Sentencing Law and Policy

SCOTUS grants cert in ACCA cases to address prior drug convictions as predicates for 15-year mandatory minimum

As predicted in this recent post, the Supreme Court today in this morning's SCOTUS order list granted cert in a pair of cases (which were consolidated) raising another question regarding the application of the Armed Career Criminal Act's mandatory minimum 15-year prison term for illegal gun possession.  The cases are Brown v. US, No. 22-6389 and Jackson v. US, No. 22-6640, and here are links to the Brown cert petition and the Jackson cert petition.  Here is the "Question Presented" from the Brown petition:

The Armed Career Criminal Act provides that felons who possess a firearm are normally subject to a maximum 10-year sentence.  But if the felon already has at least three “serious drug offense” convictions, then the minimum sentence is fifteen years. 

Courts decide whether a prior state conviction counts as a serious drug offense using the categorical approach. That requires determining whether the elements of a state drug offense are the same as, or narrower than those of its federal counterpart.  If so, the state conviction qualifies as an ACCA predicate.

But federal drug law often changes — as here, where Congress decriminalized hemp, narrowing the federal definition of marijuana.  If state law doesn’t follow suit, sentencing courts face a categorical conundrum.  Under an earlier version of federal law, the state and federal offenses match — and the state offense is an ACCA predicate.  Under the amended version, the offenses do not match — and the state offense is not an ACCA predicate.  So the version of federal law that the court chooses to consult dictates the difference between serving a 10-year maximum or a 15-year minimum.

The question presented is:

Which version of federal law should a sentencing court consult under ACCA’s categorical approach?

UPDATE: A helpful reader made sure I did not overlook the fact that a different drug is at issue in the Jackson case.  At issue in that case is the status of a conviction that came before 2015 when "the federal government removed ioflupane I123 from the federal drug schedules."  

Another federal judge finds Second Amendment violation in federal law criminalizing marijuana users from gun possession

Tihs new Marijuana Moment piece, headlined "Another Federal Court Rules That Banning Marijuana Consumers From Possessing Guns Is Unconstitutional," reports on another notable new post-Bruen ruling finding a provision of federal criminal gun control laws to be unconstitutional.  Here are the basics:

Another federal court has ruled that banning people who use marijuana from possessing firearms is unconstitutional—and it said that the same legal principle also applies to the sale and transfer of guns, too.

The Justice Department has recently found itself in several courts attempting to defend the cannabis firearms ban, and its arguments have faced increased scrutiny in light of broader precedent-setting Second Amendment cases that generally make it more difficult to impose gun restrictions.

Now the U.S. District Court for the Western District of Texas has weighed in, delivering a win to Paola Connelly, an El Paso resident who was convicted of separate charges for possessing and transferring a firearm in 2021 while admitting to being a cannabis consumer.

Judge Kathleen Cardone granted a motion for reconsideration of the case and ultimately dismissed the charges last week. While the court previously issued the conviction, it said that a more recent ruling in the U.S. Court of Appeals for the Fifth Circuit warranted a reevaluation. That case relied on U.S. Supreme Court precedent finding that any firearm restrictions must be consistent with the historical context of the Second Amendment’s original 1791 ratification.

The Supreme Court ruling has been central to several challenges against the gun ban for cannabis consumers. For this latest federal district court case, the Bush-appointed judge disputed the Justice Department’s attempts to assert historical analogues to the marijuana ban, including comparisons to laws against using guns while intoxicated from alcohol and possession by people deemed “unvirtuous.”

Further, the court said that because simple cannabis possession would only rise to a misdemeanor under federal law, “any historical tradition of disarming ‘unlawful’ individuals does not support disarming Connelly for her alleged marijuana use.” Notably, the judge also cited the fact that President Joe Biden issued a mass pardon last year for people who’ve committed federal marijuana possession offenses.

The full 32-page opinion in US v. Connelly, No. EP-22-CR-229(2)-KC (W.D. Tex. April 6, 2023), is available at this link.   Footnote 8 of the opinion highlights the split of authority within the Fifith Circuit on this topic:

District courts in the Fifth Circuit have upheld § 922(g)(3) against Second Amendment challenges post-Bruen, largely employing these broader traditions. See United States v. Black, --- F. Supp. 3d ----, 2023 WL 122920, at *34 (W.D. La. Jan. 6, 2023); United States v. Sanchez, --- F. Supp. 3d ----, 2022 WL 17815116, at *3 (W.D. Tex. Dec. 19, 2022); United States v. Daniels, 610 F. Supp. 3d 892, 89597 (S.D. Miss. 2022). The Court respectfully disagrees with these cases for the reasons detailed below.  Further, the Court notes that all three of these cases predated the Fifth Circuit's deciison in Rahimi, which cast doubt on the applicability of these broader historical traditions to § 922(g)(3).  See 61 F.4th at 45051, 453. 

Some (of many) prior recent related posts:

• By 6-3 vote, SCOTUS expands Second Amendment rights by striking down NY public-carry licensing requirements 
• Are broad drug user gun dispossession statutes now constitutionally suspect after Bruen?
• District Court declares § 922(n), which criminalizes a person under indictment from receiving a firearm, to be unconstitutional
• Another district court finds § 922(n), which criminalizes a person under indictment from receiving a firearm, to be unconstitutional
• Fifth Circuit panel declares unconstitutional federal prohibition on firearm possession for someone subject to domestic violence restraining order
• Third Circuit panel upholds constitutionality § 922(g)(1)'s felon-in-possession gun prohibition after Bruen 
• En banc Third Circuit to reconsider constitutionality of § 922(g)(1)'s felon-in-possession gun prohibition after Bruen 
• Federal judge declares federal law criminalizing marijuana users from gun possession violates Second Amendment 
• With DOJ asking, will SCOTUS quickly take up a post-Bruen case on gun possession by thoe subject to DV orders?

With DOJ asking, will SCOTUS quickly take up a post-Bruen case on gun possession by thoe subject to DV orders?

The question in the title of this post is prompted by the interesting news that the feds have now filed a cert petition seeking review of the Fifth Circuit panel ruling in US v. Rahimi (first discussed here). The Rahimi opinion declared unconstitutional 18 USC § 922(g)(8)'s prohibition on gun possession by those subject to certain domestic-violence protective orders.

Notably, the government could have sought en banc review, but decided to seek cert. And within the petition, the government explains that, due to "the significant disruptive consequences of the Fifth Circuit’s decision, the government is filing this petition for a writ of certiorari on a highly expedited schedule — a little more than two weeks after the issuance of the Fifth Circuit’s final amended opinion — in order to allow the Court to consider the petition before it recesses for the summer."  This Hill article provides some details:

The government argued in the petition that the Fifth Circuit “overlooked the strong historical evidence supporting the general principle that the government may disarm dangerous individuals,” instead dismissing each historical example on the grounds that it differed from the law “in some way.”

“Although courts interpreting the Second Amendment must consider text, history, and tradition, they should not focus on whether the law at issue has ‘a historical twin,’” the DOJ said. “To the contrary, this Court emphasized that ‘even if a modern-day regulation is not a dead ringer for historical precursors, it still may be analogous enough to pass constitutional muster.’”

The Justice Department's full cert petition is available at this link.  It should be quite interesting to see if SCOTUS decides to take up the case on an expedited basis even before there is a direct circuit split.  Notably, as discussed in this prior post, the Supreme Court's landmark Bruen decision has already created considerable legal uncertainty for a variety of federal gun control laws.  As suggested before, because numerous lower-court rulings are striking down numerous federal criminal laws, I suspect the Justices will get back to these Second Amendment matters pretty soon.   But "pretty soon" in Supreme Court timelines does not really mean "soon," so I would be eager to hear reader thoughts about when Rahimi or perhaps other cases may end up on the SCOTUS docket.

Some (of many) prior recent related posts:

• By 6-3 vote, SCOTUS expands Second Amendment rights by striking down NY public-carry licensing requirements 
• New district court opinion "holds that § 922(g)(8) is unconstitutional under Bruen's framework"
• Fifth Circuit panel declares unconstitutional federal prohibition on firearm possession for someone subject to domestic violence restraining order
• After recent wave of notable rulings, a wave of new Second Amendment commentary 
• How long until the Supreme Court takes up another Second Amendment case after Bruen? 

How long until the Supreme Court takes up another Second Amendment case after Bruen?

As detailed in a number of prior posts, the Supreme Court's landmark Bruen Second Amendment decision has created considerable legal uncertainty, especially for various federal gun control laws.   And, as two recent press pieces highlight, it seems like only a matter of time, given the lower-court churn over application of Bruen, before the Justices are going to have to engage with all the post-Bruen jurisprudence.

From the AP, "Turmoil in courts on gun laws in wake of justices’ ruling."  An excerpt:

Courts in recent months have declared unconstitutional federal laws designed to keep guns out of the hands of domestic abusers, felony defendants and people who use marijuana.  Judges have shot down a federal ban on possessing guns with serial numbers removed and gun restrictions for young adults in Texas and have blocked the enforcement of Delaware’s ban on the possession of homemade “ghost guns.”

In several instances, judges looking at the same laws have come down on opposite sides on whether they are constitutional in the wake of the conservative Supreme Court majority’s ruling.  The legal turmoil caused by the first major gun ruling in a decade will likely force the Supreme Court to step in again soon to provide more guidance for judges.

From USA Today, "As nation reels from Michigan State shooting, courts wrestle with access to guns."  An excerpt:

The Supreme Court has said a lot recently about what the Second Amendment means. The next question for the justices may be: Who does it not apply to?

A series of criminal cases percolating in lower federal courts are striking at a question about when the government may deny someone -- such as a person convicted of a nonviolent felony -- access to a gun.  Experts on both sides of the gun debate say the question is likely to make its way to the Supreme Court soon.

For various reasons, I suspect the Justices will be inclined to avoid taking up these matters for as long as possible.  It was, after all, a dozen years between the the last major Second Amendment ruling (McDonald) and Bruen.  But, in part because numerous lower-court rulings are striking down numerous federal criminal laws, I suspect the Justices will have to get back to these matters pretty soon. 

"Pretty soon" in Supreme Court timelines likely still means a year or two, perhaps even longer. But I welcome in the comments any and all predictions as to when, and what kind of, a case ultimately serves as the vehicle for SCOTUS to clarify just where Bruen will take Second Amendment jurisprudence.

After recent wave of notable rulings, a wave of new Second Amendment commentary

When the Supreme Court's landmark ruling in Bruen recast the Second Amendment entirely around "the Nation’s historical tradition of firearm regulation," I had an inkling that a new originalist jurisprudence might prove quite disruptive to a number of federal criminal laws (see post-Bruen posts here and here).  With recent notable rulings finding unconstitutional the gun possession prohibitions in § 922(g)(3) and § 922(g)(8), I have seen a number of new commentaries discussing Second Amendment jurisprudence after Bruen:

From Law & Liberty, "Implementing Bruen"

From Salon, "Phony constitutional 'originalism' is likely to kill women after Second Amendment decision"

From Slate, "Brett Kavanaugh May Have Quietly Sabotaged Clarence Thomas’ Extreme Gun Ruling"

From The Trace, "Bruen Takes Gun Law Back to a Time Before ‘Domestic Violence’"

From the Washington Examiner, "Reefer madness: Second Amendment gun rights shouldn’t go to pot"

Also, the latest episode of one of my favorite the legal podcasts, Advisory Opinions, takes a deep dive into modern Second Amendment jurisprudence in this pod titled "The Problem With 'History and Tradition'."

Federal judge declares federal law criminalizing marijuana users from gun possession violates Second Amendment

In a post last summer right after the Supreme Court's landmark Second Amendment ruling, I wondered "Are broad drug user gun dispossession statutes now constitutionally suspect after Bruen?".  In that post, I flagged the notably broad provision of federal firearms law, 18 U.S.C. § 922(g)(3), which categorically criminalizes any gun possession by anyone who is an "unlawful user of or addicted to any controlled substance."  I also noted that, in an era in which marijuana use is legal for medical or recreational use in the vast majority of states but still is federal prohibited, this broad federal criminal "unlawful user" gun dispossession statute could function to criminalize the behaviors of tens of millions of gun-owning Americans.

As detailed in this Reuters article, at least one federal judge had decided that the answer to my query is yes, § 922(g)(3) is constitutionally problematic.  Here is how the article describes the ruling: 

A federal law prohibiting marijuana users from possessing firearms is unconstitutional, a federal judge in Oklahoma has concluded, citing last year's U.S. Supreme Court ruling that significantly expanded gun rights.  U.S. District Judge Patrick Wyrick, an appointee of former Republican President Donald Trump in Oklahoma City, on Friday dismissed an indictment against a man charged in August with violating that ban, saying it infringed his right to bear arms under the U.S. Constitution's Second Amendment.

Wyrick said that while the government can protect the public from dangerous people possessing guns, it could not argue Jared Harrison's "mere status as a user of marijuana justifies stripping him of his fundamental right to possess a firearm."  He said using marijuana was "not in and of itself a violent, forceful, or threatening act," and noted that Oklahoma is one of a number of states where the drug, still illegal under federal law, can be legally bought for medical uses.

"The mere use of marijuana carries none of the characteristics that the Nation's history and tradition of firearms regulation supports," Wyrick wrote. Laura Deskin, a public defender representing Harrison, said the ruling was a "step in the right direction for a large number of Americans who deserve the right to bear arms and protect their homes just like any other American."

The full opinion in this case from Judge Wyrick, which runs 54 pages with nearly 200 footnotes, is available at this link.  I am inclined to expect that the US Justice Department will plan to appeal this decision to the Tenth Circuit, and Judge Wyrick's thorough opinion will surely give litigants on any appeal and perhaps elsewhere in the country a lot of chew on.

Some (of many) prior recent related posts:

• By 6-3 vote, SCOTUS expands Second Amendment rights by striking down NY public-carry licensing requirements 
• Are broad drug user gun dispossession statutes now constitutionally suspect after Bruen?
• District Court declares § 922(n), which criminalizes a person under indictment from receiving a firearm, to be unconstitutional
• Another district court finds § 922(n), which criminalizes a person under indictment from receiving a firearm, to be unconstitutional
• Notable new district court opinion strikes down federal serial number law but upholds felon possession ban applying Bruen
• New district court opinion "holds that § 922(g)(8) is unconstitutional under Bruen's framework"
• Fifth Circuit panel declares unconstitutional federal prohibition on firearm possession for someone subject to domestic violence restraining order
• Third Circuit panel upholds constitutionality § 922(g)(1)'s felon-in-possession gun prohibition after Bruen 
• En banc Third Circuit to reconsider constitutionality of § 922(g)(1)'s felon-in-possession gun prohibition after Bruen 

Fifth Circuit panel declares unconstitutional federal prohibition on firearm possession for someone subject to domestic violence restraining order

A Fifth Circuit panel handed down today another big post-Bruen ruling declaring that the Second Amendment renders unconstitutional a federal prohibition on firearm possession for certain disfavored individuals.  The ruling today in US v. Rahimi, No. 21-11001 (5th Cir. Feb. 2, 2023) (available here), gets started this way:

The question presented in this case is not whether prohibiting the possession of firearms by someone subject to a domestic violence restraining order is a laudable policy goal.  The question is whether 18 U.S.C. § 922(g)(8), a specific statute that does so, is constitutional under the Second Amendment of the United States Constitution.  In the light of N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111 (2022), it is not.

Zackey Rahimi levies a facial challenge to § 922(g)(8). The district court and a prior panel upheld the statute, applying this court’s pre-Bruen precedent. See United States v. Rahimi, No. 21-11011, 2022 WL 2070392 at *1 n.1 (5th Cir. June 8, 2022).  Rahimi filed a petition for rehearing en banc; while the petition was pending, the Supreme Court decided Bruen.  The prior panel withdrew its opinion and requested supplemental briefing on the impact of that case on this one.  Considering the issue afresh, we conclude that Bruen requires us to re-evaluate our Second Amendment jurisprudence and that under Bruen, § 922(g)(8) fails to pass constitutional muster. We therefore reverse the district court’s ruling to the contrary and vacate Rahimi’s conviction.

Here are a few of many notable passages from the opinion:

Under the Government’s reading, Congress could remove “unordinary” or “irresponsible” or “nonlaw abiding” people — however expediently defined — from the scope of the Second Amendment. Could speeders be stripped of their right to keep and bear arms? Political nonconformists? People who do not recycle or drive an electric vehicle? One easily gets the point: Neither Heller nor Bruen countenances such a malleable scope of the Second Amendment’s protections; to the contrary, the Supreme Court has made clear that “the Second Amendment right is exercised individually and belongs to all Americans,” Heller, 554 U.S. at 581.  Rahimi, while hardly a model citizen, is nonetheless part of the political community entitled to the Second Amendment’s guarantees, all other things equal....

