The Volokh Conspiracy

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Illegal Aliens, Guns, and Strict Liability

Federal law bans felons, illegal aliens, and others from knowingly possessing guns (or ammunition); does the government also have to show that the defendant knew he was a felon, illegal alien, or within some other prohibited category? [UPDATE: Last paragraph corrected.]


Yesterday, the Supreme Court agreed to consider the question (which then-Judge Gorsuch had answered "yes" in an earlier opinion).

Title 18 U.S.C. § 922(g) basically provides that, "It shall be unlawful for any person" who has a felony conviction, who is an illegal alien, or who belongs to some other categories, "to possess" or "receive" "any firearm or ammunition." Title 18 U.S.C. § 924(a) provides that such people shall be punished if they "knowingly violate[]" § 922(g).

The "knowingly" requirement is often relevant when the question is whether someone knowingly possessed a gun. (Say the gun was in a bag they were carrying, and they claimed they were just carrying it for a friend and didn't know what was in it.) But what about the situations—admittedly rare ones—where the defendant claims he doesn't know that he has a disqualifying conviction, or that his right to remain in the country has lapsed, and he has turned from a formerly lawful visitor to an illegal alien?

That's the question facing the Court in Rehaif v. U.S. Rehaif is a citizen of the United Arab Emirates, who was let into the country on a student visa to study mechanical engineering; he apparently failed out, which meant his visa expired as a result. But Rehaif stayed in the country, and went to a shooting range, where he rented a gun and bought ammunition. Six days later, an employee at the hotel at which Rehaif was staying called the police to say Rehaif was acting suspiciously; when an FBI agent came to speak to Rehaif, he learned about Rehaif's trip to the shooting range (at which he possessed a gun) and his continued possession of ammunition. Rehaif was prosecuted for both, on the theory that he was an illegal alien.

There is some evidence that Rehaif knew he was no longer legally present: The university had e-mailed him to say that, and the agent claims that Rehaif had admitted as much. But Rehaif's lawyer says he wanted to argue that Rehaif hadn't read the e-mail, and that the agent was lying about the admission (the conversation had not been recorded). It's therefore important whether Rehaif's knowledge of his status is legally relevant, and that's what the Court is set to decide.

Here, by the way, is what Justice Gorsuch said about the matter in U.S. v. Games-Perez, when he was stilled a Tenth Circuit judge; that case involved a man who claimed he didn't know he was a felon, which raises the same legal question:

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….

[I]t 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….

[UPDATE: Note correction to this paragraph below.] One more twist: § 922(g), besides banning gun possesion by illegal aliens, also bans gun possession by legal aliens who came under a nonimmigrant visa (such as Rehaif's student visa), though with a few exceptions (for certain foreign officials, for visitors "admitted to the United States for lawful hunting or sporting purposes," and for visitors "in possession of a hunting license or permit"). I suspect that, even if Rehaif didn't know that he was illegally present, he must have known that he was here on a student visa. (Even if his mens rea is relevant, it doesn't matter whether he knew that gun possession by people on such visas is forbidden; the only question is whether he knew his visa status.) So I think that if he had been prosecuted under the nonimmigrant alien ban (§ 922(g)(5)(B)) he would have been convicted even with a mens rea requirement. But the government charged him under the illegal alien ban (§ 922(g)(5)(A)), so that's all that matters for purposes of the case that is now before the Court.

UPDATE: Thanks to reader TwelveInchPianist, I now see that the preceding paragraph was likely wrong, at least given U.S. v. Elrawy (5th Cir. 2006); even though § 922(g)(5)(B) speaks of whether a defendant "has been" admitted under a nonimmigrant visa (which Rehaif had been), it has been read as requiring that the defendant still remain lawfully present as well:

Because Elrawy "has been admitted … under a nonimmigrant visa" in 1994, he could conceivably fall within the ambit of § 922(g)(5)(B) notwithstanding the fact that such visa had expired before he possessed a firearm. But, as his attorney argued at trial, under this interpretation of the statute even a non-immigrant who became a lawful permanent alien and has not left the United States since his initial admittance under a non-immigrant visa could be prosecuted, because he is an alien who has been admitted under a non-immigrant visa. That result would be absurd.

Therefore, it is implicit that an event that changes the alien's legal non-immigrant status—either from that of lawful non-immigrant to lawful immigrant (permanent resident) or from lawful non-immigrant to unlawful immigrant—renders this provision unavailable as to him. This is especially so given that an unlawful immigrant is already covered by § 922(g)(5)(A).

That is to say, the structure of the statute supports the position Elrawy took in the district court in moving for judgment of acquittal on count one. Aliens "illegally or unlawfully" in the United States are prohibited from possessing firearms under § 922(g)(5)(A), but aliens admitted on nonimmigrant visas (and hence not illegally or unlawfully in the United States) are prohibited from possessing firearms under § 922(g)(5)(B), with certain exceptions.

Because "'[s]pecific words within a statute … may not be read in isolation of the remainder of that section or the entire statutory scheme,'" only aliens who were admitted to the United States on a non-immigrant visa and maintain lawful "non-immigrant" status can be prosecuted under § 922(g)(5)(B). Aliens no longer in lawful non-immigrant status (1) are not to be prosecuted if they purchased the gun after they acquired lawful immigrant status and (2) can be prosecuted under § 922(g)(5)(A) if they purchased the gun after they acquired unlawful status.

I much appreciate the correction, and the enlightenment!