Amicus Curiae Brief — Hamid Mohamed Ahmed Ali Rehaif, Petitioner v. United States

No. 17-9560

IN THE

Supreme Court of the United States

HAMID MOHAMED AHMED ALI REHAIF,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

On Writ of Certiorari to the United States Court of

Appeals for the Eleventh Circuit

BRIEF OF AMICUS CURIAE

EVERYTOWN FOR GUN SAFETY IN SUPPORT

OF RESPONDENT

ERIC A. TIRSCHWELL

Counsel of Record

MARK ANTHONY FRASSETTO

WILLIAM J. TAYLOR JR.

KRYSTAN HITCHCOCK

EVERYTOWN LAW

450 LEXINGTON AVE, #4184

NEW YORK, NY 10017

(646) 324-8222

etirschwell@everytown.org

Counsel for Amicus Curiae Everytown for Gun Safety

April 1, 2019

-iTABLE OF CONTENTS

TABLE OF AUTHORITIES ....................................... iii

INTEREST OF AMICUS CURIAE ............................ 1

INTRODUCTION AND SUMMARY OF ARGUMENT ……………………………………………………...2

ARGUMENT ................................................................ 6

I.

II.

Section 922(g) and Its State Law Counterparts

Share a Common History and Development

and Have Been Interpreted by Courts in

Parallel. ............................................................. 6

A.

The History and Development of

Modern Prohibited Possessor Laws ...... 6

B.

State and Federal Courts Have

Interpreted Their Prohibited Possessor

Laws in Parallel. .................................. 10

State Courts Have Consistently Interpreted

their Prohibited Possessor Laws as Not

Requiring a Mens Rea for Prohibited Status. 11

A.

State Courts Have Interpreted

Prohibited Possessor Statutes Lacking a

Statutory Mens Rea to Require

Knowledge of Possession, But Not of

Prohibited Status. ................................ 12

-iiB.

State Courts Have Also Interpreted

Prohibited Possessor Statutes with a

Textual Mens Rea Element to Exclude

Knowledge of Status. ........................... 18

C.

State Courts Have Provided A Variety of

Reasons for Excluding Knowledge of

Status as an Element in Prohibited

Possessor Crimes. ................................ 20

CONCLUSION .......................................................... 23

APPENDIX - State Prohibited Possessor Statutes ..............................................................................App. 1

-iiiTABLE OF AUTHORITIES

Cases

Bibbins v. State, 367 P.3d 750 (Nev. 2010) .............. 16

Billups v. State, No. 2016-KA-01378-COA, 2018 Miss.

App. LEXIS 461(Miss. Ct. App. 2016) .................. 15

Branch v. Commonwealth, 593 S.E.2d 835 (Va. Ct.

App. 2004) .............................................................. 19

Commonwealth v. McGee, 2015 Pa. Dist. & Cnty.

Dec. LEXIS 393 (Pa. C.P. Berks Cty., Feb 26, 2015)

................................................................................ 15

Creamer v. State, 605 So. 2d 541 (Fla. Dist. Ct. App.

1992) ....................................................................... 14

Dickerson v. New Banner Inst., 460 U.S. 103 (1983) . 3

Fisher v. State, 290 Ark. 490 (Ark. Sup. Ct. 1986) .. 14

Foister v. Commonwealth, No. 2004-CA-002409-MR,

(Ky. Ct. App. Dec. 9, 2005) .................................... 14

Gabrelcik v. State, No. A07-0627, 2008 Minn. App.

Unpub. LEXIS 579 (Ct. App. 2008) ....................... 16

Johnson v. State, 2014 Tex. App. LEXIS 3732 (Tex.

App. 2014) .............................................................. 15

Kipp v. State, 704 A.2d 839 (Del. 1998) .................... 19

Kolbe v. Hogan, 849 F.3d 114 (4th Cir. 2017) (en

banc) ......................................................................... 1

Malone v. State, 786 S.E.2d 558 (Ga. Ct. App. 2016)

................................................................................ 16

Medina v. Whitaker, 913 F.3d 152 (D.C. Cir. 2019) ... 7

Myers v. United States, 56 A.3d 1148 (D.C. 2012) ... 14

Nicholson v. State, 77 So.3d 1214 (Ala. Crim. App.

2011 ........................................................................ 14

People v. Adams, 903 N.E.2d 892 (Ill. App. Ct. 2009)

................................................................................ 19

People v. DeWitt, 275 P.3d 728 (Colo. App. 2011) 3, 18,

22

-ivPeople v. Nieto, 247 Cal.App.2d 364 (Ct. App. 1966) 16

People v. Tenorio, 590 P.2d 952 (Colo. 1979) ............ 18

People v. Tice, 558 N.W.2d 245 (Mich. Ct. App. 1996)

................................................................................ 15

Peruta v. Cty. of San Diego, 824 F.3d 919 (9th Cir.

2016) (en banc) ......................................................... 1

Poole v. State, 152 P.3d 412 (Wyo. 2007) .................. 19

Rhone v. State, 825 N.E.2d 1277 (Ind. Ct. App. 2005)

................................................................................ 19

Saadiq v. State, 387 N.W.2d 315 (Iowa 1986).......... 11

Samba v. State, 49 A.3d 841 (Md. Ct. of Spec. App.

2012) ....................................................................... 15

Scarborough v. United States, 431 U.S. 563 (1977) ... 3

Staples v. United States, 511 U.S. 600 (1994) .......... 21

State v. Bailey, 757 S.E.2d 491 (N.C. Ct. App. 2014)

................................................................................ 16

State v. Black, 624 N.W.2d 363 (Wis. 2001) ............. 21

State v. Boyd, 973 A.2d 138 (Conn. App. Ct. 2009).. 14

State v. Buchholz, 723 N.W.2d 534 (N.D. 2006) ...... 16

State v. Dolsby, 145 P.3d 917 (Idaho Ct. App. 2006) 14

State v. Elred, 564 N.W.2d 283 (N.D. 1997) ............. 16

State v. Haddenham, 793 P.2d 279 (N.M. 1990) ...... 15

State v. Hall, No. A-15-548, 2016 Neb. App. LEXIS

125 (Neb. Ct. App. June 21, 2016) ........................ 15

State v. Harmon, 541 P.2d 600 (Ariz. Ct. App. 1975 19

State v. Heald, 382 A.2d 290 (Me. 1978) .................. 15

State v. Holman, 2016 Tenn. Crim. App. LEXIS 790,

(Crim. App. 2016) ................................................... 15

State v. Howard, 339 P.3d 809 (Kan. Ct. App. 2014)

.................................................................... 10, 13, 21

State v. Johnson, 942 N.E.2d 347 (Ohio 2010) ......... 19

State v. Jones, 487 A.2d 1278 (N.J. Super. Ct. App.

