5th Cir. Says More on When Federal Ban on Gun Possession by Drug Users Is Unconstitutional

From Monday's U.S. v. Daniels decision, written by Fifth Circuit Judge Jerry Smith, joined by Judge Don Willett:

Title 18 U.S.C. § 922(g)(3) bars an individual from possessing a firearm if he is an "unlawful user" of a controlled substance. A jury found that Patrick Daniels, Jr., was such an unlawful user, and a judge sentenced him to nearly four years in prison. But the jury did not necessarily find that Daniels was intoxicated at the time of his arrest, nor did it identify the last time Daniels used an unlawful substance. So we reversed the conviction and held that § 922(g)(3), as applied to him, was inconsistent with the Second Amendment. The Supreme Court granted certiorari, vacated, and remanded for reconsideration in light of United States v. Rahimi (2024).

After Rahimi, this circuit heard a similar challenge to a prosecution brought under § 922(g)(3). In that case, United States v. Connelly, we held that the government could not constitutionally apply § 922(g)(3) to a defendant based solely on her "habitual or occasional drug use." That case controls this one. Because the jury did not necessarily find that Daniels was presently or even recently engaged in unlawful drug use, we reverse his conviction again and remand.

For more on Connelly, see this post. Monday's decision adds:

This is a closer case than Connelly because, unlike Connelly, this case went to trial, and the facts at trial seemed to reveal a defendant who was often intoxicated while transporting weapons. Daniels admitted to using marihuana roughly half the days of each month. Officers twice saw him with guns and marihuana in his truck. The marihuana in his truck was burnt, that is, used. When he was pulled over, he had a loaded handgun within arm's length and a loaded rifle in the back seat. If Connelly was an easy case because the defendant there merely used marihuana occasionally before bed while keeping a gun for home defense, this case is far less clear cut; all signs here point to a defendant's routinely driving around town while intoxicated with loaded guns in his car.

Crucially, though, that is not what the jury instruction required the government to prove at trial. The jury was instructed that, to find that Daniels was an "unlawful user," it need not find "that he used the controlled substance at the precise time he possessed the firearm" because "[s]uch use is not limited to the use of drugs on a particular day, or within a matter of days or weeks before." Instead, the jury was instructed that it need only find "that the unlawful use has occurred recently enough to indicate that the individual is actively engaged in such conduct." {The jury then unanimously found Daniels guilty "beyond a reasonable doubt of knowingly possessing a firearm … while knowingly being an unlawful user of a controlled substance."}

his language dooms Daniels's conviction. The jury did not necessarily find that Daniels had even used marihuana "within a matter of … weeks before" his arrest, but only that his use "occurred recently enough" to indicate Daniels was "actively engaged" in unlawful use. What precisely this means is nebulous, and we "resist[ ] inquiring into a jury's thought processes." What we do know is that the jury could have found Daniels guilty even while believing that he had not used marihuana for several weeks. This would mean that Daniels was convicted for exactly the type of "habitual or occasional drug use" that we said, in Connelly, could not support an indictment (let alone a conviction).

In other words, the government's burden of proof was too low, as it was not required to convince a jury that Daniels was presently or even regularly intoxicated at the time of arrest. And even if the government had persuaded the jury that Daniels was frequently intoxicated, here, as in Connelly, the government offers no Founding-era law or practice of disarming ordinary citizens "even if their intoxication was routine." Because of this instructional error, § 922(g)(3) must thus again be held unconstitutional as applied to Daniels….

To reiterate our holding in Connelly: Section 922(g)(3) is not facially unconstitutional, and our nation's "history and tradition may support some limits on a presently intoxicated person's right to carry a weapon." We need not decide now whether § 922(g)(3) could also be constitutionally applied to defendants who are not actively intoxicated when found in possession of a firearm. But because many § 922(g)(3) prosecutions will likely involve defendants who are not using or under the influence of a controlled substance at the precise moment that they are arrested, we make a few tentative observations gleaned from recent precedent.

First, although Connelly rejected a blanket analogy between all drug users and the mentally ill, we suggested that gun restrictions could be constitutionally applied to "someone whose mental illness is so severe that she presents a danger to herself and others." So, if the government could show that an individual's drug use was so frequent, severe, and impairing as to render him analogous to the dangerously mentally ill, disarming him under § 922(g)(3) might find support in the historical tradition of confining and disarming mental patients.

Second, even where a defendant is not presently intoxicated, the historical intoxication laws invoked by the government might also support some applications of § 922(g)(3), depending on the facts admitted by a defendant or proven at trial. Specificity in jury instructions will likely be crucial here. Instructions requiring jurors to find a tight temporal nexus between an individual's drug use and his possession of firearms could bring § 922(g)(3)'s application closer in line with historical laws targeting the presently intoxicated, the mentally ill, or those who pose a danger to others, and avoid concerns that § 922(g)(3) deprives individuals of a constitutional right merely for past or even habitual drug use.

Analogies to historical laws disarming the mentally ill or the intoxicated will likely find stronger footing if the government can establish a connection between the defendant's active or regular drug use and violent or dangerous conduct. For instance, the government could attempt to establish that a defendant's frequent or recent drug use renders him presumptively dangerous because laws throughout our nation's history have aimed "to keep guns out of the hands of presumptively risky people." Though the government's attempted dangerousness analogues in Connelly failed, Connelly addressed only the "two groups" of laws that the government had proffered: laws barring political dissidents from owning guns during periods of conflict and laws disarming religious minorities.