The Government fails to demonstrate that § 922(g)(8)’s restriction of the Second Amendment right fits within our Nation’s historical tradition of firearm regulation.  The Government’s proffered analogues falter under one or both of the metrics the Supreme Court articulated in Bruen as the baseline for measuring “relevantly similar” analogues: “how and why the regulations burden a law-abiding citizen’s right to armed self-defense.” Id.  As a result, § 922(g)(8) falls outside the class of firearm regulations countenanced by the Second Amendment.

Some (of many) prior recent related posts:

• By 6-3 vote, SCOTUS expands Second Amendment rights by striking down NY public-carry licensing requirements 
• Are all broad felon-in-possession criminal gun statutes now constitutionally suspect after Bruen? 
• Spotlighting notable (and constitutionally suspect?) aspects of federal firearm prohibition enforcement 
• District Court declares § 922(n), which criminalizes a person under indictment from receiving a firearm, to be unconstitutional
• Notable new district court opinion strikes down federal serial number law but upholds felon possession ban applying Bruen
• Federal judge orders briefing on whether to appoint historian to resolve challenge to federal felon gun possession ban after Bruen
• Justice Department tells federal district judge "it is unnecessary ... to appoint an historian to assist" in resolving defendant's Second Amendment claim 
• New district court opinion "holds that § 922(g)(8) is unconstitutional under Bruen's framework"
• Another district court finds § 922(n), which criminalizes a person under indictment from receiving a firearm, to be unconstitutional
• Third Circuit panel upholds constitutionality § 922(g)(1)'s felon-in-possession gun prohibition after Bruen 
• En banc Third Circuit to reconsider constitutionality of § 922(g)(1)'s felon-in-possession gun prohibition after Bruen 

UPDATE: This AP article about the Rahimi ruling provides a bit more context concerning the decision and also includes an official reaction from US Attorney General:

The U.S. Justice Department Thursday night issued the following statement from Attorney General Merrick B. Garland following the decision: “Nearly 30 years ago, Congress determined that a person who is subject to a court order that restrains him or her from threatening an intimate partner or child cannot lawfully possess a firearm.  Whether analyzed through the lens of Supreme Court precedent, or of the text, history, and tradition of the Second Amendment, that statute is constitutional.  Accordingly, the Department will seek further review of the Fifth Circuit’s contrary decision.”

Seeking "further review," I suspect, will involve the Department of Justice first requesting en banc consideration of this panel decision in the Fifth Circuit.  If that does not happen, I would expect DOJ would then seek Supreme Court review.  Interestingly, were SCOTUS to take up this case (or any similar ones) anytime in 2023, we could reasonably expect another major Second Amendment ruling in the run up to the 2024 election.

Another look at some of the post-Bruen Second Amendment uncertainty

Folks who follow Second Amendment jurisprudence know that the Supreme Court's landmark ruling in Bruen last summer has created  lots of notable new questions and constitutional uncertainty concerning an array of gun control measures.  And folks who follow this blog know that I find especially interesting the legal debates over the constitutionality of various laws criminalizing gun posession by persons with certain prior convictions or other criminal-justice involvement.  So I wanted to flag some notable recent press coverage of these issues:

From ABC News, "Supreme Court decision creates confusion over which firearm restrictions are constitutional"

From the Brunswick News, "Should nonviolent crimes cost a man his 2nd Amendment rights?"

From Reuters, "Federal public defenders seek end to several gun restrictions"

I think it might only be a matter or when, not if, the Supreme Court has to take up the issue of th constitutionality of at least some felon-in-possession bans.  But when might be many years from now. 

Some (of many) prior recent related posts:

• By 6-3 vote, SCOTUS expands Second Amendment rights by striking down NY public-carry licensing requirements 
• Are all broad felon-in-possession criminal gun statutes now constitutionally suspect after Bruen? 
• Spotlighting notable (and constitutionally suspect?) aspects of federal firearm prohibition enforcement 
• District Court declares § 922(n), which criminalizes a person under indictment from receiving a firearm, to be unconstitutional
• Notable new district court opinion strikes down federal serial number law but upholds felon possession ban applying Bruen
• Federal judge orders briefing on whether to appoint historian to resolve challenge to federal felon gun possession ban after Bruen
• Justice Department tells federal district judge "it is unnecessary ... to appoint an historian to assist" in resolving defendant's Second Amendment claim 
• New district court opinion "holds that § 922(g)(8) is unconstitutional under Bruen's framework"
• Another district court finds § 922(n), which criminalizes a person under indictment from receiving a firearm, to be unconstitutional
• Third Circuit panel upholds constitutionality § 922(g)(1)'s felon-in-possession gun prohibition after Bruen 
• En banc Third Circuit to reconsider constitutionality of § 922(g)(1)'s felon-in-possession gun prohibition after Bruen 

En banc Third Circuit to reconsider constitutionality of § 922(g)(1)'s felon-in-possession gun prohibition after Bruen

In this post two months ago, I noted the lengthy per curiam Third Circuit panel opinion in Range v. Garland, No. 21-2835 (3d Cir. Nov. 16, 2022) (available here), which concluded that a person convicted of state welfare fraud was "outside the class of people traditionally entitled to Second Amendment rights" and upheld felon disarmament under 18 U.S.C. § 922(g)(1) against a Second Amendment challenge.  This Range opinion was the first big circuit opinion addressing felon gun dispossession under federal law after the landmark Supreme Court Bruen ruling changes Second Amendment jurisprudence. 

But Second Amendment law is Range free: via this order entered this past Friday, the full Third Circuit decided that this panel opinion in Range is to be vacated as the case will be reheard en banc (with oral argument scheduled for February 15, 2023).  I do not know enough about the particulars of all the Third Circuit judges to make confident predictions about how Range will be resolved after en banc reconsideration.  But, generally speaking, full circuits do not take up issues en banc when most of the judges are generally content with the panel outcome.  Consequently, I can confidently predict this case is one worth watching closely and one that might make for some notable new Second Amendment law.

Some (of many) prior recent related posts:

• By 6-3 vote, SCOTUS expands Second Amendment rights by striking down NY public-carry licensing requirements 
• Are all broad felon-in-possession criminal gun statutes now constitutionally suspect after Bruen? 
• Spotlighting notable (and constitutionally suspect?) aspects of federal firearm prohibition enforcement 
• District Court declares § 922(n), which criminalizes a person under indictment from receiving a firearm, to be unconstitutional
• Notable new district court opinion strikes down federal serial number law but upholds felon possession ban applying Bruen
• Federal judge orders briefing on whether to appoint historian to resolve challenge to federal felon gun possession ban after Bruen
• New district court opinion "holds that § 922(g)(8) is unconstitutional under Bruen's framework"
• Another district court finds § 922(n), which criminalizes a person under indictment from receiving a firearm, to be unconstitutional
• Third Circuit panel upholds constitutionality § 922(g)(1)'s felon-in-possession gun prohibition after Bruen 
• Justice Department tells federal district judge "it is unnecessary ... to appoint an historian to assist" in resolving defendant's Second Amendment claim 

Some news and commentary amid the continuing Bruen brouhaha over the Second Amendment

Regular readers likely recall my series of posts right after the Supreme Court's big Second Amendment decision Bruen (basics here) in which I suggested that a number of broad federal criminal firearm prohibitions might be subject to new constitutional challenges (see posts here are here).  We are not quite at the six months mark since Bruen, but I have already chronicled in a number of subsequent posts a number of notable rulings applying Bruen to strike down a number of gun control measures.  Not surprisingly, many folks are also taking note of these developments, and just this past week has brought plenty of notable news and commentary on this front that seemed worth rounding up:

From The Conversation, "A judge in Texas is using a recent Supreme Court ruling to say domestic abusers can keep their guns"

From The Hill, "Is the Supreme Court turning the Constitution into a homicide pact?"

From Syracuse.com, "Can you bring a gun to the zoo?  On a bus?  Syracuse judge eagerly rewrites NY firearms law"

From the Wall Street Journal, "States Advancing Gun-Control Proposals Face Legal Uncertainty: Questions remain for lawmakers, courts on forbidding the carrying of firearms in ‘sensitive places’"

Third Circuit panel upholds constitutionality § 922(g)(1)'s felon-in-possession gun prohibition after Bruen

A Third Circuit panel today issued the first major circuit ruling upholding the constitutionality of 18 U.S.C. § 922(g)(1), federal laws categorical prohibition on felons possession of firearms or ammunition since the SUpreme Court's landmark Second Amendment ruling in Bruen. Here is how the 50-page, per curiam panel opinion in Range v. Garland, No. 21-2835 (3d Cir. Nov. 16, 2022) (available here), starts and concludes:

In District of Columbia v. Heller, the Supreme Court held that “the right of the people to keep and bear Arms,” enshrined in the Second Amendment, is an individual right. 554 U.S. 570, 595 (2008). While the precise contours of that individual right are still being defined, the Court has repeatedly stated that it did not question the “longstanding prohibition[] on the possession of firearms by felons.” Id. at 626.

Appellant Bryan Range falls in that category, having pleaded guilty to the felony-equivalent charge of welfare fraud under 62 Pa. Cons. Stat. § 481(a).  He now brings an as-applied challenge to 18 U.S.C. § 922(g)(1), contending that his disarmament is inconsistent with the text and history of the Second Amendment and is therefore unconstitutional under New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111 (2022).  We disagree.  Based on history and tradition, we conclude that “the people” constitutionally entitled to bear arms are the “law-abiding, responsible citizens” of the polity, id. at 2131, a category that properly excludes those who have demonstrated disregard for the rule of law through the commission of felony and felony-equivalent offenses, whether or not those crimes are violent. Additionally, we conclude that even if Range falls within “the people,” the Government has met its burden to demonstrate that its prohibition is consistent with historical tradition.  Accordingly, because Range’s felony-equivalent conviction places him outside the class of people traditionally entitled to Second Amendment rights, and because the Government has shown the at-issue prohibition is consistent with historical tradition, we will affirm the District Court’s summary judgment in favor of the Government....

We have conducted a historical review as required by Bruen and we conclude that Range, by illicitly taking welfare money through fraudulent misrepresentation of his income, has demonstrated a rejection of the interests of the state and of the community.  He has committed an offense evincing disrespect for the rule of law.  As such, his disarmament under 18 U.S.C. § 922(g)(1) is consistent with the Nation’s history and tradition of firearm regulation.

Some prior recent related posts:

• By 6-3 vote, SCOTUS expands Second Amendment rights by striking down NY public-carry licensing requirements 
• Are all broad felon-in-possession criminal gun statutes now constitutionally suspect after Bruen? 
• Are broad drug user gun dispossession statutes now constitutionally suspect after Bruen? 
• Spotlighting notable (and constitutionally suspect?) aspects of federal firearm prohibition enforcement 
• District Court declares § 922(n), which criminalizes a person under indictment from receiving a firearm, to be unconstitutional
• Notable new district court opinion strikes down federal serial number law but upholds felon possession ban applying Bruen
• Federal judge orders briefing on whether to appoint historian to resolve challenge to federal felon gun possession ban after Bruen
• New district court opinion "holds that § 922(g)(8) is unconstitutional under Bruen's framework"
• Another district court finds § 922(n), which criminalizes a person under indictment from receiving a firearm, to be unconstitutional

Another district court finds § 922(n), which criminalizes a person under indictment from receiving a firearm, to be unconstitutional

In this post from a couple of months ago, I noted the notable 25-page ruling in US v. Quiroz, No. PE:22-CR-00104-DC (W.D. Tex. Sept. 19, 2022) (available here), in which a federal district court in Texas decided that Bruen renders § 922(n) unconstitutional.  As of earlier this week, another federal district court, this one in Oklahoma, formally agreed.  Here is the start and conclusion of the 12-page opinion in US v. Stambaugh, No. CR-22-00218-PRW-2 (W.D. Ok. Nov. 14, 2022) (available here):

Before the Court is Defendant Stolynn Shane Stambaugh’s Motion to Dismiss Count 3 of the Indictment as Unconstitutional (Dkt. 31) and the United States’ Response in Opposition (Dkt. 38). Stambaugh seeks to dismiss Count 3 — Receipt of a Firearm by a Person Under Indictment, in violation of 18 U.S.C. § 922(n) — on grounds that § 922(n), as applied to him, violates the Second Amendment to the United States Constitution.  The motion has been briefed and heard. For the reasons explained below, the Court GRANTS Stambaugh’s motion (Dkt. 31)....

A historical analogue to support constitutional applications of § 922(n) might well exist, but the United States hasn’t pointed to it.  And because it is the United States’ burden to demonstrate that laws like § 922(n) are “part of the historical tradition that delimits the outer bounds of the right to keep and bear arms,” that failure is fatal.  While the United States needed not find a “historical twin,” surety laws and § 922(n) are simply not “analogous enough to pass constitutional muster,” particularly not in a case like this, where there is nothing in the record to support the United States’ contention that Stambaugh is categorically a “dangerous person” merely because he was indicted for larceny. Accordingly, the Court finds that § 922(n) is unconstitutional as applied to Stambaugh and therefore GRANTS his motion to dismiss Count 3 of the Indictment.

Some prior recent related posts:

• By 6-3 vote, SCOTUS expands Second Amendment rights by striking down NY public-carry licensing requirements 
• Are all broad felon-in-possession criminal gun statutes now constitutionally suspect after Bruen? 
• Are broad drug user gun dispossession statutes now constitutionally suspect after Bruen? 
• Spotlighting notable (and constitutionally suspect?) aspects of federal firearm prohibition enforcement 
• District Court declares § 922(n), which criminalizes a person under indictment from receiving a firearm, to be unconstitutional
• Notable new district court opinion strikes down federal serial number law but upholds felon possession ban applying Bruen
• Federal judge orders briefing on whether to appoint historian to resolve challenge to federal felon gun possession ban after Bruen
• New district court opinion "holds that § 922(g)(8) is unconstitutional under Bruen's framework" 

New district court opinion "holds that § 922(g)(8) is unconstitutional under Bruen's framework"

A few months ago, in a series of posts right after the Supreme Court's big Second Amendment decision Bruen (basics here), I suggested that a number of broad federal criminal firearm prohibitions might be subject to new constitutional challenges (see posts here are here).  I focused on how the Bruen court's recasting of Second Amendment analysis might impact the federal felon-in-possession statute, 18 USC § 922(g)(1) and the federal drug-user-in-possession statute, 18 USC § 922(g)(3).  Interestingly, as detailed in prior posts here and here, a few district courts have already declared other parts of § 922 unconstitutional.  And this past week a new opinion adds § 922(g)(8) to the post-Bruen carnage.

Title 18 USC § 922(g)(8) makes it a federal crime for any person to possess a firearm while subject to a domstic violence restraining order.  In his opinion in US v. Perez-Gallan, No. PE:22-CR-00427-DC (SD Texas Nov. 10, 2022) (available here), US District Judge David Counts works through Bruen analysis to conclude "that § 922(g)(8) is unconstitutional under Bruen's framework." The opinion is 30+ pages long, and it starts and ends this way:

Before Bruen, the Second Amendment looked like an abandoned cabin in the woods.  A knot of vines, weeds, and roots, left unkempt for decades, crawling up the cabin’s sides as if pulling it under the earth.  Firearm regulations are that overgrowth.  Starting with the Federal Firearms Act in 1938, laws were passed with little — if any — consideration given to their constitutionality.  That is, until the Supreme Court intervened in Bruen.

No longer can lower courts account for public policy interests, historical analysis being the only tool.  But after growing unchecked for almost 100 years, today’s tangle of gun laws has left lower courts with a gordian knot.  And after engaging with this Nation’s tradition of firearm regulations several times already, the Court’s unanswered question is whether Bruen demands lower courts manicure the Second Amendment’s landscape by scalpel or chainsaw....

How strictly or flexibly a court reads Bruen impacts its conclusion.  Bruen’s mandate is that a gun regulation’s constitutionality hinge solely on the historical inquiry.  According to Bruen, that can be this Court’s only consideration. The Court concedes, therefore, that a court reading Bruen strictly could have arguably stopped after Section IV of this Opinion.

That said, this Court embraces Bruen’s charge.  Thus, after sifting through the history above, this Court finds that the Government did not prove that § 922(g)(8) aligns with this Nation’s historical tradition of firearm regulation and declines the Government’s invitation to insert its own public policy concerns rather than following Bruen.  As a result, the Court holds that § 922(g)(8) is unconstitutional under Bruen’s framework.

