Is possession of a short-barreled shotgun a violent felony under the Armed Career Criminal Act?
The Supreme Court will consider whether possession of a short-barreled shotgun can be considered a violent felony for purposes of the Armed Career Criminal Act (“ACCA”). Johnson argues that possession alone of a short-barreled shotgun is not inherently violent, unlike the other violent felonies listed in the ACCA. The United States asserts that possession of a short-barreled shotgun is a violent felony because the possession of a dangerous weapon greatly increases the likelihood that a possessor will injure or kill others. The Court’s ruling implicates the law of sentencing enhancements, the classification of violent felonies, and the scope of the ACCA.
Questions as Framed for the Court by the Parties
Whether the mere possession of a short-barreled shotgun should be treated as a violent felony under the Armed Career Criminal Act?
The Federal Bureau of Investigation started investigating Samuel James Johnson’s participation in the Aryan Liberation Movement (“Movement”) in 2010. Johnson intended to counterfeit United States currency in order to support the activities of the Movement. On several occasions, Johnson told undercover agents that he manufactured explosives for the Movement and showed agents that he had a large collection of weapons, including an AK-47 rifle. Because he possessed these firearms, Johnson was arrested in April 2012. Johnson was charged with six counts in his eventual indictment—four counts of being an armed career criminal in possession of a firearm and two counts of being a felon in possession of ammunition.
In exchange for the Government’s dismissal of the other five counts, Johnson pled guilty to one count of being an armed career criminal in possession of a firearm. According to the pre-sentence investigation report, Johnson had three prior violent felonies. His three prior violent felonies were attempted simple robbery, simple robbery, and possession of a short-barreled shotgun. Under the Armed Career Criminal Act (“ACCA”), Johnson qualified as an armed career criminal because of his past violent felonies, and he was subject to a mandatory minimum fifteen-year prison term. Johnson challenged the classification of his prior felonies as violent felonies, but the District Court for the District of Minnesota ruled that all three felonies were violent. Additionally, Johnson argued that the ACCA is unconstitutionally vague, but the court disagreed. The district court sentenced Johnson to 180 months in prison.
Johnson appealed to the Court of Appeals for the Eight Circuit (“Eighth Circuit”), arguing that the court should not consider his convictions for attempted simple robbery and possession of a short-barreled shotgun violent felonies under the ACCA, and that the ACCA suffers from unconstitutional vagueness. The Eighth Circuit ruled that the district court properly classified Johnson’s past convictions as violent felonies under 18 U.S.C. § 924(e)(2)(B). The court reasoned that, under the statute, a crime is a violent felony if it: (1) “has as an element the use, attempted use, or threatened use of physical force against the person of another;” (2) “is burglary, arson, or extortion, involves the use of explosives;” or (3) “otherwise involves conduct that presents a serious potential risk of physical injury to another.” According to the court’s precedent, possession of a short-barreled shotgun falls into the third category, the “residual clause” of the statute, for purposes of the ACCA. Additionally, the court held that attempted simple robbery is a violent felony because it has an element of a use or threat of force against a person. The Eighth Circuit also ruled that the ACCA was not unconstitutionally vague. Johnson appealed to the Supreme Court of the United States. The Supreme Court granted certiorari to determine whether possession of a short-barreled shotgun is a violent crime under the ACCA.
Under the Armed Career Criminal Act (“ACCA”), a defendant with three violent felony convictions must undergo a mandatory fifteen-year minimum sentence. Johnson and the United States mainly disagree over whether a defendant’s prior felony conviction for possession of a short-barreled shotgun should be treated as a “violent felony” under the residual clause of the ACCA, 18 U.S.C. §924(e)(2)(B)(ii). Johnson admits that he has two qualifying convictions, but argues that his conviction for possessing a short-barreled shotgun is not a “violent felony” under the ACCA. He contends that this is because possessing a short-barreled shotgun is not similar in kind nor similar in degree of risk as the specifically enumerated felonies in the ACCA including arson, burglary, extortion, and crimes involving the use of explosives. The United States argues that possessing a short-barreled shotgun is similar in kind and also similar in risk, if not more risky than any of the enumerated offenses.
Johnson and the United States further disagree on whether the unlawful possession of a short-barreled shotgun under Minnesota law involves “purposeful, violent, and aggressive conduct.”