Our analysis in Connelly does not foreclose the government from attempting to reformulate its dangerousness argument in the context of different as-applied challenges moving forward. Connelly held only that, because the government had "not shown how [Connelly's] marijuana use predisposed her to armed conflict or that she had a history of drug-related violence … the government's attempt to analogize non-violent marijuana users to dangerous persons failed to present a relevantly similar 'why.'" The analysis as applied to a different defendant could vary depending on that defendant's history and conduct.

The government has not pointed to sufficiently analogous historical laws to establish why Daniels himself should be considered presumptively dangerous. And, as explained, even had the government supplied sufficient historical briefing to support a theory of dangerousness, the jury instruction employed in Daniels's trial was too open-ended to support his conviction because it left open the possibility that Daniels had not even unlawfully used a controlled substance in several weeks.

But our holding is not a windfall for defendants charged under § 922(g)(3), present company included. The government remains free to reprosecute Daniels under a theory consistent with a proper understanding of the Second Amendment. We hold only that the first prosecution failed to meet that bar….

Judge Stephen Higginson agrees the conviction should be vacated, but adds:

I read Connelly to confirm the constitutionality of 18 U.S.C. § 922(g)(3) prosecutions at least when the defendant possesses a firearm while "presently" unlawfully using drugs.

Here, the parties and the district court did not have the Connelly decision during the jury charging stage. The district court … instructed the jury using the definition of "unlawful user" found in 27 C.F.R. § 478.11. Under those instructions, the jury was allowed to conclude that Daniels was an "unlawful user" based on use of controlled substances "within a matter of days or weeks" or based on a "pattern of use or possession." But we are obliged by Connelly to hold that this instruction was constitutionally deficient.

As an intermediate appellate court, it is our imperative both to faithfully apply the Supreme Court's constitutional corrections of our caselaw, as in Rahimi, and also to provide district courts with clear, exact, and workable instructions moving forward. It is crucial for our district court colleagues, who adjudicate § 922(g)(3) prosecutions daily across the country—as well as for the government, defendants, and indeed, all Americans—that we clarify the precise contours of constitutionally sound convictions for firearm possession. We should not allow some Americans to be imprisoned for conduct that deemed criminal in some districts, while such convictions are invalidated elsewhere. Americans must be given clear notice of what conduct is criminal….

Because the jury instruction here allowed the jury to convict Daniels based solely on the conclusion that he had used drugs weeks before he was found in possession of firearms, I would say no more than that his conviction is unconstitutional under Connelly's binding precedent.

{The majority offers "tentative observations" that different historical evidence could be presented in other cases, perhaps resuscitating our McCowan rule. It also implies that even present users who may not be "dangerous" might not be constitutionally prosecutable. I lack confidence in this dicta. It seems to me that both points could inject constitutional uncertainty in every § 922(g)(3) prosecution and might prompt parties to relitigate precedent based on either perceived, new historical evidence or each defendant's "history and conduct" showing dangerousness or lack thereof.}

The majority responds:

Our concurring colleague conscientiously reads Connelly as stating "that a § 922(g)(3) conviction is constitutional when "the temporal nexus is one of contemporaneity—meaning the jury found that the defendant possessed a firearm while presently (that is, actively) using controlled substances unlawfully." While such a formulation has the merit of providing a clear rule to the government and potential defendants, we do not read Connelly so narrowly. Connelly concluded that "[t]he history and tradition before us support, at most, a ban on carrying firearms while an individual is presently under the influence."

Courts reviewing a Second Amendment challenge can follow the principle of party presentation, so we do not read this passage to hold that § 922(g)(3) can apply only to situations where a defendant is caught using unlawful drugs while simultaneously carrying a firearm. If more analogous historical research reveals that the states routinely disarmed drunkards or drug addicts even when they were not actively intoxicated, for example, we do not read Connelly to foreclose a future court from considering that evidence and rejecting a § 922(g)(3) defendant's as-applied challenge on that basis…. Further, Connelly contemplates other potential applications of § 922(g)(3) beyond prosecutions solely targeting active use….

We sympathize with the desire to articulate a bright-line rule that district courts could apply going forward. But, with due respect, the "contemporaneity-only" rule advanced by the concurrence relies on an unduly narrow reading of Connelly and an understandable but unwarranted aversion to letting Second Amendment doctrine develop more fully as more cases involving different fact patterns arise. A piecemeal approach to laws such as § 922(g)(3), determining the contours of acceptable prosecutions through the resolution of continual as-applied challenges, is what Bruen and Rahimi require. {See William Baude & Robert Leider, The General-Law Right to Bear Arms, 99 Notre Dame L. Rev. 1467, 1511 (2024) ("Exactly where in between to draw the line [in § 922(g)(1) cases] is something the courts are currently debating and would eventually resolve in common-law fashion."); id. at 1514 ("[T]his kind of general common-law exposition is what Bruen calls for—not blanket deference to the legislature or the mindless parsing of historical analogies.").} We decline to short-circuit that process now.

Kimberly Golden Gore argued on behalf of defendant.