Ninth Circuit panel: Convicted felons have Second Amendment rights
On May 9, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit published a split decision vacating the conviction of Steven Duarte for violating 18 U.S.C. § 922(g)(1).
18 U.S.C. § 922(g)(1) makes it a crime for any person to possess a firearm if he has been convicted of an offense “punishable by imprisonment for a term exceeding one year.”
Duarte, who has five prior nonviolent state criminal convictions — all punishable for more than a year — was charged and convicted under § 922(g)(1) after police saw him toss a handgun out of the window of a moving car. Duarte now challenges the constitutionality of his conviction. He argues that, under the Supreme Court’s recent decision in New York State Rifle & Pistol Association v. Bruen, 597 U.S. 1 (2022), § 922(g)(1) violates the Second Amendment as applied to him, a nonviolent offender who has served his time in prison and reentered society. We agree.
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Judge Carlos T. Bea wrote the opinion. Judge Lawrence VanDyke concurred. Judge M. Smith, Jr. dissented.
Duarte had been previously convicted of five nonviolent crimes in California. Under California law, each offense could result in a prison term of more than one year, making them felonies, according to federal law. The five convictions were for the following:
- Vandalism
- Felon in possession of a firearm (The vandalism conviction is the precursor felony.)
- Possession of a controlled substance
- Evading a police officer
- Evading a police officer
Given the history of the Ninth Circuit, it is almost certain the government of California will ask for an en banc (all the judges) review of this case. En banc is likely to be granted.
En banc may be put on hold pending the Supreme Court decision in the Rahimi case, due in June. The Rahimi case has some similarities to this case. The Supreme Court decision in Rahimi will be a binding precedent. It makes sense to wait until the end of June to see what the Supreme Court will do with Rahimi.
The character of Duarte is impossible to determine from what little we are told about his case. Duarte’s character should have nothing to do with the determination of whether 18 U.S.C. § 922(g)(1) is unconstitutional. It is the nature of the system that multiple charges be dropped during plea bargaining in exchange for a guilty plea on one charge. At first glance, a recent California Supreme Court decision about evading a police officer seems relevant.
On May 2, the California Supreme Court issued an opinion striking down some instances of “evading a police officer” as probable cause for detaining an individual.
Duarte’s charges are quite different.
The felony convictions of evading a police officer on Duarte’s record are almost certainly for evading a police officer while in a vehicle. In essence, this means fleeing police pursuit in a vehicle. Those convictions are probably California Vehicle Code 2800.2, felony reckless evading. The charge is a “wobbler,” meaning it can be charged as a misdemeanor or a felony.
The California Supreme Court decision on evading a police officer does not affect charges of fleeing from a police officer in a vehicle and is irrelevant to the Duarte case.
We know Duarte has had several unwelcome contacts with law enforcement in Southern California. His case has become a test case for restoring Second Amendment Rights.
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