Tag Archives: 922(g)(1)

Medical Malpractice, Drunk Judges, Armed Dopers – Update for February 5, 2026

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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.

ARE THESE SHORTS LEGAL?

Some legal case shorts from the last week:

(1)  BOP Pays Out on Inmate Death from Medical Malpractice –  George Thacker reported to FCI Edgefield camp for a 33-month sentence on December 9, 2022. On Christmas Day, he was so doubled over in pain that he could hardly walk. Instead of performing an exam or medical tests, health services staff gave him ibuprofen and sent him back to his unit.

George died the next day from complications due to a perforated duodenal ulcer and peptic ulcer disease. George’s daughter (who is executor of George’s estate) hired legal counsel and sued the BOP under the Federal Tort Claims Act, alleging medical malpractice.

Last week, George’s daughter and the US Attorney for South Carolina reached an agreement for the government to pay $750,000 to settle the claim. A petition was filed Tuesday seeking the court’s final approval on the settlement.

Motion to Approve Settlement and Legal Fees, Docket Entry 28, Wesolowski v. United States, Case No 6:25-cv-6675 (January 27, 2026)

Chattanooga Times Free Press, $750K settlement pending in former Rhea County executive’s 2022 death (January 29, 2026)

(2)     Will He Recommend RDAP for Himself? – U.S. District Judge Thomas Ludington (Eastern District of Michigan) goes to trial at the end of this month on a charge that he crashed a car while “super drunk” near his northern Michigan vacation home.

Last October, Judge Ludington, allegedly crashed his 2019 Cadillac CT6 into two traffic signs near Petoskey, disabling his Caddy and triggering at least one airbag.

He was charged on counts of operating a motor vehicle while intoxicated and operating with a high blood-alcohol content. The “super drunk charge” is punishable by up to 180 days in jail, a $700 fine, 360 hours of community service, and vehicle immobilization. In Michigan, a person is considered drunk with a blood-alcohol level hits 0.08. A person is considered super drunk when BAC hits 0.17. 

mLive, Federal Bay City judge charged in ‘super drunk’ crash in northern Michigan (January 27, 2026)

(3) 5th Circuit declares § 922(g)(1) unconstitutional as applied to defendant – Charles Hembree was convicted of being a felon in possession of a firearm in violation of 18 USC § 922(g)(1) because of a single prior felony conviction for simple possession of methamphetamine. On appeal, Chuck argued that § 922(g)(1) was unconstitutional as applied to his situation.

Last week, the 5th Circuit agreed that convicting Chuck of § 922(g)(1) violated the 2nd Amendment. The Circuit ruled that there was no historical evidence that people possessing contraband that didn’t pose a danger to others were prohibiting from owning guns.

The 5th held that for possessing something prohibited to trigger prohibition on possessing a gun, the item had to be a weapon or something similar that harmed or could harm other people.

United States v. Hembree, Case No 24-60436, 2026 U.S.App. LEXIS 2051 (5th Cir. January 27, 2026)

 

~ Thomas L. Root

Another Circuit Invalidates Felon-in-Possession in Nonviolent Case – Updatebfor January 2, 2026

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5TH CIRCUIT HOLDS 922(g)(1) IS UNCONSTITUTIONAL AS APPLIED TO NONVIOLENT FELON

Ed Cockerham pled guilty for the Mississippi felony of failing to pay child support. He was sentenced to five years of probation, but he could have gotten up to five years in prison. He got his child support paid and was released from probation.

Subsequently, he was caught in possession of a gun, which put him in violation of 18 USC § 922(g)(1) based solely on the child support conviction. The district court refused to hold that § 922(g)(1) was unconstitutional as applied to his case. Ed appealed.

Two weeks ago, the 11th Circuit held that § 922(g)(1) violated the 2nd Amendment as applied to Ed’s Case. The Circuit observed that “historical tradition unquestionably permits the Government to disarm violent criminals… [but] history does not support the proposition that felons lose their 2nd Amendment rights solely because of their status as felons.”

In Ed’s case, he had fully paid the child support debt for which he was convicted at the time he was found in possession of a firearm. “So there’s no historical justification to disarm him at that moment,” the 5th ruled, “never mind for the rest of his life.” While other evidence suggested that Ed might be violent (he had been arrested for assault in the past), the Circuit said the 5th Circuit focuses “on the nature of the predicate offense rather than on the defendant’s broader criminal history or individual characteristics.”

