7th Circuit questions ban on gun ownership by misdemeanor DV defendants
There's quite a discussion at the Volokh Conspiracy, regarding today's decision that calls into question the Lautenberg Amendment. The court concludes that the law should be given intermediate scrutiny (in part because the firearm was possessed for hunting rather than self-defense), vacates the conviction and sends that case back for more fact-finding. The wording certainly indicates that the court is taking the challenge seriously and wants the parties to do so as well. Opinion here.
Hat tip to readers Todd, and to Alice Beard.
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NC Supreme Ct holds old nonviolent felony no bar to gun rights
Opinion in pdf here, courtesy of reader Carl in Chicago. It's under discussion at the Volokh Conspiracy and by Instapundit. The latter makes a good point about "felony inflation." E.g., if the felony theft level is pegged to $500 (as I believe it was in Arizona's 1977 criminal code reform) ... in 1977 $500 was a lot of money. I was driving a used VW I bought for $600, and filling it with, as I remember, 40 cent a gallon gasoline, and living in a decent $175/month apartment.
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US district court splits the constitutional baby
Discussion here, over at the Volokh Conspiracy.
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Supreme Ct interprets Lautenberg Amendment
It's US v. Hayes. The question was whether to read the less than clear statute as requiring proof that the firearm possessor either (a) was convicted of a misdemeanor, whose elements were use of force, and against a household member, or (b) was convicted of a misdemeanor who element was use of force, with the government able to show in the firearm felony prosecution that it was in fact against a household member. (Defendant's underlying conviction was for generic battery, not specifically DV).
Majority, per Justice Ginsburg, goes for (b).
Roberts, joined by Scalia, dissents, going for (a). It's a straight statutory matter, Second Amendment neither briefed nor mentioned in either opinion.
UPDATE: courts got around the ex post facto problems by arguing (1) a violation of Lautenberg requires you to do something after its effective date, namely possess a gun and (2) as far as retroactively increasing the penalty for the DV charge, well, gun ownership is something like driver licensing or other such licensing, you can make licensing standards stricter without it being increased punishment for past acts.
I don't think (2) is viable in light of Heller. It's hard to see how stripping a person of a constitutional right, retroactively, for a misdemeanor, can't be seen as increasing the punishment for it.
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Heller and felons
Don Kates has an article in the NY Post on the topic.
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NICS Improvements Act passes both houses
Sen. Colburn's hold enabled him to get some improvements, too:
"Just before midnight Tuesday, Coburn and the Democratic supporters of the bill struck a deal: The government would pay for the cost of appeals by gun owners and prospective buyers who argue successfully in court that they were wrongly deemed unqualified for mental health reasons.
The compromise would require that incorrect records _ such as expunged mental health rulings that once disqualified a prospective gun buyer but no longer do _ be removed from system within 30 days.
The original bill would require any agency, such as the Veterans Administration or the Defense Department, to notify a person flagged as mentally ill and disqualified from buying or possessing a gun. The new version now also would require the notification when someone has been cleared of that restriction."
UPDATE: it's getting rather strange of late. Here's what Carolyn McCarthy said: "Together, we have crafted a bill that will prevent gun violence, but maintain the Second Amendment rights of law-abiding citizens" to bear arms."
Uh ... Second Amendment rights of individuals? Law abiding citizens? I didn't antigunners were allowed to use terms like that.
ANOTHER UPDATE: You can find extensive discussion from SayUncle and Snowflakes in Hell, as well as the National Shooting Sports Foundation. All say it's an improvement in the law, and I would agree.
