utah Harm Reduction Coalition, a nonprofit that works to develop science-driven drug and criminal justice reform policies. She also started the first legal syringe exchange service in the state.

It seems probable that the Supreme Court will try to limit Bruen where public safety is concerned. This makes it likely that the court may limit § 922(g)’s limitations to cases where the defendant’s dangerousness is at issue, which would benefit the Bryan Ranges and Melynda Vincents of the country, as well as any number of federal defendants whose § 922(g)(1) convictions have nothing to do with their perceived risk to public safety.

Vincent v. Garland, 80 F.4th 1197 (10th Cir, 2023)

Vincent v. Garland, Case No. 23-683 (petition for cert filed Dec 21, 2023)

Range v. Attorney General, 69 F.4th 96 (3d Cir. 2023) (en banc)

Garland v. Range, Case No. 23-374 (dist for conference November 17, 2023)

NBC, Most people think the U.S. crime rate is rising. They’re wrong. (December 16, 2023)

Deseret News, She lost her gun rights for passing a bad check. Now she wants the Supreme Court to restore them (December 29, 2023)

– Thomas L. Root

Continuing Our Santa Gift Review: A Lump of Coal for a Pro Se Defendant – Update for December 28, 2023

Leave a comment

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

‘I AIN’T NO SNITCH – I’M JUST AN IDIOT’

Henry Underwood chose to represent himself at trial on a felon in possession of a firearm charge. After all, what do those lawyers know that Hank doesn’t?

snitchin200309Well, for starters, try this one on for size. Hank took the stand to testify in his own defense to the 18 USC § 922(g) felon-in-possession count. He explained to the jury that the gun found under his car seat belonged to someone else, not to him.

OK, so far, so good. But on cross-examination, the prosecutor asked the obvious question: if not Hank, exactly to whom did the gun belong? Hank tried to plead the 5th Amendment, saying he did not want to name the owner because he was no “snitch.”

You see, Hank, that dumb lawyer you didn’t want would have told you that by testifying, you were waiving your 5th Amendment rights. But Hank had jettisoned his mouthpiece as unnecessary. For his continued refusal to answer the prosecutor’s question, Hank found himself on the receiving end of a criminal contempt finding. Oh, yeah, and the jury found his testimony not credible and thus voted him guilty of the charged offense.

On appeal, Henry (now represented by counsel, a classic “too little, too late” decision if ever there was one, argued that his pretrial waiver of the right to counsel was not knowing and voluntary.

lumpofcoal221215Last week, the 7th Circuit gave Henry a lump of coal. The Circuit reviewed the four factors considered in determining whether a waiver is knowing and voluntary. The first is whether the court had made a formal inquiry into the defendant’s decision to represent himself. Hank argued that the court should have advised him of what his defenses were (and that he’d better be ready to answer questions on cross-examination if he took the stand). The 7th rejected that notion out of hand. The judge is not there to counsel the defendant.

The appellate panel also held that Henry’s “active participation at trial and regular consultation with standby counsel indicate that he knew the choice he was making when he elected to proceed pro se. Reliance on standby counsel reflects an appreciation for the difficulties of self-representation,” the Circuit held.

Besides, the Circuit said, Henry was no virgin. He had two prior felony convictions and one murder acquittal by a jury, “indicat[ing] he possessed knowledge of the complexities of procedure and trial sufficient to make him aware of the task she was undertaking.”

argueidiot180215Finally, the Court said, Hank “chose to proceed pro se after a disagreement with his appointed counsel over his defense and trial strategy. A defendant who waives his right to counsel for strategic reasons, including the decision to proceed without counsel due to differences in opinion regarding defense strategy, tends to do so knowingly… We therefore presume Underwood’s choice in this instance to have been strategic and intentional.”

If Henry thought that he could select which questions he was going to answer when he took the stand, he did not understand the 5th Amendment right against self-incrimination and thus had no business firing his lawyer.

 United States v. Underwood, Case No 23-1303, 2023 U.S.App. LEXIS 33404 (7th Cir., Dec 18, 2023)

– Thomas L. Root

Two District Courts Find Felon-in-Possession Unconstitutional – Update for November 20, 2023

Leave a comment

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

RUMBLINGS OF 922(g) UNCONSTITUTIONALITY

guns200304Even while the Supreme Court ponders Rahimi – the case that questions whether prohibiting people subject to domestic protection orders from having guns – lower courts are expressing doubts about whether 18 USC § 922(g), the statute prohibiting felons from possessing firearms, remains constitutional after the Supreme Court’s 2022 New York State Rifle & Pistol Assn v. Bruen decision.