1985) ....................................................................... 16

State v. Ojeda, 350 P.3d 640 (Utah Ct. App. 2015).. 19

-vState v. Phillips, 493 N.W.2d 238 (Wis. Ct. App.

1992) ....................................................................... 17

State v. Rainoldi, 268 P.3d 568 (Or. 2011) ........passim

State v. Reed, 928 P.2d 469 (Wash. Ct. App. 1997) . 13

State v. Semakula, 946 P.2d 795 (Wash. Ct. App.

1997) ....................................................................... 10

State v. Stern, 186 A.3d 1099 (Vt. 2018) .................. 16

State v. Storks, 836 So. 2d 638 (La. Ct. App. 2002) . 14

State v. Stratton, 567 A.2d 986 (N.H. 1989) ............. 14

State v. Valentine, 998 P.2d 479 (Haw. 2000) .......... 21

United States v. Castleman, 572 U.S. 157 (2014) ...... 1

United States v. Rehaif, 888 F.3d 1138 (11th Cir.

2018) ....................................................................... 21

United States v. X-Citement Video, Inc., 513 U.S. 64

(1994) ...................................................................... 21

United States v. Yancy, 621 F.3d 681 (7th Cir. 2010) 7

Voisine v. United States, 136 S. Ct. 2272 (2016) ........ 1

Williams v. State, 565 P.2d 46 (Okla. Crim. App.

1977) ....................................................................... 15

Statutes

18 U.S.C. § 921 ............................................................ 8

18 U.S.C. § 922(g) ...............................................passim

18 U.S.C. § 924(a)(1)(D) .............................................. 8

18 U.S.C. § 924(a)(2) ................................................ 2, 4

1923 Cal. Stat. 695, ch. 339 ........................................ 7

1923 Conn. Pub. Acts 3707, ch. 252............................ 7

1931 Pa. Laws 497 ....................................................... 8

1935 S.D. Sess. Laws 355 ............................................ 8

1955 Nev. Sess. Laws 185, ch. 132 ............................. 8

1994 Wash Sess. Laws 2196, 2217 ch. 6, § 402 .......... 9

2010 Iowa Acts 358, ch. 1083 ...................................... 9

2014 La. Acts 1573, Act. No. 195 ................................ 9

-viAct of July 8, 1932, Pub. L. No. 72-275, ch. 465, § 4,

47 Stat. 650 .............................................................. 8

An Act to Regulate Commerce in Arms, Pub. L. No.

75-785, ch. 850, § 2, 52 Stat. 1250 (June 30, 1938) 8

Colo. Rev. Stat. § 18-12-108 ...................................... 18

Or. Rev. Stat. Ann. § 166.250 ................................... 12

Or. Rev. Stat. Ann. § 166.270 ................................... 12

Pub. L. 104–208, 110 Stat. 3009-371 .......................... 9

Pub. L. No. 90-618, 82 Stat. 1213-36 (Oct. 22, 1968). 8

Pub. L. No. 99-308, 100 Stat. 449 ............................... 8

Other Authorities

A Bill to Provide for the Uniform Regulation of

Revolver Sales (1922), reprinted in Handbook of the

National Conference of Commissioners on Uniform

State Laws and Proceedings of the Thirty-Fourth

Annual Meeting (1924) ............................................ 7

AK Pattern Jury Ins. – Crim. 11.61.200(A)(1) ......... 20

David T. Hardy, The Firearms Owners Protection Act:

A Historical and Legal Perspective, 17 Cumb. L.

Rev. 585 (1986) ......................................................... 8

Hawaii Rev. Crim. Jury Instr. 15.07 ........................ 20

Jacquelyn C. Campbell et al., Risk Factors for

Femicide in Abusive Relationships: Results from a

Multisite Case Control Study, 93 Am. J. of Public

Health 1089 (2003). ................................................. 4

Mariel Alpher et al., U.S. Dep’t of Justice, 2018

Update on Prisoner Recidivism: A 9-Year Follow-up

Period (2005-2014) (2018) ........................................ 4

Report of Committee on An Act to Regulate the Sale

and Possession of Firearms, published in Fortieth

Conference Handbook of the National Conference of

the Uniform State Laws and Proceedings of the

Annual Meetings 530 (1930) .................................... 7

-viiTara N. Richards et al., A 10-year Analysis of

Rearrests Among a Cohort of Domestic Violence

Offenders, 29 Violence & Victims 887 (2014) ......... 4

United States Sentencing Commission, Quick Facts:

Felon in Possession of a Firearm (2018),

https://bit.ly/2Ce9Isn ............................................... 3

-1INTEREST OF AMICUS CURIAE1

Everytown for Gun Safety is the nation’s largest

gun-violence-prevention organization, with over five

million supporters across all fifty states. It was

founded in 2014 as the combined effort of Mayors

Against Illegal Guns, a national, bipartisan coalition

of mayors combatting illegal guns and gun trafficking,

and Moms Demand Action for Gun Sense in America,

an organization formed after twenty children and six

adults were murdered in an elementary school in

Newtown, Connecticut. Everytown also includes a

large network of gun-violence survivors who are empowered to share their stories and advocate for responsible gun laws.

Everytown works to promote and support public safety measures that can save lives, including laws

that keep guns out of the hands of people with dangerous histories, such as felons, domestic abusers and

those with dangerous mental illnesses.

Everytown has drawn on its expertise to file

amicus briefs in numerous cases implicating gun

safety issues, including in briefs to this Court about

the proper interpretation of federal firearms law, offering historical and doctrinal analysis that might otherwise be overlooked. See, e.g., Voisine v. United

States, 136 S. Ct. 2272 (2016); United States v. Castleman, 572 U.S. 157 (2014); Kolbe v. Hogan, 849 F.3d

114 (4th Cir. 2017) (en banc); Peruta v. Cty. of San

1 The parties have consented to the filing of this brief, and

no counsel for any party authored it in whole or part. Apart from

amicus curiae and their counsel, no person contributed money intended to fund the brief’s preparation and submission.

