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SCOTUS: Illegal gun possession requires defendant’s knowledge of fact that makes it illegal

Rehaif v. United States, USSC No. 17-9560, 2019 WL 2552487, June 21, 2019, reversing 888 F.3d 1138 (11th Cir. 2018); Scotusblog page (includes links to briefs and commentary)

Federal law bans certain classes of people from possessing guns, and provides stiff penalties (up to ten years in prison if there are no enhancers) if they do. One of those classes consists of people who are aliens illegally in the country. Rehaif was illegally in the country and possessed firearms. The trial court instructed the jury that it could convict him only if he “knowingly” possessed a gun, but refused to instruct it that he also had to know he was illegally in the country. He was convicted, and the Court now holds this was error: the mens rea in the illegal gun possession statute applies both the the possession and to the status that makes the possession illegal.

Rehaif was admitted on a nonimmigrant student visa, meaning he could stay in the country only so long as he was in school. He quickly flunked out of college, but did not depart. While remaining in the country, he went to shooting ranges and fired guns (as the dissent points out, in a not-entirely-innocent-seeming way).

The Court concludes that Rehaif was right in insisting the jury couldn’t convict him if it didn’t find beyond a reasonable doubt that he knew he was not supposed to be in the country. The Court analyzes the language in the two relevant statutes: 18 U.S.C. § 922(g), which lays out who may not possess firearms, and 18 U.S.C. § 924(a)(2), which creates the actual crime of doing so, by saying that anyone who “knowingly violates” § 922(g) is subject to imprisonment.

The former statute contains four elements: “(1) a status element (in this case, “being an alien . . . illegally or unlawfully in the United States”); (2) a possession element (to “possess”); (3) a jurisdictional element (“in or affecting commerce”); and (4) a firearm element (a “firearm or ammunition”).” (Slip op. at 4). The Court holds that the verb phrase “knowingly violates” in the latter statute modifies the first, “status” element, as well as the “possession” and “firearm” elements in the former statute. Id.

(Though not the jurisdictional element. There’s an interesting and somewhat esoteric debate between the majority opinion and the dissent about just why this is; it turns on what is meant by the maxim that “ignorance of the law is no excuse.”)

This holding is important for federal practitioners; including those who do habeas cases. As the dissent notes (in anguish), there are and have been many, many federal prosecutions under § 922(g); chiefly for being a felon in possession. The prior and widespread understanding was that it was a strict-liability crime with respect to the status element; there will surely be litigation by some of those who were convicted under this understanding (though, of course, many will have no plausible claim that they didn’t know they were felons).

Its impact on state matters is less clear. Wisconsin’s equivalent statute, Wis. Stat. § 941.29, contains no reference whatsoever to a mens rea. However, our courts have said that one is supplied by the notion of “possession,” “knowingly ha[ving] actual physical control over the firearm.” State v. Black, 2001 WI 31, ¶19, 242 Wis. 2d 126, 624 N.W.2d 363. So, there’s no evident statutory construction argument for the same result, and the court of appeals has held knowledge of status is not required. State v. Phillips, 172 Wis. 2d 391, 395, 493 N.W.2d 238 (Ct. App. 1992).

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