The holding is consistent with the 3rd Circuit’s holding in Range v. Attorney General and the 6th Circuit’s United States v. Williams holding.  It is diametrically opposed to decisions of the 8th, 9th and 10th Circuits. The 10th Circuit case – Vincent v. United States – is on its third Supreme Court relist. 

United States v. Cockerham, Case No. 24-60401, 2025 U.S. App. LEXIS 33001 (5th Cir., December 17, 2025)

~ Thomas L. Root

‘Hell’ vs. Truth on Federal Clemency – Update for November 24, 2025

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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.

GIVING ‘HELL’ TO THE CLEMENCY POWER

President Harry S Truman’s supporters liked to shout, “Give ‘em hell, Harry!” at his rallies. However, as Truman explained it, ‘I never did give them hell. I just told the truth, and they thought it was hell’.”

I once again heard from a reader last week that some of the guys at his facility thought I was too negative about President Trump. Seven years ago, I wrote glowingly about his support for the First Step Act, still the most consequential piece of criminal justice reform legislation in the last 30 years. But Trump has done nothing for federal criminal justice reform since then, and that’s the truth. To my critics, it just seems like ‘hell’.

‘Hell’, you ask? Minnesota constitutional lawyer Marshall Tanick last week aptly described the hellscape of Trump clemencies:

In addition to the unconditional pardons issued on the first day of his current term to all 1,500-plus January 6th rioters, as he promised during the campaign, with Floridians comprising the largest state group, and the 77 more recently to white collar election denier operatives, the president has issued more than 1,600 pardons and commutations of sentences this year. Nearly all of them, with a few exceptions like star baseball player Darryl Strawberry, have been given to political supporters and financial donors to his campaign or their relatives or those with business interests aligned with the president and his family. Most of them were charged and many convicted of massive fraudulent schemes.

A transparent theme has been political leanings, as reflected in his explanation for commuting the seven-year sentence of mendacious Republican former Congress member George Santos after serving a puny four months. The president said he released the discredited New Yorker from confinement because he did “ALWAYS VOTE REPUBLICAN,” as if that is the criterion for the exercise of presidential lenity.

Still waiting for your pardon or commutation? You probably don’t fit the criteria. Not like Dan Wilson, a man who – perhaps alone in American history – has received two presidential pardons in a single year. Wilson, a Kentucky militia member who joined the Capitol riot on Jan. 6, 2021, was indicted for that and as a felon-in-possession under 18 USC § 922(g)(1) for the guns agents found when they searched his home on a J6-based search warrant.

Trump had already erased Wilson’s felony conviction for his role in the riot when he issued his Inauguration Day pardon for all of the 1,500 participants in the attack. But Wilson remained in prison because the federal court concluded that the pardon was limited to J6 conduct and did not extend to separate crimes. Dan still had three years to serve for the 922(g)(1).

Last week, Trump quietly pardoned Wilson for the felon-in-possession count, reasoning that “because the search of Mr. Wilson’s home was due to the events of January 6, and they should have never been there in the first place…” according to a White House official.

In a separate action, Trump pardoned Suzanne Ellen Kaye for having threatened to shoot federal agents if they came to her house to question her about January 6th. The White House said her case was “clearly a case of disfavored First Amendment political speech being prosecuted and an excessive sentence.”

Meanwhile, if you were not at the January 6th riot, your clemency application will sit at the Office of Pardon Attorney. As I noted last week, only 1% of Trump’s clemencies this year went through the OPA.

‘But wait,’ you say. ‘You don’t have to be a rioter or election denier to get a pardon.’ Right you are. Just last week, Trump also pardoned Joseph Schwartz, a nursing home magnate who was sentenced last April to 36 months in prison for failing to pay $38 million in payroll taxes withheld from employees’ earnings. Schwartz hired a couple of right-wing lobbyists, paying them $960,000 to secure a pardon. Although Trump’s own interim US Attorney at the time, Alina Habba, said last April the offense deserved prison time (recommending a shocking 12 months and a day sentence), Trump signed off on the pardon. Schwartz walked out of FCI Otisville camp last week after serving three months.

