SCOTUS: Prosecutor must Prove Immigrant’s Knowledge in Gun Prosecution
[Headline from DRJ]
From The Hill — Supreme Court sides with immigrant in gun possession case:
The Supreme Court on Friday found that prosecutors have to prove that an individual alleged to have illegally possessed a firearm must know that they are part of a group banned from having the gun in the first place.
In a 7-2 ruling, the justices sided with United Arab Emirates citizen Hamid Rehaif, who shot firearms at a gun range after he was dismissed from college over bad grades and told that his immigration status under his student visa would be terminated.
Justice Stephen Breyer wrote in the majority opinion that prosecutors do need to prove that Rehaif knew of his immigration status, and that he would therefore be banned from possessing a gun.
Justice Alito dissented:
Alito was highly critical of the ruling in the dissenting opinion, noting that the federal gun statute at hand applies to individuals like convicted felons, stalkers and those who commit acts of domestic violence.
“Today’s decision will make it significantly harder to convict persons falling into some of these categories, and the decision will create a mountain of problems with respect to the thousands of prisoners currently serving terms” for convictions under that law, he argued.
Alito also took issue with the argument that Rehaif may not have known he was in the country illegally, and criticized the court for agreeing to hear the case in the first place. And he warned that the ruling could have ramifications for future cases on immigration. “Serious problems will also result from requiring proof that an alien actually knew—not should have known or even strongly suspected but actually knew—that his continued presence in the country was illegal,” Alito wrote.
Alito has the better argument.
— DRJ
I hate it when I disagree with DRJ. This is the comment I left at SayUncle:
Alito may be right that SCOTUS should not have taken the case because it’s not important enough, but that’s about it. Fundamental due process should at least require that the defendant as well as the government should know of a defendant’s change of status that made a previously legal activity for him now a crime punishable by up to ten years imprisonment.
nk (dbc370) — 6/21/2019 @ 6:57 pmBut this happened “after he was dismissed from college over bad grades and told that his immigration status under his student visa would be terminated.” He was told. This seems to require he has to be told the exact day and time his visa was terminated.
DRJ (15874d) — 6/21/2019 @ 7:18 pmThis seems to require he has to be told the exact day and time his visa was terminated.
And well it should for a serious crime. If Immigration had sent him a notice, by regular mail, at his last known address, terminating his visa, it would be his burden to show that he did not receive it, and I might even be persuaded that the government satisfied due process just by sending it. But just “being told” that something would happen, but not being told that it had actually happened? I don’t think so.
nk (dbc370) — 6/21/2019 @ 7:31 pmI see your point but I would treat it as an affirmative defense and put the burden on the defendant to show why that wasn’t adequate notice that his legal status was changing. The operative event to me is being dismissed from college, the point when he knew his status had changed.
When someone is arrested for DUI and refuses a breathalyzer test, so they lose their license (in states where that us the law). Do they have to get legal notice the license is suspended? Can they still drive or is it automatically suspended and telling them so is enough?
DRJ (15874d) — 6/21/2019 @ 7:38 pmI see your point but I would treat it as an affirmative defense and put the burden on the defendant to show why that wasn’t adequate notice that his legal status was changing.
That has long been held to be unconstitutional burden-shifting. The defendant has the burden of going forward with the evidence of an affirmative defense, “some evidence” in some places or cases or “preponderance of the evidence” in others, but the prosecution always has the ultimate burden to prove guilt beyond a reasonable doubt.
When someone is arrested for DUI and refuses a breathalyzer test, so they lose their license (in states where that us the law). Do they have to get legal notice the license is suspended? Can they still drive or is it automatically suspended and telling them so is enough?
In Illinois, it is enough that the State prove that it sent it. By regular mail, to the driver’s last known address. It is irrelevant whether he received it. Almost absolute liability.
But, and this is important and the real reason the Illinois Supreme Court has not struck it down, the offense is a misdemeanor or a petty offense depending on the degree of recidivism, punishable by only a fine or no more than 364 days in a county jail. Not a felony punishable by up to ten years in prison.
nk (dbc370) — 6/21/2019 @ 7:51 pmI understand the felony/misdemeanor distinction but let’s reserve that for now.
Are you saying that they can legally continue driving until the notice is mailed? That being arrested for DUI, being told they will lose their license if they don’t take a breathalyzer, and then refusing the Breathalyzer, is not notice enough?
DRJ (15874d) — 6/21/2019 @ 7:58 pmI’m not a trial lawyer and it shows, because it was a mistake to call this an affirmative defense. I think it is more accurate to say that if the State or its agent, in this case the college that is overseeing a foreign student visa, tells him that his visa is terminating — then that is sufficient notice and the burden shifts to him to show why it is not.