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Antigun group attacks NICS bill
the Joyce Foundation bankrolled Violence Policy Center's press release of today. The high points:
"The "NICS Improvement Act" passed today by the Senate would:
-- Resuscitate a failed government program that spent millions of dollars annually to allow persons prohibited from buying guns to regain the ability to legally acquire firearms. The Department of Veterans Affairs (VA) would be required to establish a "relief from disability" program to allow persons now prohibited from possessing a firearm because they have "been adjudicated as a mental defective" or "committed to a mental institution" to apply to have their bar on firearms possession removed. As a result of the bill, more than 116,000 individuals would be eligible to apply.... Under the bill, states would also be required to establish such "relief" programs to restore the gun privileges of those with mental health disabilities in order to be eligible for potential grant money to upgrade records submitted to the NICS.
-- Set an arbitrary time limit for the VA to act on applications for "relief." If the agency fails to act within 365 days, applicants could file a lawsuit asking a court to restore their gun privileges, even if Congress fails to provide the VA with the appropriate resources to process these investigations. Some prevailing applicants would be entitled to attorneys' fees. ...
-- Significantly narrow the category of records of people with mental disabilities that would be submitted to the NICS by the federal government. The current permanent bar on persons with certain health disabilities would be replaced with temporary restrictions.
Kristen Rand, legislative director of the Violence Policy Center, states, "This bill was intended to be Congress' response to the mass shooting at Virginia Tech that left 32 people murdered. But rather than focusing on improving the current laws prohibiting people with certain mental health disabilities from buying guns, the bill is now nothing more than a gun lobby wish list. It will waste millions of taxpayer dollars restoring the gun privileges of persons previously determined to present a danger to themselves or others. Once a solution, the bill is now part of the problem."
Josh Horwitz, executive director of the Coalition to Stop Gun Violence, adds, "It is ironic that the gun lobby has coerced the Senate into providing resources to rearm mentally disabled veterans during a time when the VA is struggling to provide adequate mental health care to those in need."
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List of people barred by mental treatment doubles in size
FBI reports the list has more than doubled in size, from 175,000 to 400,000.
This sorta thing is why I didn't take umbrage at the bill proposed a while back to change things. It didn't add anyone to the prohibited persons list. It would have expanded the number of names on the list, but anyone who had been committed but was able to get a firearm because they weren't on the list would be liable for a felony charge anyway. It did give people on the list a way to get off, for the first time. A person convicted of a felony can in most states get his firearm rights restored after passage of time -- but there is no such procedure for a person who has had a mental committment. They're barred for life, period. I judged changing that would be worth having more names on the list, when everybody being added was already barred and would be set up for a felony charge anyway.
UPDATE: originally, the Fed rule was once a felon, always one, no matter what State law provided. Then the 1986 amendments to GCA changed that, and allowed State restorations of rights to restore Federal rights as well. (Exact execution depends on State law -- in AZ it was originally automatic, then gun rights took a separate motion (while other civil rights were restored automatically), then the legislature put in a detailed system where the person must wait so many years if it was some classes of offense, a longer time if it was in certain classes, and never if it was a really serious offense).
There's some area of dispute (for example, some States have "expungement" of records that doesn't really expunge them -- they're still on record and can be used to prove a second offense -- does that count as expungement of the conviction?)
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Definition of "committed"
Clayton Cramer has an interesting posting relating to an article in Journ. of the American Academy of Psychiatry Law. The gist of it is that the cases are clear that an involuntary committment can create prohibited status under GCA 68, they're all over the place beyond that point. Some say that a temporary emergency committment that doesn't lead to a formal committment proceeding is no bar to gun ownership. Others say that a procedure where the committment order is issued by two physicians, without judicial findings, is enough.
Going to the article he cites, indeed it is a mess, beyond the principle that if a committment is for observation, without subsequent finding that the person is indeed insane, he's probably in the clear.
At the level of state law, it's even worse. In four states, voluntary committment, or diagnosis without committment, can be a bar. In California, just being given a 72 hour committment for observation is a bar, altho it ends after five years. Four states have no bar based on psychiatric findings at all.
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Wyoming appeals ruling vs. BATF
Story here.
