Issues
Does the knowledge requirement in 18 U.S.C. § 924(a) apply to both the possession and immigration status elements in 18 U.S.C. § 922(g), which prohibits any person unlawfully in the United States from possessing firearms or ammunition, or just to the possession element?
This case asks the Supreme Court to decide whether the government must prove that a defendant knew that they were prohibited from purchasing a firearm as a result of their residency status in violation of 18 U.S.C. § 922(g), which prohibits a person who is unlawfully in the United States from possessing any firearm or ammunition and its penalty statute, 18 U.S.C. § 924(a)(2). Hamid Rehaif was charged with violating these provisions when he purchased a firearm after, unbeknownst to him, his visa had expired. Rehaif contends that the government must prove that he knew about his unlawful status when he had purchased the fire arm. The United States government counters that they need not prove Rehaif knew he was unlawfully in the United States. The outcome of this case will impact the degree of protection defendants have against unknowingly unlawful conduct, the nature of evidence that the prosecution must present at federal criminal trials, and the legal consequences of making an unauthorized purchase of a firearm.
Questions as Framed for the Court by the Parties
Whether the “knowingly” provision of 18 U.S.C. § 924(a)(2) applies to both the possession and status elements of a § 922(g) crime, or whether it applies only to the possession element.
Facts
Hamid Mohamed Ahmed Ali Rehaif is a citizen of the United Arab Emirates. . Rehaif applied and was accepted to the Florida Institute of Technology (“FIT”). . The United States issued Rehaif an F-1 nonimmigrant student visa to study at FIT on the condition that Rehaif pursue a full course of study or engage in training following graduation. . Rehaif signed a statement certifying that he agreed to comply with these conditions. .
FIT academically dismissed Rehaif on December 17, 2014. . FIT sent an email to Rehaif on January 21, 2015, stating that it had academically dismissed Rehaif and that his immigration status would be terminated on February 5, 2015 unless he either transferred to a different educational institution or notified FIT that he had left the United States. . Rehaif did not take any action. The Department of Homeland Security officially terminated Rehaif’s immigration status on February 23, 2015. .
On December 2, 2015, Rehaif went to a shooting range, purchased ammunition, and fired two different firearms. . Rehaif was staying in a Florida hotel at the time. . A hotel employee told the police that Rehaif was acting suspiciously. . An FBI agent conducted an interview with Rehaif in which Rehaif admitted to both shooting the firearms and knowing that his visa was out of status. . The FBI searched Rehaif’s hotel room and found ammunition which Rehaif had purchased. .
A federal grand jury charged Rehaif with violating 18 U.S.C. § 922(g)(5)(A), which makes it unlawful for an alien illegally or unlawfully in the United States to possess in commerce any firearm or ammunition. . Section 924(a)(2) further holds that whoever “knowingly violates” § 922(g) shall be fined, imprisoned, or both. . Before trial, the United States requested that the district court instruct the jury that the United States was not required to prove that Rehaif knew that he was illegally or unlawfully in the United States. . Rehaif objected, arguing that the United States was required to prove both that he knowingly possessed a firearm and that he knew of his prohibited status. .
On May 12, 2016, the United States District Court for the Middle District of Florida overruled Rehaif’s objection and adopted the government’s proposed jury instructions. . Rehaif was convicted. . Rehaif appealed, arguing that the district court erred by instructing the jury that the government need not prove that Rehaif was in the United States illegally or unlawfully. . Rehaif argued that the “knowingly violates” provision of § 924(a)(2) requires that the government prove that Rehaif knew that he was in the United States illegally or unlawfully at the time he possessed the firearm. . The United States argued that the government need only prove that Rehaif knowingly possessed a firearm, and not that Rehaif had knowledge of his prohibited status. .