-2Diego, 824 F.3d 919 (9th Cir. 2016) (en banc). It seeks

to do the same here.

INTRODUCTION AND SUMMARY OF

ARGUMENT

The brief of the United States persuasively explains why the text, circuit court case law, and legislative history strongly support the conclusion that

prosecutions under 18 U.S.C. § 922(g) and 18 U.S.C. §

924(a)(2) do not require the government to prove that

a defendant had knowledge of his prohibited status.

This brief is intended to provide the Court with an additional body of law reinforcing this consensus view:

state court decisions interpreting and applying the

state law counterparts to § 922(g).

These state laws, on the books in nearly every

jurisdiction in the country, arose out of the same legislative efforts in the 1920s and 1930s that led to the

current federal prohibited possessor statute, and they

continue to be interpreted in parallel to federal law today. Like the virtually unanimous federal courts of appeals, state courts too have consistently held that the

government is not required to prove a criminal defendant’s knowledge of his prohibited status (i.e., that he

is a felon or a convicted domestic abuser or within one

of the other prohibited categories set forth in the statute). Indeed, as the Oregon Supreme Court observed

in 2011, “[e]very court—state and federal—that has

considered the question has held that no such proof is

required.” State v. Rainoldi, 268 P.3d 568, 577 n.1 (Or.

2011).

-3Petitioner asks this Court to redefine this wellestablished standard in a way that will impact not

only his prosecution, but the prosecutions of all those

who violate the federal prohibition on certain categories of people possessing firearms. That is a dangerous

course.

Section 922(g) and its state counterparts are

among the most important tools law enforcement has

for preventing gun violence. In 2017 alone, there were

over six-thousand convictions for violating 18 U.S.C. §

922(g), about nine percent of all federal convictions.

United States Sentencing Commission. Quick Facts:

Felon in Possession of a Firearm (2018),

https://bit.ly/2Ce9Isn. And, as this Court has made

clear, “Congress sought to rule broadly” in enacting

the federal prohibition, so as “to keep guns out of the

hands of those who have demonstrated that ‘they may

not be trusted to possess a firearm without becoming

a threat to society.’” Scarborough v. United States, 431

U.S. 563, 572 (1977) (quoting 114 Cong. Rec. 14773).

States have pursued the same core goal through their

own parallel laws. See, e.g., People v. DeWitt, 275 P.3d

728, 736 (Colo. App. 2011) (state prohibited possessor

law intended to prevent “all convicted felons from possessing a firearm to avoid ‘substantial risk of harm to

the public’”).

Prohibited possessor laws at both the federal

and state levels thus punish the possession of firearms by “presumptively risky people,” Dickerson v.

New Banner Inst., 460 U.S. 103,112 n.6 (1983), who

are most likely to commit future acts of violence. The

data back this up. For example, according to a Department of Justice analysis, more than thirty-nine percent of felons (or, more specifically, state prisoners

-4sentenced to a year or more in prison)—who are prohibited from firearm possession by § 922(g)(1)—were

arrested for a violent crime within nine years of being

released from prison.2 Similarly, one study found that

more than fifty percent of those convicted of a domestic

violence offense—who are prohibited from firearm

possession by§ 922(g)(1) or § 922(g)(9)—are rearrested

for another domestic violence crime within ten years,

and even more are rearrested for nondomestic violence

crimes.3 And, significantly, the presence of a firearm

in a domestic violence situation makes it five times

more likely that a woman will be killed.4

Like § 922(g)(1), state prohibited possessor statutes are also an essential tool for local police and prosecutors to prevent gun violence in their communities.

Every state has laws prohibiting firearm possession by

at least some of the categories of people listed in §

922(g). And each of these laws, like § 922(g)(1), prohibits firearm possession by at least some felons.5

To be sure, these state laws are written differently from the federal statute. None adopts a mens rea

2 Mariel Alpher et al., U.S. Dep’t of Justice, 2018 Update

on Prisoner Recidivism: A 9-Year Follow-up Period (2005-2014)

11 tbl.7, 15 (2018), https://bit.ly/2IBxgrR.

3 Tara N. Richards et al., A 10-year Analysis of Rearrests

Among a Cohort of Domestic Violence Offenders, 29 Violence &

Victims 887, 897 (2014).

4 Jacquelyn C. Campbell et al., Risk Factors for Femicide

in Abusive Relationships: Results from a Multisite Case Control

Study, 93 Am. J. of Public Health 1089, 1092 (2003).

5 An appendix listing citations for current state prohibited possessor statutes is attached to this brief. Some of these

statutes may have been revised since the date of the decisions

cited in this brief.

-5through a specifically applicable separate statutory

provision like §§ 922(g) and 924(a)(2). They also vary

from jurisdiction to jurisdiction in several respects, including who is prohibited and for how long, whether

an intent standard is explicitly set forth in the statute,

and the level of that intent. For example, the prohibited possessor laws in more than thirty states and the

District of Columbia lack any mens rea requirement

in the statutory text.6 In contrast, prohibited possessor laws of a smaller number of other states include

statutory mens rea provisions that are unambiguously

applicable only to possession.7

Notwithstanding these and other textual differences, and just like the federal courts when it comes to

§ 922(g), state courts applying and interpreting their

prohibited possessor statutes are in agreement on one

thing: a defendant’s knowledge of his prohibited status is not an element required to be proved for

6 See the list of state prohibited possessor statutes set

forth in the appendix for Alabama, Arkansas, California, Connecticut, District of Columbia, Florida, Georgia, Hawaii, Idaho,

Kansas, Kentucky, Louisiana, Maine, Maryland, Michigan, Minnesota, Mississippi, Nebraska, Nevada, New Hampshire, New

Jersey, New Mexico, New York, North Carolina, North Dakota,

Oklahoma, Pennsylvania, Rhode Island, South Carolina, South

Dakota, Tennessee, Texas, Vermont, Washington West Virginia,

and Wisconsin.

7 See, e.g. Wyo. Stat. Ann. § 6-8-102 (“Any person who has

previously pleaded guilty to or been convicted of committing or

attempting to commit a violent felony . . . who uses or knowingly

possesses any firearm” is guilty of a felony.); Iowa Code § 724.26

(prohibited possessor statute providing that “[a] person who is

convicted of a felony . . . who knowingly has under the person’s

dominion and control or possession . . . a firearm or offensive

weapon is guilty of a class ‘D’ felony”).