Some prior recent related posts:

• By 6-3 vote, SCOTUS expands Second Amendment rights by striking down NY public-carry licensing requirements 
• Are all broad felon-in-possession criminal gun statutes now constitutionally suspect after Bruen? 
• Are broad drug user gun dispossession statutes now constitutionally suspect after Bruen? 
• Spotlighting notable (and constitutionally suspect?) aspects of federal firearm prohibition enforcement 
• District Court declares § 922(n), which criminalizes a person under indictment from receiving a firearm, to be unconstitutional
• Notable new district court opinion strikes down federal serial number law but upholds felon possession ban applying Bruen
• Federal judge orders briefing on whether to appoint historian to resolve challenge to federal felon gun possession ban after Bruen

"Guns, Mass Incarceration, and Bipartisan Reform: Beyond Vicious Circle and Social Polarization"

The title of this post is the the title of this new paper authored by Mugambi Jouet now available via SSRN.  Here is its abstract:

Gun violence in modern America persists in the face of irreconcilable views on gun control and the right to bear arms.  Yet one area of agreement between Democrats and Republicans has received insufficient attention: punitiveness as a means of gun control.  The United States has gravitated toward a peculiar social model combining extremely loose regulations on guns and extremely harsh penalties on gun crime.  If someone possesses a gun illegally or carries one when committing another crime, such as burglary or drug dealing, draconian mandatory minimums can apply.  These circumstances exemplify root causes of mass incarceration: overreliance on prisons in reaction to social problems and unforgiving punishments for those labeled as “violent” criminals.  Contrary to widespread misconceptions, mass incarceration does not primarily stem from locking up petty, nonviolent offenders caught in the “War on Drugs.”  Most prisoners are serving time for violent offenses.  Steep sentence enhancements for crimes involving guns illustrate how American justice revolves around counterproductive, costly practices that disproportionately impact minorities.

This multidisciplinary Article envisions future reforms with the capacity to transcend America’s bitter polarization.  A precondition to change is not for conservatives and liberals to wholeheartedly agree on issues like systemic racism or the right to bear arms.  Rather, possibilities for penal reform are likelier when each side can come to the negotiating table for its own reasons.  A paradigm shift in conservative America may prove especially indispensable, as Republicans tend to be more supportive of harsh punishments and Democrats are unlikely to achieve reform nationwide on party-line votes.  This shift has already occurred to an extent given the rise of penal reform in red states.  But both conservatives and liberals have failed to significantly reduce mass incarceration by recurrently excluding “violent” offenders from reform initiatives.

The Article explores how conservatives and liberals could gradually converge toward sentencing reform on gun crime.  This could ultimately have a ripple effect on American sentencing norms, leading them closer to those of Western democracies with more effective and humane penal systems.  Such bipartisanship is less elusive than it might seem.  A rehabilitative approach toward gun crime fits with the evolution of American conservatism, which believes that guns should not be vilified since they are part of the nation’s identity.  Similarly, the rehabilitation of people convicted of gun crime is consistent with cornerstones of modern American liberalism, namely stricter gun control and opposition to mass incarceration as an unjust, racist system.  As opposite sides will probably retain much of their worldview even if their perspectives evolve to a degree, new ways of thinking could help bring reformers together.  These social transformations cannot be predicted but should be theorized.

Notable new district court opinion strikes down federal serial number law but upholds felon possession ban applying Bruen

A helpful reader sent me this morning an interesting new federal district court opinion concerning Second Amendment limits on a couple of federal criminal laws.  Here is how the opinion in US v. Price, No. 2:22-cr-00097 (SD WV Oct. 12, 2022) (available here), gets started:

The question before the court is whether 18 U.S.C. § 922(g)(1), which prohibits felons from possessing firearms, and 18 U.S.C. § 922(k), which prohibits possession of a firearm with an altered, obliterated, or removed serial number, are constitutional after the Supreme Court’s recent decision in New York State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111 (2022). After considering the arguments presented here, I find that Section 922(g)(1) is constitutional, but I find that Section 922(k) is not.  For the following reasons, Mr. Price’s motion to dismiss the indictment against him is GRANTED as to Count Two and DENIED as to Count One.

Based on my first quick read of this opinion, I am not sure I am wholly convinced by the analysis driving either part of the ruling.  But I am neither a Second Amendment expert nor a historian, so what do I know about such matter (other than Bruen continues to provide a basis for a lot of new arguments against a lot of federal criminal laws).

Of course, the rejection of a Bruen-based attacks on felon-in-possession prohibition is already become quite common.  As the Price opinion notes "Relying on the same ['law-abiding'] dicta in the wake of Bruen, at least nine federal district courts have rejected constitutional challenges to Section 922(g)(1)."  What still seems notable here is that the author of this opinion, District Judge Joseph Goodwin, reads Bruen to require him to strike down another part of 18 U.S.C. § 922 while making this point: "that firearms with an obliterated serial number are likely to be used in violent crime and therefore a prohibition on their possession is desirable, that argument is the exact type of means-end reasoning the Supreme Court has forbidden me from considering."  Price, Slip op. at 14. 

District Court declares § 922(n), which criminalizes a person under indictment from receiving a firearm, to be unconstitutional

A few months ago, in a series of posts right after the Supreme Court's big Second Amendment decision Bruen (basics here), I suggested that a number of broad federal criminal firearm prohibitions might be subject to new constitutional challenges.  Specifically, I focused on how the Bruen court's recasting of Second Amendment analysis might impact the federal felon-in-possession statute, 18 U.S.C. § 922(g)(1) and the federal drug-user-in-possession statute, 18 U.S.C. § 922(g)(3) (see posts linked below).  Interestingly, I did not even think about how Bruen might impact another federal firearm prohibition provision, 18 U.S.C. § 922(n), which criminalizes a person under indictment from receiving a firearm. Yesterday, as detailed in this AP article, a federal district court in Texas decided that Bruen renders § 922(n) unconstitutional:

A U.S. law banning those under felony indictments from buying guns is unconstitutional, a federal judge in West Texas ruled Monday.  U.S. District Judge David Counts, whom then-President Donald Trump appointed to the federal bench, dismissed a federal indictment against Jose Gomez Quiroz that had charged him under the federal ban....

In a 25-page opinion filed in Pecos, Texas, Counts acknowledged “this case’s real-world consequences — certainly valid public policy and safety concerns exist.”  However, he said a Supreme Court ruling this summer in a challenge brought by the New York Rifle & Pistol Association “framed those concerns solely as a historical analysis.”

“Although not exhaustive, the Court’s historical survey finds little evidence that ... (the federal ban) — which prohibits those under felony indictment from obtaining a firearm — aligns with this Nation’s historical tradition.”

Hence, he ruled the ban unconstitutional as the “Second Amendment is not a ’second class right,” as noted in a 2008 Supreme Court ruling.  ”No longer can courts balance away a constitutional right,” Counts wrote.  After the New York case, “the Government must prove that laws regulating conduct covered by the Second Amendment’s plain text align with this Nation’s historical tradition.  The Government does not meet that burden.”

The full 25-page ruling in US v. Quiroz, PE:22-CR-00104-DC (W.D. Tex. Sept. 19, 2022), is available at this link.  The full opinion is worth a full read, in part for a bits of west Texas flair such as this line: "Some feel that a grand jury could indict a [burrito] if asked to do so." 

Some prior related posts:

• By 6-3 vote, SCOTUS expands Second Amendment rights by striking down NY public-carry licensing requirements 
• Are all broad felon-in-possession criminal gun statutes now constitutionally suspect after Bruen? 
• Are broad drug user gun dispossession statutes now constitutionally suspect after Bruen? 

Will SCOTUS ruling in Bruen function to "defund the police" in order to fund government gun-law lawyers?

The question in the title of this post was my reaction to a particular quote by a gun control advocate in this notable new AP article about all the litigation following the Supreme Court's big Second Amendment ruling in Bruen earlier this summer.  The AP piece is headlined "After Supreme Court ruling, it’s open season on US gun laws," and here are excerpts (with the quote highlighted):

The Supreme Court ruling expanding gun rights threatens to upend firearms restrictions across the country as activists wage court battles over everything from bans on AR-15-style guns to age limits.....  “The gun rights movement has been given a weapon of mass destruction, and it will annihilate approximately 75% of the gun laws eventually,” said Evan Nappen, a New Jersey gun rights attorney.

The court battles come as the Biden administration and police departments across the U.S. struggle to combat a surge in violent crime and mass shootings, including several high-profile killings carried out by suspects who purchased their guns legally. And given the sheer number of cases now working through the courts, a lot more time will be spent in courtrooms no matter who wins.   “We will see a lot of tax dollars and government resources that should be used to stop gun crime being used to defend gun laws that are lifesaving and wildly popular,” said Jonathan Lowry, chief counsel and vice president at Brady, the gun control group....

In its New York ruling, the high court’s conservative majority also changed a test lower courts had used for evaluating challenges to gun laws.  Judges should no longer consider whether the law serves public interests like enhancing public safety, the opinion authored by Justice Clarence Thomas said. Instead, they should only weigh whether the law is “consistent with the Second Amendment’s text and historical understanding.”

“Basically, the Supreme Court has given an invitation for the gun lobby to file lawsuits against virtually every gun law in America,” Lowry said....

The ruling also has come up in challenges to restrictions on gun possession for 18- to 20-year-olds in Texas and Pennsylvania. And it has been cited in a case challenging a federal ban on gun possession for people convicted of nonviolent crimes punishable by more than a year behind bars, as well as a prohibition on concealed guns on the subway in Washington, D.C.  In addition, a gun rights group is suing Colorado over the state’s 2013 ban on magazines that hold more than 15 rounds, saying the high court ruling reinforces the group’s argument that it infringes on Second Amendment rights. And the ruling has public defenders in New York City asking judges to drop gun possession cases.

Not all those lawsuits will necessarily be successful. The Texas attorney general, for example, argues the Supreme Court ruling doesn’t affect the state’s age limit law, and more state and local governments can certainly defend their gun laws as being in line with U.S. history.  Adam Skaggs, chief counsel and policy director at the Giffords Law Center to Prevent Gun Violence, predicted that when the dust settles, only laws “along the margins” will eventually be struck down. “Most judges are going to see these for what they are, which is overreaching and lacking in any merit,” he said.

Just as we saw after prior big Second Amendment rulings in Heller and McDonald, it seems most likely that most existing gun control laws will eventually be upheld by lower courts (even though I think the Bruen majority opinion ought to be read as a strong signal that many more broad  gun laws ought to be deemed constitutionally suspect).  But this AP article highlights the reality that Bruen is sure to lead to a whole lot more time and money being spent on a whole lot more court challenges to a whole lot more existing gun laws and regulations.  I seriously doubt that the resources to be spent on all this Second Amendment litigation will come directly from the budgets for police, but I do think it sensible to expect that more time spent by government lawyers and others trying to defend the constitutionality of various laws likely means, as a practical matter, somewhat less time spent by by government lawyers and others vigorously enforcing these and other laws.

(On a somewhat related front, Damon Root at Reason.com has this notable post fully titled "The New York Times Is Surprised To Find Public Defenders Championing the Second Amendment: Yet the civil rights movement has long had a gun rights component.")

 Prior recent related posts:

• By 6-3 vote, SCOTUS expands Second Amendment rights by striking down NY public-carry licensing requirements 
• Are all broad felon-in-possession criminal gun statutes now constitutionally suspect after Bruen? 
• Are broad drug user gun dispossession statutes now constitutionally suspect after Bruen? 
• Is the Bruen Second Amendment ruling really "an important step to ending mass incarceration"? 
• Spotlighting notable (and constitutionally suspect?) aspects of federal firearm prohibition enforcement 

Latest CCJ accounting of crime trends shows good news and bad news for first half of 2022

The Council on Criminal Justice (CCJ) is continuing to do important and timely work on modern crime trends through an on-going series of reports under the heading "Pandemic, Social Unrest, and Crime in U.S. Cities."  The latest version of this report, titled "Pandemic, Social Unrest, and Crime in U.S. Cities: Mid-End 2021 Update," was just released this week and is flagged in this new CCJ press release.  Here is an excerpt:

Murders and gun assaults in major American cities fell slightly during the first half of 2022, while robberies and some property offenses posted double-digit increases, according to a new analysis of crime trends released today by the Council on Criminal Justice (CCJ).

Examining homicides in 23 cities that make data readily available, the study found that the number of murders in the first half of the year dipped by 2% compared to the first half of 2021 (a decrease of 54 homicides in those cities). Gun assaults also fell, by 6%, during the first six months of this year compared to the same timeframe last year, while overall aggravated assault counts rose 4%. Robbery jumped by 19%....

In other findings, trends in most property crimes reversed from the first two years of the pandemic.  Residential burglaries (+6%), nonresidential burglaries (+8%), and larcenies (+20%) all rose in the first half of 2022.  Motor vehicle thefts increased (+15%) but that trend began during the early months of the pandemic.  The number of drug offenses fell in the first half of 2022 (-7%), continuing earlier pandemic patterns.

This CCJ webpage provides a link to the full report and a bit full overview of the report's methodology and key findings.  One can find plenty of heartening and disheartening data in the graphs and other information in this full report.  The recent decline in homicides and gun assaults still leave us a long way from the lower pre-pandemic rates of these harmful crime.  But the recent uptick in various property crimes still leave us well below the higher pre-pandemic rates of these crimes.  And there is still an extraordinary diversity of of crime patterns in cities large and small throughout the US.

Spotlighting notable (and constitutionally suspect?) aspects of federal firearm prohibition enforcement

I noted in this post last week the new report from the US Sentencing Commission titled "What Do Federal Firearms Offenses Really Look Like?".  Following up on that report, Jacob Sullum has this interesting post at Reason.com headlined "A New Report Casts Doubt on the Assumption That Gun Law Violators Are a Public Menace: The vast majority of federal firearm offenses involve illegal possession, often without aggravating conduct or a history of violence."  I recommend that post in full, and here are excerpts (with links from the original):

A new report on federal firearm offenses shows that the vast majority involve illegal possession, often without aggravating circumstances or a history of violence. The data undermine the assumption that people who violate gun laws are predatory criminals who pose a serious threat to public safety. They also highlight the racially disproportionate impact of such laws, which is especially troubling given their excessive breadth....

[T]he federal prohibition of gun possession by people with felony records (technically, people convicted of crimes punishable by more than a year of incarceration) is a lifetime ban except in rare cases where people manage to have their Second Amendment rights restored.

That policy, which threatens violators with up to 10 years in prison, is hard to justify unless you assume that people convicted of violent crimes cannot be rehabilitated and do not change their ways as they mature.  That assumption does not seem reasonable in light of research indicating that recidivism declines sharply with age.  Yet federal law is based on the premise that, say, a man convicted of assault in his early 20s can never be trusted with a gun, even if he stays out of trouble for decades.  Because of that youthful crime, he forever loses the right to armed self-defense.

Furthermore, the USSC's numbers indicate that two-fifths of firearm offenders had never been convicted of a violent crime.  Many prior convictions involved drug trafficking (31.6 percent) or previous weapon offenses (44.2 percent). Five percent of the defendants were disqualified from owning a gun because they were illegal drug users.  If a decades-old assault conviction seems like a thin pretext for permanently depriving someone of his constitutional rights, a decades-old drug conviction, involving conduct that violated no one's rights, seems even thinner.

The irrationality and injustice of this policy look even worse when you consider the demographics of federal firearm offenders. In FY 2021, 55 percent of them were black. A similar racial disparity is apparent at the state level. According to FBI data, African Americans, who represent about 14 percent of the U.S. population, accounted for 42 percent of arrests for weapon offenses in 2019....  If those restrictions made sense, you might dismiss the disparities, citing cross-racial differences in crime rates.  But those restrictions do not make sense, since they apply to millions of people who either are not currently dangerous or never were.

Importantly, as I have noted in some prior posts linked below, whether or not one agrees with Sullum's policy criticisms of broad federal firearm prohibitions, the constitutionality of some aspects of federal enforcement must be subject to new questions in the wake of the Supreme Court's recent Second Amendment ruling in Bruen.  As I noted in those posts, Bruen makes clear that to "justify its [gun] regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation."  And the historical record, as I have seen it, seems to make quite debatable whether broad bans on gun possession by non-violent offenders or drug users is "consistent with this Nation’s historical tradition of firearm regulation."

Prior recent related posts:

• By 6-3 vote, SCOTUS expands Second Amendment rights by striking down NY public-carry licensing requirements 
• Are all broad felon-in-possession criminal gun statutes now constitutionally suspect after Bruen? 
• Are broad drug user gun dispossession statutes now constitutionally suspect after Bruen? 

"What Do Federal Firearms Offenses Really Look Like?"

The title of this post is the title of this notable new US Sentencing Commission report. This relatively short report (only 46 pages) is summarized via this USSC webpage providing an "Overview" and a bunch of "Key Findings." Here is that overview and some of the key findings:

This report provides in-depth information on federal firearms offenders sentenced under the primary firearms guideline, §2K2.1. The Commission has published reports on various aspects of firearms offenses, including reports on armed career criminals, mandatory minimum penalties, and firearms offenders’ recidivism rates. The Commission’s prior research shows that firearms offenders are generally younger, have more extensive criminal history, and are more likely to commit a new crime than other offenders. The Commission’s previous research also shows that firearms offenders are more likely than other offenders to engage in violent criminal behavior. This publication continues the Commission’s work and provides detailed information about offenders sentenced under §2K2.1.

