The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
I'm blogging about some of my favorite opinions from Supreme Court nominee Judge Neil Gorsuch (see, for instance, this item about a religious freedom case). I think this can give readers a great sense of Gorsuch's writing style and maybe even some sense of his judicial philosophy. Here's an opinion in which the entire 10th Circuit was asked to rehear a decision rendered by a three-judge panel (United States v. Games-Perez); Gorsuch urged his colleagues to grant rehearing (called "en banc" rehearing), but the court declined, by a 6-4 vote. Here is Gorsuch's opinion dissenting from that decision:
People sit in prison because our circuit's case law allows the government to put them there without proving a statutorily specified element of the charged crime. Today, this court votes narrowly, 6 to 4, against revisiting this state of affairs. So Mr. Games-Perez will remain behind bars, without the opportunity to present to a jury his argument that he committed no crime at all under the law of the land.
Of course, rehearing en banc is reserved only for questions of exceptional importance. And I fully appreciate the considered judgment of my colleagues who vote against reconsidering our circuit precedent: after all, it is both longstanding and consistent with the rulings of several other courts. Even so, I respectfully submit this extraordinary situation warrants reconsideration.
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Mr. Games-Perez was prosecuted under 18 U.S.C. § 924(a)(2) for "knowingly violat[ing]" § 922(g), a statute that in turn prohibits (1) a convicted felon (2) from possessing a firearm (3) in interstate commerce. But to win a conviction under our governing panel precedent in United States v. Capps (10th Cir. 1996), the government had to prove only that Mr. Games-Perez knew he possessed a firearm, not that he also knew he was a convicted felon.
For reasons I've already explained and won't belabor in detail here, it is difficult to see how someone might "knowingly violate" § 922(g) without knowing he satisfies all the substantive elements that make his conduct criminal—especially the first substantive element Congress expressly identified. For the reader interested in more on all this, my concurring panel opinion offers it.
For current purposes, just stating Capps's holding makes the problem clear enough: its interpretation—reading Congress's mens rea requirement [i.e., a requirement of a culpable mental state -EV] as leapfrogging over the first statutorily specified element and touching down only at the second listed element—defies grammatical gravity and linguistic logic. Ordinarily, after all, when a criminal statute introduces the elements of a crime with the word "knowingly," that mens rea requirement must be applied "to all the subsequently listed [substantive] elements of the crime."
This court's failure to hold the government to its congressionally specified burden of proof means Mr. Games-Perez might very well be wrongfully imprisoned. After all, a state court judge repeatedly (if mistakenly) represented to him that the state court deferred judgment on which his current conviction hinges did not constitute a felony conviction. Given these repeated misstatements from the court itself, Mr. Games-Perez surely has a triable claim he didn't know his state court deferred judgment amounted to a felony conviction. Yet, because of our precedent in Capps, the government never had to face a trial on this question; it never had to prove its case that Mr. Games-Perez knew of his felon status. It was allowed instead to imprison him without the question even being asked.
There can be fewer graver injustices in a society governed by the rule of law than imprisoning a man without requiring proof of his guilt under the written laws of the land. Yet that is what Capps permits, excusing the government from proving an essential element of the crime Congress recognized. When the case was before the panel, I was bound by Capps and forced by my duty to precedent to countenance its injustice. Now, though, the case is before the en banc court. Here, Capps does not control my vote or require the perpetuation of this wrong, and here I believe it should be overruled….
The government seeks to defend Capps entirely on the basis of a legislative history exegesis found in the Fourth Circuit's divided decision in United States v. Langley (4th Cir. 1995) (en banc). According to the government, Langley shows that, although 18 U.S.C. § 922(g)'s predecessor statutes did not contain an explicit mens rea, courts interpreting them required the government to prove that the defendant knew the object he possessed was a firearm—but not that the defendant knew of his felon status. From this, the government surmises, when Congress added the word "knowingly" to § 924(a), it must have meant only to adopt this judicial gloss and no more.
The problem with all this is that hidden intentions never trump expressed ones. Whatever weight courts may give to judicial interpretations of predecessor statutes when the current statute is ambiguous, those prior interpretations of now defunct statutes carry no weight when the language of the current statute is clear.
When the current statute's language is clear, it must be enforced just as Congress wrote it. And whatever the legislative history may or may not suggest about Congress's collective "intent" (putting aside the difficulties of trying to say anything definitive about the intent of 535 legislators and the executive, and putting aside as well the Langley dissent's powerful rejoinders about Congress's putative intent in this case), the law before us that survived the gauntlet of bicameralism and presentment couldn't be plainer.
By their express terms, §§ 922(g) and 924(a)(2) do not authorize the government to imprison Mr. Games-Perez and people like him unless and until the government can show they knew of their felon status at the time of the alleged offense. The government did not attempt to prove as much here. And that is all we need to know. Congress could have written the law differently than it did, and it is always free to rewrite the law when it wishes. But in our legal order it is the role of the courts to apply the law as it is written, not some different law Congress might have written in the past or might write in the future.
Besides, even if the government could somehow manage to squeeze an ambiguity out of the plain statutory text before us, it faces another intractable problem. The Supreme Court has long recognized a "presumption" grounded in our common law tradition that a mens rea requirement attaches to "each of the statutory elements that criminalize otherwise innocent conduct."
Together §§ 922(g) and 924(a)(2) operate to criminalize the possession of any kind of gun. But gun possession is often lawful and sometimes even protected as a matter of constitutional right. The only statutory element separating innocent (even constitutionally protected) gun possession from criminal conduct in §§ 922(g) and 924(a) is a prior felony conviction. So the presumption that the government must prove mens rea here applies with full force. See Staples v. United States (1994); D.C. v. Heller (2008). Yet, for its part the government never explains how a much disputed legislative record can overcome this longstanding interpretive presumption….
[T]he concurrence [in the denial of rehearing en banc] insists that, wholly apart from the statutory interpretation question, this case is an inappropriate candidate for en banc review because there's "a strong and principled reason to doubt Games-Perez's claimed ignorance of his status as a felon." But, respectfully, it is the province of the jury to resolve colorable factual disputes. And … the state trial judge in Mr. Games-Perez's predicate felony case repeatedly told him that his deferred judgment was not a felony conviction.
The state judge informed Mr. Games-Perez that "if I accept your plea today, hopefully you will leave this courtroom not convicted of a felony." And after accepting the plea, the state judge said, "I am not entering judgment of conviction at this time, hopefully, I never will." Given these facts, Mr. Games-Perez undoubtedly has a triable, and quite possibly a winnable, case that he did not know of his felon status….
[T]he concurrence argues this case is unworthy of en banc review because it might result in a circuit split and wind up treating similarly situated individuals differently "based solely on their geographic location." But even assuming some circumstance exists in which we might legitimately decline to apply the unambiguous terms of a congressional statute only to avoid disagreement with other circuits—a highly doubtful proposition to begin with—it surely cannot be that someone must go to prison just so we can avoid treating him better than those other circuits have incorrectly allowed to be put away….
In the end, I do not for a moment question that the standard for rehearing en banc is a high one or that the arguments one might muster against rehearing are thoughtful or principled. In my judgment, however, none of these arguments compels us to perpetuate the injustice of disregarding the plain terms of the law Congress wrote and denying defendants the day in court that law promises them….