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May 10, 2024

Split Ninth Circuit panel declares federal felon-in-possession criminal law unconstitutional as applied to non-violent offenders after Bruen

Yesterday, a split Ninth Circuit panel handed down a major Second Amendment ruling in US v. Duarte, No. 22-50048 (9th Cir. May 9, 2024) (available here), to become the second circuit to find that the Supreme Court's Bruen ruling renders unconstitutional federal law's criminal prohibition in on gun possession by nonviolent felons.   The 60-page opinion for the court was authored by Judge Bea, and here is part of how it starts:

18 U.S.C. § 922(g)(1) makes it a crime for any person to possess a firearm if he has been convicted of an offense “punishable by imprisonment for a term exceeding one year.”  Steven Duarte, who has five prior non-violent state criminal convictions — all punishable for more than a year — was charged and convicted under § 922(g)(1) after police saw him toss a handgun out of the window of a moving car.  Duarte now challenges the constitutionality of his conviction.  He argues that, under the Supreme Court’s recent decision in New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022), § 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.  We agree.

We reject the Government’s position that our pre-Bruen decision in United States v. Vongxay, 594 F.3d 1111 (9th Cir. 2010), forecloses Duarte’s Second Amendment challenge.  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....

At step one of Bruen, we easily conclude that Duarte’s weapon, a handgun, is an “arm” within the meaning of the Second Amendment’s text and that Duarte’s “proposed course of conduct — carrying [a] handgun[] publicly for selfdefense”— falls within the Second Amendment’s plain language, two points the Government never disputes. Bruen, 597 U.S. at 32.  The Government argues only that “the people” in the Second Amendment excludes felons like Duarte because they are not members of the “virtuous” citizenry.  We do not share that view.  Bruen and 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.” Bruen, 597 U.S. at 70 (quoting District of Columbia v. Heller, 554 U.S. 570, 581 (2008)). Our own analysis of the Second Amendment’s publicly understood meaning also confirms that the right to keep and bear arms was every citizen’s fundamental right....

At Bruen’s second step, we conclude that the Government has failed to prove that § 922(g)(1)’s categorical prohibition, as applied to Duarte, “is part of the historical tradition that delimits the outer bounds of the” Second Amendment right. Bruen, 597 U.S. at 19. The Government put forward no “well-established and representative historical analogue” that “impose[d] 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. Id. at 29, 30. We therefore vacate Duarte’s conviction and reverse the district court’s judgment entering the same. 

The 10-page dissent authored by Judge Milan Smith concludes this way:

The majority reads Bruen, a Supreme Court decision reviewing New York’s gun licensing regime, as an invitation to uproot a longstanding prohibition on the possession of firearms by felons. Bruen extends no such invitation.  As Justice Alito cautioned, Bruen decides “nothing about who may lawfully possess a firearm.” Bruen, 597 U.S. at 72 (emphasis added).

One day — likely sooner, rather than later — the Supreme Court will address the constitutionality of § 922(g)(1) or otherwise provide clearer guidance on whether felons are protected by the Second Amendment. But it is not our role as circuit judges to anticipate how the Supreme Court will decide future cases.... Until we receive contrary definitive guidance from the Supreme Court, or from a panel of our court sitting en banc, we are bound by our decision in Vongxay.

I respectfully dissent and express the hope that our court will rehear this case en banc to correct the majority’s misapplication of Bruen.

The 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). 

Most folks reasonably expect the Rahimi ruling to provide more guidance on how the Bruen Second Amdndment test is to be applied to broad federal criminal gun control laws.  I would expect coming Rahimi opinion will lead to the Ninth 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.

May 10, 2024 at 10:11 AM | Permalink


I agree with the basic ruling but fear that in application it will be a terrible swamp. Just look at the mess ACCA has been since its inception (although most of that comes down to the Court choosing its categorical framing). Plus, of course, plenty of times the actual conduct was very clearly violent but a prosecutor pled down the charges in order to get rid of the case.

Posted by: Soronel Haetir | May 10, 2024 11:54:47 AM

SCOTUS needs to grant cert in both the 3rd Circuit's Range case and this 9th Cir. Duarte case and then consolidate them for oral argument to occur ASAP. Will they? No. They'll likely remand both cases for further analysis in light of whatever they say in Rahimi.
Let the uncertainty continue.
But the reality of the situation on the ground is that almost every single 922(g)(1) defendant is demanding their attorney to argue the statute's constitutionality, and a decision from SCOTUS on that exact issue is needed ASAP. I recognize that both Range and Duarte are based on as applied challenges to those with a non-violent past. But let me tell you, that nuance is lost on (or ignored by) most 922(g)(1) defendants. All they hear is that the law they're charged with has been declared invalid, and they want to know when their lawyer is going to get the same ruling for them.
And it won't stop until the Supreme Court provides a definitive ruling on the issue. Can someone please get word to SCOTUS -- for the benefit of all federal criminal case practitioners: address 922(g)(1) ASAP.