THE STANDARD FOR DETERMINING A VIOLENT FELONY
Johnson asserts that the Court has held that for an offense to fall under the residual clause within the ACCA’s definition of “violent felony,” which encompasses offenses that involve conduct that has a serious potential risk of physical injury to another, the offense in question must be both “similar in kind” and “similar in degree of risk” to the enumerated offenses, and the possession of a short-barreled shotgun does not meet this two-prong test.
The United States contends that the Court has interpreted the residual clause to encompass a “categorical approach” that examines the conviction’s legal definition and not the conviction’s specific factual circumstances, in deciding whether an offense has the required risk for a violent felony. Further, the United States asserts that the analysis is then whether the conduct of the offense, in the standard scenario, has a high probability of resulting in injury, and the possession of a short-barreled shotgun does possess this great risk.
IS POSSESSION OF A SHORT-BARRELED SHOTGUN “SIMILAR IN KIND” TO THE ACCA’S ENUMERATED VIOLENT FELONIES?
Johnson contends that possessing a short-barreled shotgun does not fall within the ACCA’s “violent felony” residual clause because the offense is not “similar in kind” to the enumerated felonies; possessing a short-barreled shotgun is a crime of only possession and not purposeful action. Johnson asserts that even the closest enumerated violent felony to possession of a short-barreled shotgun, “use of explosives,” requires use of a potentially hazardous object, and thus mere possession of a short-barreled shotgun is not “similar in kind” and is not a violent felony. Johnson further maintains that the United States’ broad, ordinary circumstance approach places no limit on the meaning of a violent felony. Johnson argues that enabling unchecked speculation about what additional conduct might occur during the offense enables significant speculation rather than minimizing speculation. Johnson urges that this gap between the offense and the harm imagined by the government’s analysis is too great.
The United States counters that while the possession of a short-barreled shotgun does not create a definite risk of physical injury, the emphasis is that there is possible risk, and the standard scenario of possessing a short-barreled shotgun includes serious possible risk of injury to another. The United States further contends that the determination of a whether a crime is a violent felony under the ACCA is done by examining the circumstances and behavior that typically takes place with the offense, such as an accidental injury that can occur with the possession of a short-barreled shotgun. The United States also argues that in the standard scenario, the short-barreled shotgun is commonly used for severe criminal activity, and its presence in a crime greatly increases the likelihood that injury or death may result if the possessor of the gun is confronted.
IS POSSESSION OF A SHORT-BARRELED SHOTGUN SIMILAR IN DEGREE OF RISK TO THE ACCA’S ENUMERATED VIOLENT FELONIES?
Johnson argues that along with being similar in kind, a felony can only fall within the ACCA’s “violent felony” residual clause if the Court finds that the degree of risk posed by it is similar to that of the enumerated felonies. Johnson asserts that this standard is not satisfied because in order to compare the degree of risk posed between an offense and its closest enumerated felony, the Court should examine statistics to investigate the extent to which the offense results in death or injury. Johnson admits that there is a lack of statistics on short-barreled shotguns, but contends that short-barreled shotguns are involved in only a small amount of gun crimes and injuries, and thus they do not hold the high risk that the enumerated offenses all inherently have. Further, Johnson argues that possessing a short-barreled shotgun is legal at the federal level if it is registered in compliance with the National Firearms Act, and thus these weapons have legitimate private uses. Moreover, Johnson argues that some ordinary citizens use short-barreled shotguns for home defense, and some smaller people find short-barreled shotguns more preferable for hunting.
The United States maintains that possession of a short-barreled shotgun involves a similar high degree of risk as the enumerated offenses, if not more risk. The United States asserts that this is because those who illegally possess the guns are more likely to engage in criminal activity with the weapon, and possessing a short-barreled shotgun during a serious crime increases the risk that someone will be injured or killed. The United States contends that the short-barreled shotgun is suited for criminal purposes because it is concealable, easily maneuvered and the Court has stated the possession of a short-barreled shotgun is similar to possessing “grenades, machine-gun and artillery pieces, in that any reasonable person would know that they are not ordinary weapons fit for civilian use.” The United States responds that while statistics on short-barreled shotguns do not exist, statistics based on shotgun use during crimes show that these circumstances have resulted in more injuries and deaths than both the combination of the use of explosives and arson. The United States also argues that possession of a short-barreled shotgun has similar risks as the ACCA enumerated felony of extortion, as they both contain an inherent threat of violence.
DOES POSSESSION OF A SHORT-BARRELED SHOTGUN INVOLVE “PURPOSEFUL, VIOLENT AND AGGRESSIVE CONDUCT”?
