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June 23, 2019

Were lawyers busy all weekend drafting "Rehaif motions" seeking relief for "tens of thousands of prisoners" potentially impacted by the SCOTUS decision?

The question in the title of this post is prompted by the dire claims appearing in Justice Alito's dissent in Friday's Supreme Court ruling in Rehaif v. US, No. 17-9560 (S. Ct. June 21, 2019) (available here).  At the start of his dissent, Justice Alito frets that the Court's ruling in Rehaif "will create a mountain of problems with respect to the thousands of prisoners currently serving terms for §922(g) convictions" and that "[a]pplications for relief by federal prisoners sentenced under §922(g) will swamp the lower courts."  At the end of his dissent, he returns to this lament (with cites removed):

Although the majority presents its decision as modest, its practical effects will be far reaching and cannot be ignored. Tens of thousands of prisoners are currently serving sentences for violating 18 U.S.C. § 922(g).  It is true that many pleaded guilty, and for most direct review is over.  Nevertheless, every one of those prisoners will be able to seek relief by one route or another.  Those for whom direct review has not ended will likely be entitled to a new trial.  Others may move to have their convictions vacated under 28 U.S.C. § 2255, and those within the statute of limitations will be entitled to relief if they can show that they are actually innocent of violating §922(g), which will be the case if they did not know that they fell into one of the categories of persons to whom the offense applies.  If a prisoner asserts that he lacked that knowledge and therefore was actually innocent, the district courts, in a great many cases, may be required to hold a hearing, order that the prisoner be brought to court from a distant place of confinement, and make a credibility determination as to the prisoner’s subjective mental state at the time of the crime, which may have occurred years in the past.  This will create a substantial burden on lower courts, who are once again left to clean up the mess the Court leaves in its wake as it moves on to the next statute in need of “fixing.”...

The majority today opens the gates to a flood of litigation that is sure to burden the lower courts with claims for relief in a host of cases where there is no basis for doubting the defendant’s knowledge.

Though I am not sure that the litigation following the Court's decision in Rehaif will amount to a flood, I am sure that it will be interesting to see just how this ruling echoes through the lower courts in the weeks and months ahead.

June 23, 2019 at 11:26 PM | Permalink


I worked on a case a decade ago where the defendant as a young man was convicted under Youth Corrections Act in the 1970s, served 18 months, was absolutely sure the conviction was expunged, and went on to collect an impressive array of high-value skeet guns (and become a skeet champion) only to be convicted 30 years after his youth case under 922(g)(1). His absolute belief that he was entitled to own firearms did not matter. I found it amazing that 922(g) only cared that the defendant knew what he possessed was a gun, without scienter attaching to any other element. I applaud the common sense of Rehaif.

That being said, I have little doubt that Justice Alito is correct. There will be a flood. The USSC numbers suggest 6,000 a year are convicted on 922(g) offenses. With an average sentence of 64 months, and 3 years of supervised release afterwards, we are talking perhaps 6,000 x 7 years, or 42,000 people with 922(g) convictions.

But "flood" is relative. The Johnstown flood wrought destruction. But historically, the Nile flooded every year, and enriched the land. Floods can be good or bad. I suggest that a flood to correct an injustice is (as Martin Luther King reminded us the Book of Amos records) is "justice [that] rolls down like waters, and righteousness like a mighty stream."

Posted by: Tom Root | Jun 24, 2019 6:14:21 AM

I am currently retired, but have done a bit of blogging regarding Rehaif and pipeline issues that might be helpful to folks trying to get oriented on these cases. The links are collected here:


Posted by: Ed Hagen | Jun 24, 2019 5:13:03 PM

My father is currently serving a federal sentence of 188 months in a 922(g) can you please assist in this matter

Posted by: Tavares Felton | Aug 14, 2019 8:45:35 PM

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