A White House official, asked by the Washington Post whether Trump or others in the White House or Justice Department had met with Schwartz’s lobbyists, responded with a statement:

No one from White House Counsel nor [White House pardon czar] Alice Johnson met with the individuals named. Either way, the President is the final decision-maker on all pardons, and any one spending money to lobby for pardons is foolishly wasting funds.

Uh-huh.

I’m not alone in criticizing Trump’s gross abuse of clemency (at the expense of federal prisoners who deserve thoughtful consideration if not outright grant of commutation or pardon). Law professor Mark Osler, a national clemency expert, wrote last week on Sentencing Matters Substack:

These are hard days for people like me who believe that the pardon power is an essential part of the Constitution and a beautiful machine that embodies one of our primary national virtues: a belief in second chances. While clemency has been subjected to sharp criticism before (most recently, in the wake of Bill Clinton’s shady pardon of fugitive financier Marc Rich), the wave of criticism now — most often turning on President Trump’s grants to loyalists, celebrities, and business associates — has sometimes included outright calls to simply get rid of the federal pardon power.

Conservative writer Jonah Goldberg wrote last week that

[t]he president has some unique powers… including the sole, final authority to grant pardons. Pardons cannot be reviewed or repealed by Congress or the courts. It’s time we changed that—and the only way to do so is by amending the Constitution.

There are two reasons for getting rid of the president’s power to pardon. The first is the grotesque abuses of that power by Presidents Trump and Biden. In his first term, Trump issued a series of egregious pardons for, among others, lackeys, war criminals and political allies.

Biden then issued blanket and preemptive pardons for his family and various political allies… and a raft of other pardons and commutations that Biden allegedly just outsourced to ideologues on his staff.

Back in office in 2025, Trump has outdone Biden and himself. He launched his second term by granting mass pardons to the goons who beat police with flagpoles and stormed the Capitol on his behalf on January 6, 2021. Since then, he’s pardoned a rogues’ gallery of donors, partisan allies, and people with business ties to him or his family…

This coming week, the White House will pardon two turkeys out of the 219 million to be slaughtered in the US over the next 12 months. That puts a turkey’s odds of clemency at about 1:110 million. Sadly, for federal prisoners without money or political ties to the Trump Administration, the odds are not much better.

I’m for any president, regardless of party, who properly uses the clemency power to correct injustice. That has not been Trump in 2025. 

Just truth. Not hell.

Naples News, Presidential pardon process needs to be changed (November 20, 2025)

Washington Post, The case of a felon who paid lobbyists nearly $1 million to seek a Trump pardon (November 22, 2025)

Politico, Trump re-pardons a Jan. 6 defendant to erase unrelated gun conviction (November 15, 2025)

NPR, Trump issues two pardons related to Jan. 6 investigation (November 15, 2025)

Sentencing Matters Substack, A Terrible Use of a Beautiful Machine (November 17, 2025)

Los Angeles Times, Instead of Addressing Injustice, Pardons Only Pervert Justice (November 19, 2025)

USA Today, You can choose the names of turkeys to get a presidential pardon. Here’s how. (November 22, 2025)

~ Thomas L. Root

5th Circuit on the Gun Possession “Dangerousness” Bandwagon – Update for September 5, 2025

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5TH CIRCUIT SUGGESTS 922(g)(1) CAN’T APPLY TO NONVIOLENT OFFENDERS

Earnest Clark was on probation for a state aggravated assault with a gun charge when he was caught with yet another gun. He challenged his conviction for being a felon-in-possession (18 USC § 922(g)(1)) as violating his 2nd Amendment rights.

Last week, the 5th Circuit upheld his conviction but in a way that provides a roadmap for such “as-applied” challenges. (An “as-applied” challenge argues that while the F-I-P statute may not always violate the 2nd Amendment, it does violate the 2nd Amendment as it is applied to the individual facts of the defendant’s case).

The 5th agreed that Ernie’s conduct – possessing a gun – was plainly covered by the 2nd Amendment. However, the Circuit held, disarming him was consistent with the nation’s historical tradition of firearm regulation. Ernie’s predicate felony of aggravated assault with a firearm was a violent crime. The appellate court ruled that disarming people with violent criminal histories is consistent with historical tradition. Even if Ernie’s offense involved only negligent discharge of a firearm, it still fell “within the tradition” of disarming people who menace others with firearms or disrupt public order.

