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Supremes Delay The Day of Reckoning for Felon-in-Possession – Update for July 12, 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.

CAN I CALL ‘EM OR WHAT?

gun160711In the wake of the Rahimi decision holding that the 2nd Amendment does not prevent the Feds from prohibiting people subject to domestic protection orders from having a gun, the Solicitor General filed a surprising request with the Supreme Court that it immediately grant review to a swath of felon-in-possession cases in order to settle the issue of whether 18 USC § 922(g)(1) can be constitutionally applied to a variety of situations and disqualified people.

I jubilantly reported this development and confidently hinted that a new day would soon dawn on the application of a statute responsible for about one-fifth of all federal criminal convictions. Content with my prognosis, I departed for a week in windswept but beautiful Iceland.

I returned to find out that my prediction was (once again) wrong. But then, I had plenty of company, including the SG, who lost her bid for a quick turnaround on felon-in-possession. On July 2, the Supreme Court cleared its plate of five pending § 922(g)(1) petitions for review by GVR, ordering them back to the lower courts to be reheard in light of Rahimi.

This means that the horizon for a definitive decision on the constitutionality of 18 USC § 922(g)(1) is now more like two years than one. The various courts of appeal will have to review the remanded cases through the Rahimi lens, one which permits an expanded view of what historical gun ban precedents are suitable analogues to § 922(g)(1)’s ban on felons possessing guns (which as a blanket prohibition only became law in the 1960s).

She now rests in peace, but was she ever dangerous?
She now rests in peace, but was she ever dangerous?

Rahimi emphasized that laws about general dangerousness could justify § 922(g)(8)’s banning gun possession while under a domestic violence restraining order. The Washington Post, however, complained last Sunday that “experts say the decision was written so narrowly that it does not make clear how to address other clauses of the same federal law… Critics say the Rahimi ruling does not solve the inherent problem created by Bruen — that judges are being asked to evaluate history, based on limited records assembled by dueling teams of lawyers.”

More importantly, Rahimi’s cautionary language that the Court was skeptical of broad categorical bans untethered to findings of dangerousness means that the Range holding that § 922(g)(1) is unconstitutional as applied to a guy who was convicted of a minor food stamp fraud 25 years ago will not change. At the same time, it is hard to believe that the 10th Circuit will not have to reverse its holding that Melynda Vincent – convicted of passing a bad $500 check 15 years ago when she was addicted to drugs but now a respected community leader in developing science-driven drug and criminal justice reform — can be prohibited from owning a gun consistent with the 2nd Amendment.

doggun240213The other cases are closer calls. Can a guy  with prior violent offenses be banned under § 922(g)(1)? How about a guy whose felon-in-possession conviction was in connection with drug trafficking? Both of those issues will have to be addressed by courts of appeal before the issue is ripe for SCOTUS review.

Writing in his Sentencing Law and Policy blog, Ohio State University law professor Doug Berman said,

It seems SCOTUS has GVRed all the felon-in-possession cases that the US Solicitor General suggested be taken up right away in light of Rahimi. I am not really surprised the Justices are content to kick federal felon-in-possession cases down the road, but it simply ensures a lot more legal churn in lower courts (and perhaps a lot more people unconstitutionally prosecuted) as the Justice go off on their summer vacation and the rest of us try to read Rahimi tea leaves. There is little doubt in my mind that the Justices will have to resolve the constitutionality of § 922(g)(1) sooner or later, but they ultimately get to decide just when and how, while the rest of us deal with the legal uncertainty.

United States v. Rahimi, Case No. 22-915, 602 U.S. —,  219 L.Ed.2d 351 (June 21, 2024)

Garland v. Range, Case No. 23-374, 2024 U.S. LEXIS 2917 (July 2, 2024)

Vincent v. Garland, Case No. 23-683, 2024 U.S. LEXIS 2931 (July 2, 2024)

The Reload, Analysis: SCOTUS Passes Up Gun Ban Case… For Now (July 5)

Sentencing Law and Policy, Supreme Court grants cert on First Step resentencing, GVRs gun issues, and lots of statements in (final?) order list (July 2)

Washington Post, The Supreme Court upended gun laws nationwide. Mass confusion has followed. (July 7)

– Thomas L. Root

DOJ Seeks Expedited Certiorari on Rahimi – Update for March 23, 2023

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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.