The leading decision against unconstitutionality, of course, is Range v. Atty General, a 3rd Circuit en banc decision last June. Range held that § 922(g)(1) was unconstitutional as applied to Bryan Range, who had been convicted of a welfare fraud offense 25 years ago. The government has filed for Supreme Court review in Range and asked SCOTUS to sit on the petition until it decides Rahimi next spring.

At the same time, the 8th Circuit went the other way in United States v. Jackson.

Down in the trenches, however, two federal district courts have held in the last several weeks that the felon-in-possession statute is unconstitutional.

In Chicago, Glen Prince – who the Government said had been robbing people at gunpoint on commuter trains – was arrested late one night while standing on a train platform with a gun. Ten days ago, a district court threw out his pending 18 USC § 922(g)(1) indictment – which alleged that Glen was Armed Career Criminal Act-eligible – as unconstitutional under Bruen.

The court ruled that Bruen did not hold that the Second Amendment categorically protects only law-abiding citizens, despite repeated use of such qualified language as “law-abiding citizens” in the decision. The district judge concluded instead that “the government has not met its burden to prove that felons are excluded from ‘the people’ whose firearm possession is presumptively protected by the plain text of the Second Amendment.

gun160711Because the right of a person with a prior felony conviction to possess a gun is presumptively protected by that Amendment, the court said, Bruen gives the government the authority to prohibit possession only when it can “demonstrate that the statute is part of this nation’s historical tradition of firearm regulation… Where a ‘distinctly modern’ regulation is at issue, the government must offer a historical regulation that is ‘relevantly similar’ and… must determine whether historical regulations ‘impose a comparable burden on the right of armed self-defense and whether that burden is comparably justified’ as the burden imposed by § 922(g)(1).”

The “first federal statute disqualifying certain violent felons from firearm possession was not enacted until… 1938,” the court noted, finding “no evidence of any law categorically restricting individuals with felony convictions from possessing firearms at the time of the Founding or ratification of the Second or 14th Amendments.” The district court concluded that § 922(g)(1) “imposes a far greater burden on the right to keep and bear arms than the historical categorical exclusions from the people’s Second Amendment right. The government has not demonstrated why the modern ubiquity of gun violence, and the heightened lethality of today’s firearm technology compared to the Founding, justify a different result.”

Glen’s ACCA count was dismissed.

Meanwhile, in the Eastern District of Pennsylvania, a district court declared § 922(g) unconstitutional as applied to a man convicted of a DUI two decades ago.

Ed Williams had a prior drunk-driving conviction when he was arrested for DUI in Philadelphia 20 years ago. The prior conviction, combined with the fact that his blood alcohol concentration was three times the legal limit, made the second offense “a 1st-degree misdemeanor punishable by up to 5 years in prison.” That was enough to trigger § 922(g)(1), which prohibits guns to anyone convicted of a crime carrying a maximum sentence of over a year in prison (not just felonies).

gunb160201The district court ruled that “[p]rohibiting [Ed]’s possession of a firearm due to his DUI conviction is a violation of his Second Amendment rights as it is inconsistent with the United States’ tradition of firearms regulation. The Constitution ‘presumptively protects’ individual conduct plainly covered by the text of the Second Amendment, which includes an individual’s right to keep and bear arms for self-defense… Protected individuals presumptively include all Americans… The Supreme Court has held that an individual’s conduct may fall outside of Second Amendment protection ‘[o]nly if a firearm regulation is consistent with this Nation’s historical tradition…’”

The district court relied on the fact that the 3rd Circuit had “determined that Bryan Range, who had a qualifying conviction under Section 922(g)(1) for making a false statement to obtain food stamps and who wished to possess firearms to hunt and to defend himself, could not be denied his 2nd Amendment right to possess a firearm due to that conviction.” The judge held that “the narrow analysis in Range also applies to the Plaintiff here.”

United States v. Prince, Case No. 22-CR-240, 2023 U.S. Dist. LEXIS 196874 (N.D. Ill., November 2, 2023)

Williams v. Garland, Case No. 17-cv-2641, 2023 U.S. Dist. LEXIS 203304 (E.D.Pa., November 14, 2023)

WLS-TV, Chicago judge rules statute barring felons from having guns unconstitutional under Bruen decision (November 16, 2023)

Reason, He Lost His Gun Rights Because of a Misdemeanor DUI Conviction. That Was Unconstitutional, a Judge Says (November 15, 2023)

– Thomas L. Root

Gunning for Bruen – Update for November 3, 2023

Leave a comment

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

RAHIMI ORAL ARGUMENT NEXT WEEK IS HIGH STAKES FOR SECOND AMENDMENT

scotus161130On Tuesday, the Supreme Court will hear oral arguments in United States v. Rahimi, a case that will determine the constitutionality of 18 USC § 922(g)(8), the subsection of the federal firearms possession statute that bars people subject to domestic protection orders from having guns or ammo. Rahimi may well do more than that, addressing the constitutionality of all of 922(g) – including possession of guns by felons.

