Fleischman At Slate: Do You Know Your Status?

You loved him at Fault Lines. You appreciated him here. And now he’s broken free of the chains of bondage to join the ranks of big pundits pontificating to the passionately unwashed. Andrew Fleischman got the call and went for it.

The Supreme Court Just Showed a Way Forward on Criminal Justice Reform

in doing so, the quality of Slate’s legal writing just improved immeasurably. Andrew’s got no ax to grind that compels him to twist, if not outright fabricate, the holding of the Supreme Court in Rehaif v. United States to fit an agenda, because it would be a shame if any reader walked away without being told what they’re to think.

Instead, Andrew does what he has always done, played it straight, told the truth, and presented smart, accurate thought that illuminates rather than indoctrinates. I’m very proud of him.

The key point in Rehaif is one that might elude lesser writers, or more passionate pundits. Not only did it not elude Andrew, but his succinct explanation of this nuanced holding should serve to clarify it for even the most ardent Slate reader.

At trial, one central question emerged: What did Rehaif have to know to “knowingly” violate the statute? The defense argued that Rehaif had to know that he was using a firearm and that he was no longer legally in the United States. But the trial court told the jury that Rehaif’s knowledge of his immigration status was irrelevant. All the government need prove was that Rehaif knew he was holding a firearm. Its burden lifted, the government prevailed and Rehaif was sentenced to 18 months in federal custody before his deportation.

Got a gun in your hands? Then you know it. Get tossed out of college for lousy grades when you’re here on a student visa? You were here legally when you came. What’s your status then?

Justice Stephen Breyer, writing for the majority, found that federal courts had given too little weight to the “presumption of scienter,” a rule of interpretation that suggests a court find specific intent elements even when Congress doesn’t bother to write them down. That presumption is particularly strong when, as here, some general intent requirement is written and the penalties for violating the law are harsh.

Scienter is one of those cool legal words that keep the groundlings from understanding law so we can buy new cars. Don’t hate on new cars, you hater. It just means “knowledge of wrongdoing,” and when the elements of the offense involve different things that a defendant would need to know, and then add up, to realize he blew it, the government has to prove scienter as to each of them.

This is a big deal. A huge deal. Even when the statute fails to specify a particular mens rea (which used to be a thing that the left loved until the Koch Brothers made them hate it), there remains a presumption of scienter, that a defendant has to have some recognition of the parts of the puzzle that end up a picture of guilt.

In Rehaif’s case, the law prohibited the possession of a gun by a non-citizen here either “illegally or unlawfully.” I throw that in to remind those of you who presume all undocumented immigrants are illegals, rather than unlawfuls like Rehaif. He didn’t enter illegally. He overstayed his student visa, which subjects him to civil sanctions but is not a crime.

Did he know he was an unlawful? Maybe so, but it’s still the government’s burden to prove it, and they took the bye offered by the trial court. Want to know more? Want to know what this means for other defendants caught in the middle of the tens of thousands of federal laws and regulations that could make you an unlawful, if not an illegal?

Of course you do. So why are you still here? Go read Andrew Fleischman’s post at Slate.

3 thoughts on “Fleischman At Slate: Do You Know Your Status?

  1. Richard Kopf

    My sincere congratulation to Andrew. However, I am convinced that he is too good for Slate, but that is another matter.

    All the best.


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