State v. Curry – Defining a 'Crime of Violence' for Unlawful Firearm Possession
This guest post does not necessarily represent the views of the Duke Center for Firearms Law.
State v. Curry, a new decision from the Tennessee Supreme Court, provides a good illustration of how complicated it can be to determine whether a felon’s prior conviction was for a “crime of violence,” for purposes of being barred from owning firearms. Justice Roger Page (see also here) wrote the opinion for a unanimous court. Note that this is not a Second Amendment case – instead, the court is wrestling with how to interpret a state statute making it unlawful for felons to possess guns, but which applies different gradations of punishment depending on the underlying felony conviction. In that sense, the case is Second Amendment-adjacent because it overlaps with a similar jurisprudential inquiry that occurs in as-applied Second Amendment challenges to the federal felon-in-possession law, 18 U.S.C. § 922(g)(1).
Possessing a firearm as a convicted felon is a Class E felony under Tenn. Code Ann. § 3917-1307(c)(1)-(2). Another section of the same statute, § 39-17-1307 (b), ratchets this up to a Class B felony with a longer possible prison sentence if the prior conviction is for a felony “crime of violence.” Section 3917-1301(3), in turn, defines “crime of violence” for purposes of this firearm offense:
“Crime of violence” includes any degree of murder, voluntary manslaughter, aggravated rape, rape, rape of a child, aggravated rape of a child, aggravated sexual battery, especially aggravated robbery, aggravated robbery, burglary, aggravated burglary, especially aggravated burglary, aggravated assault, kidnapping, aggravated kidnapping, especially aggravated kidnapping, carjacking, trafficking for commercial sex act, especially aggravated sexual exploitation, felony child abuse, and aggravated child abuse[.]
Curry’s original charges were for aggravated robbery, but he pled guilty in exchange for a reduced charge of simple robbery. His plea agreement stipulated that the defendant’s “weapon is forfeited to [the] law enforcement agency that seized it.” The list above includes “aggravated robbery” and “especially aggravated robbery,” but not simple “robbery.” Tenn. Code Ann. § 39-13-401(a) defines “robbery” as “the intentional or knowing theft of property from the person of another by violence or putting the person in fear.”
The Tennessee Supreme Court decided, after a lengthy discussion, that the statutory list is illustrative and not exclusive. The court concluded that the definition of robbery means the crime can sometimes involve violence, and other times be nonviolent (merely putting the person in fear). The opinion did not give examples of how someone might be “put in fear” without violence, but perhaps it considers threats of violence to be nonviolent, or perhaps the court thinks “fear” could encompass things like blackmail (fear of information exposure) or tricking someone into thinking death is imminent due to an impending natural disaster, etc. In any case, because it read the statute as saying that robbery can be violent or nonviolent, the court held that this was a question for the jury. Therefore, the state must submit evidence about how the prior robbery (the predicate offense) was committed so the jury can decide whether it was “theft of property from the person of another by violence.” In cases where a defendant had a trial on his previous robbery charge, this factual determination may already be part of the record. In Curry’s robbery case, however, he pleaded guilty and there was no trial. In other words, it is not enough for the government merely to submit the fact of the previous conviction, which is what the state had done in this gun possession case.
The court also noted that the legislature could add simple “robbery” (or anything else it wants) to the list of “violent felonies,” and that would obviate the need for a factual determination about the manner in which the crime was committed. This is a significant point, because some jurists considering Second Amendment challenges to 18 U.S.C. 922(g) have cautioned that “the legislature cannot have unchecked power to designate a group of persons as “dangerous” and thereby disarm them. Congress could claim that immigrants, the indigent, or the politically unpopular were presumptively “dangerous” and eliminate their Second Amendment rights without judicial review.” (see also here and here).
A federal circuit split has emerged recently over as-applied Second Amendment challenges to 18 U.S.C. § 922(g)(1), which prohibits convicted felons from possessing firearms. Range v. Attorney General is a recent circuit court case, from the Third Circuit, and I have written about the majority and concurring opinions here and here. These as-applied cases usually delve into whether the defendant or petitioner is “dangerous” or “violent.” (I include “petitioner” here because Mr. Range was never charged under the statute, but rather seeks a declaratory judgment that he is not barred from possessing guns; most cases like this are brought by defendants seeking to overturn their convictions).
One aspect of these discussions about whether individual felons are violent or dangerous is that they typically overlook how such questions already play out when courts must apply other statutes that require such a determination. My 2022 article defending the federal felon-in-possession statute (which is cited in Curry) discusses this problem at length. As the court in Curry explains, there are multiple ways that state legislatures have sought to designate some felonies as “violent” for purposes of banning gun possession for felons or imposing harsher penalties for “violent” felons-in-possession. The courts adopting a “dangerousness” or “violent” test for as-applied Second Amendment challenges to § 922(g)(1) rarely, if ever, specify exactly how courts should proceed. Some courts would probably choose to look at the statutory elements of the predicate felony to see if any include violence, even as an alternative (this seems to be the most common approach for federal ACCA cases). Alternatively, courts could undertake a factual inquiry about the manner in which the predicate felony actually occurred (as the court in Curry requires, after doing the mirror image of the ACCA approach – determining whether the statutory elements included any nonviolent options). Or, a legislature could just answer the question for the courts, supplanting any individualized factfinding (as Curry suggests could happen approvingly). I think allowing as-applied challenges to § 922(g)(1) will lead to a hodgepodge of approaches, none clearly the right one.
My view is that courts in cases like Range should (1) apply the traditional canon of constitutional avoidance, deciding the case on statutory construction grounds instead, and (2) either apply the traditional absurdity canon (and hold that the legislature clearly did not intend to disarm harmless individuals like Mr. Range) or interpret § 922(g) in light of § 925(c), another section Congress passed in the same Act but which ATF is unable to implement due to budget restrictions. The court could try to approximate the relief provisions in § 925(c) for individuals like Mr. Range, as this arguably is more faithful to Congress’ intent for implementing § 922(g).
This post is cross-posted on the University of Wyoming Firearms Research Center Forum.