The Supreme Court’s 2022 New York State Rifle & Pistol Association v. Bruen adopted a new originalist 2nd Amendment standard:

We hold that when the 2nd Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. To justify its regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation. Only if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the 2nd Amendment’s “unqualified command.

Bruen superseded the Court’s long-standing practice of allowing the government to weigh its interest in public safety against the possibility of imposing a limitation on 2nd Amendment rights.

Since Bruen, several 922(g)-based restrictions have been declared unconstitutional. Possession of guns by people who are subject to domestic protection orders, who use controlled substances – illegal under 922(g)(3), and who have been convicted of nonviolent criminal offenses, illegal under 922(g)(1), have been held to be unconstitutional under Bruen. The government has sought certiorari on all of these decisions, suggesting to the Supreme Court that a Rahimi decision can clean them all up (and in the government’s favor).

sexualassault211014Social and public health advocates argue in essence that “validating the federal law prohibiting persons subject to domestic violence protective orders from gun possession will literally mean the difference between life or death for many victims of abuse, their family, friends, law enforcement, and the broader community,” as the Bloomberg School of Public Health puts it.

Rahimi provides the Supreme Court with an opportunity to clarify how lower courts should apply the new framework laid out in Bruen. This will significantly impact the continued viability of current gun laws and the ability of legislators to address what the Bloomberg School calls “the ongoing gun violence epidemic.”

But others suggest that 922(g)(8) looks “more like a political performance than a serious effort to reduce abusive behavior.” Writing in Law & Liberty, George Mason University laws professor Nelson Lund argues that nevertheless, “the government’s brief [in Rahimi] may look like little more than a Hail Mary pass aimed at persuading the Justices to revise or deceptively “clarify” the novel Bruen test. This gambit, however, could very well succeed. The Bruen holding has its roots in a dissenting opinion written by then-Judge Kavanaugh before he was promoted to the Supreme Court. His opinion was exposed to serious objections arising largely from the paucity of historical evidence that could support a viable history-and-tradition test. Bruen suffers from the same weakness, and it was clear from the start that the Court would find itself driven toward reliance on means-end analysis, although not necessarily the very deferential form that Bruen rejected.”

Mr. Rahimi fired off a few rounds at a fast-food joint when his friend's credit card was declined.
Mr. Rahimi fired off a few rounds at a fast-food joint when his friend’s credit card was declined.

Robert Leider, an assistant professor at George Mason University’s Antonin Scalia Law School in Arlington, Virginia, said at a Federalist Society forum in September that “the real legal question that everyone is interested in with Rahimi is to see how the court clarifies and applies the text, history and tradition test that it announced two terms ago in Bruen. Unquestionably, the government sought review in this case to water down the test.”

Solicitor General Elizabeth B. Prelogar took steps to expedite the review of Rahimi, citing the “substantial disruption” that invalidation of the domestic violence gun restriction would create. Meanwhile, as the American Bar Association Journal put it, Prof. Leider said the Solicitor General “slow-walked [the] cert petition in another gun case, in which the full U.S. Court of Appeals for the 3rd Circuit in June struck down the so-called felon-in-possession statute, barring those sentenced to prison for more than one year from possessing a firearm.”

That 3rd Circuit case, Range v. Atty General, involves a man convicted of food stamp fraud 25 years before who was prevented from buying a gun.

“Mr. Rahimi is the poster child for irresponsible gun possession,” Leider said. “I think the government wanted this case and not the Range welfare fraud case because this case is much easier on the judgment line.”

He’s right that Rahimi is a tough case for those hoping that Bruen may ultimately limit the proscription on nonviolent felons owning guns (such as the case in the 3rd Circuit en banc decision in Range v. Attorney General. The evidence suggests that the presence of firearms in abusive relationships increases the risk of injury and death substantially.

After seeking cert on the Range decision, the government suggested the Court sit on the petition until a decision is handed down in Rahimi.

United States v. Rahimi, Case No. 22-915 (oral argument November 7, 2023)

N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. —, 142 S. Ct. 2111, 213 L.Ed.2d 387 (2022)

Johns Hopkins University, Bloomberg School of Public Health, Questions and Answers on U.S. v. Rahimi, the Major Gun Case Before the Supreme Court During its 2023–2024 Term (October 10, 2023)

American Bar Association Journal, Supreme Court takes on first major gun case since landmark ruling last year softened regulations (November 2, 2023)

Law & Liberty, Domestic Violence and the Second Amendment (November 1, 2023)

USA Today, Domestic violence abuse victims need more protections — not less stringent gun regulations (November 2, 2023)

– Thomas L. Root