« "An Act of Regression: Louisiana takes a giant step backward in parole and sentencing reform" | Main | Interesting look at the different federal prison security levels and their costs »

August 25, 2024

Sixth Circuit panel rules federal prohibition of felon gun possession is "constitutional on its face and as applied to dangerous people"

A panel of the Sixth Circuit handed down an interesting and intricate opinion in US v. Williams, No. 23-6115 (6th Cir. Aug. 23 , 2024) (available here), which rejects a Second Amendment challenge to a federal illegal gun possession charge by a "dangerous" person with a felony record. The lengthy opinion for the Court concludes with this very helpful summary:

To summarize, we hold today that § 922(g)(1) is constitutional on its face and as applied to dangerous people.  Our nation’s historical tradition confirms Heller’s assumption that felonin-possession laws are “presumptively lawful.”  The history reveals that legislatures may disarm groups of people, like felons, whom the legislature believes to be dangerous — so long as each member of that disarmed group has an opportunity to make an individualized showing that he himself is not actually dangerous.

A person convicted of a crime is “dangerous,” and can thus be disarmed, if he has committed (1) a crime “against the body of another human being,” including (but not limited to) murder, rape, assault, and robbery, or (2) a crime that inherently poses a significant threat of danger, including (but not limited to) drug trafficking and burglary. An individual in either of those categories will have a very difficult time, to say the least, of showing he is not dangerous.

A more difficult category involves crimes that pose no threat of physical danger, like mail fraud, tax fraud, or making false statements. But such a case is not before us today.

In any event, district courts need not find a “categorical” match to a specific common-law crime to show that a person is dangerous. Rather, district courts should make fact-specific dangerousness determinations after taking account of the unique circumstances of the individual, including details of his specific conviction. Finally, when considering an individual’s dangerousness, courts may evaluate a defendant’s entire criminal record — not just the specific felony underlying his section 922(g)(1) prosecution.

Here, Williams availed himself of his constitutionally required opportunity to show that he is not dangerous—albeit after he violated the law, not before. Because his record demonstrates that he is dangerous, we reject his challenge. We thus affirm.

By my read, this opinion means that any and every person within the Sixth Circuit criminal charged with illegal firearm possession under 922(g)(1) — and perhaps other federal and state gun control provisions? — can now seek dismissal of that charge by making "an individualized showing that he himself is not actually dangerous."   In addition, I wonder if this Williams opinion might now provides a means for the millions of persons with non-violent felony convictions in the Sixth Circuit to seek a declaratory judgment that they are "not actually dangerous" and thus have a Second Amendment right to possess (and purchase) firearms like all their fellow citizens.

A few of many rior related posts:

August 25, 2024 at 03:01 PM | Permalink

Comments

Why should the defendant have the burden to show he's not dangerous? Put another way, why is it a person's burden to show that he has a Second Amendment right, as opposed to the government's burden to show a person does not a Second Amendment right?

Further, these as-applied challenges and their remedies feel too much like judge-made policymaking. The court holds that there is a "constitutionally required opportunity to show that [a person] is not dangerous", yet the statute does not allow for that showing. For that reason, the statute is facially unconstitutional, rather than craft these as-applied remedies and burdens to make the statute constitutional. At least that's how I believe it should be approached.

Posted by: lawyer | Aug 25, 2024 6:32:17 PM

Lawyer,

The government has already made a felony conviction, which would likely automatically be prima facie evidence that the person is dangerous.

Posted by: TarlsQtr | Aug 25, 2024 11:39:57 PM

Dangerous *permanently*, even half a century later? Even if it was a non-violent crime? While they're at it, why don't they make it a felony with a mandatory five-year prison sentence, for anyone who ever got a traffic ticket for something that could hurt someone (e.g. speeding, rolling through a stop sign, or failure to yield, but not a parking violation) to ever again drive, or possess a car, or be alone in a place where there is an unsecured car? That would make just as much sense.

