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SLEEPER

An oral argument last Tuesday in Rehaif v. United States took a surprising turn, and could make a Supreme Court decision in the case the “sleeper” of the Court’s 2018-2019 term.

Refresher first: Federal law prohibits a long list of people from possessing guns or ammunition. The statute, 18 U.S.C. § 922(g), bans ownership by people charged with felonies, people convicted of felonies, people who have been certified as crazy, people who beat their spouses, people subject to protection orders, people who do drugs, people who are here illegally, and so on and so on.

The statute (922(g)) is colloquially known as the “felon-in-possession” statute, although its reach is much broader than that. Read the statute to figure out where you fit.

A quirk of the felon-in-possession statute is that it provides no punishment. Rather, punishment is meted out by another statute, 18 U.S.C. § 924(a)(2), which specifies a 10-year sentence for people who “knowingly” violate 922(g).

But “knowingly” what? Do you have to know it is a gun? Or a round of ammo? Do you have to know you are a felon or a drug abuser or here illegally? Do you have to know you are possessing it? Up to now, the statute was interpreted by the courts as requiring only that you know that it’s a firearm or ammunition.

Which brings us to the unluckiest hedonist in America, Hamid Rehaif. Hammy came to the US to attend college. Under immigration law, he retained his student-visa status only as long as he remained enrolled as a full-time student. But when he got here, he discovered that the non-classroom parts of college were more fun, the bars, the tailgating, the frat parties, all of the stuff that has conspired to place less of a workload on college students than on eighth graders.

Naturally, Hammy flunked out. But he had so much fun doing it that he couldn’t give it up. Instead of returning to his mother country with his academic tail between his legs, Hammy stayed in America. In Florida, actually, and who could blame him?

But events conspired against him. One day he went to a shooting range, rented a Glock .40 cal. pistol (is this a great country or what?), and happily blasted away at targets for an hour or so.  A few weeks later, some solid citizen reported Hamid, because she had seen him skulking around an apartment building (he lived there, but then, he is Middle Eastern, so of course he must be a terrorist). The FBI came by to talk to him, and Hammy – who had been at a party instead of an American government class, and thus did not know about the “right to remain silent” part of the Constitution – mentioned at one point in the interview that he had been shooting a few weeks before.

Like I used to tell my clients, remaining silent is not just a  right – it’s a whopping’ good idea. Hamid was charged as an unlawful alien in possession of a firearm under 18 U.S.C. § 922(g)(5). Of course, he was convicted, despite the fact Hammy argued he did not know he was in the country illegally. The trial court said that did not matter. The only “knowledge” provision of 922(g) that mattered was that he knew he possessed a gun, even just for an hour.

The question of whether “knowingly” meant a defendant had to be aware of his or her status (felon, spouse-beater, drug-abuser, illegal-alien, whatever) in order to violate 922(g). At oral argument last week, the Supreme Court justices quickly saw the slippery slope: if they rule that the government must prove an unauthorized immigrant with a firearm knew he was in the country illegally, that ruling will necessarily mean it will have to prove that a felon with a firearm knows he or she is a felon.

If Hamid’s conviction is reversed, the practical consequences could be huge. Only Justice Alito seemed to accept the current view that a defendant need not know his or her status to violate the statute.

Justice Ginsburg wondered what would happen if the Court ruled that status under 922(g) requires knowledge: “How many people who have been convicted under felon-in-possession charges could now say, well, the Supreme Court has said… I can’t be convicted of [the] crime I was convicted of, so I want to get out. I want habeas.” The government’s lawyer responded that “under Bousley v. United States, the defendant would have to show on collateral review that he was actually innocent, meaning he actually did not know about his status.”

It is tricky to predict a Supreme Court case’s outcome from oral argument, but the headcount strongly suggests Hamid will win. If the Supremes’ decision holds that knowledge of felon (or illegal immigrant) status is an element of a 922(g) offense, a flood of actual-innocence 28 U.S.C. § 2241 habeas corpus petitions is sure to follow. That would make Rehaif the “sleeper” decision of the year.

Rehaif v. United States, Case No. 17-9560 (Supreme Court, decision by June 30, 2019)

SCOTUSBlog.com, Argument analysis: Court leaning toward requiring the government to prove that a felon in possession knew he was a felon (Apr. 24)

– Thomas L. Root