Litigation Highlight: Fifth Circuit Addresses Interplay Between Prohibited Statuses

Since Bruen was decided in 2022, courts have wrestled with the constitutionality of various status-based gun prohibitions in federal law—most of which are enumerated in 18 U.S.C. § 922(g).  The Supreme Court clarified in United States v. Rahimi that the subsection barring those under domestic violence restraining orders from having firearms is consistent the with principles underlying the nation's historical tradition of gun regulation.  Questions persist about the extent to which the government can bar non-violent felons, drug users, the mentally ill, and illegal immigrants from possessing guns without infringing the Second Amendment under Bruen’s history and tradition test. 

These cases, however, sometimes overlook the extent to which different provisions of 922(g) rely on each other for their operation.  Specifically, the ban on felon gun possession can apply to those convicted initially under other subsections of the same statute.  In a recent case, the Fifth Circuit Court of Appeals wrestled with this very issue and demonstrated how deep the constitutional doubts created by Bruen can run.

A divided Fifth Circuit panel issued United States v. Mitchell on November 21.  Kevin Mitchell was arrested in 2018 with a pistol and a “small bag of marijuana.”  Mitchell admitted to using drugs regularly (as many as three times per day) and ultimately pleaded guilty to possessing a gun as an unlawful drug user in violation of 922(g)(3).  He was sentenced to about two years in prison.  Mitchell was released but later tested positive for marijuana and allegedly engaged in other criminal conduct including auto theft and domestic violence.  In 2023, he was arrested again after attempting to elude police and was found with two firearms.  He was charged and pled guilty to being a felon in possession of a firearm under 922(g)(1)—based on his earlier 2018 unlawful-user conviction—but preserved an as-applied Second Amendment defense.  After being sentenced, Mitchell appealed the district court’s denial of his motion to dismiss on Second Amendment grounds to the Fifth Circuit.

On appeal, Mitchell argued primarily “that the government failed to proffer relevantly similar historical analogues to justify permanent disarmament under § 922(g)(1) as applied to Mitchell’s § 922(g)(3) predicate offense.”  The panel majority opinion first surveyed the post-Bruen landscape in the Fifth Circuit, highlighting four important decisions:

• United States v. Diaz, where the court rejected an as-applied Second Amendment challenge to 922(g)(1) but left the door open to future challenges where the government fails to show “a longstanding tradition of disarming someone with a criminal history analogous to” the defendant.
• United States v. Connelly, where the court granted an as-applied Second Amendment challenge to 922(g)(3) because “[t]he history and tradition . . . support, at most, a ban on carrying firearms while an individual is presently under the influence,” not a ban on possessing guns close in time to drug use.  Notably, Connelly involved a habitual marijuana user, but there was no evidence that she was using drugs when arrested with a gun.  This approach is currently under consideration by the Supreme Court in United States v. Hemani.
• United States v. Daniels, which the Mitchell court characterized as adopting a flexible and fact-specific application of Connelly under which 922(g)(3)’s constitutionality turns on evidence presented at trial about how frequent and/or impairing the defendant’s drug use actually was and whether there is a connection between drug use and dangerous conduct.
• United States v. Contreras, where the panel upheld the conviction of a defendant in the same situation as Mitchell (with a 922(g)(1) charge based on a 922(g)(3) predicate offense) who, based on the evidence, was actively under the influence of marijuana at the time of both offenses.  The Contreras panel also relied on the fact that the defendant was still on supervised release when he was arrested and charged under 922(g)(1), noting that “our Nation’s historical tradition support[s] disarming individuals while they complete their sentences.”

Appling these decisions, the Mitchell majority first reaffirmed that Mitchell is among the “people” with Second Amendment protection.  The panel then noted that, “despite Mitchell’s extensive criminal history [including multiple state misdemeanor convictions . . . ,] his only prior felony conviction was § 922(g)(3).”  The government argued that the panel should take notice of Mitchell’s entire criminal history because it showed that Mitchell was dangerous.  Yet the panel rejected this idea, observing that “Rahimi did not sweepingly proclaim that ‘dangerousness’ is the new standard for Second Amendment challenges.”

