In the last week, the United States Supreme Court has issued two opinions relating to firearm possession that have a significant impact on federal firearms prosecutions under 18 U.S.C. § 922(g) and 18 U.S.C. § 924(c).
First, on June 21, 2019, the Court issued its opinion in Rehaif v. United States, No. 17-9560 (Jun. 21, 2019). That opinion holds that to be guilty of being a prohibited person in possession of a firearm under 18 U.S.C. § 922(g), the defendant must actually know that he or she is a prohibited person.
Section 922(g) lists a number of different categories of persons who are unable to legally possess firearms. The most commonly known category includes those previously convicted of felonies but the statute also prohibits illegal aliens, those with mental health or substance abuse problems and those convicted of misdemeanor domestic violence offenses, to name a few, from possessing firearms.
The defendant in Rehaif was present in the United States legally on a student visa but had his status terminated because he received poor grades in school. There was some question whether the defendant knew his legal status had been terminated. The jury in Rehaif’s case was instructed that the government did not need to prove that Rehaif knew he was in the country unlawfully to prove him guilty of being an alien in possession of a firearm. The Supreme Court reversed and held that it must be proved that the defendant knew he belonged to a relevant category of prohibited persons to convict under section 922(g).
The Rehaif opinion may be found here: https://www.supremecourt.gov/opinions/18pdf/17-9560_new_onkq.pdf. It was a 7-2 decision. The majority opinion was written by Justice Breyer; with Justices Alito and Thomas dissenting.
Rehaif adds an element necessary for the government to prove in section 922(g) cases, overruling precedent from most federal circuit courts of appeal. Those who face section 922(g) cases, and even those who were previously convicted under section 922(g), even if by guilty plea, should consult a lawyer about how the Rehaif decision may help them.
Second, in United States v. Davis, No. 18-431 (Jun. 24, 2019), the United States Supreme Court held that the residual clause of 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague. That section made it unlawful for a person to possess a firearm during and in relation to a crime of violence. Because the residual clause of the definition of crime of violence was unconstitutionally vague — much like the Court had previously ruled relative to other nearly-identical residual clauses in cases such as Johnson and Dimaya discussed in previous blog posts — the residual clause portion of the crime of violence definition for purposes of section 924(c) has been struck down by Davis.
The Davis opinion may be found here: https://www.supremecourt.gov/opinions/18pdf/18-431_7758.pdf. It was a 5-4 decision with Justice Gorsuch writing for the majority and Justices Kavanaugh, Thomas, Alito and Roberts dissenting.
Though section 924(c)(3)(B) is used less frequently than section 922(g), those who are subject to its penalties face a mandatory minimum consecutive sentence of 60-months imprisonment. Thus, while Davis might affect fewer defendants, the effects are significant. Those who are facing, or who have been convicted of a section 924(c) offense when the underlying offense was deemed a crime of violence under the residual clause should consult a lawyer about how the Davis decision may help them.