Court Finds Convicted Felons have Second Amendment Rights

Why I Am Suing The Governor of Virginia, iStock-1055138108
Court Finds Convicted Felons have Second Amendment Rights iStock-1055138108

On May 9, 2024, a three-judge panel of the United States Court of Appeals for the Ninth Circuit published a split decision vacating the conviction of Steven Duarte for violating 18 U.S.C. § 922(g)(1).

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.

Judge Carlos T. Bea wrote the opinion. Judge Lawrence VanDyke concurred. Judge M. Smith, Jr. dissented.

Steve Duarte had been previously convicted of five non-violent crimes in California. Under California law, each offense could result in a prison term of more than one year, making them felonies according to federal law. The five convictions were for the following:

  1. Vandalism
  2. Felon in possession of a firearm (The vandalism conviction is the precursor felony)
  3. Possession of a Controlled Substance
  4. Evading a Police Officer
  5. Evading a Police Officer

Given the history of the Court of Appeals for the Ninth Circuit, it is almost certain the government of California will ask for an en banc review of this case. En banc is likely to be granted.

En banc may be put on hold pending the Supreme Court decision in the Rahimi case, due in June. The Rahimi case has some similarities to this case. The Supreme Court decision in Rahimi will be a binding precedent. It makes sense to wait until the end of June to see what the Supreme Court will do with Rahimi.

The character of Steve Duarte is impossible to determine from what little we are told about his case. Duarte’s character should have nothing to do with the determination of whether  18 U.S.C. § 922(g)(1) is unconstitutional. It is the nature of the system that multiple charges be dropped during plea bargaining in exchange for a guilty plea on one charge. At first glance, a recent State of California Supreme Court decision about evading a police officer seems relevant.

On May 2nd, the Supreme Court of the State of California issued an opinion striking down some instances of “Evading a Police Officer” as probable cause for detaining an individual.

Duarte’s charges are quite different.

The felony convictions of evading a police officer on Steve Duarte’s record are almost certainly for evading a police officer while in a vehicle. In essence, this means fleeing police pursuit in a vehicle.  Those convictions are probably California Vehicle Code 2800.2, felony reckless evading. The charge is a “wobbler,” meaning it can be charged as a misdemeanor or a felony.

The California Supreme Court decision on evading a police officer does not affect charges of fleeing from a police officer in a vehicle and is irrelevant to the Duarte case.

We know Steve Duarte has had several unwelcome contacts with law enforcement in Southern California.  His case has become a test case for restoring Second Amendment Rights.

About Dean Weingarten:

Dean Weingarten has been a peace officer, a military officer, was on the University of Wisconsin Pistol Team for four years, and was first certified to teach firearms safety in 1973. He taught the Arizona concealed carry course for fifteen years until the goal of Constitutional Carry was attained. He has degrees in meteorology and mining engineering, and retired from the Department of Defense after a 30 year career in Army Research, Development, Testing, and Evaluation.

Dean WeingartenDean Weingarten
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