Tag Archives: 18 usc 922(g)

Felon-In-Possession 2nd Amendment Challenges Are Trending – Update for September 20, 2024

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

922(g) FELON IN POSSESSION CHALLENGES EXPLODE AFTER BRUEN

The Trace reported last week that 55% of over 2,000 federal court decisions citing New York State Rifle & Pistol Association v. Bruen over the past two years have challenged the constitutionality of 18 USC § 922(g)’s ban on felons possessing guns and ammo, “making it the single most frequently contested statute by far.”

guns200304The latest example was handed down two days ago in United States v. Diaz. In that case, the 5th Circuit ruled that just being a felon was insufficient to make the application of 18 USC § 922(g)(1) consistent with the Second Amendment. But where the defendant had been convicted of a felony of theft, that “would have led to capital punishment or estate forfeiture” at the time the Second Amendment was ratified, “disarming [the defendant] fits within this tradition of serious and permanent punishment” and is thus constitutionally applied.

I will write more about Diaz on Monday. For now, back to the trendline:

The Trace reported that “at least 30 of the challenges to the felon gun ban have succeeded. While that ratio may seem small, it marks a stark departure from the past, when effectively none succeeded, and it shows that Bruen has cracked the longstanding consensus that people convicted of serious crimes may constitutionally be barred from gun ownership.”

When weighing the felon gun ban, judges have distinguished between violent and nonviolent offenses. But a former prosecutor told The Trace (an unapologetically anti-gun publication), that drawing the line is tough. “Who’s dangerous? What is your definition of dangerous? It’s easier to have a bright line. But that bright line is gone.”

Andrew Willinger, the executive director of the Duke Center for Firearms Law – which disseminates and supports reliable, balanced, and insightful scholarship and programming on firearms law – said it remains unclear whether banning gun possession among entire categories of people, like felons, is constitutional, particularly when their convictions were for nonviolent offenses that posed no obvious danger to the public.

“You’re really talking about categorical group determinations, rather than any kind of individualized finding of a threat of danger,” Willinger said. “And [United States v.] Rahimi doesn’t endorse [categorical prohibitions], but it also doesn’t rule them out, right?”

gun160711No one can know how the Supreme Court will rule when the felon gun ban finally gets to the high court, although no one can doubt that it will. When Justice Amy Coney Barrett was a 7th Circuit judge, she wrote a dissent favoring restoration of gun rights to nonviolent felons. “That is probably the direction that the Supreme Court is headed if and when it takes up these cases,” Willinger said, “which I think it probably has to do at some point in the near future.”

The Trace, More Than a Thousand Felons Have Challenged Their Gun Bans Since the Supreme Court’s Bruen Decision (September 12, 2024)

United States v. Diaz, Case No. 23-50452, 2024 U.S. App. LEXIS 23725 (5th Cir., September 18, 2024)

– Thomas L. Root

A Spate of 2nd Amendment Decisions – Update for September 3, 2024

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

GUNNING FOR THE 2ND AMENDMENT

iloveguns221018A Quick and Categorical Denial: While the 6th Circuit took a deep dive into post-Rahimi 2nd Amendment law last week – holding that an ex-felon convicted of a nonviolent offense may not be subject to 18 USC § 922(g)(1)’s limitation on possessing a gun or ammo – the 8th Circuit swatted away any argument that 18 USC § 922(g)(1) was unconstitutional as applied to Darris Mull, a defendant with prior nonviolent drug felony convictions.

“Mull’s argument is foreclosed by 8th Circuit precedent,” the appellate court said, citing United States v. Jackson, a decision holding that even after United States v. Rahimi, 18 USC 922(g)(1) does “not violate the 2nd Amendment as applied to defendant whose predicate offenses were non-violent drug offenses.”

The Circuit also noted its decision two weeks ago in United States v. Cunningham that Jackson forecloses any argument that there must be a “felony-by-felony determinations regarding the constitutionality of § 922(g)(1) as applied to a particular defendant”), the opposite of what the 6th Circuit held in its Williams holding.