-6conviction. This consistent state-level judicial and legislative understanding provides an additional body of

authority supporting and reinforcing the broad national consensus that violating prohibited possessor

statutes simply means knowingly possessing a firearm subsequent to becoming a member of the prohibited class. The shared federal-state history and judicial approach also raises the concern that the Court’s

decision in this case as to the proper interpretation of

the federal prohibitor statute could have wider and

unintended ramifications for the interrelated state

prohibitor regimes as well.

ARGUMENT

I.

Section 922(g) and Its State Law Counterparts Share a Common History and Development and Have Been Interpreted by

Courts in Parallel.

A. The History and Development of Modern

Prohibited Possessor Laws.

18 U.S.C. § 922(g) and analogous state prohibited possessor laws share a common history, which began at the state level. Starting in the 1920s, in response to rising violent crime, states began to prohibit

the possession of firearms by certain categories of persons who “pose a risk to the public.” Rainoldi, 268 P.3d

at 575-77 (summarizing development of state prohibited possessor laws).8 This effort was initially led by

8 While the current state and federal prohibited possessor

laws stem directly from legislation first passed in the 1920s and

-7the United States Revolver Association (USRA), a

marksmanship group, which drafted model legislation

to regulate firearms. Id. The USRA Model Act prohibited the possession of firearms by anyone “convicted of

a felony against the person or property of another or

against the Government of the United States or any

State,” among other classes of persons. A Bill to Provide for the Uniform Regulation of Revolver Sales

(1922), reprinted in Handbook of the National Conference of Commissioners on Uniform State Laws and

Proceedings of the Thirty-Fourth Annual Meeting 72829 (1924). Several states quickly enacted the USRA

Model Act in an effort to reduce violent crime, beginning with Connecticut and California. See, e.g., 1923

Cal. Stat. 695, ch. 339; 1923 Conn. Pub. Acts 3707, ch.

252.

The USRA Model Act’s success led to its adaptation by the National Conference of Commissioners

on Uniform State Laws, which modified the Model

Act’s prohibitions to restrict anyone “convicted . . . of a

crime of violence” from possessing firearms and

adopted it as the Uniform Firearms Act (UFA). See Report of Committee on An Act to Regulate the Sale and

Possession of Firearms, published in Fortieth Conference Handbook of the National Conference of the Uniform State Laws and Proceedings of the Annual Meetings 530, 537 (1930). Several states used the UFA as

a model, as did Congress when it passed gun

‘30s, prohibitions on the possession of firearms by so-called “unvirtuous citizens,” including even nonviolent felons and other

criminals, date back to the founding. See Medina v. Whitaker, 913

F.3d 152, 158-60 (D.C. Cir. 2019) (quoting United States v. Yancy,

621 F.3d 681, 684-85 (7th Cir. 2010)) (summarizing founding-era

history).

-8regulations for the District of Columbia in 1932. Act of

July 8, 1932, Pub. L. No. 72-275, ch. 465, § 4, 47 Stat.

650; see, e.g., 1931 Pa. Laws 497; 1935 S.D. Sess. Laws

355.

In 1938, Congress adopted the language of the

UFA in passing the first national prohibition on the

possession of firearms by anyone “who is under indictment or has been convicted of a crime of violence or

who is a fugitive from justice.” An Act to Regulate Commerce in Arms, Pub. L. No. 75-785, ch. 850, § 2, 52

Stat. 1250 (June 30, 1938). States continued to pass

their own prohibited possessor laws in the years that

followed. See, e.g., 1955 Nev. Stat. 185, ch. 132 (“no

person who has been convicted of a felony . . . shall own

or have in his possession . . . any pistol, revolver or

other firearm capable of being concealed”). In 1968,

again facing rising crime as well as a string of assassinations, Congress passed the Gun Control Act,

which expanded the federal prohibited possessor categories to most of those now found in the current law,

including anyone convicted of a felony. Pub. L. No. 90618, 82 Stat. 1213-36 (Oct. 22, 1968). And, finally, in

1986, the Firearms Owners Protection Act (FOPA)

added an express “knowingly” requirement in §

924(a)(2) (see Pub. L. No. 99-308, 100 Stat. 449)—

which, as the United States has explained, had already long been applied to § 922(g) prosecutions by the

federal courts. U.S. Br. 29.9

9 In passing FOPA, Congress distinguished between violations of the dealer licensing provisions in 18 U.S.C. § 921, which

had to be violated “willfully,” and the criminal provisions in § 922,

which preserved the court-acknowledged “knowingly” standard.

Compare 18 U.S.C. § 924(a)(1)(D) (2012), with id. § 924(a)(2); see

also David T. Hardy, The Firearms Owners Protection Act: A

-9Since passage of the Gun Control Act and

FOPA, the close relationship and interaction between

federal and state prohibited possessor laws has continued. Many states have amended their laws to be

more consistent with the language and interpretation

of the federal statute. See, e.g., 2014 La. Acts 1573,

Act. No. 195 (codified at La. R.S. § 14:95.10) (prohibiting those convicted of domestic violence from possessing firearms, consistent with the federal prohibitor at § 922(g)(8)); 2010 Iowa Acts 358, ch. 1083 (codified at Iowa Code § 724.26(3) (prohibiting those under final domestic violence restraining orders from

possessing firearms, consistent with the federal prohibitor at § 922(g)(9)). States have also continued to

influence the development of the federal prohibited

possessor law. Most notably, in 1996, Congress followed the lead of six states and the District of Columbia by prohibiting the possession of firearms by those

convicted of domestic violence offenses. Pub. L. 104–

208, 110 Stat. 3009-371 (codified at 18 U.S.C. §

922(g)(9)); see, e.g., 1994 Wash Sess. Laws 2196, 2217

ch. 6, § 402 (codified at Wash. Rev. Code Ann. §

9.41.040).

Historical and Legal Perspective, 17 Cumb. L. Rev. 585, 653

(1986) (“Certain offenses, distinguished by their more serious natures, are singled out for a requirement only that accused violators know of their actions. The remaining provisions of the Act

require stiffer proof that the defendant ‘willfully’ violated the

statute.”)

-10B. State and Federal Courts Have Interpreted Their Prohibited Possessor Laws

in Parallel.