Essentially, Wyoming treats DV convictions as do many states. A person can later apply to have the conviction "expunged." If the court grants it ... well, lotsa times in the law the law does one thing and the reality is another. The court issues a ruling saying the conviction is set aside and expunged. But the conviction in the files isn't torn up, nor sealed. And if the person is charged a second time, it can be cited to prove this is a second offense. This arrangement, BTW, is quite common.
GCA 68, as modified by the 86 amendments in FOPA, says a conviction doesn't count if it has been expunged or set aside. ATF's position is that the statute and its history doesn't define "expunged," and if a conviction is still on file and has legal effect, then it ain't expunged. Wyoming position is that the purpose of FOPA is to make state law govern a state conviction (as it did not prior to 1986) and the statute, and the court orders, say "expunged."
For my money (and I actually had a role in drafting that part of FOPA, not a big role, Jim Featherstone did most of it but he's dead and can't be asked) -- the parties ought to research the history of expungement as it existed while the statute was being debated (1979 or 1980 to 1986). As I recollect, the first big expungement proceeding at that period was the Federal Youth Corrections Act (sort of like federal juvenile court, but extending up to age 25, I think). Some national body had recommended that states adopt similar provisions, and they were starting to do so at this time. So, to my mind, if the state statutes of that period paralleled those of Wyoming, then that's the background in which Congress acted, in which expungement either did or did not mean completely wiping out the record and nullifying all legal effects. I haven't done the research and don't know what the answer would be.
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4th Cir ruling on felons' possession in self-defense
It's under discussion over at the Volokh Conspiracy.
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HR 2640, mental committments and all that...
Clayton Cramer has a take on the bill and, while I haven't puzzled thru all its details, I agree with all the points he makes. It puts more mental health records in the system, but doesn't bar anyone who is not already barred. On the other side, it gives those who are barred (and at the moment a committment is a lifetime bar) an avenue (I think two avenues, but my memory may be off) to get the bar lifted. That alone will benefit two (former) shooters that I know.
Yep, I think it's a big improvement in this area. What formerly was available -- "relief from disability" (to own a gun) granted by BATF (which was actually pretty decent about granting it) has been blocked for over a decade by budget riders forbidding BATF to spend any funds for that purpose. The bill, as I recall, mandates that States create systems so that persons with a committment can get relief that way, and also creates a federal system for VA committments, etc.. It's not called relief from disability, so the budget riders shouldn't affect it.
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Felon in possession and business offenses
Decision of the Day reports an 8th Circuit ruling on felon in possession. The defendant had been convicted in 1984 of selling meat in violation of the Federal Meat Inspection Act. In 1994 he brought a declaratory judgment action to determine that this was not a disability to own guns, but the 9th Circuit ordered dismissal for lack of standing. In 2005, he was charged and convicted of felon in possession.
His defense (and I assume the basis of the dec. action) was that the GCA says certain business offenses are not within its definition of felony conviction:
"The term “crime punishable by imprisonment for a term exceeding one year” does not include—(A) any Federal or State offenses pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices."
His focus was of course on the "or other similar offenses" language. The Eighth Circuit opinion (pdf) goes against him, and affirms his conviction.
Interestingly, Judge Bright's dissent argues that the statute (at least in this context) is void for vagueness. "The similar offenses clause of § 921(a)(20)(A) could be read as the majority determines, or otherwise, as contended by Stanko. Either is a plausible interpretation of the text. Stanko should not be convicted under a statute that is so uncertain as to its meaning, and therefore I respectfully dissent." He also points out that the earlier 9th Circuit ruling underscores his concerns: "our system of laws should not accept a statute so vague that an individual must suffer the harm of a § 922(g) conviction before learning from the courts whether his prior conviction falls within the scope of § 921(a)(20)’s exemptions."
