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Clues to Rahimi Application Pop Up in Circuit 922(g) Decisions – Update for August 5, 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.

A PAIR OF § 922(g)(1) CASES

gunfight230919I remain convinced that the Supreme Court’s United States v. Rahimi decision — banning gun possession for an individual who has shown himself to be dangerous is historically justified under the Second Amendment — represents a necessary correction to the wild, wild west of gun rights suggested by Justice Thomas’s New York State Rifle & Pistol Ass’n v. Bruen opinion. In fact, I suspect that Rahimi makes it more likely that people convicted of nonviolent felonies will regain their Second Amendment rights in the next two years.

Two cases decided last week may hint at how courts will approach a post-Rahimi felon-in-possession world.

Carl Langston was convicted of being a felon in possession of a gun under 18 USC § 922(g)(1) after a drunken brawl at a bar. He pled guilty but, on appeal, argued for the first time that § 922(g)(1) was unconstitutional under New York State Rifle & Pistol Ass’n v. Bruen as applied to him.

Last Friday, the 1st Circuit upheld his conviction. The Circuit applied the F.R.Crim.P. 52(b) plain error standard to review because Carl hadn’t raised the issue in the trial court and found that his argument failed because (1) no prior Supreme Court or 1st Circuit holds that § 922(g)(1) is unconstitutional “in any of its applications;” and (2) Rahimi “does not compel the conclusion that § 922(g)(1) is unconstitutional under the Second Amendment as applied to defendants with Hugh’s criminal history.

gun160711In fact, the 1st observed, “rather than compelling the conclusion that § 922(g)(1) is unconstitutional, the Supreme Court’s Second Amendment cases consistently reiterate, albeit in dicta, the presumptive lawfulness of the felon-in-possession statute… The Supreme Court’s majority opinion in Rahimi, joined by eight justices, once again identified prohibitions on the possession of firearms by felons as ‘presumptively lawful’.”

It’s hard to win a “plain error” appeal, as Carl found out. However, the Circuit conceded that Carl’s appeal

presents a serious constitutional claim that the Supreme Court has not yet resolved. As Langston points out, Rahimi held only that an individual may be temporarily disarmed, consistent with the Second Amendment, if a court has found that the individual poses a credible threat to the physical safety of another. Still, the Supreme Court has stated repeatedly over sixteen years, from [District of Columbia v] Heller to Rahimi, that felon-in-possession laws are presumptively lawful. Thus, on plain-error review, we cannot agree with Carl that the mere fact that the government did not introduce historical evidence to support the constitutionality of § 922(g)(1) makes it clear and obvious that his conviction violates the Second Amendment.

Meanwhile, the 3rd Circuit ruled that Dionti Moore, who used his fiancée’s handgun to frighten off intruders at her home while he was on supervised release, had no Second Amendment defense to a § 922(g)(1) felon-in-possession conviction.

The Circuit relied on Rahimi’s holding that it had to find that § 922(g)(1), as applied to Dionti, is “relevantly similar to laws that our tradition is understood to permit… [and that] why and how the regulation burdens the right are central to this inquiry… In other words, a modern firearms regulation passes constitutional muster only if it is “consistent with the principles that underpin our regulatory tradition.”

Comparing 18th and 19th-century laws to disarming a convicted felon while on supervised release, the 3rd ruled that “the bottom line is this: during the founding era, forfeiture laws temporarily disarmed citizens who had committed a wide range of crimes… This historical practice of disarming a convict during his sentence — or as part of the process of qualifying for pardon — is like temporarily disarming a convict on supervised release. After all, the defendant receives a term of supervised release thanks to his initial offense, and… it constitutes a part of the final sentence for his crime’” (quoting the Supreme Court ruling in United States v. Haymond). The Circuit concluded that “[c]onsistent with our Nation’s history and tradition of firearms regulation, we hold that convicts may be disarmed while serving their sentences on supervised release.”

Of course, the Court’s focus on “temporarily” disarming and “disarm[ing] while serving their sentences on supervised release” can easily be read to infer that permanently disarming someone with a felony conviction on his record is a different matter altogether.  

gunfreezone170330One would expect nothing less from the Circuit that handed down the en banc Range v. Attorney General decision, which is currently in front of the 3rd Circuit on remand.  Incidentally, supplemental briefs by both Bryan Range and the government were filed last Friday, suggesting a new decision is on the fast track in Philadelphia. There is little doubt that whatever the decision, it will end up again at the Supreme Court.