This parallel development of state and federal

prohibited possessor statutes is mirrored by the parallel development of state and federal interpretations

and applications of the required mens rea under prohibited possessor laws. Despite significant differences

in mens rea language and the precise scope of the prohibited possessor categories, federal and state courts

have interpreted the status element of their prohibited possessor statutes roughly identically, with state

courts at times relying on or citing federal case law, as

well as that of sister states, for guidance on the application of their own prohibitions.

For example, in State v. Howard, a Kansas intermediate court of appeals found that “[a]lthough

mental culpability varies based on the wording of a

specific statute, . . . several other state and federal

courts have interpreted similar felon-in-possession

statutes and concluded that the prosecution does not

have to prove the defendant knew of his or her felon

status.” 339 P.3d 809, 822 (Kan. Ct. App. 2014). Similarly, the Washington state intermediate court of appeals likewise looked to the federal courts’ interpretation of § 922(g) in rejecting the argument that the

state’s prohibited possessor statute required

“knowledge that the possession is unlawful.” State v.

Semakula, 946 P.2d 795, 798 (Wash. Ct. App. 1997).

And in Saadiq v. State, the Iowa Supreme Court explained that its application of that state’s law was “in

accord with the California Supreme Court as well as

federal decisions under the federal statute proscribing

-11firearm possession by convicted felons.” 387 N.W.2d

315, 323-24 (Iowa 1986).

II. State Courts Have Consistently Interpreted

their Prohibited Possessor Laws as Not Requiring a Mens Rea for Prohibited Status.

Like the federal courts of appeals, state courts

have consistently interpreted state prohibited possessor laws to require a mens rea only for the possession

element of the crime. While there are certainly significant variations in the statutory language and legal

traditions across the states, the understanding on this

issue has been remarkably consistent. See, e.g.,

Rainoldi, 268 P.3d at 577 n.1 (citing cases). Whether

based on specific or general statutory text or other judicial interpretation of the state’s criminal law, each

of these state cases reaches the same conclusion – consistent with the conclusion reached by the federal circuits and urged here by the United States: there is not

and should not be a mens rea requirement for the prohibited status element of prohibited possessor

crimes.10

10 Everytown was able to find relevant materials for fortyfour states and the District of Columbia. Massachusetts does not

have an analogous law and instead applies its prohibited possessor categories through its licensing law. Everytown was unable

to find relevant materials from Montana, South Dakota, Rhode

Island, South Carolina, and West Virginia.

-12A. State Courts Have Interpreted Prohibited

Possessor Statutes Lacking a Statutory

Mens Rea to Require Knowledge of Possession, But Not of Prohibited Status.

As noted above (at p. 5 n.6), the majority of state

prohibited possessor laws lack a specific statutory

mens rea. The courts in these jurisdictions have therefore decided the scope of the mens rea requirement by

looking to a catch-all mens rea statute or through case

law requiring a guilty mind to convict for most criminal statutes. In these states, the courts have consistently applied a knowledge requirement to the possession element, while not requiring any mens rea for the

prohibiting status.

In State v. Rainoldi, for example, the Oregon Supreme Court rejected a claim that in order to be guilty

of “felon in possession of a firearm, the jury had to conclude that defendant knew that he was a felon.” 268

P.3d at 570. Oregon law required “a culpable mental

state with respect to each material element of the offense that necessarily requires a culpable mental

state.” Id. However, the court rejected the application

of a culpable mental state to the status element, finding it inconsistent with the text of the statute, with

“the nature of the element at issue” which pertains to

“the status of the defendant” and not his conduct, and

with the underlying legislative purpose to prevent the

possession of firearms by individuals with dangerous

histories. Id. at 573-578.11

11 The Rainoldi case addresses Or. Rev. Stat. Ann. §

166.270, a prohibition on possession of firearms by felons that

does not include mens rea in the statute’s text. Another broader

prohibited possessor statute, Or. Rev. Stat. Ann. § 166.250,

-13Other states with similar statutes have reached

the same result. In State v. Howard, a defendant appealed the exclusion of evidence from his prohibited

possessor trial, claiming it was exculpatory because it

proved he did not know he was a felon. 339 P.3d at

819. Kansas’s prohibited possessor statute does not set

forth a mens rea, so the defendant relied on another

statute, which makes a “culpable mental state . . . an

essential element of every crime defined by this code.”

Howard, at 823 (citing Kan. Stat. Ann. § 21-5202). The

court rejected this argument, finding: “[T]he State

only has to prove the defendant intentionally, recklessly, or knowingly engaged in the conduct that constitutes the crime. Here the prohibited conduct is possessing the firearm.” Id.; see also State v. Reed, 928

P.2d 469, 471 (Wash. Ct. App. 1997) (allowing evidence about defendant’s lack of knowledge about previous conviction only as relevant to determining

whether the prohibiting conviction was obtained in an

unconstitutional manner and therefore could not serve

as the predicate for the offense).

Other state courts interpreting prohibited possessor laws lacking a statutory mens rea have not directly addressed the argument that the prosecution

should be required to prove knowledge of status. But

in a number of these states the courts have upheld

convictions obtained using jury instructions requiring

mens rea only for the possession element, or have described the necessary elements of the crime as only requiring mens rea for the possession element. For example, in State v. Stratton, the New Hampshire Supreme Court found that “[t]he prosecution was

requires knowing possession.

-14required to prove that the defendant knowingly

owned, possessed or controlled the firearms and that

he was a convicted felon.” 567 A.2d 986, 990 (N.H.

1989). Similarly, in Nicholson v. State, an Alabama

appellate court interpreted the state’s prohibited possessor statute to require “knowing possession of the

gun,” and simply a “prior conviction for a crime of violence.” 77 So.3d 1214, 1215-1216 (Ala. Crim. App.

