What Does “Knowingly” Mean? Rehaif v. United States, US Supreme Court, Decided June 21, 2019

In Rehaif v. United States, the US Supreme Court answers the question, “what does ‘knowingly’ mean” in the context of a prosecution under 18 USC Section 922(g).

The Court held that, when a person is prosecuted for unlawful possession of a firearm based on their status, the elements of the statute require the government to prove both 1) that the person “knowingly” possessed the firearm and 2) that the person knew that their status was that of an illegal immigrant.

What Does “Knowingly” Mean?

It’s a basic principle of criminal law, with few exceptions, that a person must know that their conduct is illegal.

With some exceptions, we do not punish people for accidents or for unintentional acts – what would be the purpose?

Like most criminal laws, 922(g) has a requirement that a person “knowingly” violate the law. If someone slips a pistol into your bookbag and you did not see them do it, should you go to prison for possessing a firearm?

No. Similarly, if you are now classified as an illegal immigrant but you were unaware that your status had changed, should you be prosecuted for possessing an otherwise legal firearm because you are an illegal immigrant?

No – because the statute requires knowledge.

Why Was Rehaif Charged with a Crime?

Rehaif was in the US legally on a student visa, but his status changed as a result of his poor grades:

Petitioner Hamid Rehaif entered the United States on a nonimmigrant student visa to attend university. After he received poor grades, the university dismissed him and told him that his “‘immigration status’” would be terminated unless he transferred to a different university or left the country.

He was prosecuted under 922(g) after he visited a firing range (if you’re practicing at a firing range, you are most likely in possession of a handgun):

Rehaif subsequently visited a firing range, where he shot two firearms. The Government learned about his target practice and prosecuted him for possessing firearms as an alien unlawfully in the United States, in violation of §922(g) and §924(a)(2).

He went to trial. Although his defense was that he unaware of his new immigration status, the trial judge found that it did not matter, and the government did not have to prove knowledge of his immigration status:

At the close of Rehaif’s trial, the judge instructed the jury (over Rehaif ’s objection) that the “United States is not required to prove” that Rehaif “knew that he was illegally or unlawfully in the United States.”

He was convicted and sentenced to 18 months in prison.

What Does the Statute Say?

18 USC Section 922(g) says that:

(g) It shall be unlawful for any person…

(5) who, being an alien—

(A) is illegally or unlawfully in the United States; or

(B) except as provided in subsection (y)(2), has been admitted to the United States under a nonimmigrant visa (as that term is defined in section 101(a)(26) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(26)))…

…to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

Wait, that doesn’t say anything about “knowingly,” does it?

The “knowledge” requirement is found in 924(a)(2), which requires a violation of 922(g) to be “knowing.” 18 USC Section 924(a)(2) provides the penalties for a violation of 18 USC 922(g):

(2) Whoever knowingly violates subsection (a)(6), (d), (g), (h), (i), (j), or (o) of section 922 shall be fined as provided in this title, imprisoned not more than 10 years, or both.

So, does the requirement of a “knowing violation” apply to all elements of the crime, or does the government get to pick which ones they think it should apply to?

Does “Knowingly” Apply to All Elements of the Crime or Just Some?

The Court found that 924’s knowledge requirement applies to all elements of the crime – in this case, both Rehaif’s immigration status and the possession of the handgun are elements of the crime that must be proven by the government:

As “a matter of ordinary English grammar,” we normally read the statutory term “‘knowingly’ as applying to all the subsequently listed elements of the crime.” Flores-Figueroa v. United States, 556 U. S. 646, 650 (2009); see also id., at 652 (we “ordinarily read a phrase in a criminal statute that introduces the elements of a crime with the word ‘knowingly’ as applying that word to each element”).

The government agreed that “knowingly” should apply to the possession element, but argued that it should not apply to the immigration status element, even though the immigration status is listed in the statute before the possession element, and there is no other language in the statute that would indicate “knowingly” should not apply to immigration status:

This is notably not a case where the modifier “knowingly” introduces a long statutory phrase, such that questions may reasonably arise about how far into the statute the modifier extends. See id., at 659 (ALITO, J., concurring in part). And everyone agrees that the word “knowingly” applies to §922(g)’s possession element, which is situated after the status element. We see no basis to interpret “knowingly” as applying to the second §922(g) element but not the first. See United States v. Games-Perez, 667 F. 3d 1136, 1143 (CA10 2012) (Gorsuch, J., concurring). To the contrary, we think that by specifying that a defendant may be convicted only if he “knowingly violates” §922(g), Congress intended to require the Government to establish that the defendant knew he violated the material elements of §922(g).

The word “knowingly” in 924(a)(2) applies to all elements of the crime that must be proven by the government, including the person’s immigration status.

Which means that the word “knowingly” necessarily also applies to the other possible ways that the government can charge a person under 922(g), doesn’t it? Like:

• A person who has been convicted of an offense carrying one year or more in prison;
• A fugitive from justice;
• A person who uses or is addicted to a controlled substance;
• A person who has been adjudicated as a mental defective;
• A person who has been dishonorably discharged from the military;
• A person who is under a restraining order; or
• A person who has been convicted of a misdemeanor crime of domestic violence.

“Ignorance of the Law is No Excuse”

The government argued that “ignorance of the law is no excuse,” but the Court pointed out the distinction between someone who is 1) unaware of a law that makes his or her conduct illegal and 2) unaware of their own status which makes their conduct illegal:

The Government also argues that whether an alien is “illegally or unlawfully in the United States” is a question of law, not fact, and thus appeals to the well-known maxim that “ignorance of the law” (or a “mistake of law”) is no excuse. Cheek v. United States, 498 U. S. 192, 199 (1991). This maxim, however, normally applies where a defendant has the requisite mental state in respect to the elements of the crime but claims to be “unaware of the existence of a statute proscribing his conduct.” 1 W. LaFave & A. Scott, Substantive Criminal Law §5.1(a), p. 575 (1986). In contrast, the maxim does not normally apply where a defendant “has a mistaken impression concerning the legal effect of some collateral matter and that mistake results in his misunderstanding the full significance of his conduct,” thereby negating an element of the offense. Ibid.; see also Model Penal Code §2.04, at 27 (a mistake of law is a defense if the mistake negates the “knowledge . . . required to establish a material element of the offense”).

It’s a mistake of fact, not a mistake of law.

“Even a Dog Distinguishes Between Being Stumbled Over and Being Kicked”

If the defendant is unaware of his status, he does not have the necessary intent to be convicted of the crime:

It is therefore the defendant’s status, and not his conduct alone, that makes the difference. Without knowledge of that status, the defendant may well lack the intent needed to make his behavior wrongful. His behavior may instead be an innocent mistake to which criminal sanctions normally do not attach. Cf. O. Holmes, The Common Law 3 (1881) (“even a dog distinguishes between being stumbled over and being kicked”).

I think the Court is saying that Rehaif stumbled over the prosecutors, as opposed to Rehaif kicking the prosecutors? Wait, wait. Rehaif stumbled over 922(g). He did not kick it.

At any rate, if the government wants a conviction, they must prove that Rehaif kicked 922(g) and that he did not unintentionally stumble over it…

Federal Appellate Attorney in Columbia, SC

Elizabeth Franklin-Best is a federal white collar criminal defense and federal appeals lawyer located in Columbia, SC.

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