BTW--I remember how this exemption got into the law. It dates from before GCA 68, back when they had the looser Federal Firearms Act. A major company that had an ammo business -- might have been Olin -- got convicted of felony antitrust violations, as I remember. So Senator Dodd, who was always on the lookout for fast influence and cash, got this amendment passed so the corporation wouldn't have to sell off its ammo business.
[UPDATE: Yup, it was Sen. Tom Dodd, father of the present Senator. He set something of an early record for corruption, and got censured by the Senate (for what he got caught at -- there was a lot that he got away with. In those days, you could take a "campaign contribution" and essentially stick it in your pocket if it wasn't used for campaigning, none of the modern idea of campaign contributions are separate from your personal bank account. So he'd announce some big investigation of, oh, insurance companies, gun companies, drug use in professional sports. And after the recipients of legislative attention sent the right contributions, would abandon the inquiry.
So why GCA '68? The answer is that the major domestic gun manufacturers WANTED the legislation. They were getting killed by interstate mail order houses selling cheap military surplus. They wanted something to (1) outlaw imports of surplus -- which GCA 68 did, in a provision later relaxed -- and (2) require people to buy from dealers in their own state, thus ending the mail order houses.]
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Proposal to add terrorist watch list to prohibited person category
An interesting discussion at the Volokh Conspiracy about Walter Murphy, retired Colonel of Marines, and Professor Emitus at Princeton, who finds himself apparently on the "watch list."
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6th Cir. en banc on felon in possession
At the Volokh Conspiracy, Prof. Adler discusses three en banc decisions, one relating to felon in possession. (A pdf is available via his posting).
I think the split between the judges keys on a slipup in the indictment. Defendant's girlfriend called 911, saying that he had a gun and was going to kill her. Police arrived five minutes after being dispatched, but luckily the guy had left and left her alive. She describes him as holding a blued semiauto, and racking the slide. He returns in a car, his mother driving. A gun meeting the description is found under his passenger seat, in a plastic bag, with no fingerprints. The key is that the indictment charged him with possession of that specific gun. If it hadn't been so specific, the girlfriend's testimony that he held a gun on her would have been sufficient -- but now the prosecution was bound to prove it was that specific gun found under his seat.
The majority finds that sufficient to uphold the jury's verdict. It could reasonably have concluded that after he left the scene, he wiped the gun of prints, put it in the bag, and returned. The dissent says that's not enough, citing caselaw to the effect that finding of a gun under a car seat is insufficient to make the driver or passenger in "possession," without further proof he knew it was there.
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Proposal to bar gun sales to those on terrorism watch list
Sen. Lautenberg and the Justice Dept are both backing a bill to forbid gun sales to people on the terrorism watch list.
The good news: somebody finally found a way to disarm Ted Kennedy.
I suppose it would be better to take his driver's license....
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Clayton Cramer on mental disabilities
Clayton Cramer has a post on the issue.
The ultimate question comes under "damned if you do and damned if you don't." Before 1970s or so (i.e., just before I went to law school) the committment laws allowed committment of just about anyone with any significant mental quirk. Arizona Law Review had an issue on that, and they tracked down the person who'd had the longest time in the state mental hospital ... a woman committed something like 50 years before because the doc said "she always felt like dancing."
The legal reforms that went in after that basically deinstitutionalized all but a handful of the mentally ill. As a general rule, unless a person could be proven an immediate danger to self or others (which is hard to determine unless maybe they were paranoid schitz and specifically said they were going to kill someone else) or so completely disabled as to be unable to function, they could not be held. A large part of those released, or not held, wound up on the streets, of course. Of course in the old days there was no real treatment for serious disorders. At best, you warehoused them, usually for their lives. Today you have enormous advances in psychiatric medications, but if the person won't take them, you're out of luck. And some take quite a while to kick in, weeks sometimes, so you can't just make the guy pop a pill and reach a state where he realizes he really is better off on the medication.
The bottom line was that there was no good solution -- at best, you can look for the "least bad" one.