2011). Many other states without statutory mens rea

in their prohibited possessor statutes have taken the

same path, requiring knowledge of possession but not

of a defendant’s prohibited status.12

12 Arkansas: Fisher v. State, 290 Ark. 490, 493-94 (Ark.

Sup. Ct. 1986) (“[t]he requisite mens rea is that the defendant

‘purposely, knowingly, or recklessly’ . . . ‘possess[ed] or own[ed]

any firearm’”); Connecticut: State v. Boyd, 973 A.2d 138, 144

(Conn. App. Ct. 2009) (requiring intent to possess and status as

a felon); District of Columbia: Myers v. United States, 56 A.3d

1148, 1149 (D.C. 2012) (“[T]he Government must prove. . . One,

that the Defendant possessed a firearm; two, that he did so knowingly and intentionally. . . And three, that at the time the Defendant possessed the firearm, the Defendant had been convicted of a

felony.”) (internal quotation marks omitted); Florida: Creamer

v. State, 605 So. 2d 541, 542-43 (Fla. Dist. Ct. App. 1992) (requiring prior felony conviction and knowing possession of a firearm);

Hawaii: State v. Valentine, 998 P.2d 479, 482, 489 (Haw. 2000)

(“A person commits the offense of Prohibited Possession of a Firearm if having been previously convicted of committing a felony

he intentionally, knowingly or recklessly owns, possesses or controls any firearm.”); Idaho: State v. Dolsby, 145 P.3d 917, 920

(Idaho Ct. App. 2006) (“[T]he act of knowingly possessing the firearm is all that the state is required to prove.”); Kentucky:

Foister v. Commonwealth, No. 2004-CA-002409-MR, 2005 WL

3334518, at *1, *3 (Ky. Ct. App. Dec. 9, 2005) (Commonwealth

required to show defendant “knew the gun was present”); Louisiana: State v. Storks, 836 So. 2d 638, 640 (La. Ct. App. 2002) (to

convict a defendant of illegal possession of a firearm by a

-15-

convicted felon, the State must prove that “the offender was

aware that a firearm was in his presence and that the offender

had a general criminal intent to possess the weapon”); Maine:

State v. Heald, 382 A.2d 290, 297 (Me. 1978) (“Possession statutes

such as 15 M.R.S.A. § 393, making it unlawful for a felon to possess a firearm, require no particular scienter, except the

knowledge of the presence of the firearm and its character as

such.”); Maryland: Samba v. State, 49 A.3d 841, 858 (Md. Ct. of

Spec. App. 2012) (“The possession charge requires an affirmative

showing of knowledge in order to establish appellants dominion

and control over the weapon.”); Michigan: People v. Tice, 558

N.W.2d 245, 247-48 (Mich. Ct. App. 1996) (allowing defendant to

argue he was not legally a felon, but not considering his lack of

knowledge); Mississippi: Billups v. State, No. 2016-KA-01378COA, 2018 Miss. App. LEXIS 461, *9-10 (Miss. Ct. App. 2018)

(felon-in-possession statute requires that

defendant “unlawfully, willfully, and feloniously . . . possess[ed] a firearm . . . and

ha[ve] been previously convicted of a felony”); Nebraska: State

v. Hall, No. A-15-548, 2016 Neb. App. LEXIS 125, *5-6 (Neb. Ct.

App. June 21, 2016) (felon-in-possession conviction valid because

there was sufficient evidence that defendant “knowingly possessed three firearms after having been previously convicted of a

felony offense”); New Mexico: State v. Haddenham, 793 P.2d

279, 286 (N.M. 1990) (“[Defendant] only had to have known that

the gun [possessed] was a firearm.”); Oklahoma: Williams v.

State, 565 P.2d 46, 49 (Okla. Crim. App. 1977) (“intent or

knowledge” of possession necessary to convict defendant); Pennsylvania: Commonwealth v. McGee, 2015 Pa. Dist. & Cnty. Dec.

LEXIS 393, at *27 (Pa. C.P. Berks Cty., Feb 26, 2015) (possession

element requires “both the knowledge to control and the intent to

exercise that control”), aff’d, No. 73 MDA 2015, 2016 PA. Super.

Unpub. LEXIS 259 (Pa. Super Ct. Jan. 29, 2016) Tennessee:

State v. Holman, No. W201501744-CCA-R3-CD, 2016 Tenn.

Crim. App. LEXIS 790, *7-8 (Tenn. Crim. App. 2016) (‘“intent,

knowledge, or recklessness suffice[] to establish the culpable

mental state’ . . . Here, the defendant, a convicted felon, acted at

least recklessly by driving a vehicle that he knew had a firearm

inside”); Texas: Johnson v. State, No. 01-13-00213-CR, 2014 Tex.

App. LEXIS 3732, *4-5 (Tex. App. 2014) (“To establish unlawful

possession of a firearm by a felon, the State must prove . . . that

-16In a number of other states where the prohibited possessor statutes do not set forth a mens rea, the

courts have interpreted the prohibited possessor statutes to be strict liability offenses. This interpretation

necessarily excludes a mens rea requirement for the

status element. See, e.g., People v. Nieto, 247 Cal. App.

2d 364, 368 (Ct. App. 1966) (applying strict liability);

Malone v. State, 786 S.E.2d 558, 560 (Ga. Ct. App.

2016) (“[T]he State need only prove that the accused is

a convicted felon and in possession of a firearm.” (internal quotation marks and citation omitted)).13

In practice, however, these strict liability states

are not substantially different from other states’ laws

the accused was previously convicted of a felony offense and possessed a firearm. . . . Possession is a voluntary act if the possessor

knowingly obtains or receives the thing possessed . . .”); Vermont: State v. Stern, 186 A.3d 1099, 1104-05 (Vt. 2018) (prohibited possessor conviction requires defendant to have “intentionally possessed a firearm”).

13 See also Gabrelcik v. State, No. A07-0627, 2008 Minn.

App. Unpub. LEXIS 579, at *7 (Minn. Ct. App. 2008) (“In

Minesota, the elements of the offense of being a person ineligible

to possess a firearm do not include knowledge.”); Bibbins v. State,

367 P.3d 750, 2010 WL 3341923, at *1 (Nev. 2010) (crime “completed when the ex-felon obtains possession of a firearm”); State

v. Jones, 487 A.2d 1278, 1284 (N.J. Super. Ct. App. 1985) (applying strict liability, but requiring evidence that defendant intended to use the object as a deadly weapon); State v. Bailey, 757

S.E.2d 491, 493 (N.C. Ct. App. 2014) (applying strict liability but

requiring something approaching knowledge to prove possession); State v. Elred, 564 N.W.2d 283, 290 (N.D. 1997) (“Section

62.1-02-01 does not have a culpability requirement. It is a strict

liability statute.”); State v. Buchholz, 723 N.W.2d 534, 538 (N.D.

2006) (“[t]he offense of felon in possession of a firearm is a strict

liability offense”).