DRJ (15874d) — 6/21/2019 @ 8:05 pmAre you saying that they can legally continue driving until the notice is mailed? That being arrested for DUI, being told they will lose their license if they don’t take a breathalyzer, and then refusing the Breathalyzer, is not notice enough?
Yes. The police do not have authority to revoke or suspend licenses. The decision is the Secretary of State’s. They might, in fact I know they used to, get a written notice at the police station that their license WILL BE suspended and other advice, but they can drive home if they’ve sobered up and their car has not been impounded.
nk (dbc370) — 6/21/2019 @ 8:14 pmSimilarly, colleges do not have authority to revoke visas or to render binding legal opinions on whether a visa is revoked.
nk (dbc370) — 6/21/2019 @ 8:16 pmThe point is the difference between being told A will happen, and being told A has happened. The school merely tells the government to terminate the visa. But it’s the government which terminates it. Until it does so, the activity is legal. And the immigrant can try to find other ways to stay here legally.
Alito mentioned felons, stalkers, and domestic violencers. Those folks lose their gun rights at the end of a court proceeding, with an official order signed by a judge. Revoked visas are a very different animal.
Kishnevi (c91988) — 6/21/2019 @ 8:23 pmInteresting. I always heard they confiscated the license so I thought it was immediate in Texas. I think it is but Google says you also get a provisional license pending a hearing.
However, I think the rule should be different for immigrants told they are no longer legally here. But … I really don’t get why the prosecution has to show actual (as opposed to constructive) notice. Citizens are charged with constructive notice of laws. Why shouldn’t immigrants?
DRJ (15874d) — 6/21/2019 @ 8:24 pmMy Florida DL has a bit at the bottom next to the signature
That in itself would probably satisfy the requirement of notice. I suspect Texas, Illinois and every state has something similar.
Kishnevi (c91988) — 6/21/2019 @ 8:28 pmI also think that as a rule courts treat mala prohibita differently from mala in se, and that, of the mala prohibita, they look at status crimes the most askance. Particularly when the status is due to an innate trait such as alienage, as opposed to conduct i.e. conviction of a felony or domestic violence.
nk (dbc370) — 6/21/2019 @ 8:30 pmBut the government uses schools and colleges to track and authorize visas through SEVIS. It is a murky area but they are virtual government agents when it comes to foreign student visas.
DRJ (15874d) — 6/21/2019 @ 8:30 pmWhat nk says at #3. The school official had no idea what was in the guy’s immigration file, he was just going on what usually happens. He was making a prediction, based on potentially incomplete information. That does not constitute “notice.” Since the law rests on one’s status, until he is legally served with the notice, he is in Schrödinger’s box.
Kevin M (21ca15) — 6/21/2019 @ 8:40 pmCan they still drive or is it automatically suspended and telling them so is enough? They TAKE the license. That constitutes notice.
Kevin M (21ca15) — 6/21/2019 @ 8:41 pmWhoops. If DRJ is right in #14, I may have to rethink this.
Kevin M (21ca15) — 6/21/2019 @ 8:43 pmWho tells the former visa holder that he has to vacate the country by date certain?
Kevin M (21ca15) — 6/21/2019 @ 8:44 pmGuys, take a hint from Alito. He talked about felons and wife-beaters. Not drunk drivers. Driving laws are a different category, more administrative law than criminal law.
nk (dbc370) — 6/21/2019 @ 8:47 pmThe felony/misdemeanor distinction is valid but that is remedied by not bringing felony charges in cases where they have insufficient notice. The question is whether constructive notice is per se insufficient. This case requires actual notice but do we require actual notice with felons and domestic abuse violators, or do we deem sending them notice as enough?
DRJ (15874d) — 6/21/2019 @ 8:53 pmSeriously, nk, can you imagine requiring a prosecutor prove every felon had actual notice his gun rights were taken away, as opposed to proving he was given constructive notice at some point?
DRJ (15874d) — 6/21/2019 @ 8:54 pmI think that a felon is notified that he is a felon pretty clearly when he’s convicted of a felony. In battery cases or many divorce proceedings, orders are given, again in court, regarding gun possession. Obviously, I don’t know all the conditions where holding a firearm is illegal, but those two are pretty clearly marked. In cases where someone is a fugitive and fails to appear at a court where their status changes, well, it’s their own damn fault.
Question: is he in the country illegally the moment his visa is suspended? Or is he illegal after a grace period to allow him time to pack and arrange transport? When does the grace period start, and how does he know?
Kevin M (21ca15) — 6/21/2019 @ 8:55 pmI think that a felon is notified that he is a felon pretty clearly when he’s convicted of a felony.
Exactly. This is not a case of being presumed to know the law. It is a case of being presumed to know a material fact, that the government knew but you did not.
nk (dbc370) — 6/21/2019 @ 9:10 pmYeah, it figured, if there was Florida Man there would also be Florida Woman.
nk (dbc370) — 6/22/2019 @ 9:31 am