Last week, we discussed certain constitutional issues raised by the Texas statutory-rape provisions. Timing here seems especially fitting given the U.S. Supreme Court’s grant of certiorari in Rehaif v. United States, No. 17-9560, on January 11, 2019. As the petitioner in Rehaif couched the issue, that case involves the question of “Whether the ‘knowingly’ provision of § 924(a)(2) applies to both the possession and status elements of a § 922(g) crime, as has been urged by then-Judge, now Justice Gorsuch, or whether it applies only to the possession element, as has been held by the courts.”
The Rehaif case arose in the Eleventh Circuit and involved a UAE citizen losing his student (and thus immigration) status yet participating in activities at a shooting range in Florida. When police questioned him about an unrelated call, Mr. Rehaif admitted he’d been at a gun range. Authorities charged him with being an unlawfully present alien in possession of a firearm. After conviction at trial, Mr. Rehaif received an 18-month sentence.
In his petition for a writ of certiorari, Mr. Rehaif acknowledged that, so far, no circuit has required proof of a defendant’s knowledge of his or her prohibited status under any subsection of § 922(g). He suggested, however, that the better approach to the issue, one advocated by some judges, is that the government should have to prove the defendant knew about his or her prohibited status for a § 922(g) offense.
Mr. Rehaif quoted Judge Gorsuch for the proposition that, when a criminal statute introduces the elements of a crime with the word “knowingly,” this knowledge requirement applies to each element of the offense. For Mr. Rehaif, the issue could have made a difference with the jury. Had the trial court instructed the jury differently, the jury may not have found Mr. Rehaif guilty: He had a viable defense that he did not know of his prohibited status. His school had sent an email allegedly notifying him that he had been “academically dismissed” and that his “immigration status w[ould] be terminated,” but no one at the school attempted to confirm that Mr. Rehaif had received the emails. Nor did anyone try to talk to Mr. Rehaif, who did not respond to the emails.
As with shooting at a gun range, having sex is lawful. The only thing that would make it unlawful under the Texas provisions we have been discussing is the age of one of the participants—just as unlawful immigration status is the crux in Mr. Rehaif’s case. “Knowledge” requirements should apply to these statuses.
In its opposition to a grant of certiorari in Rehaif, the government cited case law holding that “knowledge” need only apply to possession of the firearm—not to the defendant’s immigration status. It pointed out that Congress has not revisited the issue, and it cited some legislative history. It also pointed to an alleged admission that Mr. Rehaif had known of his change in status. The government, however, didn’t truly reach the logic of Mr. Rehaif’s arguments, a logic Mr. Rehaif reemphasized in his reply, citing Justice Gorsuch’s pre-SCOTUS words on the matter.
Sections 922(g) and 924(a)(2) contain a mens rea requirement similar to that of Texas Penal Code §§ 22.011(a)(2) and (c)(1), which, as we posited last week, display constitutional infirmities. It will be interesting to watch Rehaif unfold.