The tragic shooting in Newtown, Conn., has led to a call for additional controls on the sale and use of firearms. Legislators are considering new restrictions on the purchase and ownership of weapons. As the issue of gun control is debated, it is worth examining how effective current laws have been in prohibiting firearm violations. A quick review of recent cases demonstrates that prosecutors have their hands full in trying to win these cases.
Consider, for example, the recent case of U.S. v. Griffin, 684 F.3d 691 (7th Cir. 2012). A jury convicted Cory Griffin of being a felon in possession of a firearm in violation of 18 U.S.C. 922(g)(1). When Griffin was released from prison in 2008, he moved in with his parents in their single-family home in Milwaukee. His probation officer informed Griffin that he could not “purchase, possess, own or carry any firearm or any weapon [without express permission].” Three weeks after he moved back into his parents’ home, a police SWAT team executed a search on the home looking for Griffin’s brother. The police did not find the brother, but they did find the defendant, as well as 10 firearms and several sets of ammunition.
Griffin’s father was a gun enthusiast. Despite the fact that his son, a convicted felon, had moved back into this home, the father did not relocate any of his weapons. Police found two revolvers behind the headboard of the defendant’s parents’ bed, two shotguns and a rifle in the parents’ closet, a shotgun behind the door in the kitchen and four shotguns behind the kitchen refrigerator. Ammunition was scattered throughout the home, including on the stairway and on the television.
At Griffin’s trial, the probation officer testified that he should have notified her when he discovered there were guns in his parents’ home. The probation officer also testified she had told Griffin’s father that there could not be any weapons in the home. This was no surprise, given that authorities had previously removed guns from the home because of Griffin’s legal troubles. Nonetheless, according to Griffin’s cellmate, Griffin admitted that his father continued to buy him shotguns and Griffin also hid two handguns behind the stove.
The jury convicted Cory Griffin of being a felon in possession of a shotgun and ammunition. He appealed, claiming that the evidence was insufficient to support the verdict. The U.S. Court of Appeals for the Seventh Circuit agreed. It held that the government’s evidence was insufficient because there was “no evidence of [the defendant's] fingerprints on those items, nor did any witnesses testify that they had seen Griffin holding or using them.” Id. at 695. The court rejected the government’s argument that Griffin had constructive possession of the weapons because it found that Griffin did not have exclusive control over the firearms. It further held that mere proximity to contraband is not enough to establish a sufficient nexus to prove constructive possession. There must be a “substantial connection” between the defendant and the contraband itself.
As this case demonstrates, even with current anti-firearm laws, it is not at all certain that prosecutors can secure convictions in relatively simple cases. Courts are reluctant to enforce firearm laws unless there is clear evidence that the defendant physically possessed the prohibited weapons.
THE SECOND AMENDMENT
In addition to challenges to the level of proof in firearm cases, prosecutors also face a growing number of judges willing to strike down firearm laws as violating the Second Amendment. For example, last year in Gowder v. City of Chicago, 2012 U.S. Dist. Lexis 84359 (N.D. Ill. 2012), Judge Samuel Der-Yeghiayan held that the Chicago Firearm Ordinance violated a convicted misdemeanant’s right to keep and bear arms. Whether strict or intermediate scrutiny is applied, the court held that the Chicago ordinance could not be enforced because a misdemeanant who does not have a violent criminal history still has a constitutional right to possess a weapon.
Similarly, the Seventh Circuit recently held that the Second Amendment not only protects the right to possess weapons in one’s home, but also may protect the right to carry them in public. See Moore v. Attorney General, 2012 U.S. App. Lexis 25264 (7th Cir. 2012). Because a person may need to protect himself on the streets, blanket prohibitions against carrying a firearm in public are unconstitutional.
Moreover, even when the courts believe regulations are generally constitutional, they will closely scrutinize these laws for fatal drafting errors. For example, the Maryland Court of Appeals struck down a state gun law because, through a series of revisions, the stated prohibitions were no longer tied to specific penalty provisions. On this basis, the court would not uphold the defendant’s conviction for obliterating, removing, changing or altering the manufacturer’s identification numbers on a firearm. See Evans v. Maryland, 420 Md. 391 (Md. 2011).
Finally, prosecutors must be alert to errors by judges during trial. For example, in State v. Davis, 2011 Wash. App. Lexis 622 (2011) (unpublished), the defendant was charged with a firearm enhancement for using a gun during a robbery. Darnell Davis robbed his victim at gunpoint, pointing a black revolver at his chest and demanding, “Give me your shit.” His companion then drove to another neighborhood where he punched a second victim and took her purse. He was stopped by police shortly thereafter. Police recovered the victims’ possessions from the car, as well as a black .38-caliber revolver under the front seat. The defendant admitted robbing the second victim, but denied the first robbery and claimed he did not use a gun in his robbery and did not know of the gun in his companion’s car.
During trial, a gun expert testified that while rust and debris had initially made the recovered gun inoperable, it could be fired after lubrication. The court agreed to give an instruction proposed by the prosecution that “[a] temporarily inoperable firearm or a disassembled firearm that can be rendered operational with reasonable effort and within a reasonable time period is a ‘firearm.’ ” On appeal, Davis claimed that the court’s instruction was an improper comment on the evidence because it did not say that the jury “may” find the gun to be a firearm, but instructed them that it “is” a firearm. The appellate court agreed and reversed the case for resentencing.
Similarly, in Myers v. U.S., 2012 D.C. App. Lexis 485 (D.C. 2012), an appellate court vacated Michael Myers’ conviction because the trial judge erred in responding to the jury’s question about an element of the offense. Myers was charged with being a felon unlawfully in possession of a weapon. Police found him carrying a garbage bag containing a shotgun that had been disassembled into three parts. Myers claimed he had retrieved the bag from the trash at a construction site, and while he knew it contained gun parts of some kind (which he hoped to pawn), he did not know those parts could be put together to make a “complete” firearm. During deliberations, the jury requested clarification of the mens rea requirements for the offense. The trial judge reinstructed the jury that the defendant would not be guilty unless he knew that he was carrying components that could be assembled to form a firearm. However, the judge defined “firearm” by its components and not as a “complete” weapon, as the judge had done in her initial instructions. Because of this change, the appellate court reversed the conviction.
Although there are many times when defendants are convicted of firearm violations, judges certainly do not seem trigger-happy to convict defendants of gun laws. Some judges will even grant acquittals after juries have found firearm violations. For example, in U.S. v. Tyson, 653 F.3d 192 (3d Cir. 2011), the defendant figured out it was much easier to buy guns in Tennessee than in the Virgin Islands. Seeing an arbitrage opportunity, he developed a scheme to buy weapons in his home state and fly them to the Virgin Islands. The problem was that he was not licensed to sell guns in the islands. The jury convicted Shawn Tyson of transporting 12 firearms in the course of dealing firearms without a weapon, but the district court granted a motion for acquittal. It held that there was insufficient evidence that Tyson’s occasional sales meant that he was “engaged in the business of dealing in firearms.” Focusing on Tyson’s repetitive sales, economic motives and concealment efforts, the appellate court reinstated the convictions.
Although new gun laws might be passed, they will not necessarily lead to a slew of new prosecutions and convictions. If this past year is any example, courts will continue to put prosecutors through their paces as they seek to enforce firearm prohibitions.
Laurie Levenson is professor of law and David W. Burcham Chair in Ethical Advocacy at Loyola Law School, Los Angeles.