The United States Court of Appeals for the Eleventh Circuit affirmed Rehaif’s conviction. . The court noted that it previously held in United States v. Jackson that the government need not prove that the defendant knew of their prohibited status under § 922(g). . The Eleventh Circuit also pointed-out that courts had interpreted the predecessor statutes to § 922(g) as not requiring proof of the defendant’s knowledge of their prohibited status. . The Eleventh Circuit further stated that Congress’s 1986 amendment to § 924(a) requiring “knowing violations” of § 922(g) did not warrant a different judicial interpretation of the statute’s knowledge requirement. . The Eleventh Circuit added that Congress’s decision not to revisit the issue since the amendment’s ratification is an implicit legislative recognition that the court’s judicial construction of the statute is correct. . The Eleventh Circuit also reasoned that it is unlikely that Congress intended to apply the knowledge requirement to a defendant’s status since doing so would make it easier for defendants to avoid persecution by claiming that they were unaware of their status, inhibiting Congress’s goal of fighting violent crime and drug offenses. . While the Eleventh Circuit acknowledged Supreme Court precedent favoring a knowledge requirement for each element of a crime, it explained that the knowledge requirement carries more weight for elements concerning characteristics of other people or things, but less weight for elements concerning things for which there is little opportunity for reasonable mistake, such as a defendant’s personal characteristics. .
The United States Supreme Court granted Rehaif’s petition for writ of certiorari on January 11, 2019.
Analysis
TEXTUAL ANALYSIS OF THE STATUTORY PROVISIONS
Hamid Mohamed Ahmed Ali Rehaif argues that the plain text of § 922 and § 924 makes it clear that a person “knowingly violates” § 922 only when they know not just that they possesses a firearm, but also their status. In support of this position, Rehaif contends that both status and possession of a firearm are substantive elements of a § 922(g) crime, and he points to the Supreme Court’s “longstanding tradition of applying mens rea to each substantive element of an offense.” He maintains that a person’s status, standing alone, is the substantive fact that converts a person’s possession of a firearm from being permissible behavior to being illegal behavior. Thus, Rehaif argues, the mens rea requirement must be independently applied to the status element.
Rehaif further argues that the grammatical structure of the statute supports finding that the “knowingly violates” language applies to both elements of a § 922(g) offense. He asserts that the most logical and natural interpretation of the statute—which first lists the statuses of persons covered by the provisions and thereafter states that those persons may not possess firearms—is that the mens rea requirement applies to both the status and the possession elements. Rehaif additionally contends that courts ordinarily read federal criminal statutes that use the word “knowingly” to apply the knowledge requirement to all elements in the statute—even when the applicability of the mens rea requirement is not explicit in the statutory text.
The United States, on the other hand, emphasizes that § 922 does not contain any mens rea requirement—either explicitly or implicitly. In support of its position, the United States argues that the statutory text illustrates that the “knowingly violates” language in § 924 applies only to an individual’s conduct and not to his status. In fact, the United States contends, other neighboring provisions that regulate firearms do contain mens rea requirements—supporting the finding that this particular provision, which contains no such language in its text, is not meant to contain this restriction. For example, the United States posits, § 922(d) makes it unlawful for a person to sell a firearm to another person “knowing or having reasonable cause to believe that such person” falls within particular status categories. Thus, the United States concludes, Congress intentionally chose to exclude a similar knowledge requirement in § 922.
Further, the United States contends that different elements of the same offense can require different mental states—meaning that the “knowingly violates” language can apply to the possession element but not the status element. Rehaif, the United States notes, does not dispute this contention and concedes that at least one element of § 922, the requirement of a connection to interstate commerce, does not require any showing of knowledge. Similarly, the United States asserts, background information such as an individual’s status does not require any showing of knowledge. To support this argument, the United States contends that § 924 applies to numerous provisions in addition to § 922 and that several of those provisions explicitly include a mens rea requirement as to background information. As such, the United States holds that it would be unusual to also apply a § 924 knowledge requirement to all covered provisions since some already have their own, separate mens rea requirement.
HISTORICAL ANALYSIS OF THE STATUTORY PROVISIONS
Rehaif argues that beyond the plain text of the statute, the provisions’ legislative history also supports finding that the “knowingly violates” language applies to both elements of § 922(g). To begin, he asserts that Congress enacted § 924 in order to lessen any “undue or unnecessary” restrictions or burdens on individuals possessing firearms. He contends that before Congress adopted these provisions, courts interpreted the existing laws to require only an individual’s knowledge of the possession of a firearm, not an individual’s knowledge that his status prohibited him from possessing a firearm. Accordingly, Rehaif argues, Congress used the word “knowingly” in § 924 in order to change the existing mens rea requirement and expand it to cover both elements. Rehaif further asserts that if Congress had wanted to exempt the status element of § 922(g) from this requirement, Congress could have explicitly done so—just as Congress has done in other contexts.