Turning to Bruen step two, the majority considered two historical arguments offered by the government.  First, the government urged that historical prohibitions on “going armed” in a dangerous or terrifying manner supported Mitchell’s conviction, given his ongoing dangerous behavior.  Looking only at Mitchell’s 922(g)(3) conviction, however, the panel rejected this argument because habitual use of marijuana itself “can[not] reasonably be analogized to . . . ‘actual violence.’”  Second, the government contended that there is a history and tradition of disarming criminal recidivists—relying in large part on “a 1748 Virginia statute that ‘imposed the death penalty for a third offense of stealing a hog’” and other evidence of historically strict punishments for repeat offenders.  The panel, however, said this argument hinged on evidence of Mitchell’s broader criminal history (which it could not consider) and would require creative analogizing “far beyond Bruen’s contemplated reach.” 

While the government did not specifically rely on intoxication-related gun prohibitions, the panel majority raised these independently and found that they were the strongest historical basis for affirming Mitchell’s conviction.  However, the majority ultimately determined these laws were far narrower than 922(g)(1) because they barred only carrying while actively intoxicated.  They did not, by contrast, bar someone in Mitchell’s situation from possessing a gun permanently as 922(g)(1) does.  The panel emphasized that, although Mitchell said he smoked three marijuana cigarettes per day, “there [wa]s no evidence that Mitchell was actively under the influence of marijuana while in possession of a firearm at the time of his § 922(g)(1) offense” or his 922(g)(3) offense.  Thus, the majority held that “§ 922(g)(1) is unconstitutional as applied to Mitchell’s 922(g)(3) predicate offense.”

Judge Haynes dissented.  He would have reviewed the case only for plain error.  Judge Haynes took a different view of the evidence regarding Mitchell’s contemporaneous drug use, noting that Mitchell was likely under the influence of drugs when arrested given the frequency of use and that he would remand to the district court for further findings on that point.  He also emphasized that he would have considered “Mitchell’s conduct during supervised release,” including purported violence and threats to the mother of his child, as evidence of his dangerousness.  Finally, Judge Haynes argued that it would be more appropriate to hold the case in abeyance pending the Supreme Court’s decision in United States v. Hemani, which he predicted “will be very meaningful in deciding issues that are relied upon by the majority opinion.” 

It's certainly true that Hemani, which should clarify whether and to what extent the Fifth Circuit’s approach to 922(g)(3) remains good law, is relevant to the decision here.  And it is somewhat surprising that the majority didn’t even address whether a stay might be warranted.

More broadly, Mitchell further demonstrates how some lower courts are applying Rahimi in a narrow manner.  Mitchell is purportedly a domestic abuser who beat and threatened the mother of his child while on supervised release for his 922(g)(3) violation.  Exonerating him without considering that fact appears, as Judge Haynes notes, to overlook clear evidence that Mitchell was and is dangerous.   As catalogued in some of the amicus briefs in the Rahimi case, there are many reasons why a domestic violence victim in this situation may not bring criminal charges against her abuser—chief among them the fact that another lengthy prison sentence would render Mitchell unable to support his child financially for that time.  By taking a very narrow view of Mitchell’s criminal record, the panel here elevates legal formalism over the principles-based approach espoused in Rahimi.

The government’s reliance on criminal recidivism statutes also signals a potentially important new avenue of historical legal research under Bruen.  Generally, courts post-Bruen have held that individuals on supervised release for a felony (who thus have not completed their full sentence) do not have Second Amendment rights.  After a sentence is completed, however, it may still be that history and tradition show legislatures have greater leeway to regulate gun possession by criminal recidivists.  However, the gap between historical evidence and modern sensibilities, as in other areas under Bruen, may well be quite wide here.  While it’s likely that historical legislatures took a highly punitive approach to recidivism (as colonial Virginia did with hog stealers), at least some modern research suggests that harshness of punishment has no discernable impact on criminal recidivism.