• Firearms offenses are among the most common crimes prosecuted and sentenced in federal court....
• The guidelines exert a strong influence on the sentences imposed in firearms cases.
  • In fiscal year 2021, half (49.6%) of the felony offenders sentenced under §2K2.1 received a sentence within the guideline range, which is approximately ten percentage points higher than the within guideline range rate for all other offenders.
• Firearms offenders sentenced under §2K2.1 have criminal histories that are more extensive and more serious than other offenders.
  • Firearms offenders were more than twice as likely to have a prior conviction for a violent offense compared to all other offenders (60.6% compared to 29.0%).
• The vast majority of firearms offenders (88.8%) sentenced under §2K2.1 were prohibited from possessing a firearm.
  • Prohibited persons include offenders with a prior felony conviction or status in another prohibited class, such as aliens unlawfully in the United States, fugitives from justice, or persons who unlawfully use or are addicted to controlled substances.
• In addition to most §2K2.1 offenders being prohibited from possessing a firearm, firearms offenders often engaged in aggravating criminal conduct.
  • In more than one-quarter of §2K2.1 cases, the firearm facilitated, or had the potential to facilitate, another felony offense (most commonly drug trafficking)....
• Firearms offenses often involved stolen firearms or particularly dangerous weapons....
• The average sentence for §2K2.1 firearms offenders varied depending on the presence of aggravating factors.
  • Prohibited persons who did not engage in aggravating conduct received an average sentence of 35 months.
  • Courts imposed longer sentences on prohibited persons whose offenses involved:
    • a stolen firearm or a firearm with an altered or obliterated serial number (55 months);
    • a prohibited weapon (such as a sawed-off shotgun or machine gun) (58 months);
    • trafficking in firearms (62 months);
    • or the use of, or conspiracy to use, a firearm in connection with a crime of violence or drug trafficking crime (119 months).

Is the Bruen Second Amendment ruling really "an important step to ending mass incarceration"?

As highlighted by prior posts here and here, I am intrigued by what Supreme Court's big Bruen ruling (basics here) will mean from Second Amendment jurisprudence and a variety of gun prohibitions.  But the question in the title of this post is prompted by this  Washington Post opinion piece by Aimee Carlisle, Christopher Smith and Michael Alexander Thomas which seems to have particular grand expectations about what Bruen could bring.  Here are excerpts:

As public defenders in New York City who represent people charged with illegal gun possession — people who, according to the New York City Police Department’s own data, are almost invariably Black and Brown — we see the majority’s decision in New York State Rifle & Pistol Association v. Bruen as an important step to ending mass incarceration.  That’s why we joined other public defenders in filing an amicus brief in the case asking the court to abandon its ivory tower and consider the law’s impact on those people who bear the brunt of New York’s gun laws — our clients....

Because possession of an unlicensed, loaded firearm is a “violent felony” under New York law, people with no criminal record who are convicted face a mandatory minimum sentence of 3½ years in prison; the maximum is 15 years.  They can lose their jobs, their housing, their children and, if they are not citizens, their right to live in the United States. All for carrying a gun without ever threatening anyone or pulling the trigger — conduct that in many states is not a crime at all....

Now, following the landmark ruling in Bruen, New York can no longer impose hurdles that render the Second Amendment a fiction.... The solution to gun violence is not imprisoning people simply for carrying a gun — and burdening them with the lifelong consequences that follow.  The only acceptable solution must reject racist intent and impact at every stage.  We must break our addiction to mass incarceration.

The next steps are clear.  Now that the Supreme Court has spoken, prosecutors must dismiss all gun cases that punish people for engaging in constitutionally protected activity and free them from jail.  As state lawmakers weigh their legislative response to the decision, we hope they will finally safeguard New Yorkers’ right to keep and bear arms and create a system free of racism.

I always eager to see our laws move away, in any and every possible way, from unnecessary and excessive incarceration.  And I am hopeful that any and all persons now incarcerated based on criminal laws that Bruen makes constitutional will swiftly get justice pursuant to their constitutional rights.  But there is a long history of legislators, prosecutors and others often working quite hard to restrict which defendants get retroactive relief from major Supreme Court ruling and to find new ways to criminalize a broad swatch of disfavored conduct.  Though Bruen may end up having lots of echoes, I am not certainly expecting it to make a real dent in our nation's incarceration levels.  

Prior recent related posts:

• By 6-3 vote, SCOTUS expands Second Amendment rights by striking down NY public-carry licensing requirements 
• Are all broad felon-in-possession criminal gun statutes now constitutionally suspect after Bruen? 
• Are broad drug user gun dispossession statutes now constitutionally suspect after Bruen? 

Lots of GVRs based on Taylor limiting "crime of violence" for applying 924(c) sentence enhancement

As night follows day, it regularly follows after a significant new Supreme Court decision limiting the reach of a federal criminal statute that a subsequent Supreme Court order list grants, vacates and remands (GVRs) a number of cases "for further consideration in light of" the new decision.  In this morning's order list, the Supreme Court's 7-2 decision last week in US v. Taylor, No. 20–1459 (S. Ct. June 21, 2022) (available here), provides the basis for twenty GVRs.

Because Taylor limited the reach of what serves as a "crime of violence" under 18 U.S.C. § 924(c)(3)(A), a statute which impacts whether and when an "individual may face a second felony conviction and years or decades" of additional mandatory imprisonment for having a gun involved in the commission of certain offenses (basics here), I suspect there will be future Taylor GVRs and likely lots of other echoes from the decision.  

Especially in the wake of the Supreme Court's high-profile ruling in Bruen changing the jurisprudence of the Second Amendment (basics here, questions here and here), it is interesting to note that two big wins for criminal defendants this SCOTUS Term came in cases limiting the reach of federal criminal statutes imposing severe mandatory punishments for gun-related offenses.  Though Taylor and Wooden (basics here, analysis here) will not get nearly as much attention as Bruen, for certain folks they will prove even more important.

Are broad drug user gun dispossession statutes now constitutionally suspect after Bruen?

In this post yesterday, I wondered "Are all broad felon-in-possession criminal gun statutes now constitutionally suspect after Bruen?"  That question was prompted by the fact that the majority opinion in the Supreme Court's big Second Amendment case, Bruen (basics here), seemed to reject lots of recent lower court rulings and jurisprudence regarding the application of the Second Amendment.  Lower courts have, prior to Bruen, generally rejected Second Amendment attacks on federal law's broad criminalization of any felons possessing any guns.  But Bruen makes clear that to "justify its [gun] regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation."

Because the broad federal felon-in-possession statute, 18 U.S.C. § 922(g)(1), is applied many thousands of times each year, I am expecting a robust new round of litigation on that issue as to whether and when felon dispossession is "consistent with this Nation’s historical tradition of firearm regulation."  But here I want to flag another notably broad provision of federal firearms law, though one probably unlikely to get nearly the same attention.  Specifically, 18 U.S.C. § 922(g)(3), categorically criminalizes any gun possession by anyone who is an "unlawful user of or addicted to any controlled substance."  In an era in which marijuana use is legal for medical or recreational use in the vast majority of states but still is federal prohibited, this broad federal criminal "unlawful user" gun dispossession statute technically applies to dispossess tens of millions of Americans.  As a matter of policy and practice, I sense very few people get actually federally prosecuted and sentenced under just 922(g)(3) even for very serious and dangerous drug use, but it certainly happens sometimes.

Notably, more than a few states also have laws criminalizing gun possession by those his drug use history, and some even extend to users of legal drugs (including alcohol).  As one notable example, my state of Ohio, via Ohio Revised Code § 2923.13, prohibits knowingly having any firearm if one "is drug dependent, in danger of drug dependence, or a chronic alcoholic."  Arguably, anyone prescribed and using Oxycotin is "in danger of drug dependence," though again I do not think these kinds of laws in Ohio (or in other states) tend to be broadly enforced.  Still, these laws probably do get used as a basis refuse to issues some firearm licenses (see generally "Blowing Smoke at the Second Amendment"). 

Whatever the policy or practical virtues or vices of broad drug user gun dispossession laws, their constitutional status would seem subject to new questions thanks to Bruen.  The federal firearm prohibition for anyone who is an "unlawful user of or addicted to any controlled substance" has been upheld through various balancing tests in lower courts stressing the important government interest in restricting gun access to potentially dangerous individuals.  But, now, thanks to Bruen, such a regulation's "important interest" is not what is key for Second Amendment interpretation, "rather, the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation."

I am not legal historian, but I know enough about drug law history to know that there were very few criminal prohibitions on drug use at the time of the ratification of the Second Amendment.  Notably, there were some localities and even a state (Maine) embracing alcohol prohibition before and into the Civil War era, but I have no sense of how various early temperance laws may have interacted with gun regulations at that time.  I do surmise, from reading then-Judge Amy Coney Barrett's dissent in Kanter v. Barr, 919 F.3d 437 (7th Cir. 2019), that history suggests "founding-era legislatures categorically disarmed groups whom they judged to be a threat to the public safety."  Perhaps broad drug user gun dispossession statutes could be justified on that ground, but I have a very hard time viewing modern users of medical marijuana consistent with state law as analogous to those groups considered categorically dangerous in the founding era.

As suggested before, I expect to see a lot more litigation over broad felon-in-possession criminal laws than over broad drug user gun dispossession statutes.  Nevertheless, I think this is another interesting area of Second Amendment law that seemed reasonably settled before Bruen and now may be up for new (historical) debate.

Prior recent related posts:

• By 6-3 vote, SCOTUS expands Second Amendment rights by striking down NY public-carry licensing requirements 
• Are all broad felon-in-possession criminal gun statutes now constitutionally suspect after Bruen? 

Are all broad felon-in-possession criminal gun statutes now constitutionally suspect after Bruen?

I am still working my way through the Supreme Court's various opinions in today's big Second Amendment case, Bruen (basics here). And, because I am not a Second Amendment expert, my first-cut reactions to Bruen may not be worth much.  But, since the majority opinion in Bruen seems to reject lots of recent lower court rulings regarding the application of the Second Amendment, I cannot help but start wondering now if all broad felon-in-possession criminal statutes are constitutionally suspect.

Lower courts have largely upheld felon-in-possession criminal prohibitions even since Heller decided the Second Amendment provided for an individual right. But I read Part II of the Court's opinion in Bruen as rejecting much lower-court jurisprudence since Heller and creating a new textual and historical approach for the consideration of Second Amendment claims:

In keeping with Heller, we hold that when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct.  To justify its regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.  Only if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s “unqualified command.”...

Heller and McDonald do not support applying means-end scrutiny in the Second Amendment context. Instead, the government must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms....

We reiterate that the standard for applying the Second Amendment is as follows: When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation. Only then may a court conclude that the individual’s conduct falls outside the Second Amendment’s “unqualified command.”  

American citizens with felony records are surely part of "the people" covered by the plain text of the Second Amendment, and so their conduct in possessing a firearms would seem presumptively protected.  Turning then to "the Nation’s historical tradition," I surmise from various academic articles (see here and here; see also here) that only dangerous and violent people, not all felons, were historically disallowed to have firearms.  As one of these articles puts it: "there is no historical justification for completely and forever depriving peaceable citizens — even nonviolent felons — of the right to keep and bear arms." 

 But one need not take an academic's word for this notion that there is not historical tradition for dispossessing all felons. Then-Judge, now Justice Amy Coney Barrett made this point quite effectively when dissenting in Kanter v. Barr, 919 F.3d 437 (7th Cir. 2019). Here is the start of her lengthy dissent in a case upholding application of the federal felon-in-possession ban to a nonviolent felon:

History is consistent with common sense: it demonstrates that legislatures have the power to prohibit dangerous people from possessing guns.  But that power extends only to people who are dangerous.  Founding-era legislatures did not strip felons of the right to bear arms simply because of their status as felons.  Nor have the parties introduced any evidence that founding-era legislatures imposed virtue-based restrictions on the right; such restrictions applied to civic rights like voting and jury service, not to individual rights like the right to possess a gun.  In 1791 — and for well more than a century afterward — legislatures disqualified categories of people from the right to bear arms only when they judged that doing so was necessary to protect the public safety.

Notably, the Bruen opinion for the Court makes repeated reference to the petitioners as "law-abiding" individuals. But I am not sure that dicta alone could or should undermine what Second Amendment's plain text and historical tradition now seem to suggest, namely that governments are on very shaky constitutional ground if and whenever they seek to criminalize gun possession by nonviolent (or "non-dangerous") persons with criminal records.

By 6-3 vote, SCOTUS expands Second Amendment rights by striking down NY public-carry licensing requirements

The Supreme Court this morning handed down its much-anticipated Second Amendment ruling in New York State Rifle & Pistol Assn., Inc. v. Bruen, No. 20-843 (S. Ct. June 23, 2022) (available here). Lots of Justices had lots to say in the first significant Second Amendment ruling in more than a decade:

THOMAS, J., delivered the opinion of the Court, in which ROBERTS, C. J., and ALITO, GORSUCH, KAVANAUGH, and BARRETT, JJ., joined. ALITO, J., filed a concurring opinion. KAVANAUGH, J., filed a concurring opinion, in which ROBERTS, C. J., joined. BARRETT, J., filed a concurring opinion. BREYER, J., filed a dissenting opinion, in which SOTOMAYOR and KAGAN, JJ., joined.

Here is how Justice Thomas's opinion for the Court gets started:

In District of Columbia v. Heller, 554 U.S. 570 (2008), and McDonald v. Chicago, 561 U.S. 742 (2010), we recognized that the Second and Fourteenth Amendments protect the right of an ordinary, law-abiding citizen to possess a handgun in the home for self-defense.  In this case, petitioners and respondents agree that ordinary, law-abiding citizens have a similar right to carry handguns publicly for their self-defense.  We too agree, and now hold, consistent with Heller and McDonald, that the Second and Fourteenth Amendments protect an individual’s right to carry a handgun for self-defense outside the home.

The parties nevertheless dispute whether New York’s licensing regime respects the constitutional right to carry handguns publicly for self-defense.  In 43 States, the government issues licenses to carry based on objective criteria. But in six States, including New York, the government further conditions issuance of a license to carry on a citizen’s showing of some additional special need.  Because the State of New York issues public-carry licenses only when an applicant demonstrates a special need for self-defense, we conclude that the State’s licensing regime violates the Constitution.

Because Bruen is lengthy, I am going to need some time to see if there could be considerable criminal justice echoes from what the Court has to say here.  But, as highlighted in this prior post, a group of defense attorneys filed an amicus brief in Bruen highlighting that their clients were greatly impacted by NY gun laws and that, in 2020, "Black people made up 18% of New York’s population,[but] accounted for 78% of the state’s felony gun possession cases."   I wonder how many gun defendants, not only in New York but elsewhere, might now have new arguments to make about their prosecution and sentencing.

Ruling 7-2 in favor of federal defendant, Supreme Court in Taylor rejects broad reading of "crime of violence" for applying 924(c) sentence enhancement

The Supreme Court this morning handed down an opinion in one of the criminal sentencing cases still on its docket, US v. Taylor, No. 20–1459 (S. Ct. June 21, 2022) (available here).  The opinion for the Court is a win for the federal defendant and was authored by Justice Gorsuch.  Here is how that opinion starts and ends:

Does attempted Hobbs Act robbery qualify as a “crime of violence” under 18 U. S. C. § 924(c)(3)(A)?  The answer matters because a person convicted of attempted Hobbs Act robbery alone normally faces up to 20 years in prison.  But if that offense qualifies as a “crime of violence” under § 924(c)(3)(A), the same individual may face a second felony conviction and years or decades of further imprisonment....

The government quickly abandons the legal theory it advanced in the courts of appeals — and neither of the two new options it auditions before us begins to fill the void.  In § 924(c)(3)(A), Congress did not condition long prison terms on an abstract judicial inquiry into whether and to what degree this or that crime poses a risk to community peace and safety.  Nor did it mandate an empirical inquiry into how crimes are usually committed, let alone impose a burden on the defendant to present proof about the government’s own prosecutorial habits.

Congress tasked the courts with a much more straightforward job: Look at the elements of the underlying crime and ask whether they require the government to prove the use, attempted use, or threatened use of force.  Following that direction in this case, the Fourth Circuit correctly recognized that, to convict a defendant of attempted Hobbs Act robbery, the government does not have to prove any of those things.  Accordingly, Mr. Taylor may face up to 20 years in prison for violating the Hobbs Act.  But he may not be lawfully convicted and sentenced under § 924(c) to still another decade in federal prison.  The judgment of the Court of Appeals is Affirmed.

Justice Thomas issued a solo dissent that is as long as the opinion of the Court. It starts this way:

Justin Eugene Taylor and an accomplice pulled a gun on a fellow drug dealer as they tried to rob him.  During the attempted robbery, the victim was shot and killed.  Taylor pleaded guilty to using a firearm during an attempted Hobbs Act robbery, which he conceded was a “crime of violence” under 18 U. S. C. §924(c)(3).  Taylor made that concession because threatening to shoot someone during a robbery is undoubtedly a violent act.  Yet, the Court holds that Taylor did not actually commit a “crime of violence” because a hypothetical defendant — the Court calls him “Adam” — could have been convicted of attempting to commit Hobbs Act robbery without using, attempting to use, or threatening to use physical force.  Ante, at 5; see §924(c)(3)(A).

