A federal appeals court released a ruling with a new take on whether non-violent felons can own guns. At least in the case of somebody whose background includes violence, the answer was no. Contributing Writer Jake Fogleman dives into the new standard and how it differs from what other federal courts have ruled.
Plus, I explain why I think the killing of Brian Thompson could end up casting a similarly lengthy shadow to the Columbine killings. The assassination has many of the same features that have led dozens to repeat the school shooting’s playbook over the years. Former FBI agent and active shooting expert Katherine Schweit joins the podcast to discuss the potential for copycats.
Analysis: Non-Violent Felonies, Violent Misdemeanors, and the Second Amendment [Member Exclusive]
By Jake Fogleman
Adjudicating whether non-violent felons retain their gun rights has become one of the most hotly contested fields of Second Amendment law. The Sixth Circuit Court of Appeals added a new wrinkle to the dispute.
On Monday, a three-judge panel rejected a Kentucky defendant’s claim the federal prohibition on felons owning guns violates his Second Amendment rights. The panel determined that even though the defendant’s earlier felonies were technically non-violent offenses, his broader criminal record contained violent misdemeanors that indicate he is too dangerous to have firearms.
“Morton’s criminal record demonstrates dangerousness, specifically that he has committed ‘violent’ crimes ‘against the person,’” Judge Rachel Bloomekatz wrote in US v. Morton. “So, his conviction is consistent with the Second Amendment as interpreted in Williams. Accordingly, § 922(g)(1) is constitutional as applied to him.”
It’s an outcome that, on its face, seems to extend beyond the bounds of the statute. After all, Section 922(g)(1)–with the exception of domestic violence offenses and rare misdemeanor statutes punishable by more than a year in jail–is primarily triggered by felony convictions. Yet in Morton, it was the defendant’s misdemeanors and other non-charged conduct that proved key to denying him his gun rights.
To understand how this particular panel reached that conclusion, it’s worth revisiting an earlier decision from the same court in August.
The Williams Test
In US v. Williams, another Sixth Circuit panel upheld 922(g)(1) against a facial and as-applied challenge brought by a defendant previously convicted of armed robbery. That panel went further than any other appellate court to date in attempting to establish a general framework for evaluating future challenges to the federal felony gun ban. The framework, which now binds the Morton panel, emphasized “dangerousness” as the delineating principle.
“[W]e hold today that § 922(g)(1) is constitutional on its face and as applied to dangerous people,” Judge Amul Thapar wrote in Williams. “Our nation’s historical tradition confirms Heller’s assumption that felon-in-possession laws are ‘presumptively lawful.’ The history reveals that legislatures may disarm groups of people, like felons, whom the legislature believes to be dangerous—so long as each member of that disarmed group has an opportunity to make an individualized showing that he himself is not actually dangerous.”
To help future courts determine who is dangerous, Thapar listed three general categories of potential criminal offenses ranked by how indicative they are of potential dangerousness.
“A person convicted of a crime is ‘dangerous,’ and can thus be disarmed, if he has committed (1) a crime ‘against the body of another human being,’ including (but not limited to) murder, rape, assault, and robbery, or (2) a crime that inherently poses a significant threat of danger, including (but not limited to) drug trafficking and burglary. An individual in either of those categories will have a very difficult time, to say the least, of showing he is not dangerous,” he wrote. “A more difficult category involves crimes that pose no threat of physical danger, like mail fraud, tax fraud, or making false statements.”
He instructed future courts that they did not need to find a specific match to his categorical examples to determine dangerousness but instead should engage in their own individual fact-finding based on the “unique circumstances of the individual” and “details of his specific conviction.” Importantly, he also encouraged courts to evaluate a defendant’s entire criminal record beyond “just the specific felony underlying his section 922(g)(1) prosecution.”
It was under this guidance that the Morton panel both allowed the defendant’s as-applied challenge to be brought forth and, ultimately, what led them to deny it. Reviewing the totality of his criminal record, the panel determined that Morton “undoubtedly” demonstrated the level of dangerousness that warrants permanent disarmament.
“Among other offenses, Morton was previously convicted for wanton endangerment and possessing a firearm as a felon after he shot at his ex-girlfriend and her family, and then showed up at her house a few weeks later and verbally harassed her with a gun on his person,” Judge Bloomekatz wrote. “On another occasion, Morton was convicted of assault resulting from a domestic-violence incident after he punched his then-girlfriend in the head during an argument. Although the latter offense is not one of the felonies underlying the indictment, we may look at Morton’s whole criminal history in assessing dangerousness.”
In other words, though the federal ban itself only contemplates crimes punishable by more than one year in prison (i.e., felonies), the historical principle that underpins it is one of disarming those deemed dangerous. Therefore, the Sixth Circuit believes it is appropriate to incorporate a much broader scope of conduct in determining the felon ban’s constitutionality.
Circuit Split Deepens
While the Morton panel’s analysis was not necessarily unexpected, it is an outlier among the appellate courts that have addressed the felon-in-possession ban.
For example, the Fifth Circuit has similarly recognized the viability of as-applied challenges to the federal ban, but it has explicitly rejected incorporating non-felony offenses in its analysis.
“For the purposes of assessing Diaz’s predicate offenses under § 922(g)(1), we may consider prior convictions that are ‘punishable by imprisonment for a term exceeding one year,’” Judge Jacques Wiener wrote in US v. Diaz, which upheld the law. “Diaz’s pertinent criminal history consists of vehicle theft, evading arrest, and possessing a firearm as a felon. Both he and the government discuss various drug offenses in their briefing on his as-applied challenge, but those are not relevant for our purposes.”
Additionally, an en banc Third Circuit panel and a three-judge Ninth Circuit panel both struck down 922(g)(1) as applied to particular defendants with non-violent convictions. They each did so narrowly without expounding on broader principles for deciding future as-applied challenges. Notably, each of those decisions has also since been vacated—the Third Circuit’s by the Supreme Court and the Ninth’s by an en banc appeal—and each will soon be redecided.
Finally, the bulk of the courts to issue rulings on the felon-in-possession ban since Bruen has rejected the very concept of individualized analyses for specific felons. A series of rulings out of the Fourth, Eighth, Tenth, and Eleventh Circuits have all flatly upheld § 922(g)(1) as constitutional and foreclosed the possibility for as-applied challenges brought by non-violent felons until the Supreme Court explicitly says otherwise.
Outlier? Or Preview?
Despite its unique national position, there’s at least some reason to think that the Sixth Circuit’s approach is more in line with where Second Amendment jurisprudence is ultimately headed on the question of felon gun rights.
The Williams opinion that created the Sixth Circuit’s framework was delivered by Judge Amul Thapar, a well-known conservative jurist who appeared on Donald Trump’s Supreme Court shortlist multiple times during his first administration. Thapar’s profile, combined with his opinion’s emphasis on “dangerousness” as the central criterion for disarmament, could prove particularly persuasive to a Supreme Court already trending in that direction.
Of course, that would require the Court to grant and decide a felon-in-possession case, something it has thus far been hesitant to do. But the justices’ continued silence on the matter is not likely to remain tenable for much longer as the enforceability and constitutionality of the nation’s most frequently charged gun law grows in its inconsistency.
Podcast: FBI Active Shooter Research Pioneer on Potential UnitedHealthcare CEO Killer Copycats [Member Early Access]
By Stephen Gutowski
This week, a Wisconsin school shooting provided a potential warning about what might come from the murder of UnitedHealthcare’s CEO.
That’s not because the two shootings are directly connected but rather because the Wisconsin attack was influenced by the Columbine attack. And the CEO killing has many of the same hallmarks that could lead to it influencing future attacks as well. To examine how likely that is, we have former FBI agent and active shooter research pioneer Katherine Schweit back on the show.
Schweit was part of the team that began tracking active shooter events in the wake of the Sandy Hook attack. She helped create the framework for responding to them for both law enforcement and civilians. She agreed there is reason to think the CEO killing could have a similar effect to that of Columbine.
She said it’s hard to know what might happen with future assassination attempts, but the messaging and viral nature of the CEO killing make copycats more likely. But she said she has seen progress in combatting active shooter incidents, with the number falling the past two years. And the same tactics could be used to reduce copycats as well.
You can listen to the show on your favorite podcasting app or by clicking here. Video of the episode is available on our YouTube channel. An auto-generated transcript is here. Reload Members get access on Sunday, as always. Everyone else can listen on Monday.
