Tomorrow, as it does frequently, the Supreme Court turns again to questions about enforcing America’s gun laws. In back-to-back hearings, the Justices will seek to define how federal courts are to handle appeals by an individual who has been convicted of having a gun illegally. How such appeals turn out, of course, can affect future trials and guilty pleas in gun prosecutions. The separate hearings start at 10 a.m. and at about 11 a.m. The hearings will be remote, by telephone. The audio portion, but not the video, will be broadcast on cspan.org/supreme court
Background: America has a highly-developed “gun culture” – a fondness, almost a reverence, for guns of almost any kind. That culture, however, breeds many problems – from mass shootings that dominate daily headlines, to gun violence in the home and in the streets, to broken families and broken communities. Already, in the first three and a half months of 2021, there have been nearly 150 mass shootings across the country.
It is exceedingly difficult to get Congress or state legislatures to pass new gun control laws. And it is almost as difficult to enforce gun laws that are already on the books.
Tuesday’s hearings deal with this enforcement issue. The two federal laws at issue have been on the books since 1968, part of the Gun Control Act that itself was the first major gun control measure to be enacted by Congress in a half-century. In the first case, Greer v. United States, the clause at issue makes it a crime for people in nine specific categories – such as having been convicted previously of serious crimes (felonies) – to possess a gun. In the second case, United States v. Gary, the clause provides that anyone convicted of violating that first provision can get a prison term of up to ten years.
A background factor in both cases is that, when the two men involved appealed their cases (after conviction by a jury or by a guilty plea), they both made a challenge that they had not made at their trial. Ordinarily, that failure means that the issue cannot be made for the first time as part of an appeal. However, if their complaint was that the trial involved a legal flaw that seriously affected the individual’s rights, such as a faulty instruction to the jury, the appeals court can review that flaw even though it had not been challenged at the trial. (That is called “plain error” review. Ordinarily, in that kind of review, the appeals court must consider only what was actually presented during the trial, and nothing beyond that.)
The Greer case: This is a sequel to a decision the Supreme Court issued in 2019, Rehaif v. United States. That decision involved the same laws against gun possession by a person with a felony conviction. When that decision was issued, a Florida man, Gregory Greer, had a similar case pending at the Supreme Court; the Justices sent his case back to lower courts to consider the impact of the Rehaif decision. Again, he lost in a lower appeals court, and took a new appeal to the Supreme Court.
In the Rehaif decision, overturning a string of lower court decisions, the Justices ruled that, in order to prove guilt of illegal gun possession by a person with a prior felony conviction, prosecutors must prove that he knew that he had possessed a gun illegally and that he knew he was in a category forbidding such possession. If the case goes to trial, the judge must tell the jury that it must make a finding of both of those factors before it may find guilt.
At Greer’s trial on the gun possession charge, he was convicted and sentenced to 10 years in prison. He lost his first appeal on an issue no longer in the case. After the Supreme Court returned his case to the appeals court, he argued that the trial judge had failed to instruct the jury that it had to find that he knew he was a felon at the time he had the gun. That, he contended, violates the rights that were protected by the Rehaif decision. Once again upholding his conviction, the appeals court chose to consider only whether that error affected the outcome of the trial. In doing so, the appeals court relied on evidence not considered by the jury, and found that it was sufficient to justify the guilty verdict.
Greer’s new appeal to the Supreme Court contended that lower appeals courts are split on how to handle that question.
The question before the Court in the Greer case: When an appeals court is reviewing a criminal conviction under the plain-error approach, and applying a new Supreme Court precedent to the case, may the appeals court only consider evidence that was put before the jury, or may it consider outside evidence to see if the trial had been fair?
The Gary case: This case involves a conviction by a guilty plea, not a full trial, on a charge of illegal gun possession by a convicted felon. It is another sequel to the Supreme Court’s Rehaif decision.
A South Carolina man, Michael Andrew Gary, pleaded guilty to two charges of possessing guns after he had been convicted of three prior felonies. After he made his guilty plea, the judge advised him about the impact of such a plea, but did not say that, in order to be guilty, he had to know that he was a felon at the time he possessed a gun illegally. (That kind of proof, of course, is part of what the Rehaif decision now requires.) Accepting the guilty plea, the judge sentenced Gary to seven years in prison.
Gary appealed, challenging the sentence. While his appeal was pending, the Rehaifi decision was issued, and Gary moved to take advantage of it. Because he had not challenged his conviction in the trial court, the appeals court conducted plain-error review and overturned the guilty plea, ordering a new proceeding in the trial court. The appeals court found that the single omission by the trial judge of the advice that Gary had to know he was a felon at the time of gun possession was enough to show a “plain error,” even if he had made no claim that the proceedings violated his rights.
The federal government appealed to the Supreme Court, arguing that the appeals court was simply wrong in failing to require Gary to show, specifically, that the omission did violate substantial rights in order to have his guilty plea overturned. The government contended that there is a split among federal appeals courts, with all other appeals courts that have considered the issue deciding otherwise.
The question before the Court in the Gary case: if a person with a prior felony conviction pleads guilty to possessing a gun illegally, and then appeals to overturn the guilty plea, must the appeals court find a specific threat to that individual’s legal rights because of a judge’s serious legal error before the plea can be set aside?
Significance of both cases: The 1968 law that punishes possession of guns by those with prior felony convictions is a standard that federal prosecutors rely on repeatedly, and marked at its origin a major shift in policing illegal gun possession. In the Greer case, the outcome will have a significant effect on the success prosecutors have in defending guilty verdicts in trials in which a violation of the Rehaif jury instruction had been left out. The outcome of the Gary case may be more far-reaching, because guilty pleas are by far the most common way that federal criminal cases end, thus sparing both sides the rigors of a full trial. Such pleas also are common in illegal gun possession cases.
If the Court is able to further clarify the impact of the Rehaif precedent, that will provide useful guidance to both prosecutors and defense lawyers in the future.
The outcome of these cases, however, may have only a limited effect on reducing gun violence across America. That’s because the most recent data from the U.S. Sentencing Commission shows that there are only about 6,000 convictions a year under the laws at issue in these two cases. Most of those cases appear to arise when guns are found by police in cars or elsewhere during other investigations, and do not arise out of actual firings of the weapons.
On Wednesday, the Supreme Court will conclude this week’s hearings with review of two technical questions: one on federal trial judges’ power to assess the costs of pursuing a successful appeal, and one on the scope of the right to challenge the legality of a patent when a person or entity is sued for infringing on that patent.