Having been falsely convicted, 46 years ago, of a non-violent crime, Virginia will give me a mandatory five-year prison sentence if I ever so much as constructively possess a firearm. For instance if I were to see a gun in a street with children playing nearby, and I were to kick it into a storm drain so that the kids can't play cops and robbers with it. And even the NRA supports this law. With friends like that....

Posted by: Keith Lynch | Aug 26, 2024 8:55:24 AM

Lawyer, you have a very unusual and expansive view of the definition of "dangerous."

It brings to mind a defendant I knew 20 years ago, who had been convicted of a North Carolina felony for having a few slot machines in his bait shop (for which he got probation). Ten years later, authorities searched his house and curtilage because his girlfriend lived with him, and her son had been implicated in some unrelated offense. The search turned up a rusty single-shot .22 in the garage, inoperable and in a box that had come from his late father's home.

That was enough to give the defendant 18 months for a 922(g)(1). He was presumptively dangerous?

Posted by: Tom Root | Aug 26, 2024 9:43:11 AM

It will be interesting to follow the subsequent history of this 6th Circuit case. Will rehearing En Banc be sought and granted? Will the Supreme Court grant the inevitable Petition for Certiorari on this case? Might this end up being THE CASE that the Supreme Court uses as the vehicle for finally resolving whether and to what extent 18 U.S. Code sec. 922(g)(1) violates the Second Amendment, after the decision of New York Rifle & Pistol Association, Inc. v. Bruen, 527 U.S. 1 (2022). It may also affect the Constitutionality of two Kentucky state statutes, felon in possession of a firearm (5-year sentence) and KRS527.040, felon in possession of a handgun (10-year sentence). Interestingly, violations of 18 U.S. Code 922(g)(1) account for 14% of all Federal convictions each year, so this is a critical issue for the Supreme Court to resolve.

Posted by: Jim Gormley | Aug 26, 2024 11:00:57 AM

Clearly, Rahimi did not help clarify what the test should be. Given three or four different takes on how the federal gun law applies to non-dangerous felonies, it is only a matter of time before the U.S. Supreme Court will take one of these cases.

"Lawyer" also has a non-legal definition of what a facial challenge is.

Posted by: tmm | Aug 26, 2024 11:34:25 AM

Don't forget that the statute HAS a mechanism for seeking restoration of gun rights. Congress has refused to fund it for decades:

Under 18 U.S.C. 925(c), you can apply to the Bureau of Alcohol, Tobacco & Firearms to restore your gun rights. And if your application is denied, then you can seek judicial review in federal court.

But since 1992, Congress barred ATF from spending money to review and investigate a felon's application to restore gun rights. Then, later, the U.S. Supreme Court ruled that “no action” does not equal a “denial.” In other words, no denial equals no right to go to federal court.

Posted by: Da Man | Aug 26, 2024 12:06:19 PM

Keith,

Has any court deemed you “falsely convicted?”

If not, you are a convicted felon.

Posted by: TarlsQtr | Aug 26, 2024 2:57:08 PM

TarlQtr: Yes, I'm a convicted felon. A falsely convicted felon.

As I've explained here numerous times, no court ever exonerated
me. No court could, regardless of evidence, because of Virginia's
notorious 21-day rule. My proof of innocence was rejected, sight
unseen, simply for being untimely.

But the crime victim was so convinced of my innocence that he hired
me directly out of prison, and employed me for a year, after which I
moved on to a better-paying job. I remained friends with him for the
rest of his life.

And the part of the federal government that grants security clearances
was so convinced of my innocence that they gave me a clearance, which
I kept for nearly 20 years, until the Smith Amendment stripped every
"criminal" of his clearance. (The 9/11 attacks happened not long
after. I wouldn't be surprised if the people who would have learned
of those attacks in time to prevent them were among those whom that
moral panic stripped of their clearances.)