In Begay, the Court held that for an offense to fall under the ACCA’s residual clause, it must involve “purposeful, violent, and aggressive conduct.” Additionally, the Court held that because drunk-driving offenses are akin to strict liability crimes in that they criminalize conduct where the offender did not possess any criminal intent, these offenses do not meet the purposeful, violent and aggressive standard.
Johnson contends that in contrast to the ACCA’s enumerated offenses, possessing a short-barreled shotgun does not involve “purposeful, violent, or aggressive conduct” because further action is needed to shift from possession into a violent act. Further, Johnson argues that because the Minnesota statute he was convicted under does not require any additional intent, such as mens rea, his conviction does not speak to any mental state while he possessed the short-barreled shotgun.
The United States responds that the unlawful possession of a short-barreled shotgun under Minnesota law is not a strict liability crime because statutory silence is not enough to forgo mens rea, and the offense contains a felony-level liability. Further, even if strict liability did apply, and awareness of the characteristics of a short-barreled shotgun was not required, that would not take the offense outside the realm of the ACCA’s residual clause because a state legislature could sensibly deduce that the length of a short-barreled shotgun is visually evident and thus, the government should not have to prove that a gun’s possessor retained the necessary awareness.
In this case the Supreme Court will have the opportunity to determine whether the possession of a short-barreled shotgun is a violent felony for the purposes of the Armed Career Criminal Act (“ACCA”). Johnson argues that possession of a short-barreled shotgun alone is not inherently violent conduct, and that the crime should therefore not be deemed a violent felony for purposes of the ACCA. However, the United States asserts that the unlawful possession of a short-barreled shotgun has a high correlation with inflicting injuries and that the likelihood of someone who illegally possesses a short-barreled shotgun to engage in criminal activity is extremely high. The outcome of this case may affect gun control and use.
VIOLENT AND NON-VIOLENT USES OF A SHORT-BARRELED SHOTGUN
According to Johnson, possession of a short-barreled shotgun should not be deemed an inherently violent felony for purposes of the ACCA because people use short-barreled shotguns for several lawful purposes. For example, citizens use short-barreled shotguns for hunting, self-defense, or even adding them to their gun collection. According to amici for Johnson, Gun Owners of America (“GOA”) and other public policy-oriented organizations, thousands of Americans legally own short-barreled shotguns, and Congress would not allow citizens to possess weapons that are inherently dangerous. Additionally, GOA and the other organizations argue that generally, the ability to manipulate a weapon and maintain mobility while holding a weapon is paramount, and a shotgun with a shortened barrel allows for enhanced mobility and manipulation the weapon. Johnson contends that these characteristics make the short-barreled shotgun ideal for home defense. In support of Johnson, GOA and other organizations further assert that the distinction between possessing a short-barreled shotgun and an unaltered legal shotgun is arbitrary, with the length of the barrel as the only difference between the two. Johnson also stresses that short-barreled shotguns are not involved in most gun-related offenses.
The United States argues that unregistered, and therefore illegal, short-barreled shotguns are overwhelmingly used to execute crimes. According to the United States, citizens who hunt with, collect, and use short-barreled shotguns for self-defense are likely to register them and lawfully posses them. Amici for the United States, the Brady Center to Prevent Gun Violence (“Brady Center”) and the International Brotherhood of Police Officers (“IBPO”), argue that the presence of a gun creates a risk of violence, even though possessing a gun itself does not produce violence in all cases. Additionally, the Brady Center and IBPO assert that high rates of gun ownership are tied to higher homicide rates, which suggests that the possession of guns is connected to violence. The United States also contends that shotguns are particularly dangerous and destructive because of the ability to shoot multiple projectiles simultaneously, allowing a shooter to hit multiple targets or hit a single target with multiple pellets with only one trigger pull.
In this case the Court is faced with the issue of whether a citizen’s possession of a short-barreled shotgun falls under the residual clause definition of a “violent felony” under the ACCA. The Court will clarify whether possession of a short-barreled shotgun is similar in kind and in degree of risk to the ACCA’s other enumerated felonies, including whether it involves purposeful, violent and aggressive conduct. While Johnson argues that mere possession of a short-barreled shotgun is not similar in kind and in degree of risk to the ACCA’s other enumerated felonies, the United States contends that it is. This case implicates the law of sentencing enhancements, the classification of violent felonies, the breadth of the ACCA, and gun control and use.
The authors would like to thank Professor Jens Ohlin from Cornell Law School for his insights into this case.