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Challenge to felon in possession turned back
There's a discussion of a 6th Circuit case, rejecting a challenge to prohibited person prosections as "selective prosecution" based on race, over at the Volokh Conspiracy
The debate reflects a problem that often occurs: (1) if you allow a challenge to be made, and discovery to be obtained, based on little evidence, you'll spend a lot of time sorting out those challenges and (2) if you require the defendant to come up with the evidence without discovery, odds are no challenge will ever be made. Courts in that situation tend to go with (2). Maybe I'm cynical, but the fact that (2) entails less work for the judiciary may play a role.
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Thoughts on DV cases
Federal law prohibits firearms possession by persons convicted of misdemeanor domestic violence. It defines DV as an offense that has, among others, "has, as an the element, the use or attempted use of physical force," against a cohabitant (or, curiously enough, a former spouse, regardless of whether they are cohabiting).
Current immigration law allows removal of an alien who commits an act of "domestic violence," defined as "any crime of violence" as defined in 18 USC sec. 16) against an intimate partner. 18 USC §16 in turn defines crime of violence to include “(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another." Pretty close to the GCA definition.
The Ninth Circuit recently ruled in Fernandez-Ruiz v. Gonzales (No. 03-74533 (Oct. 26, 2006) that Arizona's DV statute did not qualify as grounds for deporation under the federal standard. The reasoning seems to be that under the Arizona statute, a conviction can be had for reckless, nonintentional, use of force, and that a reckless use of force (even tho literally within the coverage of the statute's term "use of force") is not covered by the statute.
The Circuit notes that its earlier cases had suggested that recklessness was enough, but now it relies on the Supreme Court ruling in Leocal v. Ashcroft, 543 U.S. 1 (2004). Since the relevant element of the Arizona statute is not limited to intentional use of force, an Arizona DV conviction is not a crime of DV under the federal immigration law.
Of course, when in the Ninth Circus, we have to bear in mind that the same statutory language may have radically different meanings when a gun owner and gun law is involved.
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9th Cir.: no exception to felon in possession
The 9th Circuit has affirmed a refusal to give a jury instruction that a felon is not guilty of possession if the possession was brief and for a lawful reason. The DC Circuit has allowed such instructions; the 1st, 4th, 7th and now 9th have not.
The defendant's story, which had some BIG holes (but has to be treated as if true for this purpose) was that he found a gun near a school, took it home, unloaded it, and went off to the police station to report it.
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Interesting case on DV orders. Commerce & 2d Amendment
Just came across United States v. Napier, 233 F.3d 394 (6th Cir. 2000), which deals with a wide range of gun issues (and with most of them incorrectly, but what did I expect?). I've got the text in extended remarks below.
Essentially, it's a prosecution for firearms possession after a DV restraining order was issued (the guns having been purchased long before the order). He was also indicated for possessing ammo after such orders issued. Major rulings:
1. He challenges on due process grounds: court holds ignorance of the law is no excuse unless the law is exceptionally ambiguous or obscure. An earlier case had upheld a conviction because the notice of restraining order said that def. was not to possess arms -- here, he points out, he never was served with the orders. Court says that's not a distinction. Fact that a person knows there has been a DV order is enough to put him on notice that it might affect his gun rights.
2. Commerce Clause challenge: Court notes that the power extends to three categories, last being things having substantial relation to commerce. Court distinguishes Lopez: gun free school zone law had no commerce nexus, no statement that possession is only forbidden if you do X or Y in relation to commerce. GCA 68 prohibitions do contain commerce limitations. They apply only (and here court is a bit off) to guns that have moved in commerce. (Court does not explain why having moved in commerce at some point in history fits under subtantial relationship to commerce).
He also points out he got the firearm before he was subject to the order. I've mentioned before, on the face of the statute, this is not an offense. The "receipt" bar relates to a gun that has ever moved in commerce -- but he wasn't subject to the order when he rec'd it. The bar on "possession" ONLY relates to possession "in or affecting" commerce. So... the court ignores it. OK, the statute is valid because it has a commerce limitation, but the court isn't about to apply that limitation.