The United States counters, however, that § 922 was designed not to lessen the restraints on firearm possession, but rather to ensure that individuals who have demonstrated that they may be a threat to society are prevented from having guns. The United States agrees with Rehaif that, before the enactment of § 924, courts interpreted the existing law as attaching no knowledge requirement to the status element. However, the United States argues that when Congress adopted the current statutory language, it did so in order to codify this interpretation—not to change it. The United States further calls attention to the fact that every court of appeals has since interpreted § 924’s knowledge requirement as not applying to the status element and that Congress has not acted to correct this interpretation.
The United States also asserts that it is well recognized in the American legal scheme that prosecutors do not have to prove that an individual knew his own legal status—even when that status is directly relevant to the crime at hand. In the context of this statute, the United States contends, there is no reason for Congress to deviate from this standard practice—the law imposes many restrictions based on immigration status, and people are accordingly expected to know their status so that they can comply with these restrictions. Further, the United States argues that its position is consistent with the Court’s seminal decision in Old Chief v. United States. In Old Chief, the United States points out, the Court explained that whether an individual’s legal status as a person ineligible to possess a gun is entirely separate from the issue of what the individual was “thinking and doing” while committing the offense currently being charged. As such, the United States maintains, the statutory scheme here cannot apply the knowledge requirement to the status element.
DUE PROCESS IMPLICATIONS
Rehaif asserts that if the Court does not read § 922 and § 924 to require knowledge of immigration status, there will be due process implications, individuals who unknowingly fall into certain immigration categories will be found criminally liable. Moreover, Rehaif reiterates that, in many contexts, firearm possession is not only lawful, but also a constitutionally protected right. As such, Rehaif contends, imposing severe criminal penalties on conduct that would be innocent and lawful but for a person’s status violates Due Process.
The United States, however, contends that there is no basis for Rehaif’s constitutional argument. In support of this contention, the United States notes that it is well established that strict liability offenses do not offend Due Process, even though they have no mens rea requirement at all. Similarly, the United States maintains, there are numerous offenses that require proof of knowledge for only one element but that have nevertheless been upheld by the Court as constitutional. The United States also argues that our legal system embraces the principle that ignorance or mistake of the law is not a defense to criminal prosecution. Therefore, the United States asserts, the Court must interpret § 922 and § 924 in congruence with this principle because Congress has not clearly indicated that it is creating an exception to that rule.
Discussion
SHOULD PEOPLE BE EXPECTED TO KNOW THEIR LEGAL STATUS?
The National Immigrant Justice Center (“NIJC”), in support of Rehaif, argues that the confusing nature of § 922(g)(5)(A)’s “illegally or unlawfully in the United States” element primarily affects a populace that justifies a requirement that the government prove that the defendant knew about their prohibited status. . The NIJC states that these ambiguities and complications affect thousands of people, many of whom are ignorant about important aspects of their status since they are often unrepresented. . As a result, the NJIC says these people may not even know that they are prohibited from purchasing a firearm under this statue. In support of its position, the NIJC notes that “illegally or unlawfully” could mean at least three different things. First, the NJIC says it could mean “unlawful presence” as defined by the Immigration and Nationality Act (“INA”), which exempts certain noncitizens from the “unlawful presence” status depending on their legal situation. . The NIJC further says that it could mean “criminal presence”, which exists when a noncitizen’s presence violates a criminal law. . The NIJC also contends that “illegally or unlawfully” can mean “unlawful status”, which the NIJC claims is the position of the government in this case. . The NIJC notes that the concept of “unlawful status” is complicated since only certain types of agency relief afford lawful status (such as an order for Temporary Protected Status), but long-term stays authorized by statute for agency decision do not. The NIJC adds that this concept is even more confusing because the DHS often treats similar cases differently and immigration authorities may retroactively withdraw or restore lawful status. .
