Felon Possession of Firearm: Rehaif v. United States

The Supreme Court judgement under Rehaif says that a felon must have knowledge that they are unable to be in possession of a firearm.

Why is the Rehaif Case Important?

The Rehaif case may be significant because of its consequences.  It is possible that there will now be a flood of litigation from defendants who will claim that the status element of the crime was not proven by the Government in their own cases.  It is important to note that being illegally in the U.S. is only one of nine different statuses that make possession of a gun illegal.  Another status is being a convicted felon.  Thus, it is conceivable that many people may try to re-open their cases, claiming that they did not know that they were unaware of being a felon in possession of a firearm.  If you believe that this ruling may have a bearing on your case or that of a loved one, reach out to us and schedule a complementary call to discuss your case.

History on  Rehaif vs US

Hamid Rehaif came to the United States on a student visa.  He enrolled at the Florida Institute of Technology.  He did very poorly in school and was dismissed for low grades.  The school told him that his “immigration status” would be terminated unless he transferred to a different university or left the country.

Subsequently, Rehaif visited a firing range, shooting two firearms.  The Government learned of Rehaif’s target practice and charged him criminally with possessing firearms as an alien unlawfully in the United States. This created a felon in possession of a firearm. Rehaif was tried before a jury.

At the close of his trial, the judge instructed the jury that the Government was not required to prove that Rehaif knew that he was illegally in the United States. Rehaif was then convicted and sentenced to 18 months in prison.

On appeal, Rehaif argued that the judge’s instruction to the jury was incorrect, and that the Government needed to prove that he knew he was illegally in the country.  The Eleventh Circuit Court of Appeals, however, rejected Rehaif’s argument and affirmed his conviction and sentence.  Rehaif then appealed to the Supreme Court, which agreed to hear the case.

Felon "Knowingly" in Possession of a Gun 

As noted in the title above, Mr. Rehaif’s case turns on the scope of the word “knowingly.”  The law under which Rehaif was charged states that it is unlawful for aliens who are illegally in the United States to possess firearms, and that a person can be fined or imprisoned up to 10 years if he or she “knowingly violates” the law.

Based on that law, the question becomes:  Does the Government need to prove only that the accused knew he was in possession of a firearm?  Or, does the Government need to prove that the accused knew that he possessed a firearm and that he knew he was illegally in the country?

The Majority Opinion

A seven-Justice majority held that the Government must prove both that a person knew he possessed a firearm and that he knew he was illegally in the country when he possessed the firearm.  Justice Breyer wrote the opinion for the majority.  Justice Breyer began his analysis by stating that the determination of what the Government must prove in a federal criminal case is a question of congressional intent, i.e., what Congress intended to be the elements of a crime.

Accordingly, when looking for congressional intent, the Court begins with a long-standing presumption in favor of “scienter.”  In other words, it is presumed that Congress intends to require a criminal defendant have the required mental state (or state of mind) for each element that “criminalizes otherwise innocent conduct.”

The text of the law in this case is that it is a crime for any person “being an alien illegally or unlawfully in the United States” to “possess in or affecting commerce, any firearm or ammunition.”  Thus, the elements of the crime are as follows:

1. A status element – “being an alien illegally or unlawfully in the United States;”
2. A possession element – to “possess;”
3. A jurisdiction element – “in or affecting commerce;”
4. A firearm element – “any firearm or ammunition.”

Apart from the jurisdiction element, the presumption of “scienter” should apply to each element.  Thus, to be guilty of a crime committed “knowingly,” a person must know the status element, the possession element, and the firearm element.  In short, the Government must prove both that Rehaif knew he was illegally in the country andthat he possessed a firearm.

In this case, the majority opinion points out that possessing a gun can be entirely innocent conduct.  What makes Rehaif’s conduct criminal is the status element, the fact that he was illegally in the country while in possession of a gun.  Without Rehaif knowing his status, he may lack the state of mind necessary to make his conduct wrongful.

During arguments before the Court, the Government raised the common maxim that “ignorance of the law is no defense.”  Thus, the Government maintained that defendants like Rehaif do not need to know their own status to be guilty of a crime.

The Court majority, however, was not persuaded by that argument.  There is a difference, according to the majority, between having the required mental state for the elements of a crime yet being unaware of a law forbidding the conduct, and actually being unaware of a fact that would make something a crime.

In sum, the trial judge’s instruction was incorrect, and Rehaif’s case was reversed and remanded for further proceedings.

Dissenting Opinion

Justice Alito wrote a dissenting opinion joined by Justice Thomas. Justice Alito was particularly troubled by the fact that the criminal statute in Rehaif’s case has been used to prosecute thousands of defendants over the course of 30 years.  The majority opinion, says Justice Alito, now puts those prosecutions in question.

Questioning the fact that the Court agreed to hear the case in the first place, Justice Alito stated that there was no lower court conflict that needed to be resolved and no indication of any serious injustice as a result of the consistent application of the law by the lower court.

Justice Alito was sure to mention that Rehaif was not as innocent as the majority would lead us to believe.  It appears that Rehaif checked into a hotel, demanded that he have a room on the eighth floor, facing the airport.  Also, he frequented a firing range.

Finally, Justice Alito noted that the majority’s opinion was not based on the statutory text of criminal law in question.  Rather, Justice Alito says that the majority relies on “its own guess about congressional intent.  And the intent that the majority attributes to Congress is one that Congress almost certainly did not harbor.”

Conclusion

The Rehaif case may be significant because of its consequences.  It is possible that there will now be a flood of litigation from defendants who will claim that the status element of the crime was not proven by the Government in their own cases.  It is important to note that being illegally in the U.S. is only one of nine different statuses that make possession of a gun illegal.  Another status is being a convicted felon.  Thus, it is conceivable that many people may try to re-open their cases, claiming that they did not know that they were unaware of being a felon in possession of a firearm.