Court also disposes of a number of other Supreme's rulings suggesting that commerce clause limitations, well, actually exist. (This comes under the "we can't believe the Supreme Court meant that") approach.
3. Second Amendment is blown off with a reference to the Warin case. "Recent scholarship, however, does not provide a sufficient basis for overruling an earlier decision of this Court."
Continue reading "Interesting case on DV orders. Commerce & 2d Amendment"
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Federal judge gives world-class butt chewing
The US Attorney for Montana just got a world-class butt-chewing over a felon in possession case.
The defendant had been convicted of what sounds like manslaughter ten years before. After his release, he developed a mult-million dollar construction business, became a bit of the pillar of the community, etc. In 2004, it was discovered that he owned guns, and (while the article is unclear) the state apparently moved to revoke/modify parole based on it.
Then the US Attorney (apparently having lots of spare time) filed federal charges as well. The judge's point was that the State had taken care of the matter, the defendant obviously is no street thug or menace to the community -- why is this a federal case? It didn't help that the prosecution had previously evaded the Speedy Trial Act by dismissing the indictment and then re-filing it to start the clock running all over again.
[UPDATE: link fixed...thanks...]
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Lautenberg and ex post facto
Over at Gun Law News there's a debate on whether the Lautenberg amendment (making persons convicted of misdemeanor domestic violence into persons prohibited to possess guns) violates the ban on ex post facto laws.
I think GLN has it right. Lautenberg doesn't violate one arm of ex post facto (you can't criminalize conduct retroactively -- Lautenberg passes muster because to violate it a person must possess a gun after it was enacted) but does violate the other arm, at least for DV offenses commited before Lautenberg was passed (you can't increase punishment, in this case for the DV offense, after the offense was committed).
Not that any court's going to buy the theory. As I recall, they either ignore it, brush it off, or reason by analogy that putting conditions on something like permit or licensing isn't punishment. It might be interesting to bring a case in the Fifth Circuit, tho, since that circuit has recognized that the Second Amendment is an individual right. It's hard to apply reasoning keyed to permitting (government has no duty to license a person, it merely grants a privilege) to a restriction, indeed a complete cutoff, of a constitutional right.
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Wyoming sues ATFE
Via Alphecca comes this AP story of a lawsuit filed by Wyoming.
The Lautenberg amendment bans gun possession by persons convicted of misdemeanor domestic violence. The 1986 amendments to the Gun Control Act (some of which I drafted, long story) provide that a conviction is not a conviction if it has been expunged or set aside or rights have been restored (unless the order doing so, or the State law, provides that it does not restore firearm rights).
The local ATFE (this is the only case I've heard of it happening, so I think it's a local position) took the position that a conviction is not "expunged" unless its effects are entirely wiped out. Wyoming, like most states with expungement proceedings, doesn't really wipe them out -- the order says that they are, but in fact they can be used to enhance sentences in case of a second offense.
I think the local ATFE is in error here. Most expungement statutes work in the way the Wyoming one does. And the statute also recognizes restorations of civil rights (voting, etc., in the case of felonies) that do not affect the conviction at all. It's hard to see why Congress would have wanted a provision to apply in the case of a felony but not in the case of a misdemeanor. I suspect the US Attorney will roll over on it, but if not, the case might pose some interesting Second Amendment issues as well. After all, even the collective rights approach agrees that a State could raise the issue....
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Webpage on felon in possession state statutes
Netscape has an interactive map that shows how different states treat felon in possession situations. It seems quite accurate for my state (Arizona). It indicates that Vermont, interestingly, appears to have no State no felon in possession restriction.
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Another dumb crook story
A gunsmith notices that the guy who brought in guns for repair is wearing one of those house arrest ankle monitors...
