9th Circuit strikes down felon's firearm conviction

In a decision that could have major implications for the Second Amendment and criminal law, a 9th U.S. Circuit Court of Appeals panel on Thursday reversed the conviction of a California man with five nonviolent felony convictions for violating a federal statute barring him from possessing a handgun after Inglewood police arrested him for tossing it out of a moving car.

The decision is the second one by a circuit court concluding that the government failed to carry its burden that the federal "felon-in-possession" law supports preventing felons from keeping and bearing arms for the rest of their lives under a "history and tradition" standard imposed by the U.S. Supreme Court in 2022. New York Rifle and Pistol Association v. Bruen, 597 U.S. 1, 24.

It deepens an existing circuit split, with the 9th Circuit joining, at least for now, the 3rd U.S. Circuit of Appeals in ruling for criminal defendants while three other circuits have upheld the law.

"If it stands, the case will increase the chances the Supreme Court will need to resolve this issue quickly because the law at issue is the most frequently enforced federal gun law," Jacob D. Charles, a professor at Pepperdine Caruso School of Law, wrote in an email.

Legal experts said the U.S. attorney's office, which declined to comment on the ruling, is certain to seek en banc review. That was recommended by 9th Circuit Judge Milan D. Smith, an appointee of President George W. Bush, who dissented. They said the 9th Circuit - which has a majority of judges appointed by Democratic presidents - is all but certain to grant it.

Senior 9th Circuit Judge Carlos T. Bea, an appointee of President George W. Bush, wrote for the majority that two Supreme Court decisions - including Bruen - meant that Steven Duarte's conviction violates the Second Amendment as applied to him.

Duarte's past convictions - for vandalism, being a felon in possession of a firearm, drug possession and evading a peace officer - either was considered a misdemeanor during the late 1700s, did not exist as a crime, or doesn't have a "Founding-era predecessor" because the government did not prove it, Bea wrote. U.S. v. Duarte, 2024 DJDAR 3910 (9th Circ., filed March 10, 2022).

"Based on this record, we cannot say that Duarte's predicate offenses were, by Founding-era standards, of a nature serious enough to justify permanently depriving him of his fundamental Second Amendment rights," Bea wrote. "The Second Amendment's plain text and historically understood meaning therefore presumptively guarantee his individual right to possess a firearm for self-defense."

His opinion was joined by 9th Circuit Judge Lawrence VanDyke, an appointee of President Donald Trump and overturned a 2010 9th Circuit precedent. U.S. v. Vongxay, 09-10072 (9th Circ., filed Feb. 26, 2009).

Smith, who wrote the Vongxay decision, dissented and asked the 9th Circuit to rehear the case en banc. He argued that Bruen did not overrule Vongxay and that the three-judge panel needed to follow it in the meantime.

"One day -- likely sooner, rather than later -- the Supreme Court will address the constitutionality of § 922(g)(1) or otherwise provide clearer guidance on whether felons are protected by the Second Amendment," Smith wrote. "But it is not our role as circuit judges to anticipate how the Supreme Court will decide future cases."

Assistant Federal Public Defender Sonam A.H. Henderson, who argued Duarte's appeal, could not be reached for comment by press time. During oral arguments last December, he told the panel that there are "approximately 20 million Americans with prior felony convictions, many of whom have committed no violent acts."

John D. Hanusz, a Los Angeles criminal defense attorney, described the decision as an "earthquake" that could wipe out hundreds of firearms-related convictions in the 9th Circuit.

"Attorneys have been aggressively litigating this issue in district courts in the wake of that decision, and I would expect to see them file motions to dismiss indictments or vacate their clients' convictions based on this decision," he wrote in an email.

Adam D. Winkler, a professor at UCLA School of Law, said the Supreme Court will need to clarify Bruen, especially given the sweeping language in Thursday's opinion stating that Duarte "is an American citizen, and thus one of 'the people' whom the Second Amendment protects," even though he is a convicted felon.

"If the court is right, it's hard to see how the broader ban on felons possessing firearms - even violent felons - stands," Winkler said in a phone interview. "This decision is a product of the Bruen case forcing courts to evaluate laws strictly through the prism of history."

He expects some guidance from the Supreme Court next month, when it issues a ruling on whether to uphold a 5th U.S. Circuit Court of Appeals decision that struck down a 1994 federal law that banned possession of firearms by perpetrators of domestic violence. U.S. v. Rahimi, 22-915 (S. Ct., filed Dec. 17, 2020).

"Does the government have a right to ban people from owning firearms if they are deemed irresponsible for having broken the law?" Winkler said.

C.D. "Chuck" Michel, senior partner with Michel & Associates P.C. who represents gun rights groups, said in an email that nonviolent felons who have served their time should regain the right to possess firearms.

"As the Supreme court may be about to confirm in the Rahimi case, the standard for Second Amendment disarmament should be an individualized finding of dangerousness," he wrote. "Any other approach invites the government to arbitrarily disarm politically disfavored classes, as it has done with Native Americans and freed slaves in the past."