-17with a mens rea requirement because possession is interpreted to require some level of knowledge. For example, in In re Ronnie L., a minor defendant in a juvenile delinquency hearing was charged with possession

of a firearm found in a jacket he had borrowed from a

friend. 463 N.Y.S.2d 732, 732 (Fam. Ct. 1983). He

claimed that he was unaware of the presence of the

firearm and therefore could not be adjudicated delinquent. Id. The court accepted that defendant’s lack of

knowledge could be a defense, before ultimately rejecting it on the facts, finding that the prohibited possessor statute at issue is “a strict liability crime,” but still

requires “a voluntary act,” which must be done “intentionally” or “knowingly.” Id. at 733-34. The court

acknowledged that the distinction between strict liability and knowledge in possession crimes was illusory

because both “necessarily involve[] a culpable mental

state.” Id. at 734. Similarly, in Wisconsin, courts have

interpreted the prohibited possessor statute “to impose strict criminal liability,” State v. Phillips, 493

N.W.2d 238, 240 (Wis. Ct. App. 1992), but to convict

under the statute the state is “required to show that

the felon ‘possessed’ the firearm with knowledge that

it is a firearm” and “knowingly had actual physical

control” over it. State v. Black, 624 N.W.2d 363, 371

(Wis. 2001).

-18B. State Courts Have Also Interpreted Prohibited Possessor Statutes with a Textual

Mens Rea Element to Exclude Knowledge

of Status.

Like the federal law, several states’ prohibited

possessor statutes have a statutorily defined mens

rea. In these cases, the mens rea applied through the

statute consistently has been found to extend only to

the prohibited possession, and not to the defendant’s

status as a person prohibited from possessing firearms.

One example is Colorado. Similar to the federal

law, Colorado’s prohibited possessor statute initially

lacked a statutory mens rea, but was interpreted by

the state courts to require knowledge of possession.

See People v. Tenorio, 590 P.2d 952, 957 (Colo. 1979)

(requiring knowledge of possession). Colorado’s statute was subsequently amended, adding a mens rea requirement obligating prosecutors to prove a defendant

“knowingly possesse[d], use[d], or carrie[d] upon his or

her person a firearm. . . subsequent to the person’s

conviction for a felony.” Colo. Rev. Stat. § 18-12-108.

When a defendant in a prohibited possessor case

claimed that the revised statute required the application of the “knowingly” mens rea to the prohibited status element of his crime, the court rejected that claim

as inconsistent with the text and purpose of the statute. Instead, the court held, the ‘“[k]nowingly’ mental

state” applied only “to the possession element of the

offense, and not to the prior felony conviction element.” DeWitt, 275 P.3d at 735.

Other state courts, interpreting statutes with a

statutory mens rea more clearly limited to only the

-19possession element, have unsurprisingly come to the

same conclusion. The Wyoming Supreme Court found

that “[t]he only mens rea requirement for a conviction

is knowledge that the instrument possessed is a firearm” and that “no requirement exists that the defendant know his status as a convicted felon.” Poole v.

State, 152 P.3d 412, 414 (Wyo. 2007). The Iowa Supreme Court found that “[k]nowledge of felony status

is not an element of this crime.” Saadiq, 387 N.W. at

324. In Kipp v. State, the Delaware Supreme Court

found that “to be guilty of the offense, the defendant

need only know that he or she possessed the weapon.”

Kipp v. State, 704 A.2d 839, 842 (Del. 1998). And the

Ohio Supreme Court likewise ruled that “the state

need not prove a culpable mental state for the element

that a defendant is under indictment for or has been

convicted of [the legally relevant offense].” State v.

Johnson, 942 N.E.2d 347, 348 (Ohio 2010); see also

Branch v. Commonwealth, 593 S.E.2d 835, 836 (Va.

Ct. App. 2004) (“the pertinent conduct proscribed . . .

is merely that of ‘being a felon’ and ‘knowingly and intentionally being in possession of a firearm’”); Rhone

v. State, 825 N.E.2d 1277, 1286 (Ind. Ct. App. 2005)

(Indiana law “does not require proof that [defendant]

knew he was a serious violent felon”); see also People

v. Adams, 903 N.E.2d 892, 896-97 (Ill. App. Ct. 2009)

(“the State must show that the defendant had a prior

felony conviction and knowingly possessed a firearm”);

State v. Harmon, 541 P.2d 600, 602 (Ariz. Ct. App.

1975) (“The intent which the legislature has chosen to

punish is the intent to possess the pistol.”); State v.

Jones, 865 S.W.2d 658, 662 (Mo. 1993) (applying a

knowledge requirement to the possession element);

State v. Ojeda, 350 P.3d 640, 645 (Utah Ct. App. 2015)

-20(distinguishing between prohibition on firearms possession by unlawful users of controlled substances,

which requires no mens rea as to status, and the prohibition on those in possession of controlled substances, which statutorily requires knowledge or intent).14

C. State Courts Have Provided A Variety of

Reasons for Excluding Knowledge of Status as an Element in Prohibited Possessor

Crimes.

State courts interpreting statutes both with

and without statutory mens rea provisions have offered a range of justifications for concluding that proof

14 While the case law cited above is all consistent in the

result reached, model jury instructions from Hawaii and Alaska

do extend mens rea to a defendant’s prohibited status. See Hawaii Rev. Crim. Jury Instr. 15.07 (“There are five material elements of the offense of Possession or Control of a Firearm or Ammunition for a Firearm by a Person Convicted of Specified Crimes

. . . . 5. That, . . . the Defendant believed, knew, or recklessly disregarded the substantial and unjustifiable risk, that he/she had

previously been convicted of committing [a prohibiting crime]”);

AK Pattern Jury Ins. – Crim. 11.61.200(A)(1) (requiring that “the

defendant was aware of or recklessly disregarded the fact that he

had been [convicted of a prohibiting crime] by a court of this state,

a court of the United States, or a court of another state or territory”). As discussed above, however, Hawaii case law appears to

be inconsistent with such an approach. See Valentine, 998 P.2d

at 489 (prohibited possessor crime occurs when a defendant who

“previously [was] convicted of committing a felony . . . intentionally, knowingly, or recklessly owns, possesses[,] or controls any

firearm”). Alaska lacks sufficient case law to judge the significance of the model jury instruction.

