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The United States Law Week

High Court Backs Strong Intent Requirement for Gun Charges (1)

June 21, 2019, 2:23 PMUpdated: June 21, 2019, 7:30 PM

The U.S. Supreme Court June 21 made it harder for the federal government to secure convictions for firearms charges.

The court’s 7-2 decision dealt specifically with undocumented immigrants in possession of a firearm, finding that prosecutors must prove not only that someone knew that they possessed a firearm or ammunition, but also that they knew their immigration status made them ineligible to have the prohibited item.

Requiring a higher showing of culpability helps “separate those who understand the wrongful nature of their act from those who do not,” Justice Stephen Breyer wrote.

He pointed to “Dreamers” as an example—that is, individuals brought unlawfully to the U.S. while children who may not know of their immigration status.

The court’s reasoning could have a broader impact beyond immigrants, however. The statute at issue prevents several categories of individuals from possessing firearms.

Today’s ruling could make it “harder for law enforcement to impose accountability when people keep or acquire guns they’re legally barred from possessing—including due to felony and domestic violence convictions,” said Eric Tirschwell, of the gun safety group Everytown Law. Tirschwell filed a friend-of-the-court brief in support of a more relaxed intent requirement.

Kicking Dog When Down

Breyer said there was a presumption for a more robust intent requirement in criminal law.

“The cases in which we have emphasized scienter’s importance in separating wrongful from innocent acts are legion,” Breyer said.

Noting that gun possession “can be entirely innocent,” Breyer cited Oliver Wendell Holmes Jr.: Even “a dog distinguishes between being stumbled over and being kicked.”

Mountains of Problems

Justice Samuel Alito, joined by Justice Clarence Thomas, wrote a vigorous dissent.

He accused the majority of making jumps “of Olympian proportions,” and—"presto chango"—performing a magic trick to achieve its desired result.

Moreover, the “decision will create a mountain of problems with respect to the thousands of prisoners currently serving terms” for such convictions and make prosecuting new cases “significantly harder,” Alito said.

He noted that there were 6,032 convictions under the statutory scheme in 2017 alone.

The “vast majority” of those, however, deal with felon-in-possession convictions, said longtime federal defender Thomas Hillier, now at Perkins Coie. Hillier filed a friend-of-the-court brief in support of a tougher intent requirement.

Even Alito acknowledged that it wouldn’t be difficult for prosecutors to prove that an individual knew they were a felon.

That doesn’t mean defendants convicted of such crimes won’t try, however.

“This will create a substantial burden on lower courts, who are once again left to clean up the mess the Court leaves in its wake as it moves on to the next statute in need of ‘fixing,’” Alito wrote.

Hamid Mohamed Ahmed Ali Rehaif entered the U.S. on a student visa in 2013. He was notified by email in 2015 that he had been “academically dismissed” and that his immigration status would be terminated. He was charged with illegal possession later that year, and was removed to United Arab Emirates.

The case is Rehaif v. United States, U.S., No. 17-9560, reversed and remanded 6/21/19.

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bloomberglaw.com