This holding exemplifies just how this Court’s “categorical approach” has led the Federal Judiciary on a “journey Through the Looking Glass,” during which we have found many “strange things.”  L. Carroll, Alice in Wonderland and Through the Looking Glass 227 (J. Messner ed. 1982).  Rather than continue this 30-year excursion into the absurd, I would hold Taylor accountable for what he actually did and uphold his conviction.  Accordingly, I respectfully dissent

Justice Alito also issued a (shorter) solo dissent, and it concludes this way:

I believe that the Court’s approach and ultimate holding in this case are misguided. I would hold that Taylor committed a “crime of violence” within the meaning of §924(c)(3)(A) and reverse the judgment of the Fourth Circuit below.  But there is a silver lining in the majority opinion. Because the Court assumes — and does not hold — that alternative elements do not qualify as independent elements of a crime for purposes of applying §924(c)(3)(A), the Government remains free to advance the correct interpretation of that provision in a future case.  For my purposes, however, the text of the statute is clear enough to support reversal here and now.  As a result, I respectfully dissent.

So many depressing stories in a country awash with so many guns

Another week brings news of another horrific mass shooting in the USA, this one ever so depressing because its victims were so many young children murdered at an elementary school.  And, sadly, mass shootings are only one component of modern depressing gun realities in the United States: recent years have brought increases in gun homicides as gun sales have continued to spike.  While recent homicide numbers would seem to undercut narratives that more guns mean more safety, I have come to doubt that any horrible mass shooting or any detailed data are likely to alter our nation's current gun policies or politics.

That said, particularly with a major Supreme Court Second Amendment ruling likely in the works, I still find data about how existing gun laws are criminally enforced to be noteworthy.  And this data can also be quite depressing, as evidenced by this new lengthy local article headlined "There’s a large racial disparity in federal gun prosecutions in Missouri, data shows."  Here are excerpts:

[Darrell] Hargraves [in 2018] became one of more than 3,600 people convicted between 2015 and 2021 for federal firearm possession in Missouri, which outranks the rest of the nation for its rate of prosecution of such crimes.

In an analysis of federal sentencing and crime data, The Kansas City Star found Black people were disproportionately convicted for illegally carrying firearms compared to white people.  They were also sentenced more harshly.

In the Eastern District, a federal court jurisdiction that includes St. Louis, 81% of those convicted of illegal firearm possession in the past seven years were Black. In the Western District, which includes Kansas City, 54% were Black. Together the two districts cover the entire state of Missouri.  The state’s population is 12% Black.

In the Western District in 2020, Black people were also more than twice as likely to receive sentences above the recommended guidelines for firearm possession compared to white people, according to data from the United States Sentencing Commission.

Don Ledford, a spokesman for the U.S. Attorney’s Office in the Western District, said the office did not have demographic information on gun possession convictions.  “Race is not a factor in prosecutorial decision making or sentencing recommendations,” Ledford said.  “Therefore, we don’t track defendants or cases on that criteria.”

But researchers, advocates and community members say when it comes to carrying guns, Black people are treated differently as a result of the structure of the state’s gun policies and uneven enforcement.  “There was certainly a racial politics on who got to carry a gun ... There were African American men who tried to open carry and would get attacked or shot,” said Dr. Jonathan Metzl, author of “Dying of Whiteness” and director of the Center for Medicine, Health, and Society at Vanderbilt University.  “They’re seen as criminals.”...

Hargraves said he wants to see the community be safer. “I do understand there are individuals that regardless of race are harming people,” he said. “My problem lies … in unfairness, the unfairness in sentencing, the unfairness in prison, the unfairness in not assessing the overall situation.”

The Eastern and Western districts of Missouri ranked first and sixth, respectively, for the number of people incarcerated for illegal firearm possession in any federal district in 2021.  The year before, they ranked first and third.

The rate of firearm possession began to noticeably increase in Missouri’s federal districts in the early days of Project Safe Neighborhood, a U.S. Department of Justice program that began in 2001, said Ken Novak, a criminal justice professor at the University of Missouri-Kansas City.  It brought together federal, state and local law enforcement officials, prosecutors, community leaders, and other stakeholders to identify the most serious violent crime problems in each region. In Missouri’s federal districts, that was gun violence and homicides, said Novak.  That led to more federal prosecutions for gun violations....

However there is little evidence to suggest incarcerating people for firearm possession helps curb violent crime or targets those who perpetrate gun violence in their communities, according to research by legal experts and federal defenders.  In Missouri, the majority of violent crimes are committed by people under the age of 30, according to data from the FBI’s Uniform Crime Reporting program.  Meanwhile, 63% of those convicted for federal firearm possession in the state are 30 or older.

Some first-cut musings on US v. Wooden, the latest SCOTUS effort to make ACCA less wacky

The US Supreme Court started the past work week by handing down one opinion, a sentencing win for a federal criminal defendant in US v. Wooden, No. 20-5279 (S. Ct. March 7, 2022) (available here).  Though all nine Justices voted in favor of the defendant, there were five opinions (with Justice Kagan writing for the Court, and four concurrences).  I could rattle off a few dozen thoughts about all the opinions, but I will close out the week with just these five musings, presented roughly from the general to the specific:

1.  Sentencing at SCOTUS: By various metrics the current Supreme Court is extremely conservative, and yet every single Justice voted in favor of William Wooden on a statutory issue after a majority of circuit courts had sided with the government.  In the Blakely, Booker, Roper, Gall, Kimbrough, Graham era, I had gotten in the habit of calling SCOTUS the most pro-defendant appellate court in the nation on sentencing issues.  I no longer think that is an accurate description, but Wooden is still a very important reminder that certain sentencing issues can and will garner votes from an array of Justices across the jurisprudential spectrum.

2.  ACCA in application is ridiculous: The idea behind the Armed Career Criminal Act (ACCA) makes sense: give longer sentences to dangerous people with guns who have a really bad criminal history.  But Wooden is also a reminder how crazy this statute functions in operation.  The actual offense behavior is largely irrelevant — William Wooden merely had a gun in his home for self protection, some have been tripped by merely possessing shotgun shells — and figuring out what criminal history triggers a 15-year mandatory minimum (as opposed to a 10-year maximum) is often a parlor game of such nonsensical semantics it would make Franz Kafka blush.

3.  Justices as magistrates with no majesty: Though a few concurrences had some flair (see below), the opinion of the Court and some others felt technocratic, resolving only this one case without having much to say about ACCA or any other issues.  Some may praise an opinion with so little majesty as a model of judicial modesty, but Justice Gorsuch's concurrence highlighted that not much really got resolved even as the Justices remained modest.  More generally, though the Wooden case implicates issues ranging from violent crimes to mandatory minimums, from Second Amendment rights to repeat offenders, few Justices wanted to do much more than parse definitions, hypos and legislative history.  Perhaps saying so little is how this case came out unanimously, but label me uninspired.

4.  Justice Kavanaugh as a mens rea maven: I have been wondering what criminal justice issues might be of particular interest and concern to Justice Kavanaugh, and his Wooden concurrence reveals he could develop into a mens rea maven.  Though his concurrence was mostly to push back against Justice Gorsuch's paean to the rule of lenity, Justice Kavanagh concludes by stressing his eagerness to "continue to vigorously apply (and where appropriate, extend) mens rea requirements" in statutory interpretation cases.  We might see more of what he means later this Term, as the pending case concerning doctors federally prosecuted for over-prescribing opioids turns on mens rea matters.  And litigants should be looking out for "appropriate" cases in which Justice Kavanaugh might be inclined to "extend" mens rea requirements.

5.  Justice Gorsuch as liberty lover: The US Constitution's preamble speaks of the document as a means to "secure the Blessings of Liberty to ourselves and our Posterity."   William Wooden, for possessing a gun in his home with his past criminal history, was punished with liberty deprivation for 15+ years in federal prison.  Only Justice Gorsuch mentions liberty in any of the many Wooden opinions, and he does so seven times.  Here are just a few choice mentions:

• "any reasonable doubt about the application of a penal law must be resolved in favor of liberty" 
• "But where uncertainty exists, the law gives way to liberty."
• "If the law inflicting punishment does not speak 'plainly' to the defendant’s conduct, liberty must prevail." 

I was pleased that Justice Gorsuch, joined by Justice Sotomayor, stressed liberty and thus brought the opinions in the Wooden case to a somewhat more satisfying end.  And I hope some of these "liberty in the face of uncertainty" sentiments find future expression in the work of many judges and Justices.

Prior related posts:

• SCOTUS rules unanimously in favor of defendant in latest Armed Career Criminal Act ruling
• Rounding up some accounts of the latest ACCA wackiness in Wooden 

Rounding up some accounts of the latest ACCA wackiness in Wooden

I hope to find some time in the coming days to do some original commentary about the Supreme Court's unanimous ruling in US v. Wooden, No. 20-5279 (S. Ct. March 7, 2022) (available here).  I see interesting, telling and problematic aspects to all the opinion in the case, but for now I need to be content here to round up some of what others are saying:

From Law360, "'Night Of Crime' Burglar Is No Career Criminal, Justices Say"

From Slate, "Why All Nine Justices Overturned a Ludicrously Cruel Prison Sentence"

From SCOTUSBlog, "Perhaps defining an “occasion” is not so difficult after all"

From The Volokh Conspiracy, "Justices Spar Over How to Interpret the Armed Career Criminal Act"

SCOTUS rules unanimously in favor of defendant in latest Armed Career Criminal Act ruling

The US Supreme Court handed down one opinion this morning, and it is a win for a federal criminal defendant in US v. Wooden, No. 20-5279 (S. Ct. March 7, 2022) (available here).  Here is how Justice Kagan's opinion for the Court gets started:

In the course of one evening, William Dale Wooden burglarized ten units in a single storage facility. He later pleaded guilty, for that night’s work, to ten counts of burglary — one for each storage unit he had entered. Some two decades later, the courts below concluded that those convictions were enough to subject Wooden to enhanced criminal penalties under the Armed Career Criminal Act (ACCA).  That statute mandates a 15-year minimum sentence for unlawful gun possession when the offender has three or more prior convictions for violent felonies like burglary “committed on occasions different from one another.” 18 U.S.C. §924(e)(1).  The question presented is whether Wooden’s prior convictions were for offenses occurring on different occasions, as the lower courts held, because the burglary of each unit happened at a distinct point in time, rather than simultaneously.  The answer is no.  Convictions arising from a single criminal episode, in the way Wooden’s did, can count only once under ACCA.

Interestingly, this ruling also generated four distinct concurrences (some quite short, some longer). Because I need to be off-line most of the rest of today, I will not have a chance to comment on these opinions right away. But I hope commenters might help me try to map out how many hundreds (thousands?) of cases this ruling could impact.

Still more data linking recent surge in gun sales to recent surge in murders

This new Atlantic piece, authored by Jeff Asher and Rob Arthur, provides yet another set of data points detailing the possible connection between an increase in gun purchases and a consequent increase in murders. The piece's full title summarizes its themes: "The Data Are Pointing to One Major Driver of America’s Murder Spike: A massive increase in gun sales in early 2020 seems to have contributed to the recent rise in homicides." Here are excerpts from the start and end of the piece:

After murders in the United States soared to more than 21,000 in 2020, researchers began searching for a definitive explanation why. Many factors may have contributed, such as a pandemic-driven loss of social programs and societal and policing changes after George Floyd’s murder. But one hypothesis is simpler, and perhaps has significant explanatory power: A massive increase in gun sales in early 2020 led to additional murders.

New data from the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) suggest that that indeed may have been the case. According to the data, newly purchased weapons found their way into crimes much more quickly and often last year than in prior years. That seems to point to a definitive conclusion — that new guns led to more murders — but the data set cannot prove that just yet....

Right now, we know that gun sales rose dramatically starting in March 2020, and that murder—driven by gun murders—increased substantially a few months later. We have strong evidence that more people were carrying guns before murder went up in 2020, and the ATF data tell us that newly purchased firearms were used in more crimes than usual. It stands to reason that new guns helped feed 2020’s murder surge, though the data to confirm this conclusion remain agonizingly out of reach. The data aren’t perfect, but they’re strongly suggestive: More guns are behind America’s murder spike.

A few of many prior related posts:

• More guns = more gun crimes in 2020? 
• "Crime Has Declined Overall During The Pandemic, But Shootings And Killings Are Up"
• Detailing "perfect storm" of factors that may account for increase in violent crime  
• CCJ's commission on COVID-19 and Criminal Justice releases latest "Impact Report: COVID-19 and Crime" 
• Amidst more guns and many more gun crimes (especially murders), can sentencing reforms move forward as media predicts "bloody summer"?
• Perhaps more guns explains why we have more gun homicides and more gun crimes
• More research to support notion that spike in gun sales contributed to spike in gun crimes 

More research to support notion that spike in gun sales contributed to spike in gun crimes

As detailed in a number of prior posts (some linked below), because guns crimes but not many other crimes have spiked since the start of the pandemic, I have figured the pandemic spike in gun sales likely had some role in our modern crime trends.  This new piece from The Trace, headlined "New Data Suggests a Connection Between Pandemic Gun Sales and Increased Violence," seems to provide further support for my (simplistic?) thinking here.  Here are excerpts:

In March 2020, as the first COVID-19 outbreaks rippled across the U.S., Americans flocked to gun stores.  In total, civilians purchased some 19 million firearms over the next nine months — shattering every annual sales record.  At the same time, shootings across the country soared, with dozens of cities setting grim records for homicides.

As the pandemic progressed, and gun sales continued to climb alongside shootings, researchers have puzzled over the connection between these two intersecting trends.  Was the surge in violent crime related to the uptick in guns sold last year? We may not get a definitive answer to that question for years, but fresh data from the Bureau of Alcohol, Tobacco, Firearms and Explosives provides some of the first evidence that a relationship exists.

ATF data shows that in 2020, police recovered almost twice as many guns with a short “time-to-crime” — in this case, guns recovered within a year of their purchase — than in 2019.  Law enforcement officials generally view a short time-to-crime as an indicator that a firearm was purchased with criminal intent, since a gun with a narrow window between sale and recovery is less likely to have changed hands.  Altogether, more than 87,000 such guns were recovered in 2020, almost double the previous high.  And almost 68,000 guns were recovered in 2020 with a time-to-crime of less than seven months (meaning they were less likely to have been purchased the previous year).

Put more plainly, thousands of guns purchased in 2020 were almost immediately used in crimes — some as soon as a day after their sale. That was the case of the 9mm Beretta pistol purchased by an Arlington man from Uncle Dan’s Pawn Shop and Jewelry in Dallas, according to police records.  Officers seized the gun from its owner during a drug arrest 24 hours later. In another example, a Laredo, Texas, man assaulted his mother, then opened fire on police with his Smith & Wesson M&P 15-22 rifle in July 2020.  The gun had been purchased at a Cabela’s in Ammon, Idaho, just three months earlier.

“Overall, I think we can say that the gun sale surge may have contributed to a surge in crime,” said Julia Schleimer, a researcher in the Violence Prevention Research Program at the University of California, Davis, after reviewing the ATF’s data....

Researchers interviewed for this story cautioned that the number of guns recovered and traced by law enforcement does not always indicate the amount of gun crime in a given year.  In other words, factors driving increases in the amount of short-time-crime guns in the ATF’s data may be separate from the factors contributing to gun violence.

Still, no sales bump compares to 2020, when gun buying soared to unprecedented heights, Schleimer said, substantially widening the pool of recently purchased guns that could potentially turn up at crime scenes....

Jim Bueermann, a former California police chief who serves as a senior fellow at the George Mason University Center for Evidence-Based Crime Policy, said that while the new data may not provide conclusive evidence of a causal relationship between gun sales and gun crime, it does signal the importance of additional exploration.  “Data like this asks more questions than it answers, but this is a clarion call for criminologists to conduct research in this space.”

A few of many prior related posts:

• More guns = more gun crimes in 2020? 
• "Crime Has Declined Overall During The Pandemic, But Shootings And Killings Are Up"
• Detailing "perfect storm" of factors that may account for increase in violent crime  
• CCJ's commission on COVID-19 and Criminal Justice releases latest "Impact Report: COVID-19 and Crime" 
• Amidst more guns and many more gun crimes (especially murders), can sentencing reforms move forward as media predicts "bloody summer"?
• Perhaps more guns explains why we have more gun homicides and more gun crimes

Could a SCOTUS Second Amendment ruling undercut onerous and disparate criminal enforcement of gun prohibitions?

