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Federal Gun Cases: Will Justice Gorsuch Make a Difference??

Kish Law LLC

I’ve handled hundreds of gun cases prosecuted in the federal court system over the past 36 years, here in Atlanta and elsewhere.  Most federal gun prosecutions involve a claim that the Defendant had a firearm (or ammunition) and the accused was a “prohibited person” who cannot have the gun.  Most times it is the usual “FIPF”, meaning a felon-in-possession-of-a-firearm.  However, this same law law applies to firearms possessors who might be an illegal alien,  a fugitive from justice, committed to a mental institution, convicted of a misdemeanor domestic violence crime, or, who is an illegal user of a controlled substance.  Yes, that’s right, smoking a joint in a state where that is illegal might cause the dope-smoker to get prosecuted in federal court if the person’s other hand is wrapped around a firearm.

The main federal gun law, (18 U.S.C. §922(g)) says it is unlawful for anyone who falls into one of the prohibited categories to “…possess in or affecting commerce, any firearm or ammunition.”  Then, a separate sentencing provision (18 U.S.C. §924(a)(2)) says the accused person is liable to a prison sentence if he or she “knowingly” violates §922(g).  Over the years, the Courts ruled that there are three elements of this crime: 1) prohibited status, 2) possession, and 3) that the possession was in or affecting commerce.  Also, over the years, prosecutors convinced the courts that the word “knowingly” only applies to one of these elements, namely, the possession requirement.  As a result, there are lots of prior cases ruling that prosecutors don’t need to prove that the accused person “knew” he or she was a prior felon, illegal immigrant, fugitive, or a dope smoker.  

Justice Gorsuch was brought up to the Supreme Court a couple of years back from the federal appellate bench.  While he was a regular old federal appellate judge, he wrote a couple of opinions noting the three elements of the federal gun law.  He criticized prior cases for reading the word “knowingly” as “leapfrogging over the very first § 922(g) element and touching down only at the second” because that interpretation “defies linguistic sense—and not a little grammatical gravity.”  Waxing a bit more poetically, he also said: “Congress gave us three elements in a particular order. And it makes no sense to read the word ‘knowingly’ as so modest that it might blush in the face of the very first element only to regain its composure and reappear at the second.”

Blushing or not, the Supreme Court last Friday agreed to hear a challenge to the gun law that appears to be almost entirely premised on Justice Gorsuch’s early writings.  The case is United States v. Rehaif.

Here’s what happened before the big Court accepted the matter.  Mr. Rehaif was from the Middle East, and was a student at a Florida university.  The school basically kicked him out, notifying him of this by sending him a couple of emails.   Because he was no longer enrolled, his immigration status  changed from legal to illegal.  He was confronted by some federal agents and freely told them he had some ammunition and had been shooting at a gun range recently.  The feds prosecuted him for being an illegal alien in possession of a firearm. His highly capable Federal Public Defenders asked the trial judge to tell the jury that the prosecution needed to prove that Mr. Rehaif “knew” of his illegal status, which sounds like a not-too-bad defense since no one confirmed he had received the emails and his supposed “confession” was heard by only a single agent and unrecorded.  The judge would not do so, he was convicted, and the Eleventh Circuit kicked him to the curb as well.  His PD kept fighting (love it when lawyers don’t give up) and, quoting extensively from then-Judge Gorsuch’s earlier writings, got the Supreme Court to grant review last week.

This case can be a big deal, for a number of reasons.   First, there were apparently over 8000 federal gun cases last year.  Second, this might be a chance for the somewhat new Justice Gorsuch to convince other members of the high Court that the laws should be applied as written, not merely as many prosecutors would like them to apply. Finally, it might provide some protection for people who have or are around firearms and who fall into one of the “prohibited person” categories.

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