What’s more, the 5th held, Earnest possessed the gun while on probation, and § 922(g)(1) is constitutional when applied to those who possess firearms while on probation or supervised release.

The case strongly suggests that, consistent with the 2nd Amendment, someone with a nonviolent conviction who is not on probation cannot be convicted of F-I-P. What’s more, the decision advances the national trend of drawing a constitutional line between violent and nonviolent predicate offenses in F-I-P cases.

United States v. Clark, Case No. 24-60531, 2025 U.S.App. LEXIS 21452 (5th Cir. August 21, 2025)

~ Thomas L. Root

Vincent Case Has Sights on SCOTUS Review – Update for July 10, 2025

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‘CAN’T IGNORE THIS ONE,’ PARTIES MAY TELL SCOTUS IN 922(g)(1) CASE

I have written before about Melynda Vincent, a woman convicted of bank fraud 15 years ago for writing some bad checks while in the throes of drug addiction. Since then, Melynda has cleaned up, graduated from a drug treatment program, earned an undergraduate degree and two graduate degrees, and founded the Utah Harm Reduction Coalition – a nonprofit organization focused on drug treatment and criminal-justice reform – as well as a mental health counseling service, Life Changes Counseling.

In February, the 10th Circuit said, “So what? You still can’t own a gun.” Melynda has filed for Supreme Court certiorari, and she has picked up both the Federal Public Defenders and the National Rifle Association as amici (filing briefs in support of her petition).

Most interesting is this: the DOJ was due to oppose her petition in June. It got an extension until July 11 and then last week asked for and got a second extension until August 11. 

It may be that DOJ, opposed to such petitions in the past but lately avoiding the issue (as in not seeking certiorari in the 3rd Circuit Range case), does not yet know what to do.

I have said before that Vincent is the best case out there to put the constitutionality of 18 USC § 922(g)(1) in front of the Justices. The DOJ’s position on this is something to watch closely.

Vincent v. Bondi, Case No. 24-1155 (petition for certiorari pending)

– Thomas L. Root

A Change in DOJ Approch to 922(g)(1)? – Update for April 11, 2025

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CURIOUS DEVELOPMENT(?) ON § 922(g)(1)

You may remember that the leading case on whether the 18 USC § 922(g)(1) felon-in-possession (F-I-P) statute complies with the 2nd Amendment is the 3rd Circuit decision, Range v. Garland (now renamed in honor of new Attorney General Pam Bondi).

gunfreezone170330Bryan Range, disqualified from owning a gun because of a conviction 25 years ago, sued the government, arguing that F-I-P was unconstitutional as applied to his case, because his conviction was non-violent – a food-stamp false statement case – and it was 25 years in the past. The 3rd Circuit agreed in an en banc opinion in 2023, and the government took it to the Supreme Court.

SCOTUS remanded it for further consideration in light of United States v. Rahimi. Last December, the 3rd Circuit again found F-I-P unconstitutional as applied to Bryan’s situation.

Late last month, Bondi filed for a 30-day extension to decide whether to ask the Supreme Court to accept the case for review. She said, “The Acting Solicitor General has not yet determined whether to file a petition for a writ of certiorari in this case. The additional time sought in this application is needed to continue consultation within the government and to assess the legal and practical impact of the court of appeals’ ruling…”

On February 7, President Trump gave Bondi 30 days to submit a policy plan for enacting pro-gun reforms. Nearly two months later, nothing has been done.

gun160711Trump directed that “[w]ithin 30 days of the date of this order, the Attorney General shall examine all orders, regulations, guidance, plans, international agreements, and other actions of executive departments and agencies (agencies) to assess any ongoing infringements of the 2nd Amendment rights of our citizens, and present a proposed plan of action to the President, through the Domestic Policy Advisor, to protect the Second Amendment rights of all Americans.”