I noted in this post back in August, as part of a preview of the major pending SCOTUS Second Amendment case, New York State Rifle & Pistol Association Inc. v. Corlett, the considerable racial disparities in modern criminal enforcement of gun prohibitions.  Helping me to detail how actual gun control laws are actually enforced in federal and state criminal justice systems was this interesting amicus brief filed by the Black Attorneys of Legal Aid caucus and lots of NY public defender offices.  Notably, some of the themes of this amicus brief have been carried forward by its authors and others via an array of interesting commentary this fall (listed here in chronological order):

Via SCOTUSblog, "We are public defenders. New York’s gun laws eviscerate our clients’ Second Amendment rights."

Via Inquest, "Second Class: For public defenders in New York, representing clients unjustly criminalized for gun possession is a matter of principle.  Now, they have the Supreme Court’s attention."

Via The Nation, "There’s No Second Amendment on the South Side of Chicago: Why public defenders are standing with the New York State Rifle and Pistol Association in the Supreme Court."

Via Slate, "A Criminal Justice Reformer’s Case for Looser Gun Laws: Public defenders have found common cause with the NRA at the Supreme Court."

I recommend all these pieces, which have too many interesting elements to highlight in a single blog post.  I will just here flag a few quotes from the new Slate piece, which is an interview with Sharone Mitchell Jr., the public defender from Chicago who authored the piece in The Nation.  

Our offense is called UUW, unlawful use of a weapon.  And there are different types of UUWs.  But the lowest-level felony, the Class 4 felony, 33 percent of the charges statewide come from 11 communities in Chicago, 11 communities in the entire state.   You look at the UUW numbers, you look at how it’s used in Chicago and how it’s used outside of Chicago — and you would think that guns only exist in Chicago.  And you would think guns only exist in a small number of communities.  And that’s not correct.  In other areas of the state, that’s just not the way they approach that situation....

We have this assumption that making things a felony disallows people from performing that act.  And I just haven’t been convinced of that.  At this point in Chicago, folks are not waiting for the government to tell them that they can carry.  And I think too often we overestimate the power of the criminal justice system to solve problems or fix the things that we need.  I think people are living under the assumption that because you’ve got this very complicated scheme for getting licensed, that means people aren’t going to carry. I think what it means is that people aren’t going to carry legally....

If you look at the population of Illinois prisons, there are more people in prison for weapons possession than there are for robbery.  There are more people in prison for weapon possession than there is for kidnapping, more than arson or burglary or DUI or forgery or vehicle hijacking or retail theft.  This is really becoming kind of the new war on drugs, where there’s a real problem, but our solution to the problem doesn’t actually fix the problem.  In fact, it creates way more problems.

A few prior related posts:

• Spotlighting considerable racial disparities in modern criminal enforcement of gun prohibitions 
• Timely new Northwestern University Law Review issue examines Second Amendment from many perspectives 

Interesting split Ohio Supreme Court ruling at the intersection of collateral consequences, gun rights and victims' rights

The Ohio Supreme Court today handed down an interesting decision today in State ex rel. Suwalksi v. Peeler, No. 2021-Ohio-4061. (Oh. Nov. 18, 2021) (available here), in a case concerning collateral consequences, gun rights and victims' rights.  Chief Justice O'Connor authored the majority opinion in the case, which starts this way:

Appellant, Roy Ewing, was convicted in Warren County of misdemeanor domestic violence for assaulting his then-wife, appellee, Jamie Suwalski.  As a result of that conviction, federal law prohibits Ewing from possessing a firearm, see 18 U.S.C. 922(g)(9), unless, as relevant in this case, the domestic-violence offense is one for which Ewing “has had [his] civil rights restored” under Ohio law, 18 U.S.C. 921(a)(33)(B)(ii).  Ewing filed in the Warren County Court of Common Pleas an application under R.C. 2923.14 for relief from his federal firearms disability, and Judge Robert W. Peeler, a judge of that court, granted Ewing’s application and issued an order restoring his firearms rights.

Suwalski sought a writ of prohibition in the Twelfth District Court of Appeals, seeking to prevent Judge Peeler’s order from being effective and invoking Article I, Section 10a of the Ohio Constitution, also known as “Marsy’s Law.”  The court of appeals permitted Ewing to intervene.  The court of appeals granted the writ, holding that Judge Peeler lacked the judicial power to relieve Ewing of the federal firearms disability imposed by 18 U.S.C. 922(g)(9). 2020-Ohio-3233, 155 N.E.3d 47, ¶ 24.

We agree that a writ of prohibition is warranted, but our rationale for that conclusion differs from that of the court of appeals.  Because Suwalski has established the elements necessary for a writ of prohibition, we affirm the judgment of the court of appeals.

Justice Kennedy authored the dissent, which was joined by two other Justices and starts this way:

Article I, Section 10a of the Ohio Constitution, also known as “Marsy’s Law,” enumerates specific rights afforded to victims of crime, including the rights “to be treated with fairness and respect for the victim’s safety, dignity and privacy” and “to reasonable protection from the accused or any person acting on behalf of the accused.” Marsy’s Law permits a victim of a crime to “petition the court of appeals for the applicable district” to vindicate his or her enumerated rights.  Article I, Section 10a(B), Ohio Constitution.

Relying on Marsy’s Law, appellee, Jamie Suwalski, filed a complaint for a writ of prohibition in the Twelfth District Court of Appeals against Warren County Court of Common Pleas Judge Robert W. Peeler, asserting that he violated her rights under Marsy’s Law when he purported to relieve her ex-husband, appellant, Roy Ewing, of a federal firearms disability.  The court of appeals granted the writ. 2020-Ohio-3233, 155 N.E.3d 47, ¶ 24-25.  However, based on the plain language of the enumerated rights established in Marsy’s Law, the rights that Suwalski has asserted are not implicated in the underlying relief-from-disability matter.  Suwalski has not claimed to have been treated without fairness and respect for her safety in the matter, and Ewing is no longer an accused person.  Because she asserts no other grounds establishing a right to the relief that she seeks in prohibition, I would reverse the judgment of the Twelfth District and dismiss the action. Because the majority does not, I dissent.

Wooden, SCOTUS on the ACCA, not so free and easy

The title of this post is my not-so-clever way of connecting the Supreme Court's new-Term opening case on the Armed Career Criminal Act to a depressing CSN&Y song.  The lyrics of the song "Wooden Ships" are only a bit more opaque than the language that SCOTUS has to sort out in Wooden v. US concerning the proper application of the severe sentencing mandatory minimum of the Armed Career Criminal Act.  Daniel Harawa at SCOTUSblog has a full preview of the case in this new post titled "What’s an “occasion”? Scope of Armed Career Criminal Act depends on the answer."  Here is an excerpt (with links from the original):

If you break into a storage facility and steal from 10 separate storage units, did you commit 10 offenses “on occasions different from one another”? The Supreme Court will answer this question in Wooden v. United States, yet another case concerning the scope of the Armed Career Criminal Act....

The federal government charged Wooden with being a felon in possession of a firearm — a crime for which the maximum punishment is 10 years’ imprisonment. The government also requested that Wooden be designated an armed career criminal under the Armed Career Criminal Act, in which case Wooden would be subject to a 15-year mandatory minimum.  To qualify as an armed career criminal, a defendant must have three prior “violent felony” or “serious drug offense” convictions.  Here, the government argued that Wooden’s 10 burglary convictions qualified as 10 “violent felonies” for ACCA purposes.  To constitute separate convictions under ACCA, the crimes must be “committed on occasions different from one another.”  Wooden argued that the 10 burglaries all occurred on the same “occasion,” and therefore counted for only one qualifying violent felony under ACCA.

The U.S. Court of Appeals for the 6th Circuit agreed with the government.  It held that the crimes were committed on separate “occasions” because Wooden “committed ten distinct acts of burglary.”  To the 6th Circuit, it was dispositive that “Wooden could not be in two (let alone ten) of [the storage units] at once.”  Much like the 6th Circuit, other circuits had held that crimes are committed on different “occasions” for ACCA purposes when they are committed “successively rather than simultaneously,” as in United States v. Carter, an 11th Circuit case.  Other circuits, however, looked beyond temporality and instead considered whether the crimes were committed under sufficiently different circumstances.  The 2nd Circuit, for instance, “distinguish[ed] between the defendant who simply commits several offenses in a connected chain of events and the defendant who … commits multiple crimes separated by substantial effort and reflection.” The Supreme Court granted certiorari to resolve this split.

Before the Supreme Court both Wooden and the government argue that ACCA’s structure, history, and purpose support their position.

Timely new Northwestern University Law Review issue examines Second Amendment from many perspectives

Earlier this month I spotlighted in this post the considerable racial disparities that have been documented in the modern criminal enforcement of gun prohibitions.  I did so because,with the US Supreme Court taking up a major Second Amendment case in the coming Term with New York State Rifle & Pistol Association Inc. v. Corlett, I think it important to never lose sight of how gun control laws are actually enforced in federal and state criminal justice systems.

Against that backdrop, I was intrigued to see that this new Northwestern University Law Review issue is fully devoted to new Second Amendment scholarship, and I was pleased that this issue includes an article titled "The Second Amendment in a Carceral State" authored by Alice Ristroph.  Here is the abstract of this article:

Is an armed citizenry consistent with a carceral state?  Throughout the twentieth century, the Second Amendment cast no shadow on the U.S. Supreme Court as the Court crafted the constitutional doctrines that license America’s expansive criminal legal system.  Under the Court’s interpretation of the Fourth Amendment, the fact or mere possibility that an individual is armed can generate broad powers for police officers, including the power to disarm.  But since the Court embraced an individual right to bear arms in 2008, a few scholars and lower courts have begun to worry that this right contradicts contemporary understandings of police authority. 

In this Essay, I acknowledge these apparent doctrinal contradictions but argue that Fourth and Second Amendment doctrines actually share a common conceptual foundation: carceral political theory.  Carceral political theory divides people into “criminals” and “law-abiding citizens” and does so according to intuitions about natural criminality rather than through positive law.  The supposed distinction between the criminal and the law-abiding is used to rationalize unequal distributions of political power, social goods, and exposure to violence.  In the United States, the naturalized conception of criminality has long been racialized.  Unless we identify and reject the carceral assumptions that underlie both Fourth and Second Amendment doctrine, the new (or newly recognized) right to bear arms is likely to further exacerbate racial inequality in the United States.

Spotlighting considerable racial disparities in modern criminal enforcement of gun prohibitions

I came across this notable recent commentary by Jeff Jacoby in the Boston Globe titled "The very racist history of gun control: The Second Amendment right to keep and bear arms is indispensable to Black equality."  The piece highlights some of the racialized history of gun control in the US, but it failed to discuss the important modern reality of racially disparities in criminal enforcement of gun prohibitions.  And with the US Supreme Court taking up a major Second Amendment case in the coming Term with New York State Rifle & Pistol Association Inc. v. Corlett, I think it important to spotlight how gun control laws are actually enforced in federal and state criminal justice systems.

We can start in New York because the SCOTUS case comes from that state and because the Black Attorneys of Legal Aid caucus and lots of NY public defender offices filed this interesting amicus brief to highlight how gun control enforcement actually operates:

[E]ach year, we represent hundreds of indigent people whom New York criminally charges for exercising their right to keep and bear arms. For our clients, New York’s licensing regime renders the Second Amendment a legal fiction.  Worse, virtually all our clients whom New York prosecutes for exercising their Second Amendment right are Black or Hispanic. And that is no accident. New York enacted its firearm licensing requirements to criminalize gun ownership by racial and ethnic minorities.  That remains the effect of its enforcement by police and prosecutors today.

The consequences for our clients are brutal.  New York police have stopped, questioned, and frisked our clients on the streets.  They have invaded our clients’ homes with guns drawn, terrifying them, their families, and their children.  They have forcibly removed our clients from their homes and communities and abandoned them in dirty and violent jails and prisons for days, weeks, months, and years.  They have deprived our clients of their jobs, children, livelihoods, and ability to live in this country.  And they have branded our clients as “criminals” and “violent felons” for life.  They have done all of this only because our clients exercised a constitutional right....

In 2020, while Black people made up 18% of New York’s population, they accounted for 78% of the state’s felony gun possession cases.  Non-Latino white people, who made up 70% of New York’s population, accounted for only 7% of such prosecutions.  Black people were also more likely to have monetary bail set, as opposed to release on their own recognizance or under supervision, even when comparing individuals with no criminal record.  When looking at only N.Y. Penal Law § 265.03(3) — which alleges only possession of a loaded firearm — 80% of people in New York who are arraigned are Black while 5% are non-Hispanic white. Furthermore, according to NYPD arrest data, in 2020, 96% of arrests made for gun possession under N.Y. Penal Law § 265.03(3) in New York City were of Black or Latino people.  This percentage has been above 90% for 13 consecutive years.

For another example, consider great recent work by Loyola University Chicago’s Center for Criminal Justice Research, Policy and Practice in recent reports on "Arrests in Illinois for Illegal Possession of a Firearm" and "Sentences Imposed on Those Convicted of Felony Illegal Possession of a Firearm in Illinois."  Here is key arrest data from this first report: "Black males between the ages of 18 and 24 had the highest arrest rate statewide; for every 100,000 Black male between the ages of 18 and 24, there were 2,404 arrests....  By comparison, the statewide arrest rate for White males between 18 and 24 was 307 per 100,000, and 1,108 per 100,000 for Hispanic males between 18 and 24."  And case-processing data from the second report details how Black offenders are more likely to be convicted on more serious charges: "[T]he majority (79%) of convictions for Class 2 felonies occurred in Cook County, whereas the majority (59%) of convictions for Class 3 felonies occurred outside Cook County.  Also, while the majority of those convicted of either felony class were Black individuals, a larger share of those convicted of the more serious Class 2 felony were Black (83%), compared to 64% of those convicted of Class 3 felony offenses."

And, lest one think these kinds of racial disparities are unique to state systems, the US Sentencing Commission published in March 2018 this potent report titled "Mandatory Minimum Penalties For Firearms Offenses In The Federal System."  Here is part of that report's "Key Findings" under the heading "Firearms mandatory minimum penalties continue to impact Black offenders more than any other racial group" (with my emphasis added):

• Black offenders were convicted of a firearms offense carrying a mandatory minimum more often than any other racial group.  In fiscal year 2016, Black offenders accounted for 52.6 percent of offenders convicted under section 924(c), followed by Hispanic offenders (29.5%), White offenders (15.7%) and Other Race offenders (2.2%).
• The impact on Black offenders was even more pronounced for offenders convicted either of multiple counts under section 924(c) or offenses carrying a mandatory minimum penalty under the Armed Career Criminal Act.  Black offenders accounted for more than two-thirds of such offenders (70.5% and 70.4%, respectively).
• Black offenders also generally received longer average sentences for firearms offenses carrying a mandatory minimum penalty than any other racial group.  In fiscal year 2016, Black offenders convicted under section 924(c) received an average sentence of 165 months, compared to 140 months for White offenders and 130 months for Hispanic offenders.  Only Other Race offenders received longer average sentences (170 months), but they accounted for only 2.2 percent of section 924(c) offenders.
• Similarly, Black offenders convicted of an offense carrying a mandatory minimum penalty under the Armed Career Criminal Act received longer average sentences than any other racial group at 185 months, compared to 178 months for White offenders, 173 months for Hispanic offenders, and 147 months for Other Race offenders.

Of course, the Supreme Court's eventual Second Amendment ruling in the Corlett case, no matter what it holds or says, is highly unlikely to dramatically alter the considerable racial disparities in modern criminal enforcement of gun prohibitions.  But, as debate over Second Amendment jurisprudence and gun control policy heats up in the coming months, I hope everyone keeps in mind the disconcerting demographic realities that consistently define modern criminal enforcement practice in the gun control space.

As Eleventh Circuit works though ACCA "occasions different" mess, Judge Newson flags Apprendi "prior conviction" issues

A helpful reader alerted me to an interesting new split Eleventh Circuit panel decision in US v. Dudley, No. 19-10267 (7th Cir. July 22, 2021) (available here), concerning application of the severe mandatory minimum in the federal Armed Career Criminal Act.  As regular readers know, ACCA converts the 10-year maximum prison term for illegal gun possession by a felon into a 15-year mandatory minimum if the defendant has the wrong kind of prior convictions.  The basic issue in Dudley is a topic also to be considered by the Supreme Court this fall in Wooden v. US, namely ACCA's requirement that key prior offenses needed to be "committed on occasions different from one another."  In Wooden, the facts of the prior convictions are not in dispute, and so the Supreme Court will likely just explore the legal meaning of "occasions different from one another."  In Dudley, part of the debate concerns uncertainty about the facts of the prior convictions, and so the Eleventh Circuit panel has to discuss how these facts can be proved.