And my record is perfectly clean before and since the 11 days I had
William Kelly Shields as a roommate, 47 years ago. That ought to
count for something.

I'm curious about your epistemology. Is it your position that a
wrongful conviction is a logical impossibility? A contradiction in
terms? If my conviction is overturned by a court in, say, the year
2050, will I then suddenly become a wrongfully convicted person? Will
I also retroactively have been wrongfully convicted all along? Or
will my conviction have retroactively never happened? Or will any
such court necessarily be mistaken in exonerating me, since if I was
innocent I couldn't possibly have been convicted in the first place
due to the well-known absolute inerrancy of all courts that convict
people (unlike courts which exonerate people, which are invariably
erroneous, even if it's the exact same court)?

Would your opinion change if the same thing were to happen to you?

I apologize to our host for the off-topic followup.

Posted by: Keith Lynch | Aug 26, 2024 8:25:11 PM

Again, you are a convicted felon. I’ve heard the sob stories a million times from inmates, read their notes, and found out they were FOS an equal number of times.

I’m not saying there are no innocent people in prison, but my experience was the ones proclaiming it the loudest weren’t them.

Posted by: TarlsQtr | Aug 27, 2024 2:56:15 AM

"Loudest?" I post on-topic replies here, and I respond to questions,
such as yours, even if they're off-topic. If I answer the same
question again it's only because I've been asked the same question
again. Maybe you're unable to remember my answers from last time, but
there may be new people here who haven't yet heard the answers, and
my leaving such questions unanswered would make me look bad to them.

If I'm "FOS," how about proving me wrong? Do many of those million
sob stories involve a perfectly clean record before and since an
11-day crime spree 47 years ago? Have you bothered to check whether
I'm lying about my clean record? Have you bothered to check whether
I'm lying about being hired by the crime victim? I've described where
you can find proof of the latter, and will do so again if you've
forgotten.

Might "million" be a slight exaggeration? Do you see yourself as an
honest person?

Why don't you answer my questions? If it happened to you, what would
you do? Would you conclude that you must be guilty and have somehow
repressed on memories of committing the crime? The cops with their
"Reid technique" lies had me half convinced of that. They were more
certain of my guilt than I've ever been certain of anything in my life
-- or at least they did a good job of feigning such certainty. I had
no idea that cops were allowed to, indeed encouraged to, lie and lie
and shamelessly lie, to me and to every suspect. Now they wonder why
nobody trusts them any more.

Do you support lies when they're told by the good guys, defined as the
police, and oppose truth when it's told by the bad guys, defined as
anyone the police suspect of a crime?

Why are you going against our host's wishes by posting messages which
are both off topic and grossly insulting to others here? Do you want
him to shut down the comments section?

Posted by: Keith Lynch | Aug 27, 2024 7:42:56 AM

Keith,

I don’t need to prove you wrong. You confessed your guilt in open court.

Posted by: TarlsQtr | Aug 27, 2024 10:42:05 AM

Keith,

You brought up the off topic discussion of your “innocence.” Doug has shown his decisions are based more on his own biases than our comments.

As far as the police, although there are certainly times where it is appropriate for them to lie, few are more skeptical than me about when they overreach and overstep their legitimate powers. The lack of transparency and accountability is a huge issue.

Posted by: TarlsQtr | Aug 27, 2024 10:58:02 AM

My legal definition of a facial challenge is that there are no circumstances under which the statute, as written, is constitutional. Here, the 6th Circuit has held that the Second Amendment requires that a person have an opportunity to show that he is not dangerous. The statute, on its face, does not contain an exception for non dangerous felons. Quite the contrary, the statute, on its face prohibits and punishes all felons for possessing guns and the ban is permanent for life. If it’s true that the constitution requires an exception for non-dangerous people, then 922(g)(1) is facially unconstitutional because it does not contain that exception.