The United States contends that the government should not be required to prove the defendant’s knowledge of their § 922(g) prohibited status since there are very few defendants who lack knowledge of their relevant legal circumstances. The United States notes that there is little basis for concluding that defendants would be unaware of their personal circumstances placing them in a § 922(g) prohibited status, such as being a fugitive from justice, a drug addict, or a patient committed to a mental institution. The United States adds that the same logic applies to § 922(g)(5)(A)’s “illegally or unlawfully in the United States” element since the law frequently presumes that an alien is aware of their status—especially in the current case, where Rehaif signed a letter attesting to the conditions of his visa and received notification from his university informing him that his immigration status was terminated. The United States further argues that a defendant who lacks knowledge of their immigration status is often reckless or negligent and should therefore not be allowed to escape punishment by pleading ignorance. The United States adds that the legal complexities of immigration status should not be a basis for attaching a knowledge requirement because mistakes of law have traditionally not allowed defendants to escape criminal liability. According to the United States, a defendant will be put on notice of § 922(g)’s requirements by purchasing firearms or ammunition from a federally licensed dealer, which requires the defendant to complete a form listing factors disqualifying the defendant from firearm ownership. The United States asserts that this process gives defendants an ample opportunity to comply with the law, thereby removing the necessity of protection that would be afforded by having to prove a defendant knew of their unlawful status.
COSTS VS. BENEFITS OF A KNOWLEDGE REQUIREMENT
The National Association of Criminal Defense Lawyers (“NACDL”), in support of Rehaif, argues that Congress intended to place a knowledge requirement on § 922(g) crimes. The NACDL acknowledges that many recently enacted criminal laws have weak knowledge requirements but notes that this is mostly due to the reckless pace of criminalization and lack of judiciary committee oversight rather than congressional intent to eliminate the knowledge requirement. The NACDL contends that Congress’s intent is consistent with a foundational principle of the American justice system‑—that a person will only be criminally liable if they know that their act is criminal. The NACDL says that this principle is deeply rooted in the English legal system which forms the basis of American law. .
The NACDL adds that the knowledge requirement has become more important over the centuries because the criminal law system is increasingly centered around the policy goals of deterrence and rehabilitation (punishing wrongdoers to deter people from committing crimes and to prevent wrongdoers from committing repeat offenses) rather than retribution (punishing wrongdoers simply because they did something bad). The NACDL notes that the Court has consistently resisted attempts to eliminate the knowledge requirement from federal criminal statutes. The NACDL emphasizes that dispensing with the knowledge requirement would run contrary to fundamental principles of fairness and the knowledge requirement’s traditional role as protection against punishment for unknowingly unlawful conduct.
The United States argues that imposing a knowledge requirement on 922(g) prohibited statuses would complicate the presentation of the prosecution’s case at trial and would even alter the fundamental nature of the trial, unnecessarily increasing the burden on the prosecution.According to the United States, the prosecution can often prove the defendant’s intent through circumstantial evidence, but this is not the case with respect to proving the defendant’s knowledge of their personal circumstances because such proof usually requires an analysis of the defendant’s past conduct which occurred prior to the purchase of the firearm. . In such cases, the United States contends that the defendant can simply say that they forgot the nature of prior proceedings or that they misunderstood their prior legal circumstances.
The United States further claims that analysis of the defendant’s past conduct in relation to a present crime could unfairly prejudice the defendant. . The United States adds that the defendant’s knowledge of their prohibited status is often self-evident and easily discerned by the jury’s commonsense understanding, which supports the conclusion that Congress did not intend to create a knowledge requirement for 922(g) crimes.
Written by
Edited by
Acknowledgments
Additional Resources
- Eugene Volokh, Illegal Aliens, Guns, and Strict Liability, Reason (Jan. 12, 2019).
- Kaitlyn Salyer, Supreme Court Agrees to Hear Case from Florida, Florida Political Review (Feb. 22, 2019).
- Lydia Wheeler, Supreme Court Agrees to Hear Illegal Immigrant's Appeal of Gun Charge, The Hill (Jan. 11, 2019).