922(g)(1) in the Sixth Circuit: A Window into Categorical Felon-in-Possession Adjudication

In August, a Sixth Circuit panel decided United States v. Williams, a case in which a criminal defendant challenged his conviction for being a felon in possession of a firearm under the Second Amendment.  Williams was barred from possessing guns due to two prior felony convictions for armed robbery.  In an opinion by Judge Amul Thapar, the panel rejected Williams’ Second Amendment challenge but also held that courts must evaluate the nature of the underlying felony convictions in 922(g)(1) cases and allow at least some as-applied challenges because “complete deference to legislative line-drawing would allow legislatures to define away a fundamental right.”  Under Williams, “governments may use class-based legislation to disarm people it believes are dangerous, so long as members of that class have an opportunity to show they aren’t.” 

In contrast to decisions such as Range—where the Third Circuit did not purport to adopt any generally applicable test for when as-applied challenges could succeed—Williams sought to clarify the area (at least in the Sixth Circuit, for the time being) by articulating a typology of offenses to guide lower courts tasked with determining whether specific underlying felony convictions indicate dangerousness.  Lower courts’ application of these guidelines in subsequent cases sheds interesting light on what a dangerousness test looks like under 922(g)(1).

The Williams panel divided felony convictions into three general categories in terms of whether they indicate future dangerousness:

The first such group is crimes against the person. This historical category was filled with dangerous and violent crimes like murder, rape, assault, and robbery. Offenses in this category speak directly to whether an individual is dangerous.

. . .

A second category of crimes, while not strictly crimes against the person, may nonetheless pose a significant threat of danger. These crimes do not always involve an immediate and direct threat of violence against a particular person. A prime example is drug trafficking. Other crimes, like burglary, pose a similar threat. Courts have recognized that burglary is dangerous because it “creates the possibility of a violent confrontation between the offender and occupant.” Ultimately, most of these crimes put someone’s safety at risk, and thus, justify a finding of danger.

. . .

The final category of crimes is the most challenging to address. These are crimes like mail fraud, or making false statements. Often, such crimes cause no physical harm to another person or the community. . . . But we trust district courts will have no trouble concluding that many of these crimes don’t make a person dangerous.

How have lower courts within the circuit applied these categories in subsequent cases?  As expected, in cases dealing with clearly violent conduct, courts have rejected as-applied challenges.  For example, an Ohio district court had little trouble concluding that a criminal defendant would present a danger if armed where he “[ha]d prior convictions for aggravated arson and felonious assault . . . [that included] brandishing and firing a gun in a residential neighborhood where children were present.”

Williams’ categorization of drug trafficking as a “likely dangerous” offense has carried substantial weight in subsequent lower court assessments.  A large number of 922(g)(1) cases are likely to implicate past convictions for drug-related offenses, specifically drug trafficking.  Per the U.S. Sentencing Commission, “[d]rug offenses overtook immigration offenses as the most common federal crime in fiscal year 2021, accounting for 31.3 percent of the total caseload.”  What’s more, federal prosecution of drug offenses rose dramatically during the 1990s and into the early 2000s—which means that there are an awful lot of individuals out there with past drug convictions.  Williams hedges slightly on whether drug trafficking or similar narcotics offenses will always indicate dangerousness, but the panel’s reference to “the possibility of a violent confrontation” seems to apply to most, if not all, such offenses. 

And lower courts within the circuit have, accordingly, rejected 922(g)(1) challenges by criminal defendants with drug convictions almost across the board.  For example, a Tennessee district judge rejected a Second Amendment challenge by a criminal defendant with multiple drug trafficking convictions because those “convictions carry a presumption of dangerous[ness]” under Williams.  The judge found that multiple convictions for the same drug-related conduct are more indicative of dangerousness.  A judge in Michigan seemed to go further, observing of Williams that:

It is difficult to discern what exactly might be a non-dangerous drug-trafficking conviction, if drug trafficking is inherently a dangerous crime. Perhaps the court envisioned a solitary conviction for playing merely some sort of peripheral, bookkeeping role in a drug trafficking conspiracy, because to qualify the crime would need to pose no threat of physical harm to others.