Working through a variety of complicated ACCA precedents, the majority in Dudley ultimately decides that "the district court did not err in relying on the prosecutor’s factual proffer in Dudley’s plea colloquy to find by a preponderance of the evidence that the three qualifying prior convictions for Alabama assault occurred on three separate, distinct occasions."  For hard-core ACCA fans, the majority's discussion might be interesting.  But hard-core Sixth Amendment fans will especially want to check out Judge Newsom's lengthy partial dissent which flags the significant Apprendi issues raised by prior rulings and this case.  Here is are some passages from the partial dissent to show why the whole opinion is worth checking out:

For starters, why doesn’t judicial factfinding involving ACCA’s different-occasions requirement itself violate the Sixth Amendment?  After all, we’ve described the different-occasions inquiry as a factual one....

Of course, I recognize that we and other circuits have repeatedly rejected constitutional challenges to ACCA’s different-occasions inquiry.  See Maj. Op. 18–19 (collecting cases).  We’ve justified ourselves on the ground that the date of an offense is part of the “factual nature” of the conviction — and thus falls under Almendarez-Torres’s exception to Apprendi....

But that explanation, while plausible at first blush, is tough to square with the Court’s characterization of Almendarez-Torres as a “narrow exception” to Apprendi’s general rule.  See Alleyne, 570 U.S. at 111 n.1.  As interpreted by Apprendi, Almendarez-Torres exempts only “the fact of a prior conviction” from the bar on judicial factfinding.  Apprendi, 530 U.S. at 490 (emphasis added).  After all, Almendarez-Torres itself involved only the bare fact that the defendant had been convicted of a prior aggravated assault.  523 U.S. at 226.   Although I don’t question Almendarez-Torres’s continuing vitality — above my pay grade — it seems that we do more than just faithfully apply that decision when we extend its “narrow exception” for the mere “fact of a prior conviction” to include other related facts, such as the date or time of the underlying offense.  Indeed, if Almendarez-Torres authorizes factfinding about more than just the fact of a prior conviction, what’s the limiting principle?  What differentiates the timing of the offense from the fact that it was “violent” for ACCA’s predicate-felony inquiry?  Both, it seems to me, are equally part (or not part) of the “factual nature” of the prior conviction.

In final order list of of SCOTUS OT20, Justices grant cert on 924(c) matter and spar over summary reversal in capital case

Though we are now two days into July 2021, the US Supreme Court has delivered this morning a last jolt of October 2020 Term action with this lengthy order list that has a little something for all SCOTUS fans.  For starters, there are nine grants of certiorari.  The only criminal law grant is yet another debate over what qualifies as a "crime of violence" under federal statutory law.  This time the issue concerns application of 924(c)'s added mandatory punishments for gun use in the case of United States v. Taylor, 20-1459, which formally presents this question:

Whether 18 U.S.C. 924(c)(3)(A)’s definition of “crime of violence” excludes attempted Hobbs Act robbery, in violation of 18 U.S.C. 1951(a).

In addition, there are lots of GVRs and statements concerning cert dispositions on free speech, religion, takings and qualified immunity issues.  But nearly half of the 54-page order list is consumed with a per curiam summary reversal and dissent in the capital case of Dunn v. Reeves, 20-1084 (S. Ct.  July 2, 2021).  Here is how the 12-page majority opinion starts (with cites mostly removed):

Willie Johnson towed Matthew Reeves’ broken-down car back to the city after finding Reeves stranded on an Alabama dirt road.  In payment for this act of kindness, Reeves murdered Johnson, stole his money, and mocked his dying spasms.  Years after being convicted of murder and sentenced to death, Reeves sought state postconviction relief, arguing that his trial counsel should have hired an expert to develop sentencing-phase mitigation evidence of intellectual disability.  But despite having the burden to rebut the strong presumption that his attorneys made a legitimate strategic choice, Reeves did not call any of them to testify.

The Alabama Court of Criminal Appeals denied relief, stressing that lack of evidence about counsel’s decisions impeded Reeves’ efforts to prove that they acted unreasonably.  On federal habeas review, the Eleventh Circuit held that this analysis was not only wrong, but indefensible.  In an unpublished, per curiam opinion that drew heavily on a dissent from denial of certiorari, the Eleventh Circuit reinterpreted the Alabama court’s lengthy opinion as imposing a simple per se prohibition on relief in all cases where a prisoner fails to question his counsel.  It was the Eleventh Circuit, however, that went astray in its “readiness to attribute error.” Federal habeas courts must defer to reasonable state-court decisions, 28 U.S.C. §2254(d), and the Alabama court’s treatment of the spotty record in this case was consistent with this Court’s recognition that the absence of evidence cannot overcome the strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance.

Justice Sotomayor authored a 14-page dissent joined by Justice Kagan. (Justice Breyer also dissented, but without opinion.) Justice Sotomayor dissent ends this way:

Today’s decision continues a troubling trend in which this Court strains to reverse summarily any grants of relief to those facing execution. See, e.g., United States v. Higgs, 592 U.S. ___ (2021) (emergency vacatur of stay and reversal); Shinn v. Kayer, 592 U.S. ___ (2020) (per curiam) (summary vacatur); Dunn v. Ray, 586 U.S. ___ (2019) (emergency vacatur of stay).  This Court has shown no such interest in cases in which defendants seek relief based on compelling showings that their constitutional rights were violated.  See, e.g., Johnson v. Precythe, 593 U.S. ___ (2021) (denying certiorari); Whatley v. Warden, 593 U.S. ___ (2021) (same); Bernard v. United States, 592 U.S. ___ (2020) (same). In Reeves’ case, this Court stops the lower court from granting Reeves’ petition by adopting an utterly implausible reading of the state court’s decision.  In essence, the Court turns “deference,” ante, at 7, into a rule that federal habeas relief is never available to those facing execution.  I respectfully dissent.

Perhaps more guns explains why we have more gun homicides and more gun crimes

In this prior post on recent media coverage and political punditry focused on rising crime rates and their political implications, I noted my frustration that these discussions too often elide important data suggesting that it is primarily gun-related crimes that are on the rise while other crimes may still be on the decline.  Again this backdrop, I found notable this new Vox piece by two data scientists headlined "One possible cause of the 2020 murder increase: More guns."  Here are excerpts:

It’s true that police activity, as measured by stops and arrests, declined significantly in 2020.  Still, despite that drop, and weeks before Floyd’s murder and the ensuing protests, police began finding firearms more often than in previous years.

This pattern does not support the idea that overwhelmed police forces weren’t able to take guns off the streets, leading to a surge in violence. Instead, the spike in firearms as a percentage of stops and arrests provides evidence that there were simply more guns on the streets throughout 2020 than in the past, which may have intensified other sources of violence and contributed to the historic rise in murders.  While there is no standardized, national open data on stops, information on police activity in 10 cities that we compiled points toward the same pattern....

The share of stops or arrests that resulted in a firearm being found increased in every city.  In Washington, DC, the share of all arrests that were weapons violations went from 5 percent in January to March 2020, to 7 percent in April and 9 percent in May.  The share of arrests for weapons possession went from 1 percent between January and March 2020 in Charleston, South Carolina, to 4 percent between April and December.  Almost every city followed the same pattern: a dramatic jump in the share of arrests or stops with a firearm in April and May, a decline in June, and a return to the earlier elevated levels for the remainder of the year.

The implication of this trend is that — assuming police did not suddenly become substantially better at identifying who has an illegal gun — firearm carrying increased at the beginning of the pandemic, well before the protests, and persisted at that level for the remainder of the year.  It is possible that in the midst of the pandemic, police started engaging in better-targeted stops that were more likely to yield arrests.  But finding other kinds of contraband, like drugs, did not become more frequent, only guns....

Police finding more firearms in stops and arrests does not fit with the idea that a decrease in proactive police activity targeting firearms was the major driver for 2020’s historic murder totals, though it certainly cannot be ruled out as a contributing factor....  The data all points to substantially more complex causes behind the rise in murder than the simple narrative of a change in policing as the sole or even main driver.  It is plausible, though, that the summer’s drops in stops and arrests, protests against police violence, and increases in gun violence are all symptoms of the same disease: what criminologists David Pyrooz, Justin Nix, and Scott Wolfe recently called a “legitimacy crisis in the criminal justice system,” the result of intensifying distrust in “the law and its gatekeepers” as a result of injustice....

The trend toward more firearms sales and more guns on the street seems to have continued into 2021.  Background checks accelerated even beyond last year’s peak in the first three months of this year.  And the latest data from these cities’ stops shows that police are finding as many guns as they did in the second half of 2020.

Early figures from many cities show murders have increased from last year’s baseline as well.  If the greater availability of firearms contributed to last year’s violence, the latest arrest data suggests it may contribute even more deaths to 2021’s murder total.

A few of many prior related posts:

• More guns = more gun crimes in 2020? 
• Detailing "perfect storm" of factors that may account for increase in violent crime  
• CCJ's commission on COVID-19 and Criminal Justice releases latest "Impact Report: COVID-19 and Crime" 
• AG Garland announces new(?) federal effort to reduce violent crime
• Getting antsy for US Sentencing Commission appointments after another slate of impressive judicial nominees from Prez Biden
• Amidst more guns and many more gun crimes (especially murders), can sentencing reforms move forward as media predicts "bloody summer"?

Some early coverage of big new SCOTUS ruling limiting ACCA in Borden

A busy day on other matters means I have only had a chance to skim Borden v. US, No. 19–5410 (S. Ct. June 10, 2021) (available here), the big win for the defendant today in an ruling limiting the reach of the Armed Career Criminal Act.  I hope in the coming days to have a lot to say about Borden ruling itself and its possible aftermath, but for now I can and will round up some early press and blog coverage:

From Bloomberg Law, "Divided High Court Sides With Defense on Repeat-Offender Law"

From Crime & Consequences, "Fractured Supreme Court Cripples Armed Career Criminal Act"

From The Hill, "Gorsuch, Thomas join liberal justices in siding with criminal defendant"

From Law & Crime, "Kagan Goes After Kavanaugh for Lengthy Footnote: There’s Nothing ‘Unfair’ About This Outcome"

From the New York Times, "Supreme Court Limits Sweep of Law on Mandatory Minimum Sentences"

From SCOTUSblog, "Court limits definition of 'violent felony' in federal gun-possession penalty"

From The Volokh Conspiracy, "Justice Thomas Takes One For The Team in Borden v. U.S."

In 5-4 decision, SCOTUS limits reach of ACCA mandatory minimum "violent felony" predicates by holding a "reckless offense cannot so qualify"

The last big SCOTUS sentencing ruling of this Term that I have been eagerly awaiting was (yet another) one concerning application of the Armed Career Criminal Act.  Today the wait was over, as this morning the Court handed down it opinion in Borden v. US, No. 19–5410 (S. Ct. June 10, 2021) (available here).  And it is a big win for the defendant with Justice Kagan authoring the key opinion for four Justices (with Justices Breyer, Sotomayor and Gorsuch joining), which starts this way:

The Armed Career Criminal Act (ACCA), 18 U.S.C. §924(e), mandates a 15-year minimum sentence for persons found guilty of illegally possessing a gun who have three or more prior convictions for a “violent felony.”  The question here is whether a criminal offense can count as a “violent felony” if it requires only a mens rea of recklessness — a less culpable mental state than purpose or knowledge.  We hold that a reckless offense cannot so qualify.

Justice Thomas writes a concurring opinion that starts this way:

This case forces us to choose between aggravating a past error and committing a new one. I must choose the former.  Although I am “reluctant to magnify the burdens that our [erroneous] jurisprudence imposes,” Ring v. Arizona, 536 U.S. 584, 610 (2002) (Scalia, J., concurring), I conclude that the particular provision at issue here does not encompass petitioner’s conviction for reckless aggravated assault, even though the consequences of today’s judgment are at odds with the larger statutory scheme.  The need to make this choice is yet another consequence of the Court’s vagueness doctrine cases like Johnson v. United States, 576 U.S. 591 (2015).

Justice Kavanaugh writes a lengthy dissenting opinion (which is longer than the other two opinions combined) which concludes its opening discussion this way:

In my view, the Court’s decision disregards bedrock principles and longstanding terminology of criminal law, misconstrues ACCA’s text, and waves away the Court’s own recent precedent. The Court’s decision overrides Congress’s judgment about the danger posed by recidivist violent felons who unlawfully possess firearms and threaten further violence. I respectfully dissent.

There is a lot here to take in, but I hope to figure all this out before too long. The key takeaway is that, thank to Justices Gorsuch and Thomas, Borden is the slimmest of victories for the defendant here and likely the start of yet another chapter of uncertainty about what comes next in ACCA jurisprudence.

Notable (and huge) sentence reductions used to remedy stacked 924(c) sentences for crooked cops

As reported in this Baltimore Sun article, headlined "Corrupt former Baltimore Police officers get sentences reduced from 454 years to 20 years," a couple of crooked cops this week got their sentences reduced considerably to undo the now-repealed harshness of severe stacking mandatory minimum 924(c) counts thanks to the FIRST STEP Act.  Here is a summary from the press account:

Two former Baltimore Police officers sentenced to a combined 454 years in federal prison for shaking down citizens in the early 2000s had their prison terms reduced to 20 years each by a federal judge Monday.

U.S. District Judge Theodore D. Chuang agreed with arguments put forward by attorneys for William King and Antonio Murray earlier this year under the First Step Act, noting that since their convictions in 2006 Congress has passed sentencing reforms that would have led to significantly shorter sentences if the officers were sentenced today....

The U.S. Attorney’s Office agreed that the sentences should be reduced, but to 30 years for Murray, and 65 years for King. “Neither sentence is unreasonable given the offense conduct in this case,” Assistant U.S. Attorney Sandra Wilkinson wrote.

The officers’ attorneys noted that former Gun Trace Task Force Sgt. Wayne Jenkins, who pleaded guilty to years of robberies and drug dealing, received 25 years in prison in 2018....  Chuang agreed, saying 20 years for King and Murray “roughly corresponds with the type of sentences presently imposed in comparable police corruption cases in this District.”...

Prior to the Gun Trace Task Force case, the case of King and Murray was one of the highest-profile Baltimore police corruption cases.  The officers, who were assigned to the BPD’s public housing drug unit, were called out in the “Stop Snitching” underground video, with a man on the tape saying the officers looked out for certain drug dealers.  A man they shook down went to the FBI, and authorities launched an investigation that found the officers were detaining and robbing drug dealers.

At the time, the officers “maintained that their activities were all in furtherance of legitimate police activity in an effort to develop sources to lead to arrests of drug distributors,” said prosecutors, adding the officers claimed they used their ill-gotten money to pay informants who could help them catch those higher up in the drug gangs.  King later said the tactics were imported by the department’s New York police leadership, and blamed immense pressure to reduce crime as the reason he and some colleagues went bad.

The men were convicted of robbery, extortion, and drug and handgun offenses, which each had penalties that were “stacked” at sentencing.  The sentencing judge, J. Frederick Motz, lamented at the time that the sentences were “absolutely disproportionate to the crimes that were committed” but said he had no discretion to depart from the mandatory sentencing laws.

The opinions from the district court in these two cases can be downloaded below:

Download United States v. William King No 05-cr-00203 (May 24 2021 D. Md.)

Download United States v. Antonio Murray No 05-cr-00203 (May 24 2021 D. Md.)

After more than a decade, SCOTUS finally grants cert on big Second Amendment carry case

The Supreme Court ruled in Heller in 2008 that the Second Amendment secured the right to keep arms in the home, and then in McDonald applied this right to the states in 2010.  Most Court watchers thereafter said it was only a matter of time before the Court would need to address whether and how the Second Amendment applies to laws restricting or regulating the carrying of arms outside the home.  But for quite some time, the Supreme Court declined to take up this next big Second Amendment issue. 

But vIa this order list this morning, the Justices agreed to review New York’s concealed-carry laws through a cert grant in New York State Rifle & Pistol Association v. Corlett.  Here is how the Supreme Court framed the question presented via its cert grant:

The petition for a writ of certiorari is granted limited to the following question: Whether the State's denial of petitioners' applications for concealed-carry licenses for self-defense violated the Second Amendment.

There will be lots of ink spilled about this grant and lots of amici briefs sure to be filed.  But I wonder if others will think it notable how the Court rewrote the petitioner's question presented in this cert petition, which asked (emphasis added): "Whether the Second Amendment allows the government to prohibit ordinary law-abiding citizens from carrying handguns outside the home for self-defense." 

Long-time readers may know I have been wondering for a long time about the textual or jurisprudential justification for saying that the Second Amendment does not apply to all "people," but only to so-called "law-abiding" ones (see, e.g., posts here and here and here).  I have long assumed that the "law-abiding" language appeared in Heller and McDonald at the behest of Justice Anthony Kennedy.  With Justice Kennedy no longer on the Court, I cannot help but wonder if the current Justices were eager to remove that Court-invented language from the question presented.   