DOJ SEEKS CERTIORARI ON 5TH CIRCUIT RAHIMI DECISION

bad driver230323You may recall Zack Rahimi, a man who responded to the all-too-common embarrassment of having his credit card declined in the usual way. After being unable to use plastic to pay for his Whataburger Patty Melt (ranked as the chain’s best sandwich, by the way), Zack understandably drew his handgun and opened fire on houses, police cars, and pretty much anything else in front of the muzzle of his pistol. He even shot at bad drivers (something we’ve all had the urge to do from time to time).

At the time, Zack was subject to a civil protection order for having stalked an ex-girlfriend. After the locals got done charging him for felony hangry-ness, the Feds weighed in, charging him with possessing a firearm while being subject to a domestic violence protection order, a violation of 18 USC § 922(g)(8). But in the wake of the Supreme Court’s decision last June in N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, the 5th Circuit ruled that prohibiting people from possessing guns because of domestic violence protection orders violates the 2nd Amendment. The Circuit said:

The question presented in this case is not whether prohibiting the possession of firearms by someone subject to a domestic violence restraining order is a laudable policy goal,” the Circuit said. “The question is whether 18 U.S.C. § 922(g)(8), a specific statute that does so, is constitutional under the 2nd Amendment of the Constitution. In the light of N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen… it is not.

stalking230323The government has now filed a petition for writ of certiorari with the Supreme Court, and has done so quickly. The government could have sought en banc review, asking the entire 26-judge court to consider the issue. Instead, the government explained in its petition for writ of cert, due to “the significant disruptive consequences of the Fifth Circuit’s decision, the government is filing this petition for a writ of certiorari on a highly expedited schedule — a little more than two weeks after the issuance of the Fifth Circuit’s final amended opinion — in order to allow the Court to consider the petition before it recesses for the summer.”

The government argues in its petition that the appellate decision “overlooked the strong historical evidence supporting the general principle that the government may disarm dangerous individuals… Although courts interpreting the 2nd Amendment must consider text, history, and tradition, they should not focus on whether the law at issue has ‘a historical twin,’” the government contends “To the contrary, this Court emphasized that ‘even if a modern-day regulation is not a dead ringer for historical precursors, it still may be analogous enough to pass constitutional muster.’”

doitnow160817Writing in his Sentencing Law and Policy blog, Ohio State University law professor Doug Berman wonders whether the Supreme Court will be amenable to the government’s request to “take up the case on an expedited basis even before there is a direct circuit split.” He suggests that “expedited” may have a more glacial meeting at the high court: “I suspect the Justices will get back to these Second Amendment matters pretty soon. But ‘pretty soon’ in Supreme Court timelines does not really mean ‘soon’…”

There have been District Court decisions elsewhere that have relied on Bruen to gut § 922(g) limitations on gun possession by people under indictment, possession of guns with obliterated serial numbers, and possession of guns by marijuana users.  In the 3rd Circuit, the appeals court is examining whether the § 922(g) proscription on gun possession by people with felony convictions can survive Bruen.  And on Monday, a U.S. District Court in the Central District of California struck down the state’s Unsafe Handgun Act – which required all handguns sold in the state to have three features which not a single handgun in the world has – as unconstitutional under Bruen.

Perhaps the legal tsunami of attacks on § 922 alone – even absent a circuit split – will force SCOTUS’s hand and bring us another gun decision sooner rather than later.

United States v. Rahimi, Case No. 21-11001, — F.4th —, 2023 U.S. App. LEXIS 5114 (5th Cir., March 2, 2023) (amended opinion)

Petition for Writ of Certiorari, United States v. Rahimi, Case No. 22-915 (Supreme Court, filed March 17, 2023)

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

The Hill, DOJ asks SCOTUS to review ruling that overturned firearm ban for those with domestic violence restraining orders (March 18, 2023)

Sentencing Law and Policy, With DOJ asking, will SCOTUS quickly take up a post-Bruen case on gun possession by thoe subject to DV orders? (March 20, 2023)

Boland v. Bonta, Case No. SACV 22-01421-CJC (March 20, 2023)

Thomas L. Root