United States v. Langston, Case No. 23-1337, 2024 U.S.App. LEXIS 19353 (1st Cir. Aug 2, 2024)

United States v. Moore, Case No. 23-1843, 2024 U.S.App. LEXIS 19282 (3d Cir. Aug 2, 2024)

– Thomas L. Root

Deja Vu for the Second Amendment at the 9th Circuit – Update for July 23, 2024

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9TH CIRCUIT ‘GROUNDHOGS’ DUARTE GUN DECISION

groundhogday240723You may recall that in May, a 9th Circuit three-judge panel held that the 18 USC § 922(g)(1) ban on felons possessing guns was held to violate the Second Amendment rights of a guy convicted of drug trafficking.

Last week, the Circuit withdrew the opinion and set the case for en banc review.

In an unusual and entertaining “dissental” from grant of review, 9th Circuit Judge Lawrence VanDyke wrote,

What would you do if you were stuck in one place and every day was exactly the same, and nothing that you did mattered?’ In the Ninth Circuit, if a panel upholds a party’s Second Amendment rights, it follows automatically that the case will be taken en banc. This case bends to that law. I continue to dissent from this court’s Groundhog Day approach to the Second Amendment.

Judge VanDyke only wrote what everyone already knows to be true. “In this circuit,” he said of the 9th, “you could say that roughly two-fifths of our judges are interested in faithfully applying the totality of the Supreme Court’s Second Amendment precedent when analyzing new issues that have not yet been directly addressed by the Court. The other 17/29ths of our bench is doing its best to avoid the Court’s guidance and subvert its approach to the Second Amendment. That is patently obvious to anyone paying attention. To say it out loud is shocking only because judges rarely say such things out loud….”

Meanwhile, the 8th Circuit last week struck down a Minnesota law preventing 18-to-20-year-olds from carrying handguns in public. The case, Worth v. Jacobson, is noteworthy for its application of United States v. Rahimi: “Minnesota states that from the founding, states have had the power to regulate guns in the hands of irresponsible or dangerous groups, such as 18 to 20-year-olds,” the Circuit wrote. “At the step one ‘plain text’ analysis, a claim that a group is ‘irresponsible’ or ‘dangerous’ does not remove them from the definition of the people.”

groundhogs240723

The 8th ruled that “a legislature’s ability to deem a category of people dangerous based only on belief would subjugate the right to bear arms “in public for self-defense” to “a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees,” citing New York State Rifle & Pistol Ass’n v. Bruen and Rahimi.

The decision leaves little doubt that the 8th sees a ban on the entire category of people once convicted of felonies to be equally untenable under the Second Amendment. What this portends for the inevitable Supreme Court showdown on § 922(g)(1) depends in large part on the Third Circuit in Range and the Ninth’s rewrite of Duarte.

United States v. Duarte, Case No. 22-50048, 2024 U.S. App. LEXIS 17601 (9th Cir., July 17, 2024)

Worth v. Jacobson, Case No. 23-2248, 2024 U.S. App. LEXIS 17347 (8th Cir. July 16, 2024)

– Thomas L. Root

Supremes Delay The Day of Reckoning for Felon-in-Possession – Update for July 12, 2024

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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

Felon-in-Possession Constitutionality Decision May Be Within ‘Range’ – Update for June 28, 2024

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GOVERNMENT WANTS DEFINITIVE 2ND AMENDMENT FELON-IN-POSSESSION RULING NOW

gunknot181009The pundits sprouted like mushrooms after a rain shower this past week, making all manner of interpretations and predictions on the future of the 2nd Amendment in the wake of the Supreme Court’s United States v. Rahimi decision.

“The Court has endorsed taking guns from convicted felons, a category that now includes Donald Trump,” wrongly declared the New Yorker.

“One of the first things that’s going to happen is that the Supreme Court is going to take up a bunch of lower-court decisions on the 2nd Amendment, vacate them, send them back down for reconsideration in light of Rahimi. So we’re about to get a spate of second bites at the apple from the lower courts trying to apply this,” predicted Slate.

“The majority repeated Heller’s statement that “prohibitions… on the possession of firearms by ‘felons and the mentally ill’ are ‘presumptively lawful’… This suggests that the Court remains generally open to those restrictions… I expect that the Court will send Range back to the 3rd Circuit for further consideration in light of Rahimi; we’ll see what the 3rd Circuit judges say on remand,” UCLA law prof Eugene Volokh wrote in Reason.

Ohio State University law professor Doug Berman asked whether, in Rahimi’s wake, Donald Trump (a convicted felon subject to 18 USC 922(g)(1)) or Hunter Biden (a drug abuser when he bought his gun subject to 18 USC 922(g)(3)) can constitutionally be barred from firearm possession:

I do not believe Donald Trump or Hunter Biden “poses a clear threat of physical violence to another,” and § 922(g)(1) notably serves to permanently disarm anyone with a felony conviction. Further, the federal government has, since Bruen, generally argued for the constitutionality of 922(g)(1) based on the notion that only “responsible” individuals have 2nd Amendment rights. The Rahimi court directly and expressly rejected that notion. But still, as we saw before in 2nd Amendment cases like Heller and McDonald, the Court in Rahimi seems to still embrace dicta that can be read to suggest that the very broad criminal prohibition set forth in 18 USC § 922(g)(1) is still constitutional.

William & Mary law professor Kami Chavis wrote, “Although the court upheld Section 922(g)(8)… barriers to other attempts to implement modern gun regulations likely remain.”

iloveguns221018After the pundits all pontificated, the Solicitor General checked in last Monday, filing a surprising supplemental brief in Garland v. Range that asked the Court to quickly grant cert in a “range” of felon-in-possession cases to clarify who it can disarm under § 922(g)(1) consistent with the 2nd Amendment.

Specifically, SG Elizabeth Prelogar has asked SCOTUS to review some or all five separate pending cases dealing with the federal gun ban for felonies of varying severity. She argued that “we believe [the Court] should grant plenary review to resolve Section 922(g)(1)‘s constitutionality… Although this Court’s decision in Rahimi corrects some of the methodological errors made by courts that have held Section 922(g)(1) invalid, it is unlikely to fully resolve the existing conflict.”

The government argues that the conflict is important. Out of about 64,000 criminal cases reported to the Sentencing Commission in Fiscal Year 2022, more than 7,600 were § 922(g)(1) cases, 12% of all federal criminal cases.

It seems that just about everyone expected a spate of GVR orders on pending petitions for cert. (A GVR is a single-sentence order in which the Supreme Court grants certiorari, vacates the appellate court decision, and remands the case for further consideration in light of a new SCOTUS decision, in this case, Rahimi).

The government’s supplemental brief argues that “a GVR order is inappropriate if the delay and further cost entailed in a remand are not justified by the potential benefits of further consideration by the lower court. In our view, that is the case here. Section 922(g)(1)’s constitutionality has divided courts of appeals and district courts. Although this Court’s decision in Rahimi corrects some of the methodological errors made by courts that have held Section 922(g)(1) invalid, it is unlikely to fully resolve the existing conflict. And given the frequency with which the government brings criminal cases under Section 922(g)(1), the substantial costs of prolonging uncertainty about the statute’s constitutionality outweigh any benefits of further percolation. Under these circumstances, the better course would be to grant plenary review now.”

gun160711The government recommends that SCOTUS grant cert on multiple cases to be heard in one ultimate felon-in-possession case, including Doss v. United States (whether applying felon-in-possession is constitutional where the petitioner has “a lengthy criminal record” that “includes over 20 convictions, many of them violent”) and Jackson v. United States (petitioner has “previous felony convictions for non-violent drug crimes”). The government also asked that the Court add to the mix either Range v. Attorney General (3rd Circuit held 922(g)(1) was unconstitutional as applied to a man convicted of food-stamp fraud from 25 years before) or Vincent v. United States (10th Circuit held 922(g)(1) was constitutional as applied to addicted woman convicted of bank fraud 15 years before but now drug-free and running large charity).

As for Range and Vincent, the Government argues that “[g]ranting review in one of those cases would enable this Court to consider Section 922(g)(1)’s application to non-drug, non-violent crimes.”

A statement in the supplemental brief suggests the Government may have concluded that Rahimi means that it cannot win arguing that 922(g)(1) is constitutional in all circumstances. SG Preloger says that granting “review in cases involving different types of predicate felonies” would “enable the Court to consider Section 922(g)(1)’s constitutionality across a range of circumstances that are fully representative of the statute’s applications.”

guns170111If the government were convinced that it can defend 922(g)(1) in all circumstances, it would be happy with certiorari in either Range or Vincent, because winning on either of those cases would establish that 922(g)(1) is constitutional and thus immune to an “as applied” challenge. The fact that the government suggests that the Court hear swath of cases with defendants ranging from saint to sinner implies that the SG has conceded that the “as applied” constitutional line is going to fall somewhere in between Mr. Doss and Ms. Vincent.

Such a conclusion is almost foreordained by the Rahimi court’s warning that its Rahimi ruling is narrow:

Our resolution of Mr. Rahimi’s facial challenge to § 922(g)(8) necessarily leaves open the question whether the statute might be unconstitutional as applied in particular circumstances… We do not decide today whether the government may disarm a person without a judicial finding that he poses a “credible threat” to another’s physical safety… We do not resolve whether the government may disarm an individual permanently… We do not determine whether § 922(g)(8) may be constitutionally enforced against a person who uses a firearm in self-defense… Nor do we purport to approve in advance other laws denying firearms on a categorical basis to any group of persons a legislature happens to deem, as the government puts it, “not ‘responsible.’”

The Court will accept the SG’s invitation, if at all, early next week (although the Solicitor General has substantial influence with the Court). If the Supremes do take the cases, it will move up by at least a year the time we’ll have a definitive ruling on the constitutional limits of the felon-in-possession statute.

United States v. Rahimi, Case No 22-915, 2024 U.S. LEXIS 2714 (June 21, 2024)

United States v. Doss, Case No. 22-3662, 2023 U.S. App. LEXIS 31748 (8th Cir. Dec. 1, 2023)

United States v. Jackson, 69 F.4th 495 (8th Cir. 2023)

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

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

Supplemental Brief, Garland v. Range, Case No. 23-374

New York State Rifle & Pistol Association v. Bruen, 597 U.S. 1 (2022)

New Yorker, The Supreme Court Steps Back From the Brink on Guns (June 22, 2024)

Slate, John Roberts Tried to Clean Up Clarence Thomas’ Mess. He May Have Invited More Chaos (June 24, 2024)

Reason, Some Takeaways from Today’s Rahimi 2nd Amendment Opinions (June 21, 2024)

Sentencing Law and Policy, After Rahimi, can Donald Trump legally possess a gun? How about Hunter Biden? (June 24, 2024)

Bloomberg Law, Narrow Gun Opinion Says Law Not in ‘Amber,’ But History Rules (June 25, 2024)

The Reload, DOJ Asks Supreme Court to Resolve Question of Gun Rights for Felons (June 25, 2024)

– Thomas L. Root

What Does Rahimi Mean for 922(g)(1) Constitutionality? – Update For June 24, 2024

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WHITHER RAHIMI?

No one who paid any attention to Zackey Rahimi’s case doubted for a moment that the Supreme Court would find a way to uphold the constitutionality of 18 USC § 922(g)(8), the subsection of the felon-in-possession statute that prohibited people subject to domestic protection orders (DPO) from possessing guns.

Old Zackey is 87 miles of bad track, a bad boy’s bad boy. He was hit with a DPO for bouncing his girlfriend’s face off his car’s dashboard. After the DPO was issued, Zackey kept harassing her anyway, For good measure, he also shot at another car in an unrelated road rage incident and opened fire at a What-a-Burger when his friend’s credit card was declined. Zack is not a sympathetic defendant.

whataburger230703On Friday, the Supreme Court upheld § 922(g)(8) (at least as it had been applied to Zack), concluding that the nation’s “tradition of firearm regulation allows the Government to disarm individuals who present a credible threat to the physical safety of others.”

The 8-1 majority (Justice Thomas dissenting) observed that “some courts have misunderstood the methodology of our recent Second Amendment cases,” meaning New York State Rifle & Pistol Ass’n v. Bruen. The Court cautioned against taking too rigid a view of the historical tradition of gun regulation that Bruen requires to be found in order to hold that a firearm statute is consistent with the Second Amendment. Instead, courts should look at whether the modern law being challenged is “relevantly similar” to historical regulations “in both why and how it burdens the Second Amendment right. Section 922(g)(8) restricts gun use to check demonstrated threats of physical violence, just as the [colonial-era] surety and going armed laws do. Unlike the regulation struck down in Bruen, Section 922(g)(8) does not broadly restrict arms use by the public generally.”