The 30-day due date for that report would have been March 9th, but that day came and went without any movement from Bondi or the White House. When this omission got some attention, the Department of Justice told ABC News that the deadline was extended to March 16. That date passed, too, with no report. Since then, according to The Reload, DOJ has not produced the report or provided any updates as to when it will be released.

gibsongun250411However, the New York Times reported a week ago that the DOJ was about to restore gun rights to actor Mel Gibson and 9 other people. The Times said, “The decision, which also applies to nine others, was approved by Attorney General Pam Bondi, according to the people, who spoke on the condition of anonymity for fear of retaliation. The specifics are expected to be published in The Federal Register…”

Attorney General, Bondi v. Range, Case No. 24A881 (March 12, 2025)

White House, Executive Order – Protecting 2nd Amendment Rights (February 7, 2025)

The Reload, Where Is the DOJ’s Second Amendment Report? (April 6, 2025)

New York Times, Mel Gibson’s Gun Rights to Be Restored by Justice Dept. (April 3, 2025)

– Thomas L. Root

St. Vincent Must Remain Unarmed, 10th Says – Update for February 18, 2025

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ADDING TO THE 922(g)(1) MAYHEM…

melyndavincent250218You may remember Melynda Vincent, a woman convicted of bank fraud 15 years ago for writing some bad checks while in the throes of drug addiction. Since then, Melynda cleaned up, graduated from a drug treatment program, earned an undergraduate degree and two graduate degrees, and founded the Utah Harm Reduction Coalition – a nonprofit organization for drug treatment and criminal-justice reform – and a mental health counseling service, Life Changes Counseling.

She’s a poster child for rehabilitation. No, more than that, maybe for sainthood, someone who turned a horrific past and debilitating addiction into something that will benefit countless people (and make society safer).  A therapist who has ‘walked the walk’ the people she counsels are on right now.

In 2021, Melynda sued to be allowed to own a gun. No matter that she might be a saint. The 10th Circuit held that 18 USC § 922(g)(1)’s felon-in-possession prohibition on gun possession was constitutional as applied to her. After all, she was a felon and that was the end of the story.

At the time, Melynda took her argument to the Supreme Court. SCOTUS sat on her petition for certiorari (along with the government’s request that the high court review the 3d Circuit’s Range decision), and then finally GVR’d her, sending the case back to the 10th for reconsideration in light of United States v. Rahimi.

‘Hint, hint,’ SCOTUS seemed to be saying to the Circuit, ‘take a look at her ‘dangerousness’ before you rubber-stamp a denial based on pre-Rahimi law.

Last week, the 10th ignored the hint. It held that despite New York State Rifle & Pistol Assn v. Bruen and despite Rahimi, its 2009 decision in United States v. McCane that § 922(g)(1) was constitutional when applied to any felon in any situation was still good law. The Circuit relied “on the Supreme Court’s 2008 statement in District of Columbia v. Heller that it was not ‘cast[ing] doubt on longstanding prohibitions on the possession of firearms by felons’” and Rahimi’s recognition of “the presumptive lawfulness of these longstanding prohibitions,” quoting Heller.

“Longstanding?” Prior to 1961, no federal law would have prohibited someone in Melynda’s situation from possessing guns. As the first Range opinion noted, “modern laws have no longstanding analogue in or national history and tradition of firearm regulation.”

The 10th noted that the 4th, the 8th and the 11th Circuits also “have held that Rahimi doesn’t abrogate their earlier precedents upholding the constitutionality of § 922(g)(1).”

stvincentB250218Melynda is as sympathetic a felon-in-possession petitioner as anyone could find, maybe even more so than Bryan Range (who, after all, had one ticket for fishing without a license ticket in the 25 years since his food stamp conviction). If § 922(g)(1)‘s felon-in-possession prohibition does not violate the 2nd Amendment as applied to St. Melynda Vincent, the “presumptive lawfulness of these longstanding prohibitions” must be an irrebutable one.

Expect Melynda’s request for Supreme Court review to drop onto the SCOTUS docket before Memorial Day.

Vincent v. Bondi, Case No 21-4121, 2025 USAppLEXIS 3179 (10th Cir. Feb 11, 2025)

– Thomas L. Root

Rahimi Making § 922(g) Constitutionality Issue Messier – Update for January 21, 2025

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RAHIMI ASCENDENT

The Supreme Court’s 2022 New York State Rifle & Pistol Assn. v. Bruen decision held that if a gun right (like going armed in public or even possessing one after a felony conviction) was one covered by the 2nd Amendment, the government could deny that right only if it could point to a law or regulation from 235 years ago that did the same.