Posted by: Lawyer | Aug 27, 2024 8:52:46 PM

TarlsQtr: This forum is useful for letting people learn from each
other's lived experience. Prosecutors, defense attorneys, judges,
jurors, law professors, philosophers, guilty defendants, and innocent
defendants all have very different experiences, from which we can all
learn.

Before I joined this forum, I had a fairly negative view of
prosecutors, understandably enough. However, after reading this
blog's comments for five years, I have an enormously more negative
view of prosecutors.

You reject my claim that whether a convict was wrongfully convicted
depends only on whether he committed the crime, i.e. on what a
hypothetical video of the crime would have shown. For that you
substitute the assertion that if, even if only by trickery or
coercion, you can get the defendant to mouth the right magic words,
then he is guilty beyond all possible doubt or redemption.

For instance Brian Banks was guilty of rape, since he pleaded guilty
to rape after being told by his attorney that he'd get a short
sentence if he pleaded guilty and would otherwise lose at trial and
get a life sentence. Several years later his accuser was caught on
tape admitting that she made the whole thing up. He was exonerated.
Apparently you believe that that exoneration was a mistake, and that
Mr. Banks's conviction should have stood.

Most of the dozens of people in whose cars Florida's Officer Zach
Wester planted then "discovered" methamphetamine pleaded guilty to
possessing it. There's no doubt that he planted it; it was caught on
video and a jury convicted him. The people who pleaded guilty were
all exonerated. But you think their convictions should have stood
since they mouthed the magic words? And that Mr. Wester shouldn't
have been convicted since those guilty pleas meant that there must
have been other meth, which he didn't find, in all those cars that he
planted meth in?

Or perhaps I'm misunderstanding you. If so, please clarify what you
do mean by claiming that my guilty plea necessarily meant that I was
guilty.

As I've explained before, I didn't know what I was pleading guilty to,
nor did I know whether the plea meant that I did it or merely that I
wasn't contesting the charge. I most definitely didn't confess in
open court or anywhere else.

As for which of us dragged this comment thread off topic, everyone can
see that for themselves.

I suggest that everyone here assume good faith, i.e. that everyone is
telling the truth, unless they have proof that the person is lying.

Posted by: Keith Lynch | Aug 27, 2024 10:20:09 PM

Gentlemen, who here wouldn't be satisfied with a simple way of settling this?

I propose using the word "guilt" as a means to know if a defendant is guilty.

The examples of Banks and Wester involve evidence and recant. For this you have the time-honored writ of error coram nobis.

But why should his majesty popular sovereignty piddle with the accused who won't tell the truth?

Posted by: Isaac Koch | Sep 1, 2024 6:26:59 PM

Also, don't government records exist to inform, to teach? If I call myself "falsely convicted," then I confess being convicted, no?

Can a person experience a change in a conviction? Of course.

How do you persuade his majesty popular sovereignty that your conviction has changed, when your first record is an admission of "guilt"?

Posted by: Isaac Koch | Sep 1, 2024 6:31:44 PM

Mr. Koch: You "propose using the word 'guilt' as a means to know if a
defendant is guilty."

I completely agree. But only if the word "guilt" means that the
person did it, i.e. that if a video camera had been present it would
have recorded him committing the crime. Do you disagree?

> The examples of Banks and Wester involve evidence and recant.

If you study lots of exonerations, as I have, you'll notice that
the way they were convicted was almost always something very common,
i.e. not something bizarre and unusual like several people all telling
the same lie for no reason, or like the defendant having someone who
looks almost identical to him who was the actual crook. But the
exonerations, by contrast, almost always rely on a freak occurrence,
such as a false accuser who grew a conscience, or a fortuitous TV
crew happening to provide an alibi (look up "Juan Catalan").

So I conclude that for every innocent person who was exonerated there
are probably at least a hundred equally innocent people who were never
exonerated.

> But why should his majesty popular sovereignty piddle with the
> accused who won't tell the truth?"