SCOTUS held that courts should focus on the purpose of the regulation and the burden that it places on the Second Amendment right to bear arms. “For example,” Chief Justice Roberts wrote, “if laws at the founding regulated firearm use to address particular problems, that will be a strong indicator that contemporary laws imposing similar restrictions for similar reasons fall within a permissible category of regulations.”

Zack challenged 922(g)(8)’s facial constitutionality – that is, he argued that the law is always unconstitutional – rather than arguing it was unconstitutional “as applied” to Zack’s situation. That probably was the better of a bad choice, because an “as applied” challenge would have focused on Zack, whose personal history was terrible. The Court, ruling that 922(g)(8) was not facially unconstitutional, had no problem concluding that “Section 922(g)(8) is constitutional as applied to the facts of Rahimi’s own case.”

rahimishirt240624The Rahimi majority opinion (before the five concurring opinions and one dissent), ends with before now, “this Court did not undertake an exhaustive historical analysis… of the full scope of the Second Amendment. Nor do we do so today. Rather, we conclude only this: An individual found by a court to pose a credible threat to the physical safety of another may be temporarily disarmed consistent with the Second Amendment.” (Emphasis added by me).

Ohio State law professor Doug Berman, writing in his Sentencing Policy and Law blog, observed that the closing ‘only this’ statement “leads me to think that litigation over the Second Amendment is not going to get much easier for lower courts after this ruling.”

The Washington Post said, “The decision was limited in scope, leaving for another day more difficult questions about the viability of other gun-control measures, such as… restrictions on gun possession by nonviolent offenders.” USA Today said the decision doesn’t foreshadow how Rahimi’s more flexible approach in applying history “will be applied to other restrictions such as prohibiting non-violent felons from having guns, according to Joseph Blocher, co-director of the Center for Firearms Law at Duke University School of Law.”

irresponsible240624Rahimi leaves us with almost as many questions about the constitutionality of § 922(g)(1) — the actual felon-in-possession subsection — as we had before last Friday’s decision. There are few hints in the opinion, although SCOTUS did unanimously reject the government’s argument that Zack could be deprived of his right to have a gun because he is not a “responsible” citizen.

Arguments that convicted felons are not “responsible” citizens have been government mainstays in contending that § 922(g)(1) is consistent with Bruen. “‘Responsible’,” Roberts wrote, “is a vague term. It is unclear what such a rule would entail, and there is no support for such a rule in the Supreme Court’s Second Amendment cases.”

UCLA law professor Eugene Volokh wrote in Reason that

The majority repeated Heller’s statement that “prohibitions… on the possession of firearms by ‘felons and the mentally ill’ are ‘presumptively lawful’… This suggests that the Court remains generally open to those restrictions, even though it turns out such restrictions actually lack a long historical pedigree.

At the same time, perhaps there is some room after Rahimi for this “presumpti[on]” to be rebutted with regard to people convicted of felonies that don’t suggest a “credible threat to the physical safety of others,” especially if those felonies are part of the well-post-[18th century] increase in the number of nonviolent crimes that are classified as felonies. A few courts have so concluded (to oversimplify slightly); US v Range… is one example. I expect that the Court will send Range back to the 3rd Circuit for further consideration in light of Rahimi; we’ll see what the 3rd Circuit judges say on remand.

violent160620A commentator on the Sentencing Law and Policy site suggested that “in 922(g)(1) cases the court is going to have to draw a line between white-collar offenders who present no danger and felons convicted of assault and felons convicted of drug trafficking (an offense that, in a particular case may not involve violence, but presents an enormous risk of gun violence).”

For now, look to Range and other similar cases to be remanded and for the 9th Circuit to rehear Duarte (for which a petition for rehearing is now pending).