Posted by: Anon | May 11, 2024 10:42:50 AM

Thanks, Anon, for providing an important "on the ground" view of these issues. Especially given that (1) the text of the Second Amendment makes no violent/non-violent distinction, (2) other jurisprudence about "violent" crime is bizarre, and (3) these issues could be deemed waived if not raised ASAP, I don't blame anyone charged under 922(g)(1) (or their lawyers) from being eager to raise 2A claims these days.

I think you are right that SCOTUS will GRV these cases after Rahimi, and we will have see if the Rahimi opinion(s) provide meaningful guidance on other 922(g) issues. Of course, if/when every gun defendant aggressively presses 2A claims (including the many thousands now incarcerated), at some point the Solicitor General will be aggressively pressing SCOTUS to address these issues head on.

Posted by: Doug B | May 11, 2024 11:58:13 AM

Assume that the Supreme Court sides with the Ninth (and there is some lingering curiosity of whether the Ninth is trolling the Supreme Court on the unworkability of Bruen), such a decision could have impact on non-gun cases.

In sex cases, defendants often want to plead to a nonsex offense to avoid having to register as a sex offender or having to complete sex offender treatment. And prosecutors have to decide whether the consequence of having to register as a sex offender is something that we want to require.

If the Second Amendment (as interpreted by the Supreme Court) gives nonviolent felons the right to own a gun, defendant will want to plead to a "nonviolent" lesser offense, and the prosecution will have to decide whether that ban on owning a gun is one of the redlines in the case.

Posted by: tmm | May 12, 2024 10:22:31 AM

Judge Bea, at 6' 4", played center for Stanford, where he also went to law school, admittedly a while back. Always a gentlemen, with lots of good stories. As to the case, obviously SCOTUS is going to have to decide. My guess is that the Court will not find the FIP statute unconstitutional per se (all the liberals, Kavanaugh, the Chief, Barrett and Alito).

Posted by: Bill Otis | May 13, 2024 11:39:03 AM

Here in Kentucky, criminal defense lawyers are using the Bruen decision to attack Kentucky state criminal gun possession laws. Pursuant to Supreme Court precedent, the 2nd Amendment is applicable to the states and their laws thru the 14th Amendment. On March 16, 2023, Jefferson County [Louisville, Ky.] Circuit Judge Melissa Logan Bellows entered an Order finding KRS 527.040 [the felon in possession of a handgun statute] unconstitutional in light of Bruen. See, Commonwealth v. Jecory Lamont Frazier, Case No. 22-CR000450. That case is now on appeal to the Kentucky Court of Appeals. On April 8, 2024, Circuit Judge Daniel Ballou of McCreary County, Kentucky [a rural Eastern Kentucky County] entered an Order finding KRS 527.070 [possession of a firearm or other dangerous weapon on school property] unconstitutional (as applied) in light of Bruen. See, Commonwealth v. John Gunn, Case No. 23-CR-00012. The underlying facts of the Gunn case [potential pun noted] involved the former County School Superintendent, John Gunn, who the School Board came to an agreement with to buy out his contract if he would resign immediately. At 6 a.m. the morning after Dr. Gunn and the School Board signed the written agreements at an evening Board meeting, Dr. Gunn came to the School Board's Office building to retrieve his personal possessions from his (former) office. He was surprised that he could not enter the building because his electronic swipe card had already been deactivated. Thus, Dr. Gunn returned to the building several hours later, during office hours, to retrieve his personal belongings, and was arrested by a school safety officer, who had reviewed the security video tape of Dr. Gunn trying unsuccessfully to enter the building. The security video reveals that when Dr. Gunn opened his overcoat, he had a .45 caliber pistol in a holster visible. When he later returned to the offices during business hours, he did not have any weapon on his person, but he was arrested over the pistol visible at 6 a.m. on the security video. In dismissing the case, the Judge Ballou noted that while the School Board's office building is on a campus with 3 school buildings, the Board's office itself is not a school per se. Further, there were no students or Board employees at the building at 6 a.m., before it opened to the public for business. The was no history of prohibiting firearms on school or school board property between 1791 and 1994, when KRS 527.070 was enacted. Indeed, during the 19th and early 20th centuries, schoolboys and teachers sometimes brought their hunting weapons, including .22 rifles and shotguns to school. Interestingly, Judge Daniel Ballou clerked for a Judge on the 6th U.S. Circuit Court of Appeals before returning to his home county to practice law and to eventually be elected as a Circuit Judge, so he is no intellectual lightweight.

Posted by: Jim Gormley | May 13, 2024 1:38:49 PM

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