Given that a federal law denying violent felons the right to have guns was not passed until 1938 – and it wasn’t expanded to all felons until 1968 – it seemed that Bruen was destined to lead to 18 USC § 922(g)(1), the felon-in-possession statute, being declared unconstitutional.

whataburger230703But then came Zack Rahimi, whose gun-fueled road rage and general craziness – including opening fire over an alleged fast food joint indignity – led to last summer’s SCOTUS decision that held § 922(g)(8) (which bans gun possession by people under a domestic protection order) was perfectly constitutional. In United States v. Rahimi, the Supremes held that Bruen didn’t mean that the government had to find a 235-year-old law that was a precise fit to § 922(g), provided that “the new law is ‘relevantly similar’ to laws that our tradition is understood to permit, ‘apply[ing] faithfully the balance struck by the founding generation to modern circumstances.’”

Rahimi “has been relatively impotent since the Court handed it down a few months back,” Jake Fogleman wrote in Sunday’s The Reload, but this “relevantly similar” test has now “inspired an appeals court to reverse a sweeping ruling against a federal firearms prohibition.”

The 5th Circuit unanimously upheld 18 USC § 922(n), which bars people under indictment from receiving guns, reversing a WD Texas district court decision handed down after Bruen but before Rahimi. Based on Rahimi’s refinement of the Bruen test, the Circuit ruled in United States v. Quiroz that “the government has met its burden of showing that § 922(n) is relevantly similar to pretrial detention at the founding [of the nation].” The court reasoned that the purpose of § 922(n) (public safety) and the burden it imposes (temporary disarmament) align with the historical justifications and effects of pretrial detention. It observed that many felonies punishable by death at the founding would have resulted in pretrial detention and disarmament, and that § 922(n) imposes a lesser burden by only restricting receipt of new firearms, not possession.

gunknot181009Other constitutional challenges to § 922 had an equally rocky time last week. In United States v. Quailes, the 3d Circuit held that despite its Range v Attorney General decision of a month ago, two defendants charged with § 922(g)(1) violations could be convicted consistent with the 2nd Amendment because they were on state parole when caught with guns and thus had not completed their sentences. The 3d said that “this Nation’s ‘history and tradition’ of ‘disarming convicts who are completing their sentences’ applies with equal force to defendants who are on state supervised release—including a sentence of parole or probation.”

In United States v. Contreras, the defendant had been convicted for being a drug user in possession of a gun (18 USC § 922(g)(3)). He did 24 months and then went on supervised release. While serving his supervised release term, he stupidly posted a picture on social media of himself holding a pistol. The police followed him and got him in a traffic stop with eight ounces of marijuana and the gun.

Last week, the 5th Circuit held that § 922(g)(1) was constitutional as applied to defendant Contreras. The 5th compared the felon-in-possession prohibition to § 922(n), which temporarily restricts defendants’ access to guns for public safety reasons and “align[s] with the historical justifications and effects of pretrial detention,” as well as colonial-era laws disarming people who are intoxicated.

“Here,” the Circuit said, “we have Contreras, a felon who after being convicted for being armed while intoxicated and being placed on temporary supervised release, was again found armed while intoxicated, this time while completing the sentence for the first crime… There is no ‘historical twin’ of § 922(g)(1); but that is not what our jurisprudence requires… Instead, “the appropriate analysis involves considering whether the challenged regulation is consistent with the principles that underpin our regulatory tradition.”

Finally, in United States v. Curry, the 5th Circuit last week rejected a claim that the felon-in-possession statute was facially unconstitutional, that is, that it necessarily violated the 2nd Amendment is all cases. This decision was unsurprising in light of Rahimi.

easypeasy230214In his Rahimi dissent, Justice Clarence Thomas predicted that the “relevantly similar” test was overbroad. “Given that imprisonment (which involved disarmament) existed at the founding, the Government can always satisfy this newly minted comparable-burden requirement. That means the Government need only find a historical law with a comparable justification to validate modern disarmament regimes.”