United States v. Rahimi, Case No 22-915, 2024 U.S. LEXIS 2714 (June 21, 2024)

SCOTUSBlog, Supreme Court upholds bar on guns under domestic-violence restraining orders (June 21, 2024)

Washington Post, Supreme Court upholds gun ban for domestic violence restraining orders (June 21, 2024)

Sentencing Law and Policy, Supreme Court, by an 8-1 vote, rejects Second Amendment challenge to § 922(g)(8) (June 21, 2024)

Reason, Some Takeaways from Today’s Rahimi Second Amendment Opinions (June 21, 2024)

USA Today, Supreme Court upholds law banning domestic abusers from owning guns (June 21, 2024)

United States v. Duarte, 101 F.4th 657 (9th Cir, 2024)

– Thomas L. Root

Duck Hunting With Steve Duarte – Update for May 21, 2024

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THE FUTURE OF GUNS

duckhunting240521I got an email last week from a Georgia friend who’s been home for about eight years from serving a 30-year on a crack conspiracy, asking whether it was true that an appeals court said he could once again own a shotgun and pursue his passion for duck hunting (a passion not shared by the ducks themselves).

I explained that what he had read about, the 9th Circuit’s United States v. Duarte decision, did not necessarily say that and–even if it had–the last word hasn’t yet been written about the 2nd Amendment and 18 USC § 922(g)(1)’s felon-in-possession statute.

The May 9th Duarte decision had a 3-judge panel split 2-1, with the majority holding that the 2nd Amendment does not necessarily exclude people formerly convicted of felonies: New York State Rifle & Pistol Assn v. Bruen’s “scattered references to ‘law-abiding’ and ‘responsible’ citizens did not implicitly decide the issue in this case., the Court said. In the 2008 District of Columbia v. Heller decision, the Supreme Court made passing reference to the “presumptive[] lawful[ness]” of felon firearm bans, but the Duarte majority said the presumption “will no longer do after Bruen,” given Bruen’s call for a historical analysis and that the “felon firearm ban[] was never an issue the Heller Court purported to resolve.”

Eugene Volokh, a constitutional law professor at UCLA, told Courthouse News Service that Duarte “is a shift in Ninth Circuit law, and it differs from the view adopted by many circuits… However, it’s similar to what the Philadelphia-based 3rd Circuit decided last year in Range v. Attorney General.“

gunknot181009Duarte leaves open the possibility that felons convicted of violent crimes could still be prohibited from owning firearms. What’s more, the government wasted no time, last week filing a Petition for Rehearing En Banc and for Expedited Order Vacating Panel Opinion that asks the 9th Circuit for en banc review of Duarte. Appellant Steve Duarte has been ordered to file an opposition by May 30th.

En banc review may be put on hold pending the Supreme Court decision in the United States v. Rahimi decision, due any time before the end of June. The Rahimi case considers the constitutionality of a law banning gun possession by people subject to domestic violence restraining orders. Volokh said, “The question in Rahimi and the question in this case aren’t identical, but they share considerable similarities.”

gun160711For now, both Range and Duarte are “as applied” cases, not holding that § 922(g)(1) is unconstitutional on its face, that is, in every circumstance, but rather only “as applied to the one’s own particular conduct.” In Range, the petitioner had been convicted 25 years before on a food-stamp misdemeanor that carried a possible 2-year sentence (and thus fell under § 922(g)(1)’s prohibition). The Duarte majority held that the defendant lacked any violent crime conviction (despite the fact that one of his priors was for fleeing and eluding, which sounds like more than a simple jaywalking to avoid a cop on the same sidewalk Steve was on).

The § 922(g)(1) tide may be turning, but no one should feel as though it’s open season on gun ownership just yet, or–more to the point–that a felon-in-possession conviction is open to a successful constitutional attack.

Reason, Volokh: Ninth Circuit Panel Concludes That Some Felons May Have Second Amendment Rights (May 9, 2024)

Courthouse News Service, 9th Circuit finds that convicted felons also have Second Amendment rights (May 9, 2024)

Ammoland, Court Finds Convicted Felons have Second Amendment Rights (May 15, 2024)

New York Law Review, The Dog That Didn’t Bark Is Rewriting the Second Amendment (May 5, 2024)

ABA Journal, Ban on gun possession by felons is unconstitutional as applied to some offenders, 9th Circuit rules (May 13, 2024)

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

BRUEN CONTINUES TO EXPAND GUN RIGHTS

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

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

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

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

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

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

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

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

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

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

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

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

– Thomas L. Root