It's true that the state likes to call itself "the people." So do
Communist parties, with about as little justification.

In what sense did I not tell the truth? As I said, I didn't know what
I was pleading guilty to, or whether such a plea meant I did it or
merely that I wasn't contesting the charge.

Suppose I *had* literally confessed. Would that have made me guilty?
I didn't confess, but in 2018 Thomas Perez Jr., after reporting his
father missing, then enduring 17 nonstop hours of "Reid technique"
interrogation without being read his rights, confessed to murdering
his father, then attempted suicide. (Wouldn't you, if you honestly
believed you had killed your father?) (Fortunately, he failed at
the suicide.)

So, was he guilty? Apparently not, given that his father was alive
and well the whole time. The police aren't trained to search for
missing people, but to rely on misplaced trust to gaslight gullible
suspects into confessing. Perhaps TarlsQtr thinks Perez should have
been executed, since he *did* confess.

> Also, don't government records exist to inform, to teach?

No, you're thinking of Wikipedia. Government records exist to
command, to intimidate.

> If I call myself "falsely convicted," then I confess being
> convicted, no?

I've never denied having been convicted. Falsely convicted.

I could plausibly make an argument that there was no meeting of the
minds when I pleaded guilty, since I didn't know what I was pleading
to, so it wasn't valid. But I've never made that argument. Perhaps
I should.

Posted by: Keith Lynch | Sep 1, 2024 11:28:55 PM

Mr. Lynch: Well, I've read your reply, and appreciate your response. I sure can't speak for anyone but myself.

Your situation reminds me of a fellow who was convicted that he was married. Then came a divorce filing. His terror at the loss of his family was productively funneled into diligent research. He was certain he was correct.

After the government arbitrarily and capriciously imprisoned him for -- oh, about a month, -- he decided that he was not under a moral duty to remain in a marriage fraud.

He later would learn the meaning of his new conviction.

He has yet to persuade a court to accept this life-changing conviction.

So if you insist that you are convicted, I'll take it at face value. If you say the court records are false, I don't have an opinion. Didn't you tell the whole world that you are convicted? Why?

Tell me what *exactly* you have done in the case where your conviction is.

Posted by: Isaac Koch | Sep 3, 2024 12:33:51 AM

Sorry, but I can make no sense of your post. For instance I have no idea what "convicted that he was married" is supposed to mean.

For more information on my case, see the last comment of
https://sentencing.typepad.com/sentencing_law_and_policy/2022/01/no-justice-no-pleas-subverting-mass-incarceration-through-defendant-collective-action.html

Posted by: Keith Lynch | Sep 3, 2024 12:06:40 PM

shhhh! looks like mr. Lynch went to browse the 2022 post to see if an answer to my question sprouted

don't want to disturb him

when he gets back, if I'm not here, please tell him that I agree with whatever he agreed with when he agreed with me that "guilt" is "guilt"

a self-false-conviction is serious

hope he finds the answer

Posted by: Isaac Koch | Sep 5, 2024 9:40:57 AM

I'm perfectly willing to answer any questions about my case that weren't answered by that 2022 comment of mine. Or at least I'm willing if I can understand the question. Maybe have your post written by someone more fluent in English. Thanks.

Posted by: Keith Lynch | Sep 5, 2024 7:35:19 PM

Keith--can I call you Keith?--I appreciate the criticism.

Straight up, your controversy is not with me.

Also, I wanted to mention to our host's fine audience, that whatever the armed man says you confessed, is nothing but hearsay in the Judge's courtroom.

Mr. Lynch, I don't know how to hide the incredible respect that the Judge is due. No matter the court, the whole-hearted, willing, and honest response stands as the most helpful thing that my short life can prove.

I have thoroughly enjoyed this discussion so far, although you will find me most like your poor neighbor in my real life, and I hope you have as well.

Posted by: Isaac Koch | Sep 5, 2024 11:06:41 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB