Larry E. Hatfield, Plaintiff-Appellee,
William P. Barr, Attorney General of the United States, Defendant-Appellant.
April 12, 2019
from the United States District Court for the Southern
District of Illinois. No. 3:16-cv-00383-JPG-RJD - J. Phil
Flaum, Easterbrook, and Sykes, Circuit Judges.
EASTERBROOK, CIRCUIT JUDGE.
person "who has been convicted in any court of, a crime
punishable by imprisonment for a term exceeding one
year" is forbidden to possess a firearm. 18 U.S.C.
§922(g)(1). When holding in District of Columbia v.
Heller, 554 U.S. 570, 635 (2008), that the Second
Amendment to the Constitution protects "the right of
law-abiding, responsible citizens to use arms in defense of
hearth and home", the Court added that "nothing in
our opinion should be taken to cast doubt on longstanding
prohibitions on the possession of firearms by felons"
(id. at 626). McDonald v. Chicago, 561 U.S.
742, 786 (2010) (plurality opinion), "repeat[s
Heller's] assurances" that
felon-dispossession statutes are valid. Notwithstanding these
statements, a district judge concluded in this suit that
§922(g)(1) violates the Second Amendment by preventing
nonviolent felons from possessing guns. Hatfield v.
Sessions, 322 F.Supp.3d 885 (S.D. 111. 2018). We
recently held otherwise, see Kanter v. Ban, 919 F.3d
437 (7th Cir. 2019), and conclude that Kanter
governs this appeal as well.
was convicted of mail fraud, 18 U.S.C. §1341, for
bilking the Medicare program. He was sentenced to 366 days in
prison. After release he contended that §922(g)(1) is
invalid, as applied to him, because fraud is not a violent
crime, and his conviction therefore does not portend misuse
of firearms. We rejected that contention-not just because it
appears to be inconsistent with the Supreme Court's
statements but also because fraud is a thought-out crime that
demonstrates disdain for the rights of others and disrespect
for the law. Whatever may be true of spontaneous or
victimless crimes, a person convicted of fraud is not the
sort of law-abiding, responsible citizen to whom
contends that his crime is less serious than Kanter's
because he was sentenced to three years' probation rather
than imprisonment. That's true, but the kind of crime is
the same: fraud to get federal benefits to which the
applicant was not entitled. Hatfield applied for and received
benefits from the Railroad Retirement Board, representing
that he was unemployed. In fact he was still working. His
false statements violated 18 U.S.C. §1001(a).
Hatfield's fraud cost the federal government less than
$2, 000 (at least, the single count of conviction specified a
wrongful gain of only $1, 628), while Kanter's fraud cost
federal taxpayers at least $375, 000 and probably a good deal
more. (Kanter agreed to a civil settlement of $27 million.)
But both crimes were carried out over six or more months and
reflected studied efforts to avoid legal obligations. The
maximum penalty for each crime was at least five years in
prison, well over the one-year line drawn by §922(g)(1).
grant that some judges in Binderup v. Attorney
General, 836 F.3d 336 (3d Cir. 2016) (en banc), thought
that a nonviolent felon who did not serve time in prison
could mount a successful challenge to §922(g)(1),
although perhaps a single day in prison would be enough to
defeat such a claim. Kanter did not have to decide
whether to follow that approach, which lacks the support of
any other circuit (or even a majority in Binderup).
Kanter collects decisions from many circuits holding
that §922(g)(1) is valid and properly applied to a
variety of crimes and offenders. We now hold that
§922(g)(1) may be applied to a felon convicted of fraud,
whose maximum sentence exceeded a year, even if the actual
punishment was less. Heller and McDonald
treat felon-dispossession statutes as valid; the Justices did
not make anything of how much time any given felon spent in
has been of two minds about the sort of argument Hatfield
advances. He says that the nature of his crime shows that
allowing him to possess firearms would not pose a danger to
others. A statute, 18 U.S.C. §925(c), provides that the
Attorney General may lift the firearms disability for a
person who makes such a demonstration. But since 1992
Congress has withheld funds to implement §925(c). See
United States v. Bean, 537 U.S. 71 (2002). Hatfield
maintains that this renders §922(g)(1) invalid. We
rejected a similar argument in Kanter, and it is no
premise-and the premise of §925(c)-is that it is
possible to separate persons with felony convictions into two
categories: dangerous and harmless. If that belief were
supported by evidence, then the contention that failure to
implement the statute creates a constitutional problem would
have some oomph. If we could know reliably who will
be "law-abiding, responsible citizens" despite
felony convictions, the Supreme Court might include them
among those protected by the Second Amendment. But
Hatfield's brief does not show or even contend that it is
possible to predict a felon's future dangerousness.
show different propensities to commit crimes but do not
supply any way to predict who will commit those crimes. A
study recently released by the Sentencing Commission found
that 64% of felons who committed violent crimes are arrested
for renewed criminality following release, while only 40% of
those convicted of nonviolent offenses are caught committing
crimes in the future. Recidivism Among Federal Violent
Offenders 3 (Jan. 2019). So it is safe to say that
Hatfield is less likely to commit new felonies than a person
convicted of, say, bank robbery. Yet 40% is still a
substantial recidivism rate, and without some way to know who
will commit new crimes-and whether those crimes are likely to
entail the threat or use of violence-it is not possible to
declare that any particular felon could be entrusted with
firearms. This may be why Congress withdrew funding from the
§925(c) program. No one wants to pay for a program that
does not have a prospect of success.
brief in this court is data-free. When asked at oral argument
whether he knew of any study showing that it is possible to
predict future dangerousness, Hatfield's lawyer said that
he did not-and added that he had not looked for one. He
insisted that the Attorney General bears the burden of
proving that it is not possible to predict
felons' future dangerousness. Lawyers love to play games
with burden-shifting, but Hatfield's effort to avoid the
subject is unavailing. He is the plaintiff, and plaintiffs
bear the burden of production and the risk of non-persuasion.
subject were something other than a felon-dispossession
statute, the Attorney General would bear a burden of
justification. Before concluding in United States v.
Skoien,614 F.3d 638 (7th Cir. 2010) (en banc), that 18
U.S.C. §922(g)(9) is compatible with the Second
Amendment, we considered data about the recidivism rates of
persons within the scope of that paragraph. That was
essential because §922(g)(9) bans the possession of
firearms by persons convicted of domestic-violence
misdemeanors, a kind of offense that the Justices did not
mention in Heller or McDonald. And we added
in Ezell v. Chicago,651 F.3d 684, 703 (7th Cir.
2011), that the government must demonstrate that regulatory
measures not already approved by the Supreme Court are
substantially related to an important goal. But
§922(g)(1) deals with felonies, and someone who wants us
to carve out particular felonies (or felons) from a category
that the Supreme Court has said is presumptively valid must
supply an adequate basis for that distinction. ...