I bring this issue to the fore, of course, because a broadly applicable Second Amendment that protects all people, and not just the so-called "law-abiding" ones, could have all sorts of implications for all sorts of criminal law and sentencing provisions related to gun possession.  The Supreme Court already has on its docket a case, Wooden, concerning a defendant who received over 15 years in prison under federal law for mere gun possession in his home due to his prior convictions (and at issue in Wooden is just the statutory issue of whether these past convictions triggered the extreme 15-year mandatory minimum term under federal law).  If the Second Amendment is to be anything other than a second-class right, it ought to protect all people (as the language of the Amendment indicates) and not just whatever people the Supreme Court might decide are special as it creates this jurisprudence. 

Notably split Sixth Circuit panel finds way-above guideline felon-in-possession sentence to be substantively unreasonable

Earlier this week, a Sixth Circuit panel handed down a split (unpublished) opinion finding an above-guideline sentence substantively unreasonable in US v. Stanton, No. 20-5320 (6th Cir. Mar. 30, 2021) (available here).  Any and every circuit ruling that finds a sentence substantively unreasonable is quite notable because such opinions are quite rare — for example, USSC data shows only six such reversals in Fiscal Year 2019 and only eight such reversals in Fiscal Year 2020.  (Indeed, with this Sixth Circuit Stanton ruling finding an above-guideline sentence substantively unreasonable handed down on the same day that the Fourth Circuit found a within-guideline sentence substantively unreasonable in Freeman (discussed here, opinion here), one might be tempted to remember March 30, 2021 as an historic day for reasonableness review.)

The majority and dissenting opinions in Stanton are worth full reads, and here is how the majority opinion gets started and wraps up:

Dustin Stanton challenges his 108-month sentence for one count of unlawful possession of a firearm as substantively unreasonable.  Stanton argues that the district court did not provide sufficiently compelling reasons to justify nearly tripling his maximum guideline sentence of 37 months.  We agree.

In sum, based on the reasons it provided at sentencing, the district court “placed too much weight on the § 3553(a) factors concerning criminal history [and] deterrence . . . without properly considering sentencing disparities.”  See Perez-Rodriguez, 960 F.3d at 758. “By ‘relying on a problem common to all’ defendants within the same criminal history category as [Stanton]—that is, that they have an extensive criminal history — the district court did not give a sufficiently compelling reason to justify [its extreme variance].” Warren, 771 F. App’x at 642 (quoting United States v. Poynter, 495 F.3d 349, 354 (6th Cir. 2007)).  Though Stanton’s continued recidivism and his previous 84-month sentence for the same crime may ultimately warrant an upward variance, they are not — without more — sufficiently compelling justifications for nearly tripling his maximum guideline sentence for a mine-run offense.  See Boucher, 937 F.3d at 714 (vacating sentence as substantively unreasonable and noting that “after the district court reweighs the relevant § 3553(a) factors” the defendant “may or may not be entitled to a” variance).

And here is how Judge Thapar starts and ends his dissent:

District judges are not at liberty to turn a blind eye to reality at sentencing.  Instead, the sentencing factors in the United States Code require judges to consider the real-world consequences of a prison term.  Will the sentence protect the public?  Will it deter the defendant?  What does a defendant’s criminal history tell the court about his likelihood of recidivism?  Are there positive factors that might cut the other way?  The sentencing guidelines help answer these questions.  But district judges understand better than most that the guidelines are not binding for a reason: They don’t fit every case.  Especially one like Dustin Stanton’s.  Here, a conscientious district judge had a violent, repeat offender in front of him.  The last time Stanton was in federal court, Judge Waverly Crenshaw’s colleague sentenced him to 84 months.  Barely a year after his release, Stanton was back — as violent as ever, and for the same offense.  So Judge Crenshaw did what good judges do.  He balanced the sentencing factors and came up with a fair sentence: 108 months.  I respectfully dissent from making him do it again....

Fair sentencing is a key goal of our criminal justice system. The sentencing guidelines help further that goal. Still, district judges must exercise independent judgment when imposing a sentence. Sometimes the reality of a case justifies a variance downward. Sometimes, it justifies the opposite. Here, Judge Crenshaw decided that Stanton’s case called for an upward variance. That decision was reasonable. Thus, I respectfully dissent.

Spotlighting ugly reasons and realities surrounding federal gun sentences

Tana Ganeva has this effective Reason piece giving attention to federal gun sentences.  The full headline highlights its themes:  "743 Years and 3 Months. 117 Years. 51 Years. Why Are These Men's Sentences So Long?  For possessing a gun while committing a crime — even when no one is killed — too many defendants are slammed with sentences decades or even centuries longer than justice demands."  Here are excerpts:

The federal statute 924(c) imposes mandatory minimum sentences in offenses involving a firearm. Federal law requires that the lengthy sentences for possessing a gun while committing a crime be served back-to-back instead of concurrently, even though state laws tend to be much more lax: In Indiana, where [Charles] Scott was caught, robbery is punishable by one to six years in state prison, with a recommended time of three years. Scott's original offense, the robberies, account for a little more than six years of his sentence — the other 45 years were from the 924(c) charges. Scott's draconian sentence is actually lighter than others snagged under the same statute — there are people sentenced to centuries in prison because of 924(c) even if their underlying crimes would have earned them far less time than multiple human life spans.

As of 2016, 14.9 percent of the federal prison population — or 24,905 people — was incarcerated due to a firearm offense carrying a mandatory minimum penalty, according to the Federal Sentencing Commission. Criminal justice reform advocates believe the law wrongly conflates gun violence and crimes where the perpetrator carries, or even just owns, a gun.

"Mandatory minimums around firearms are some of the most frustrating cases," says Kevin Ring, the executive director of Families Against Mandatory Minimums (FAMM), a criminal justice reform organization. "In a country with 340 million firearms, the idea that someone is not going to happen to be in possession of a gun if they commit a crime … the law does not distinguish between someone who uses a gun to commit a crime, and someone who happens to be a gun owner. It's a frustrating, stupid law."...

Although Scott and his family hope for federal clemency, his case isn't a neat fit for today's political climate. Democratic lawmakers brand themselves as advocates for gun control, and so don't have a lot to gain from showing mercy to people who break gun laws. Most Republicans still tend to campaign on tough-on-crime platforms that don't leave a lot of room for second chances.

"For Democrats, mandatory minimums for guns can be a plan B for gun control," says Ring. "And for Republicans, for too long, people resisted the idea that people who own guns … some of those people sell drugs. To fend off gun control, they like to hammer people who have a gun when they commit a crime."

More guns = more gun crimes in 2020?

The question in the title of this post is prompted by this new NPR article headlined "Did Record Gun Sales Cause A Spike In Gun Crime?  Researchers Say It's Complicated."  Here is an excerpt (with links from original):

"It's a real challenge to try and disentangle the role of any one single potential cause," says Julia Schleimer, with the Violence Prevention Research Program at the University of California, Davis. "It's particularly challenging during the pandemic," with variables such as mass unemployment and closed schools.

Nevertheless, Schleimer and her colleagues are trying to parse out the effect of all those new guns. Their study of the initial boom in purchases — an estimated 2.1 million extra sales from March to May — concluded there was an association between short-term surges in sales and shootings.

But as the year progressed, Schleimer says that statistical relationship faded.  "We know that there's a strong link between more guns and more gun violence," she says, "but during this pandemic and in our analysis here, that link is less clear."  Setting aside the question of sales, though, there does seem to be evidence that guns were more present in daily life last year — especially during crimes.

"All of a sudden, the number of assaults with guns spiked a lot," says Rob Arthur, a data scientist and independent journalist. In a recent article for the Intercept, he pointed to an increase in the ratio of violent crimes that involved guns to those that didn't.  "That suggested to me that there was some kind of substitution going on," Arthur says. "People who were committing assaults had access to guns more in 2020 than they did before. And so they they were essentially getting upgraded to a worse crime, assaulting someone with a gun, whereas before they might have done it without a gun."

It may be a leap, though, to assume those shooters were part of last year's wave of gun buyers. Mandatory background checks bar felons and other disqualified people from buying guns in stores, and past research shows most guns used in crimes are not newly purchased.  But established patterns may not apply to 2020.  Guns were bought by a much broader cross-section of Americans last year, and the firearms industry estimates 40% were first-time buyers.

"Black gun ownership is way up, Asian gun ownership is way up, Hispanic gun ownership is way up," says Cam Edwards, the editor of BearingArms.com. "So we've seen a democratization...  where Americans who never before would have considered exercising that right have now embraced it."

For some, this "democratization" of gun sales is a matter of exercising a civil right. But it's also likely that the broadening of firearm ownership was driven by people who simply decided, during a turbulent year, that they needed a gun.  Whatever the reasons, it means 8 million new guns are now in the possession of people who potentially have less experience handling them.

Eighth Circuit panel affirms (within-guideline) sentence of 2.5 years for illegal possession of a single bullet

Decade of study can make one nearly numb to the variety of remarkable stories involving our criminal justice systems ordering people to live long periods in cages for what seems like relatively minor crimnal activity.  But I was still struck by an Eighth Circuit ruling this week in US v. Brown, No. 20-1377 (8th Cir. Feb 2, 2021) (available here), highlighting how minor convicted conduct can lead to major federal prison time.  Here are the basics fron a unanimous per curiam unpublished opinion (with cites removed):

The district court1 sentenced Deaviea David Brown to 30 months of imprisonment after Brown pled guilty to being a felon in possession of ammunition—a single bullet. See 18 U.S.C. §§ 922(g)(1), 924(a)(2). On appeal, Brown contends that sentence is substantively unreasonable and violates the Eighth Amendment. We affirm....

Because Brown’s sentence is at the bottom of the Guidelines range, we presume the sentence is reasonable. Brown did not rebut that presumption.  We also note that during the sentencing hearing, the district court specifically addressed the § 3553(a) factors.  We see no basis to conclude either that the district court improperly weighed the § 3553(a) factors or that the sentence it imposed was substantively unreasonable....

[T]he proportionality principle in Eighth Amendment law is quite limited. Under this standard, the proportionality argument presented simply lacks sufficient basis for this court to conclude that Brown’s sentence — which was at the bottom of the recommended Guidelines range — is one of those “exceedingly rare” cases that raises the gross-disproportionality inference.  While 30 months of imprisonment for possession of a single bullet may seem, on its surface, disproportionate, the penalty relates to the prohibition on convicted felons possessing ammunition of any amount. The sentence does not violate the Eighth Amendment.

I have not yet found any more information about the district court sentencing online, but I would guess there is a significant backstory as to why Mr. Brown was federal prosecuted and sentenced to 2.5 years in federal prison for possession of a single bullet. (There was a significant backstory when the Sixth Circuit affirmed a 15-year ACCA sentence for possession of seven shotgun shells some years ago.)  But I am always troubled when a serious sentence is based on some unclear backstory rather than on the seriousness of the actual offense conduct that produced the conviction.

Notably and annoyingly, the panel keeps stressing that the 30-month sentence here was at the bottom of the applicable guideline range.  For me, that fact serves to condemn the federal sentencing guidelines, not justify this extreme sentence.  It is also an important reminder that, even 15+ years after Booker made the guidelines advisory, they still have an adverse impact on justice and still need a thorough rewrite.

I am especially troubled by the facile rejection of the Eighth Amendment claim by the panel in these terms: "While 30 months of imprisonment for possession of a single bullet may seem, on its surface, disproportionate, the penalty relates to the prohibition on convicted felons possessing ammunition of any amount."  This strike me as tantamount to a statement that there could never be a constitutionally disproportionate sentence for shoplifting a candybar because a severe penalty is critical to keep people from stealing any amount of goods.  Put simply, 30 months of imprisonment for possession of a single bullet does seem disproportionate, and the Eighth Circuit panel should have at least conducted a full Eighth Amendment proportionality analysis (which would show, I think, that this this behavior is not even criminal in many states and not a felony in most).

Two more new 3582(c)(1)(A) reductions to remedy stacked 924(c) sentences reformed by FIRST STEP Act

As regular readers know, I have made much of the FIRST STEP Act provision now allowing federal courts to directly reduce sentences under the (so-called compassionate release) statutory provisions of 18 U.S.C. § 3582(c)(1)(A) without awaiting a motion by the Bureau of Prisons.  The BOP reports here that a total of 2,693 of these motions have now been granted in the 25 months since the FIRST STEP Act became law.  The vast majority of the sentencing reduction motions brought by federal prisoners and granted by federal district judges these days are focused on the health threat posed by COVID.  But judges are still rightly finding other "extraordinary and compelling reasons" warranting sentencing reductions.

A helpful reader recently flagged for me two great new district court rulings using § 3582(c)(1)(A) to undo the now-repealed harshness of severe stacking of mandatory minimum 924(c) counts.  Both rulings ought to be read in full as yet another set of examples of the ridiculousness and injustice of (post-trial) sentences that had to be imposed by judges under mandatory sentencing provisions, and to appreciate how the FIRST STEP Act helps to restore at least a little sanity and justice in this ugly part of the federal sentencing world.  I will here just note the openning paragraphs and provide a link to the full opinions:

US v. McDonel, No. 07-20189 (ED Mich. Jan. 13, 2021):

Defendant Robert McDonel, then 21 years old, was sentenced to over 100 years in prison in 2008 after engaging in a spree of auto parts store robberies using a handgun.  That extraordinarily harsh sentence was the product of a statutory sentencing scheme that required enhancing and stacking sentences for multiple firearm brandishing offenses even when the crimes were committed as part of the same episode and charged in a single indictment.  Congress since has corrected that Draconian measure, but the legislation does not help McDonel, as the amendment is not retroactive. He asks the Court for relief under 18 U.S.C. 3582(c)(1)(A)(i), as amended by section 603(b)(1) of the First Step Act of 2018, Pub L. 115-391, 132 Stat. 5194, 5239, which allows a sentence reduction for “extraordinary and compelling reasons.”  The gross disparity created by the legislative changes, which mitigated the harshness in the sentencing scheme to which McDonel was subjected, coupled with McDonel’s youth and rehabilitative efforts, qualify as extraordinary and compelling reasons under section 3582(c)(1)(A)(i). Other factors that the Court also must consider favor relief.  The motion will be granted.

Download McDonel opinion

US v. Nafkha, No. 2:95-CR-00220-001-TC (D Utah Jan. 11, 2021):

Prisoner Mounir Nafkha moves for a sentence reduction under 18 U.S.C. § 3582(c)(1)(A)(i), asking the court to reduce his nearly 73-year sentence in the custody of the United States Bureau of Prisons (BOP) to time served.  To date, Mr. Nafkha has served approximately 25 years of his sentence. He asserts that the circumstances surrounding his sentence — which consists of four consecutively “stacked” counts under 18 U.S.C. § 924(c) — constitute extraordinary and compelling reasons for his early release.  The court finds that Mr. Nafkha has satisfied his burden of showing extraordinary and compelling reasons to release him and that the balance of sentencing factors set forth in 18 U.S.C. § 3553(a) warrant his release. Accordingly, his motion (ECF No. 214) is GRANTED.

Download Nafkha Grant

Split Sixth Circuit panel decides FIRST STEP Act's less severe 924(c) mandatory minimums are applicable to resentencing

In this post a full two years ago right after the enactment for the FIRST STEP Act, I flagged some issues regarding which "pipeline" defendants might be able to benefit from the Act's reduced sentencing terms.  (By "pipeline," I meant cases in which offense conduct took place before passage of the FIRST STEP Act, but a sentence was not fully finalized when the Act became law.)  In that post, I noted that Congress in the FIRST STEP Act had expressly provided that the reduced 924(c) mandatory minimums were to be applicable "if a sentence for the offense has not been imposed as of such date of enactment" of the Act.  And then I pondered in that post: "Imagine a defendant already sentenced earlier in 2018, but his sentence is reversed on some other ground and now he faces resentencing in 2019.  Can a defendant get the benefit of any new provisions of the FIRST STEP Act upon resentencing?"

A Sixth Circuit panel this past week spoke to these issues in US v. Henry, No. 19-2445 (6th Cir. Dec 18, 2020) (available here).  The panel split, with the majority eager to give broad application to the FIRST STEP Act's reduced sentencing terms.  The Henry court gives various justifications for its reading of the applicable provision of the Act, including its legislative history: "the legislative history of the First Step Act demonstrates Congress’s intent to remedy overly punitive mandatory-minimum sentences faced by defendants, including defendants resentenced after the Act’s enactment."  Judge Gibbons writing in dissent sees matters differently, explaining "Given the vast sentencing disparities depending on whether the First Step Act applies — 55 years versus 15 years in this case — it is unclear why Congress chose to extend the Act’s protection to a defendant sentenced on the date of enactment but not to a defendant sentenced just one day prior. But whatever the wisdom of that decision, 'Congress has . . . drawn a line in the sand.'"

I am very much in favor of the approach adopted by the majority here, which essentially recognizes that absent a clear "line in the sand" for limiting application of the newer, less severe sentencing terms, it makes sense to give those terms the broadest possible application.  As the dissent notes, a full 40 years of imprisonment is at issue in this matter.  As I see it, if Congress is not 100% clear that an extra four decades of time in a cage  must be imposed, courts ought not mandate its imposition.