Ninth Circuit: Possession of Assault Weapon Is Not A "Crime of Violence."

Ninth Circuit Says Possession of Assault Weapon Is Not A 'Crime of Violence'.



As reported on earlier at Volokh Conspiracy, the Ninth Circuit issued an opinion (.pdf) on Monday in a case involving the federal sentencing guidelines. The opinion, authored by Judge Kozinski, ultimately concludes that possession of an assault weapon is not a "crime of violence" for which the sentencing range can be increased.

The defendant in the case, Xavier Serna, pleaded guilty to being a felon in possession of a firearm. Serna had previously been convicted under state law for violating a California statute prohibiting possession of an assault weapon. The subject of the opinion is entirely the prior state court conviction and its impact on the sentencing range. It is not clear from the opinion whether Serna was, at the time of the state court conviction, a felon. It seems to me that the logical implications of Kozinski's rationale in the present case suggest that Serna was not a felon at the time of the prior conviction, or Kozinski's rationale seems to fall apart.

The sentencing guideline at issue, Section 4B1.2(a), defines "crime of violence" as

"any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that . . . has as an element the use, attempted use, or threatened use of physical force against the person of another, or . . . involves conduct that presents a serious potential risk of physical injury to another.

The Ninth Circuit's opinion methodically follows the language of this statute to ascertain its meaning. There is no dispute that the prior conviction was punishable by imprisonment for a term exceeding one year, and there is no assertion that the prior conviction involved any kind of physical force against another; the prior conviction was simply for possessing the assault weapon. As such, the key to determining whether that prior conviction involved a "crime of violence" is to determine whether simple possession of an assault weapon "involves conduct that presents a serious potential risk of physical injury to another."

The Ninth Circuit's opinion methodically follows through the various arguments that can be made on this last part of Section 4B1.2(a). Simply possessing an item that has the potential to cause physical injury is not enough, or possession of any number of otherwise innocuous items might be classified as a "crime of violence."

Where the Ninth Circuit's opinion becomes a bit unclear, however, is when the court notes that "[o]ur caselaw and the Sentencing Guidelines instruct that being a felon in possession of a firearm is not a crime of violence." The court notes this as a transition to concluding that because illegal possession of an ordinary firearm is not a crime a violence, "possessing an object designed to be lethal does not alone pose a 'serious potential risk.'" I think it is the nonsequitor in this transition that potentially creates confusion. By specifically raising the specter of "being a felon in possession of a firearm," the court has planted the notion that Serna might have been a felon at the time of his prior conviction, albeit likely unintentionally.

The court's subsequent rationale for why possessing an assault weapon is not a crime of violence turns largely on the potential "legitimate" uses of the assault weapon. The court concludes that some items, like silencers and sawed-off shotguns, "have few, if any, legitimate uses." As a result of this nature, Congress requires registration of silencers, sawed-off shotguns, and other similar firearms. The court then concludes that Congress' failure to impose a blanket registration requirement on assault weapons is a recognition "that they have lawful uses and are less likely to lead to unlawful violence than sawed-off shotguns and silencers."

Whether Serna was a felon at the time of his prior conviction is crucial to the validity of the Ninth Circuit's analysis, even though the court never makes his status at that time clear. If Serna was, in fact, a felon at the time of his prior conviction, then it could certainly and logically be argued that there was no legitimate use of an assault weapon by him -- any possession and any use would be inherently unlawful and illegitimate. It seems to me that the court's analysis, and its reliance on the "legitimate use" rationale, strongly suggests that Serna was not a felon at the time and that it was unlawful for him to possess the firearm only because of the specific California statute prohibiting possession of assault weapons, not because of any felon status.

(**UPDATE: On further consideration, I'm still not sure why the Ninth Circuit concluded that the "legitimate" uses of assault weapons makes the criminal possession of them not a crime of violence. Following my own reasoning above that possession by a felon would, by definition, be "illegitimate" isn't it similarly the case that if the California statute explicitly made *any* possession of an assault weapon illegal then, by definition, there is no "legitimate" use for an assault weapon in California (at least at the time of this prior conviction)? For example, while the Ninth Circuit talks about things like sporting uses and self-defense, etc., if mere possession of the assault weapon is prohibited, how can one "legitimately" use an assault weapon for sporting uses or self-defense? They can't, can they? Any thoughts or comments? Where is the breakdown in my logic on this one? Would it be a better phrasing of the logic in the Ninth Circuit to say, rather than "legitimate" uses that there are uses for the particular weapon which are not serious potential risks of injury to another, such as sporting uses? Then, even though not "legitimate" in the sense of lawful, the key term in the statute might remain unsatisfied?)