Fogleman wrote that as the result of Rahimi’s “relevantly similar” test is that “a panel from a circuit known for going much [further] than its peers in hewing to a strict interpretation of the Bruen test has now okayed a modern gun law based on loose principles related to detaining suspected criminals at the time of the Founding.”

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

United States v. Rahimi, 602 US 680 (2024)

The Reload, Analysis: Rahimi Makes an Impact (January 19, 2025)

United States v. Quiroz, Case No. 22-50834, 2025 U.S.App. LEXIS 706 (5th Cir. January 13, 2025)

United States v. Quailes, Case No 23-2533, 2025 U.S.App. LEXIS 1107 (3d Cir. January 17, 2025)

United States v. Contreras, Case No 23-50840, 2025 U.S.App. LEXIS 701 (5th Cir. January 13, 2025)

United States v. Curry, Case No 22-11084, 2025 U.S.App. LEXIS 702 (5th Cir. January 13, 2025)

– Thomas L. Root

A Good Day At The ‘Range’ – Update for December 27, 2024

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Today marks our 1700th post since our beginning in 2015.1700th-241227

RANGE REDUX

A little more than two years ago, a 3d Circuit panel of three appellate judges held that arch-criminal Bryan Range – a man whose rap sheet included traffic tickets, fishing without a license and a misdemeanor false statement 25 years ago to get food stamps for his hungry family – had no 2nd Amendment right to own a hunting rifle or buy a shotgun.

gun-sw629-241227Cooler heads prevailed. Granting en banc review, the Circuit issued a seminal decision, holding that a prior nonviolent offense qualifyingi under 18 USC § 922(g)(1) to prohibit someone from having a gun violated the 2nd Amendment.

The government sought Supreme Court review, but while the petition was pending, the Supremes handed down United States v Rahimi, a case that held that the temporary disarming of someone under a court-issued domestic protection order could be disarmed without offending the 2nd Amendment. SCOTUS remanded all of the 2nd Amendment challenges on its docket – including the Range decision – for reconsideration in light of Rahimi.

Since then, the 8th Circuit decided that Edell Jackson, a convicted drug dealer, could be disarmed under 18 USC § 922(g)(1) consistent with the 2nd Amendment. The 6th Circuit held in United States v. Williams that a felon with violent offenses in his past was properly subject to 922(g)(1) consistent with the 2nd Amendment (leaving open the question of § 922(g)(1)’s effect on people with nonviolent felonies), and – just last week – the 4th Circuit said that anyone with a felony conviction was outside the protection of the 2nd Amendment.

Now, the en banc 3rd Circuit has delivered for Bryan like Santa on Christmas Eve, holding last Monday that Bryan Range’s right to own a gun remains protected by the 2nd Amendment despite his quarter-century-old fraud offense.

Applying New York State Rifle & Pistol Association v. Bruen and Rahimi, the en banc Circuit “reject[ed] the Government’s contention that ‘felons are not among “the people” protected by the 2nd Amendment’ [and] that Bryan Range remains among ‘the people’ despite his 1995 false statement conviction. The 3d then rules that

[h]aving determined that Range is one of “the people,” we turn to the easy question: whether § 922(g)(1) regulates 2nd Amendment conduct. It does.

Against this backdrop, it’s important to remember that Range’s crime—making a false statement on an application for food stamps—did not involve a firearm, so there was no criminal instrument to forfeit. And even if there were, government confiscation of the instruments of crime (or a convicted criminal’s entire estate) differs from a status-based lifetime ban on firearm possession. The Government has not cited a single statute or case that precludes a convict who has served his sentence from purchasing the same type of object that he used to commit a crime. Nor has the Government cited forfeiture cases in which the convict was prevented from regaining his possessions, including firearms (unless forfeiture preceded execution). That’s true whether the object forfeited to the government was a firearm used to hunt out of season, a car used to transport cocaine, or a mobile home used as a methamphetamine lab. And of those three, only firearms are mentioned in the Bill of Rights.

For the reasons stated, we hold that the Government has not shown that the principles underlying the Nation’s historical tradition of firearms regulation support depriving Range of his 2nd Amendment right to possess a firearm.

iloveguns221018The Circuit noted that its decision “is a narrow one. Bryan Range challenged the constitutionality of 18 USC § 922(g)(1) only as applied to him given his violation of 62 Pa. Stat. Ann. § 481(a).” This suggests that those with prior convictions might have to apply piecemeal for confirmation that their 2nd Amendment rights remain intact.

