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Felons, Weapons, and Knowledge

When a convicted felon is not allowed to possess a firearm, what knowledge must be established to prove a violation?  The California Supreme Court addressed that issue today in the context of probation violations in People v. Hall, S227193.  U.S. Supreme Court nominee Neil Gorsuch has dissented in favor of the defendant on a related issue.

In the California case, drug dealer LaQuincy Hall was given probation upon the condition, among others, that he "may not own, possess or have in [his] custody or control any handgun, rifle, shotgun or any firearm whatsoever or any weapon that can be concealed on [his] person."

Although he made no objection in the trial court, Hall claimed on appeal that the condition needed to be modified to prohibit only "knowing" possession.

Given the relevant case law, the firearms condition is properly construed as prohibiting defendant from knowingly owning, possessing, or having in his custody or control any handgun, rifle, shotgun, firearm, or any weapon that can be concealed on his person....  Because no change to the substance of either condition would be wrought by adding the word "knowingly," we decline defendant's invitation to modify those conditions simply to make explicit what the law already makes implicit.  A trial court, however, remains free to specify the requisite mens rea explicitly when imposing a condition of probation.
In a footnote at this point, the court disapproved court of appeal decisions that the mens rea requirement must be expressly stated in the probation condition.

In the Tenth Circuit case of United States v. Games-Perez, 695 F.3d 1104 (2012), Judge Gorsuch dissented from denial of rehearing en banc.

Mr. Games-Perez was prosecuted under 18 U.S.C. § 924(a)(2) for "knowingly violat[ing]" § 922(g), a statute that in turn prohibits (1) a convicted felon (2) from possessing a firearm (3) in interstate commerce. But to win a conviction under our governing panel precedent in United States v. Capps, 77 F.3d 350 (10th Cir. 1996), the government had to prove only that Mr. Games-Perez knew he possessed a firearm, not that he also knew he was a convicted felon.

For reasons I've already explained and won't belabor in detail here, it is difficult to see how someone might "knowingly violate[]" § 922(g) without knowing he satisfies all the substantive elements that make his conduct criminal -- especially the first substantive element Congress expressly identified. For the reader interested in more on all this, my concurring panel opinion offers it. United States v. Games-Perez, 667 F.3d 1136, 1143-45 (10th Cir. 2012) (Gorsuch, J., concurring).
The Supreme Court denied certiorari October 7, 2013.

One might think that it is obvious to a person that he has been convicted of a felony, and in a great many cases it is, but the law is actually rather complex in some cases.

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