The Michigan judge similarly rejected the challenge in a case where the defendant had multiple prior drug-related convictions, including one for conduct while he was on supervised release.  And a Kentucky judge recently noted that, “[i]f there is a non-dangerous drug trafficking conviction under Williams, it has not surfaced.”  After Williams, then, courts have applied a definition of “dangerous” that goes beyond physical harm to any criminal conduct that presents a serious risk to safety and seems to encompass nearly all felony drug offenders.  So too with certain non-drug offenses, such as a felony conviction for “improperly handling firearms in a motor vehicle.”  An Ohio court found that “irresponsible firearms behavior—such as possessing an accessible loaded gun in a motor vehicle—endangers ‘the community’ at large and heightens the risk of a ‘violent confrontation’” per Williams.

Courts applying the Williams test have confronted several issues.  First, as one judge noted, “Williams did not provide guidance about whether . . . [to] weigh factors such as the age of the defendant’s conviction, how old the defendant was at the time of conviction, or the amount of the illegal substances involved” in a drug offense.  Courts appear to have mostly focused on criminal history itself, rather than conduct a more searching analysis of the surrounding facts; though some do consider the length of time that has passed since a conviction and the defendant’s age at the time of conviction.  That said, courts vary in how “holistically” they approach the criminal history evaluation—with some judges according greater weight to factors such as whether a defendant was on supervised release or probation when he committed an offense,[1] how close in time various convictions are, or even that the defendant is subject to a domestic-violence restraining order.  It appears that one “dangerous” criminal conviction under Williams is sufficient to reject the challenge, though judges have typically taken care to analyze all relevant offenses of conviction.

And some judges have confronted issues reconstructing the facts surrounding past felony convictions—particularly those in the second Williams category.  For example, an Ohio judge observed that

The “judicially noticeable information” on the Lucas County Court of Common Pleas docket does not provide any way to determine the underlying facts of Hines’s grand theft conviction.  Therefore, it is not possible to say, at this stage, whether Hines’s grand theft offense involved behavior that was more attenuated from the risk of physically harming another person—such as an act exceeding the boundaries of consent to use property or an act of deception—or, instead, behavior that put a person's physical safety at greater risk, such as a threat or an act of intimidation.

The judge rejected the challenge because Williams places the burden on the defendant to prove that his or her criminal history is not indicative of dangerousness.  While district courts have been applying Williams for only a short period so far, it does not appear that any district judge within the circuit has yet granted an as-applied challenge under the Sixth Circuit’s reasoning.

This brief summary of the initial post-Williams landscape holds a number of clues as to how this approach might look if it is ultimately adopted on a larger scale.  First, especially given the level of federal prosecution of drug offenses over the past several decades, Williams’ observation that most (if not all) drug trafficking offenses are dangerous because they create a risk of violent confrontation carries quite a bit of heft.  Many criminal defendants who will actually be challenging their firearm disqualification will fall into this group, and Williams has been a dead letter for those defendants.  Second, Williams’ impact might be less dramatic than expected for a separate reason: prosecutorial discretion.  The Sixth Circuit’s decision is written to suggest that many felonies fall into the third category of “crimes [that] cause no physical harm to another person or the community.”  The panel uses the example of a New Jersey law—which would qualify as a federal felony—that makes it illegal to “open[] a bottle of ketchup at the supermarket and put[] it back on the shelf.”  But the simple fact is that, while many such laws are certainly on the books, that doesn’t mean that New Jersey is actually prosecuting people for opening ketchup bottles.  So it’s just not that likely that someone with such a conviction will show up in court later on, having been arrested for gun possession and mounting a Second Amendment challenge to that subsequent prosecution.  At least, the initial returns in the Sixth Circuit suggest these situations are few and far between.