Rehaif v. United States:  Proving you know who you are!

In a time when Americans cry out for stricter gun laws, the United States Supreme Court has just made prosecuting those persons prohibited from possessing firearms much more difficult.  18 U.S.C. § 922(g) makes possession of a firearm unlawful for nine different classes of people:  (1) convicted felons; (2) fugitives from justice; (3) drug users and addicts; (4) mentally ill; (5) illegal aliens; (6) those dishonorably discharged from military service; (7) U.S. citizens who have renounced their citizenship; (8) those subject to a restraining order for harassing, stalking or abusing; and (9) those convicted of misdemeanor domestic violence.  18 U.S.C. § 924(a)(2) makes if punishable for up to 10 years prison for knowingly violating § 922(g).  For more than 30 years, prosecutors needed to prove only that the defendant fit into one of these prohibited classes and knowingly possessed a firearm or ammunition.  Until now.

The United States Supreme Court in Rehaif v. United States 139 S.Ct.2191 (2019) has undone countless convictions and freed countless dangerous gun possessing individuals by overturning 30 years of precedence and adding a new element to the crime of illegally possessing a firearm.  The U.S. Supreme Court now requires prosecutors to prove not only that defendant knowingly possessed a firearm or ammunition, but that he or she knew they fit into one of the prohibited classes of people.  Simply put, prosecutors must now prove that the mentally ill person knows he is mentally ill, the illegal alien knows he is an illegal alien, and the felon knows he is a felon.

The majority opinion disingenuously summarized the facts.  The Court merely stated that Hamid Rehaif entered the US on a nonimmigrant student visa to attend university, received poor grades and was dismissed from the university who told him that his “immigration status” would be terminated unless he transferred to a different university or left the country.  The Court continued that Rehaif subsequently visited a firing range where he shot two firearms.

As the dissenting justices point out, the U.S. Supreme Court’s majority has “knowingly performed a jump of Olympian proportions, taking off from §924(a)(2), sailing backward over more than 9,000 words in the U.S. Code, and then landing – conveniently—at the beginning of the enumeration of the elements of the §922(g) offense.”  Why would the majority make such a leap?  In their opinion, the majority points out that the potential penalty of 10 years is “harsh,” and that certainly Congress would not want such strict liability to apply to a small child unlawfully brought to the US who might be unaware of his status.

However, this is far from the case in Rehaif.  The true facts of this case are that Hamid Mohammed Ahmed Ali Rehaif, a citizen of the United Arab Emirates, came into the U.S. on a visa that allowed him to stay here lawfully so long as he remained a full-time student.  He enrolled at Florida Institute of Technology, but withdrew from or failed all his classes, leading to his dismissal.  He was allowed to conditionally re-enroll but failed his classes again and was terminated.  The university sent him emails informing him that if he did not enroll elsewhere, his status as a lawful alien would be terminated.  Instead of enrolling in another university, Rehaif moved to a hotel and began frequenting a firing range.  Each day, he checked into the hotel, demanded a room on the 8^th floor facing the airport, and checked out every morning paying cash for his room.  He did this for 53 days, spending over $11,000.  A hotel employee informed the FBI that Rehaif claimed to have weapons in his hotel room.

The dissent notes that by requiring proof that an alien knew, as opposed to should have known, his continued presence was illegal provides an outlet for a defendant to deliberately fail to verify his status.  What if Rehaif purposefully avoided opening the emails from the university?  Can he claim ignorance of his status?  Currently, this new interpretation of “knowledge” applies to the Federal statutes, but it is only a matter of time before the defense argues that it must apply to our current state statutes, as well.

What does this mean for you? Ironically, in a time when the politically correct are steering law enforcement from inquiring whether someone is illegally in the United States, the U.S. Supremes have now made it an element, and therefore, a very necessary question for law enforcement to inquire of a suspect as that may be the only evidence of the suspect’s knowledge of his prohibited status.