5/9/24: Major felon-in-possession decision

In United States v. Duarte, --- F.4th ---, No. 22-50048 (9th Cir. 2024), a divided panel vacated on Second Amendment grounds Steven Duarte’s conviction for violating 18 U.S.C. § 922(g)(1), which 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. 

Here is the majority's intro:

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.” Steven Duarte, who has five prior non-violent 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 Ass’n v. Bruen, 597 U.S. 1 (2022), § 922(g)(1) violates the Second Amendment as applied to him, a non-violent offender who has served his time in prison and reentered society. We agree. 

We reject the Government’s position that our pre-Bruen decision in United States v. Vongxay, 594 F.3d 1111 (9th Cir. 2010), forecloses Duarte’s Second Amendment challenge. Vongxay is clearly irreconcilable with Bruen and therefore no longer controls because Vongxay held that § 922(g)(1) comported with the Second Amendment without applying the mode of analysis that Bruen later established and now requires courts to perform. Bruen instructs us to assess all Second Amendment challenges through the dual lenses of text and history. If the Second Amendment’s plain text protects the person, his arm, and his proposed course of conduct, it then becomes the Government’s burden to prove that the challenged law is consistent with this Nation’s historical tradition of firearm regulation. Vongxay did not apply these two analytical steps because Bruen had not yet established them. We must therefore reconsider § 922(g)(1)’s constitutionality, this time applying Bruen’s two-step, text-and-history framework. 

At step one of Bruen, we easily conclude that Duarte’s weapon, a handgun, is an “arm” within the meaning of the Second Amendment’s text and that Duarte’s “proposed course of conduct—carrying [a] handgun[] publicly for selfdefense”— falls within the Second Amendment’s plain language, two points the Government never disputes. Bruen, 597 U.S. at 32. The Government argues only that “the people” in the Second Amendment excludes felons like Duarte because they are not members of the “virtuous” citizenry. We do not share that view. Bruen and Heller foreclose that argument because both recognized the “strong presumption” that the text of the Second Amendment confers an individual right to keep and bear arms that belongs to “all Americans,” not an “unspecified subset.” Bruen, 597 U.S. at 70 (quoting District of Columbia v. Heller, 554 U.S. 570, 581 (2008)). Our own analysis of the Second Amendment’s publicly understood meaning also confirms that the right to keep and bear arms was every citizen’s fundamental right. Because Duarte is an American citizen, he is “part of ‘the people’ whom the Second Amendment protects.” Bruen, 597 U.S. at 32. 

At Bruen’s second step, we conclude that the Government has failed to prove that § 922(g)(1)’s categorical prohibition, as applied to Duarte, “is part of the historical tradition that delimits the outer bounds of the” Second Amendment right. Bruen, 597 U.S. at 19. The Government put forward no “well-established and representative historical analogue” that “impose[d] a comparable burden on the right of armed self-defense” that was “comparably justified” as compared to § 922(g)(1)’s sweeping, no-exception, lifelong ban. Id. at 29, 30. We therefore vacate Duarte’s conviction and reverse the district court’s judgment entering the same.

5/2/24: Two en banc decisions

First, in United States v. Lucas, --- F.4th ---, No. 22-50064 (9th Cir. 2024), the en banc Court held that clear and convincing evidence is not required for factual findings under the advisory Sentencing Guidelines, even when potentially large enhancements are at stake; fact-finding by a preponderance of the evidence is sufficient to satisfy due process at sentencing.

The writing has been on the wall for this one.  It seemed clear the Ninth Circuit would overrule its prior precedent holding that trial courts must apply a clear-and-convincing evidence standard  “when a sentencing factor has an extremely disproportionate effect on the sentence relative to the conviction.”  With this en banc decision, the Ninth joins the other Circuits in holding that the preponderance standard applies to all sentencing factors. 

Next, in United States v. Anderson, --- F.4th ---, No. 20-50345 (9th Cir. 2024), the en banc Court reversed the district court’s denial of a motion to suppress a firearm found during a warrantless search of the defendant’s truck in a case that presented the question whether an officer’s failure to comply with governing administrative procedures is relevant in assessing the officer’s motivation for conducting an inventory search.  Here are some key parts of the majority opinion. 

Law enforcement may conduct warrantless inventory searches of impounded vehicles. But the Supreme Court has instructed that inventory searches are reasonable under the Fourth Amendment only if they are motivated by administrative purposes, and not solely by investigatory purposes. The question here is whether an officer’s failure to comply with governing administrative procedures is relevant in assessing the officer’s motivation for conducting an inventory search. The answer is yes. An officer’s compliance (or as is the case here, non-compliance) with department policy governing inventory searches is part of the totality of circumstances properly considered in determining whether a search satisfies the requirements of the inventory-search exception to the warrant requirement. And based on the circumstances presented here, we conclude that the deputies who searched Defendant Jonathan Anderson’s truck acted solely for investigatory reasons. Therefore, we reverse the district court’s denial of his motion to suppress.

The Fourth Amendment, not policies governing administrative searches, defines the constitutional right against unreasonable searches and seizures. But given the nature of the inventory-search exception to the warrant requirement, law enforcement’s compliance with the governing inventory procedure or policy can be material. To satisfy the Fourth Amendment, an inventory search must serve administrative, not solely investigatory, goals. Bertine, 479 U.S. at 371–72. And whether law enforcement officers have complied with their governing inventory procedure can inform their motivations for conducting an inventory search. See Opperman, 428 U.S. at 376 (“[I]n following standard police procedures, . . . the conduct of the police was not ‘unreasonable’ under the Fourth Amendment.”); Garay, 938 F.3d at 1111 (“If [an inventory search is] done according to standardized criteria and not in ‘bad faith or for the sole purpose of investigation,’ police inventory procedures satisfy the Fourth Amendment.” (quoting Bertine, 479 U.S. at 372)). Accordingly, deviation from the governing inventory policy can evidence bad faith or that officers were acting solely for investigative purposes. 

The dissent laments that Anderson “goes free” as a result of our decision. Dissent at 38. But, of course, one does not lose his Fourth Amendment rights upon being convicted of a felony—or even multiple felonies. And we do not enforce the Fourth Amendment based on whether an underlying conviction will be invalidated. See Riley, 573 U.S. at 401 (“We cannot deny that our decision today will have an impact on the ability of law enforcement to combat crime. . . . Privacy comes at a cost.”).