[UPDATE in light of comment -- I'd agree that whoever was supposed to be monitoring the guy's ankle monitor oughta be in hot water! Technology is only as good as the humans operating it.]
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Cf. domestic violence restraining orders
The Volokh Conspiracy has a great post regarding a (non domestic) restraining order issued in New Mexico. Petitioner alleges that David Letterman is has been causing her distress over the last ten years by inserting "code words" about her into his program, causing bankruptcy, sleeplessness and mental distress. She requests that Letterman be forbidden to think of her. The judge signed the order, albeit without a "think of" provision, and set hearing for January 12.
Upon being questioned by the media, the judge assured them that he had read the application before issuing the order. Personally, if I was him, I'd rather have people think me incompetent than insane.
Good comments, too, on how easy it is to get a domestic violence order, and a case where a secretary simply opened the order to the signature page and the judge signed it, without reading what he'd signed, let along the petition. As commentors note, the judges are scared that if they refuse an order, and anything happens, their name will be in the papers, whereas if they issue every single one, there is no risk.
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4th Circuit on "innocent possession" defense
Via the interesting and new Appellate Decisions blog:
The Fourth Circuit has just handed down US v. Gilbert (04-5004, Nov. 28, 2005), refusing to recognize an "innocent possession" defense to felon-in-possession charges where possession was " transitory and without illicit motive." Gilbert, a felon, claimed that he found the gun while on the way to work and meant to turn it in to the police. (As the court notes at the end of the opinion, his explanation is a bit fishy).
The Court notes that felon-in-possession requires only a "knowing" state of mind, not a "willful" one like much of the rest of the Gun Control Act (after its 1986 amendments). It refers to a prior decision that suggested there might be a justification defense where the felon was under imminent threat of death or injury and possessed a gun only to defend himself.
Sounds like a split in the circuits -- it notes that DC circuit has recognized innocent possession, while the 7th and 10th, and now the 4th, have refused.
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5th Cir. rules on illegal alien as prohibited person
The Fifth Circuit has issued an interesting opinion relating to the status of an illegal alien vis-a-vis the Gun Control Act. United States v. Orellana, 405 F.3d 360 (5th Cir. 2005).
18 U.S.C. § 922(g)(5)(A) makes it unlawful to possess a firearm while being an alien "illegally or unlawfully in the United States." The defendant was a Salvadoran who entered the US illegally. After his entry, El Salvador experienced earthquakes, and the Attorney General used his legal powers to allow Salvadorans to apply for "Temporary Protected Status," where they could remain in the US and seek employment, at least until the TPS was lifted. The defendant applied for and got that status, then found work as a security guard. During an investigation of use of illegals by private security firms, federal agents came across him while he was armed and on duty. He was convicted of illegally possessing the gun and sentenced to 18 months' imprisonment.
The Fifth Circuit found it quite difficult to determine Congressional intent in this situation (the law allowing TPS was enacted long after the Gun Control Act was, and neither statute had any useful legislative history. BATF had promulgated a regulation indicating that an illegal alien who later received TPS was still forbidden to own arms, but the court declined to give much deference to the regulation, noting that the degree of deference given an agency in the setting of a criminal prosecution is uncertain and the agency here had no particular expertise in immigraton law. Finally, it noted that the government itself in another appeal had conceded that ATF regulations were not entitled to deference.
In the end, the court held the situation sufficiently ambiguous to justify the application of the rule of lenity: if a statute can be construed with about equal validity in two different ways, the court should choose the more lenient construction; if Congress wanted the stricter one, it should say so without ambiguity. "After conscientiously applying our circuit's rules of statutory construction, we cannot say with certainty that Congress intended to criminalize the possession of firearms by aliens who have been granted temporary protected status. It may be sound policy, but as such its wisdom has no call upon the judicial power. When Congress does unambiguously render conduct illegal through appropriate legislation, it is not our task to offer supplementary and clarifying amendments."