United States v. Mull, Case No. 23-3424, 2024 U.S.App. LEXIS 21943 (8th Cir. Aug 29, 2024)

United States v. Jackson, Case No. 22-2870, 2024 U.S.App. LEXIS 19868 (8th Cir. Aug 8, 2024)

United States v. Cunningham, Case No. 22-1080, 2024 U.S.App. LEXIS 20715 (8th Cir. Aug 16, 2024)

5th Circuit Holds Alien-In-Possession is Constitutional But Sober Doper-in-Possession is Not: Last week, the 5th Circuit split on a pair of § 922(g) cases.

Jose Massina-Canto was convicted under 18 USC § 922(g)(5) of being an illegal alien in possession of a gun. He argued that § 922(g)(5) violates the 2nd Amendment under New York State Rifle & Pistol Assn v. Bruen and Rahimi.

The 5th held that because Bruen and Rahimi do not “unequivocally abrogate” Circuit precedent in United States v. Portillo-Munoz, “under this circuit’s rule of orderliness, we are bound to follow Portillo-Munoz.”

doggun240213The § 922(g)(3) prohibition on people who use illegal drugs possessing guns is a different matter. In United States v. Connelly, the Circuit held that while § 922(g)(3) is not unconstitutional in all situations (such as some on meth shooting up farmers’ mailboxes), it is unconstitutional as applied to a defendant who uses weed and coke occasionally but is a “sober citizen not presently under an impairing influence and… [not] was intoxicated when she was arrested.”

The 5th said that by regulating a defendant based on habitual or occasional drug use, § 922(g)(3) imposed a far greater burden on her 2nd Amendment rights than history and the tradition of firearms regulation can support.

United States v. Medina-Cantu, Case No. 23-40336, 2024 U.S.App. LEXIS 21730 (5th Cir. Aug 27, 2024)

United States v. Portillo-Munoz, 643 F.3d 437 (5th Cir. 2011)

United States v. Connelly, Case No. 23-50312, 2024 U.S.App. LEXIS 21866 (5th Cir. Aug. 28, 2024)

carriefgun170807Kansas District Court Holds § 922(o) on Possessing Machine Gun is Unconstitutional ‘As Applied’: Complaining that the statutory definition of a machine gun is “extremely broad,” enough to encompass aircraft-mounted automatic cannon to a small stun gun to a BB gun that shoots multiple rounds of projectiles using compressed air,” a district court ruled that 18 USC § 922(o) – that outlaws possession of a “machinegun” (and only the U.S. Code calls a machine gun a “machinegun”) – is unconstitutional as applied to “bearable arms” such as defendant Tamori Morgan’s select-fire AR-15 and his Glock giggle switch (that makes a Glock pistol full auto).

The court rejected the Government’s attempt to show that 18th-century law provides a basis for § 922(o). Those laws banned breaching the peace with unusual or dangerous weapons, but unlike those laws, the Court ruled, § 922(o) “says nothing about the manner in which machineguns are carried or displayed. Instead, § 922(o) criminalizes the mere possession of such weapons without regard to how the possessor uses them.”

The Court also rejected the Government’s argument that the 2nd Amendment “would allow weapons to be prohibited solely on the basis that they are ‘dangerous and unusual” or ‘highly unusual in society at large.’”

The Court noted that possessing a machine gun is not illegal, but rather only possessing a machine gun that is not registered:

There are over 740,000 legally registered machineguns in the United States today,” the Court said. “Machineguns have been in existence for well over a century. While the federal government has regulated transfer and possession of such weapons since passage of the National Firearms Act in 1934,” even now, “it is perfectly legal for a person who has not been divested of his firearm rights under some other provision of law to acquire and possess a machinegun… In that sense, machineguns are not unusual. The government fails to address these facts, and thus fails to meet its burden to demonstrate that possession of the types of weapons at issue in this case are lawfully prohibited under the 2nd Amendment.

On a Reload podcast, 2nd Amendment attorney Matt Larosiere predicted the case is quite likely to be appealed and unlikely to win at the next level, but nevertheless the Morgan decision “would help him and other gun-rights activists in future cases against the ban as well as other portions of the NFA.”