The 6th Circuit has implied the same, complaining that the defendant – who was arguing in appeal of a § 922(g)(1) conviction that application of the felon-in-possession statute violated the 2nd Amendment – never sought to have his 2nd Amendment rights confirmed until he was caught with a gun.

For now, Range II is a breath of fresh air. The Circuit held resoundingly that Bryan “remains one of ‘the people’ protected by the 2nd Amendment, and his eligibility to lawfully purchase a rifle and a shotgun is protected by his right to keep and bear arms. More than two decades after he was convicted of food-stamp fraud and completed his sentence, he sought protection from prosecution under § 922(g)(1) for any future possession of a firearm. The record contains no evidence that Range poses a physical danger to others. Because the Government has not shown that our Republic has a longstanding history and tradition of depriving people like Range of their firearms, § 922(g)(1) cannot constitutionally strip him of his 2nd Amendment rights.”

Range creates a clear and well-defined circuit split on the constitutionality of 18 USC § 922(g)(1). This is probably not the end of the inquiry, although perhaps the Trump Dept of Justice may not share the current administration’s ardor for seeking certiorari on every 922(g)(1) case to come down the pike.

gun160711Ohio State University law professor Doug Berman, writing in his Sentencing Law and Policy blog, noted that Bryan’s “case seems particularly sympathetic, as he was convicted nearly three decades ago of only a relatively minor crime. Because this Range ruling creates a clear circuit split on the constitutionality of 18 USC § 922(g)(1) in some settings, I would expect to see an appeal to the Supreme Court by the US Department of Justice. But maybe the new incoming Justice Department officials might not want to test the application and reach of the 2nd Amendment in this particular ‘narrow’ case.”

Range v. AG United States, Case No. 21-2835 (3d Cir. Dec. 23, 2024) 2024 U.S. App. LEXIS 32560, at *1

Sentencing Law and Policy, En banc Third Circuit again finds federal felon-in-possesion ban unconstitutional as applied to Byran Range (December 23, 2024)

– Thomas L. Root

‘Naughty Can Never Be Nice’ for 922(g)(1) Purposes, 4th Circuit Says – Update for December 26, 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.

4TH CIRCUIT SAYS NO FELON IS ON SANTA’S GOOD LIST FOR 2ND AMENDMENT PROTECTION

Ever since the Supreme Court decision in New York State Rifle & Pistol Assn. v. Bruen, courts of appeal have been struggling with whether the 2nd Amendment permits some people with prior felonies to possess a gun despite 18 USC § 922(g)(1)’s blanket prohibition against anyone with a felony conviction from having a gun or ammo. The 3rd and 9th Circuits have said some may (although both holdings are being further reviewed in light of United States v. Rahimi), and the 6th has suggested that some felonies are not so dangerous that § 922(g) can apply consistent with the 2nd Amendment.

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In Rahimi, the Supreme Court warned against courts holding that some groups categorically are excluded from 2nd Amendment protection. That caution did not deter the 4th Circuit, however. Last week, the 4th ruled that unless “a felony conviction is pardoned or the law defining the crime of conviction is found unconstitutional or otherwise unlawful,” anyone with a felony conviction is excluded from the sweeping definition of “law-abiding” citizen protected by the 2nd Amendment.

respect210812“[T]here is no need for felony-by-felony litigation regarding the constitutionality of Section 922(g)(1),” the Circuit ruled last week. “[B]ecause felons, by definition, have ‘demonstrated disrespect for legal norms of society,’ the legislature has determined that ‘the category as a whole present[s] an unacceptable risk of danger if armed.’ That legislative judgment accords with historical tradition regulating non-law-abiding persons and is consistent with the Supreme Court’s repeated instruction that longstanding prohibitions ‘on the possession of firearms by felons and the mentally ill, are presumptively lawful.”

The question this decision and the others raise is not whether – but rather when – the constitutionality of § 922(g)(1) will be settled by the Supreme Court.

United States v. Hunt, Case No. 22-4525, 2024 U.S. App. LEXIS 32089 (4th Cir., December 18, 2024)

– Thomas L. Root