-21of a defendant’s knowledge of his prohibited status is

not required. Many have broadly adopted the reasoning of the court of appeals here, distinguishing between a defendant’s knowledge of his “own status” and

his knowledge of his prohibited conduct. United States

v. Rehaif, 888 F.3d 1138, 1146 (11th Cir. 2018); accord

Rainoldi, 268 P.3d at 574 (distinguishing between

“status” and “conduct” elements and finding that status “ordinarily does not require proof of a culpable

mental state”); State v. Valentine, 998 P.2d 479, 48688 (Haw. 2000) (distinguishing between “conduct,”

which requires mental culpability, and “attendant circumstances,” which do not); Saadiq, 387 N.W.2d at

323 (general intent crimes require that defendant “intended to do the proscribed act”) (citation omitted);

Howard, 339 P.3d at 823 (“[T]he State only has to

prove the defendant intentionally, recklessly, or knowingly engaged in the conduct that constitutes the

crime. Here the prohibited conduct is possessing the

firearm.”).15

15 Contrary to petitioner’s assertions, Pet. Br. 26-27, this

approach is fully consistent with Staples v. United States, 511

U.S. 600, 619 (1994), and United States v. X-Citement Video, Inc.,

513 U.S. 64, 72-73 (1994), because it still requires proof of a defendant’s knowledge of the “elements of an offense that concern

the characteristics of other people and things.” Rehaif, 888 F.3d

at 1146; see U.S. Br. 22-26, 44-45. Thus, while states overwhelmingly exclude knowledge of one’s own status as an element, they

universally require knowledge that the object possessed is a firearm. See, e.g, Black, 624 N.W.2d at 371 (to obtain a conviction

under prohibited possessor law, “the State is only required to

show that the felon ‘possessed’ the firearm with knowledge that

it is a firearm”); In re Ronnie L., 463 N.Y.S.2d at 734 (although

statute was strict liability, it still required knowledge that the

object possessed is a firearm).

-22State courts have also looked to the statutes’

underlying policy when assessing whether to apply

mens rea to the status element. In Rainoldi, for example, the Oregon Supreme Court found that the risk

“that persons who have been convicted of a felony pose

. . . to the public” “exists regardless of a person’s

knowledge of the legal significance of the conviction.”

Rainoldi, 268 P.3d at 577. Similarly, a Colorado intermediate court of appeals found that because the prohibited possessor statute’s purpose is to prevent “all

convicted felons from possessing a firearm to avoid

‘substantial risk to the public,’” it would be “inconsistent . . . to require proof of defendant’s knowledge

of his or her convicted felon status before prohibiting

the possession of a firearm.” Dewitt, 275 P.3d at 736

(citation omitted).

*

*

*

*

*

The overwhelming body of federal and state

precedent, legislative history, and case law applying

and interpreting prohibited possessor statutes weighs

strongly against revising the current interpretation of

the federal law. Such a change, occurring thirty-three

years after the enactment of the Firearms Owners

Protection Act, and after multiple subsequent revisions of federal firearms law, see U.S. Br. 33 & n.*,

would be inconsistent with the near-uniform interpretation of both § 922(g) and its state law counterparts.

It would make prosecutions of those illegally in possession of firearms under § 922(g) more difficult. And

while not binding on state courts, the Court’s ruling

here could also be used to call into question the settled

application of any number of states’ prohibited

-23possessor laws, which have been interpreted consistently with the federal law.

CONCLUSION

The judgement of the court of appeals should be

affirmed.

Respectfully submitted,

ERIC A. TIRSCHWELL

Counsel of Record

MARK ANTHONY FRASSETTO

WILLIAM J. TAYLOR JR.

KRYSTAN HITCHCOCK

EVERYTOWN LAW

450 LEXINGTON AVENUE, #4184

New York, NY 10017

(646) 324-8222

etirschwell@everytown.org

April 1, 2019

Counsel for Amicus Curiae

APPENDIX

-App. 1APPENDIX

State Prohibited Possessor Statutes

Ala. Code § 13A-11-72

Alaska Stat. § 11.61.200

Ariz. Rev. Stat. § 13-3102

Ark. Code Ann. § 5-73-103

Cal. Penal Code § 29800

Colo. Rev. Stat. § 18-12-108

Conn. Gen. Stat. § 53a-217

D.C. Code § 22-4503

Del. Code Ann. tit. 11, § 1448

Fla. Stat. Ann. § 790.23

Ga. Code Ann. § 16-11-131

Haw. Rev. Stat. Ann. § 134-7

Idaho Code Ann. § 18-3316

720 Ill. Comp. Stat. Ann. 5/24-1.1

Ind. Code Ann. § 35-47-4-5

Iowa Code § 724.26

Kan. Stat. Ann. § 21-6304

Ky. Rev. Stat. Ann. § 527.040

La. Rev. Stat. Ann. § 14:95.1

Me. Rev. Stat. tit. 15, § 393

Md. Code Ann., Pub. Safety § 5-133

Mich. Comp. Laws Serv. § 750.224f

Minn. Stat. Ann. § 624.713

Miss. Code Ann. § 97-37-5

Mo. Rev. Stat. § 571.070

Mont. Code Ann. § 45-8-313

Neb. Rev. Stat. Ann § 28-1206

Nev. Rev. Stat. Ann. § 202.360

N.H. Rev. Stat. Ann. § 159:3

N.J. Rev. Stat. § 2C:39-7

N.M. Stat. Ann. § 30-7-16

-App. 2N.Y. Penal Law § 265.02

N.C. Gen. Stat. § 14-415.1

N.D. Cent. Code § 62.1-02-01

Ohio Rev. Code Ann. § 2923.13

Okla. Stat. tit. 21, § 1283

Or. Rev. Stat. § 166.250

Or. Rev. Stat. § 166.270

18 Pa. Cons. Stat. Ann. § 6105

R.I. Gen. Laws § 11-47-5

S.C. Code Ann. § 16-23-500

S.D. Codified Laws § 22-14-15

Tenn. Code Ann. § 39-17-1307

Tex. Penal Code § 46.04

Utah Code Ann. § 76-10-503

Vt. Stat. Ann. tit. 13, § 4017

Va. Code Ann. § 18.2-308.2

Wash. Rev. Code Ann. § 9.41.040

W. Va. Code § 61-7-7

Wis. Stat. Ann. § 941.29

Wyo. Stat. Ann. § 6-8-102