United States v. Morgan, Case No. 23-10047, 2024 U.S.Dist. LEXIS 149550 (D. Kan. Aug 21, 2024)

The Reload, Podcast: Gun-Rights Lawyer Matt Larosiere on a Federal Judge Ruling Against the Machinegun Ban (September 1, 2024)

– Thomas L. Root

Open Season on Gun Laws – Update for August 13, 2024

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

FURBALL OVER SECOND AMENDMENT CONTINUES

lotsalaw240813As a young pup in law school a half-century ago, I had a contract law professor, Robert J, Nordstrom, who was as theatrical as he was brilliant. One day while discussing an obscure point of contract law, he dramatically waved his arm in the general direction of the law library and said, “Remember, people, there’s enough law in there for everybody.”

I got his point. A canny lawyer could find a decision somewhere in the law books that supported whatever position – however ridiculous – he or she wanted to take. Turns out that the same is true of history.

After New York State Rifle & Pistol Association v. Bruen, lawyers stampeded to the history books to find evidence that the many statutes regulating guns on the federal and state books had 18th and 19th-century precedents. Then, last June’s United States v. Rahimi decision relaxed the Bruen standard a bit, clarifying that the historical regulation didn’t have to be identical, just analogous.

In other words, the history doesn’t have to fit exactly. It just has to sort of fit. What’s more, in the fitting, the courts can draw such conclusions as they wish. The results are a pastiche of contradictions. For instance, AR-15s can be banned in Maryland but not in New Jersey.

In the last two weeks alone

• the 8th Circuit quickly upheld its decision that 18 USC § 922(g)(1) did not violate the 2nd Amendment when applied to a defendant previously convicted of a drug offense. The case had been appealed to the Supreme Court but was remanded for the Circuit to reconsider it in light of Rahimi. The Circuit ruled that the Supreme Court said in District of Columbia v. Heller that nothing has “cast doubt on longstanding prohibitions on the possession of firearms by felons,” and that neither Bruen nor Rahimi nor historical analysis changed that.

United States v. Jackson, Case No. 22-2870, 2024 U.S.App. LEXIS 19868 (8th Cir., Aug. 8, 2024)

• the 11th Circuit ruled that neither Bruen nor Rahimi “abrogate[d] our previous holding that § 922(g)(1) does not violate the 2nd Amendment because “felons are categorically ‘disqualified’ from representing their 2nd Amendment right under Heller.”

United States v. Lowe, Case No. 22-13251, 2024 U.S.App. LEXIS 19494 (11th Cir. Aug. 5, 2024)

minuteman240813• the 4th Circuit upheld Maryland’s ban on “assault weapons,” concluding that guns such as the popular AR-15 platform (perhaps 25 million copies in civilian hands in the United States) are outside 2nd Amendment protection because they are “military-style weapons designed for sustained combat operations that are ill-suited and disproportionate to the need for self-defense.” The Circuit cited Blackstone’s Commentaries on the Laws of England (1769) that noted existing prohibitions on “riding or going armed, with dangerous or unusual weapons, which would terrify the good people of the land.”

Bianchi v. Brown, Case No. 21-1255, 2024 U.S.App. LEXIS 19624 (4th Cir. Aug. 6, 2024)

• on July 30, the US District Court for New Jersey ruled that the state’s AR-15 platform ban violated the 2nd Amendment because the style of rifle is commonly owned throughout the United States and well-adapted for self-defense.

Association of New Jersey Rifle & Pistol Clubs, Inc., v. Platkin, Case No. 18-10507, 2024 U.S.Dist. LEXIS 134737, (D.N.J., July 30, 2024)

• In the same week, the 4th ruled that 18 USC § 922(k) – which outlaws possession of a gun with an obliterated serial number – did not violate the 2nd Amendment. The Circuit said that because “we cannot fathom any common-sense reason for a law-abiding citizen to want to use a firearm with an obliterated serial number for self-defense, and there is no evidence before us that they are nonetheless commonly lawfully used, we conclude that firearms with obliterated serial numbers are not in common use for a lawful purpose and they therefore fall outside the scope of the 2nd Amendment’s protection.”

United States v. Price, Case No. 22-4609, 2024 U.S.App. LEXIS 19623 (4th Cir. Aug. 6, 2024)

furball240813The more we see the Bruen standard applied, the confusing-er it gets. The Rahimi holding, at least this early in the game, does not seem to have helped a lot.

Professor Nordstrom might have said, “There’s enough history out there for everyone.”

Pick your facts and make your holdings.

– Thomas L. Root

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

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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

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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

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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

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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

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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

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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

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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