Supreme Court Potentially Guns Down Thousands of Firearms Convictions
By Stuart Berman
The number of firearms available in the United States has nearly tripled over the past two decades, to the point where firearms outnumber people. Yet the Second Amendment is not limitless. The federal criminal code makes it unlawful for “prohibited persons” to possess a firearm: convicted felons (specifically, persons convicted of a crime punishable by imprisonment for a term exceeding one year); fugitives; drug addicts; persons adjudicated as mental defectives or committed to mental institutions; unlawful aliens; persons dishonorably discharged from the military; persons who renounced U.S. citizenship; persons subject to certain restraining orders; and persons convicted of misdemeanor domestic violence. A person who “knowingly violates” these prohibitions faces up to 10 years in prison in most cases, and up to life under certain circumstances.
Does “knowingly” mean the government must prove only that the defendant fell into an enumerated category and knowingly possessed a firearm? Or must the government also prove that the defendant knew he was a prohibited person? The difference is consequential. Immigration law is confusing: an alien caught up in endless administrative proceedings might not know whether he is “illegally or unlawfully in the United States.” Does someone who smokes marijuana in a state where recreational use is legal know that he is “an unlawful user of or addicted to any controlled substance”? And does a person who received a suspended sentence after pleading guilty to a criminal charge before a state court judge who conducted a minimal plea colloquy know that he was convicted of a crime punishable by more than one year in prison? Proving knowledge of possession is straightforward. Proving knowledge of status is more problematic.
Opting for the higher standard, the Supreme Court has now held that – at least for possession of firearms by illegal aliens – the government must prove both forms of knowledge. In a 7-2 decision authored by Justice Breyer, the Court held in Rehaif v. United States, No. 17‑9560 (June 21, 2019), that the government “must show that the defendant knew he possessed a firearm and also that he knew he had the relevant status when he possessed it.” The Court’s textual analysis offers little reason to think it would treat the felon‑in‑possession provision differently. The result will be a sea change in the standards applied to one of the most commonly‑prosecuted federal crimes (more than 6,000 convictions in fiscal 2017), as well as a potential (fill in your favorite natural disaster metaphor – flood, avalanche, tsunami) of collateral attacks on past convictions.
The petitioner in Rehaif came to the United States on a student visa to study at a university in Florida. When the school academically dismissed him, it advised that his immigration status would be terminated unless he transferred to another school or left. Seeking to become a true “Florida man,” Rehaif chose to stay, visit a firing range, purchase ammunition, and fire weapons. That brought him to federal court, where the jury that convicted him was not required to find that Rehaif knew he was out of immigration status.
Justice Breyer’s majority opinion reversed the conviction, employing “a longstanding presumption, traceable to the common law, that Congress intends to require a defendant to possess a culpable mental state regarding ‘each of the statutory elements that criminalize otherwise innocent conduct.’” The majority found “no convincing reason to depart from the ordinary presumption in favor of scienter [requirement of guilty mind].” The Court noted that its interpretation spares “an alien who was brought to the United States unlawfully as a small child and was therefore unaware of his unlawful status,” and “a person who was convicted of a prior crime but sentenced only to probation, who does not know that the crime is ‘punishable by imprisonment for a term exceeding one year.’”
The problem for prosecutors is that even in cases where proving such knowledge would have been simple – aliens who were deported from the United States and then returned and possessed a firearms, or convicted felons who served years in prison – the record in thousands of cases did not set forth proof of that knowledge. At most felon‑in‑possession trials, the defendant – eager to keep the jury from learning that the details of his previous conviction(s) – elected to stipulate that prior to the time of the alleged gun possession, he had previously been convicted of a crime punishable by more than one year. Similar language was generally used in the stipulated facts in plea agreements.
For that reason, Justice Alito’s dissent, joined by Justice Thomas, did not cry wolf in warning about of a coming deluge of litigation, in the form of new trial motions, direct appeals, or motions to vacate convictions under 28 U.S.C. § 2255. The first two categories of cases potentially involve hundreds of cases, but there are potentially thousands of § 2255 cases still within the statute of limitations. While the standard for retroactive application of Supreme Court decisions to collateral attacks on convictions is high under Teague v. Lane, 489 U.S. 288 (1989), it may not be unsurmountable. For federal courts still bailing out from the collateral challenges to career offender and armed career criminal classifications after Johnson v. United States, 135 S. Ct. 2551 (2015), it may be time to order more buckets.