Plus, Contributing Writer Jake Fogleman and I talk about a new ruling out of the Sixth Circuit Court of Appeals that upheld the lifetime felony gun ban against a defendant based on his history of violent misdemeanor convictions. We also cover new survey data from Donald Trump’s top pollster indicating strong support for pro-gun judges and policies. We discuss what influence that might have on the incoming administration’s policy priorities. Finally, we wrap up with a round up of gun stories from across the country, including new details about the expected shake up amongst ATF leadership under Donald Trump.
Analysis: Will the UnitedHealthcare CEO Assassination Inspire Copycats Like Columbine Did? [Member Exclusive]
By Stephen Gutowski
This week’s shooting at Abundant Life Christian School in Wisconsin extends the 25-year shadow the Columbine High School shooting has cast over America.
On Monday, a 15-year-old student shot and killed two people and wounded four more before ending her own life. Like dozens of shooters before her, the Abundant Life perpetrator appears to have been inspired in part by the Columbine shooters who carried out their attack a decade before she was even born. Early reports indicate the shooter posted about the 1999 attack on social media and was even pictured wearing a shirt of the same obscure rock band one of the shooters did back then.
It’s worth asking whether last week’s assassination of UnitedHealthcare CEO Brian Thompson might end up having a similar effect.
First, let’s start with why the horrific legacy of Columbine has persisted for so long. The best explanation for this tragic phenomenon comes from Professors James Densley and Jillian Peterson. They are the researchers behind The Violence Project, which has studied mass shootings over the past several decades looking for trends and indicators that might explain and help prevent these kinds of killings.
They’ve spotlighted Columbine as a key event in the rise of modern mass shootings. Columbine wasn’t the first mass shooting by a long shot. It wasn’t the first school shooting, either. It wasn’t even the first major school shooting in 1999.
But the shooters went out of their way to try and inspire others to carry out similar attacks.
“[T]he main reason for Columbine’s longevity was that its perpetrators created manifestos and home movies of their preparations in hopes that their story would outlive them,” Densley and Peterson wrote all the way back in 2019. “Unfortunately, it has.”
The shooters created a kind of playbook for others to follow.
“Before Columbine, there was no script for how school shooters should behave, dress and speak,” the professors wrote. “Columbine created ‘common knowledge,’ the foundation of coordination in the absence of a standardized playbook.”
You can even see traces of that playbook in the UnitedHealthcare CEO killer’s actions, primarily his own “manifesto.” He also seemed to be sending a message to the public and, perhaps, others who see themselves in him.
He attacked the CEO of a company he doesn’t appear to have had actual business with, likely using him as a symbol of a system he was outraged by. He carried out his attack in front of witnesses and countless cameras. He left literal messages on the shell casings he used. He dropped a backpack in Central Park that was full of monopoly money. He appears to have 3D printed his gun and silencer even though he could have bought them through traditional channels.
His writings indicate these were all intentional. He described putting together the attack, including printing the gun’s frame, as “fairly trivial.” He said he was angry at the healthcare system but couldn’t fully articulate the details of why he felt murdering an executive at random was justified.
“What do you do? You wack the C.E.O. at the annual parasitic bean-counter convention,” he wrote in a notebook, according to The New York Times. “It’s targeted, precise, and doesn’t risk innocents.”
What’s more troubling than the method of the killing or the reasoning for it is the viral nature of it. His actions seemed designed to feed into the modern social media landscape. He may be the first TikTok killer, and that’s particularly concerning given the rest of Densley and Peterson’s explanation for why Columbine has endured as an inspiration for other killers all these years.
“Timing was everything,” they said. “The massacre was one of the first to take place after the advent of 24-hour cable news and during the ‘the year of the net.’ This was the dawn of the digital age of perfect remembering, where words and deeds live online forever. Columbine became the pilot for future episodes of fame-seeking violence.”
There have been many fame-seeking killers since Columbine, but few have been as successful at getting attention as the man who murdered Thompson. He has been the subject of news coverage, sure, but the video of his act of violence is world-famous by now.
Densley and Peterson point out there were always kids who felt like outcasts with a desire to lash out, but the Columbine shooting gave them a new and terrible way to do so. Will the same happen after Thompson’s killing? It certainly seems many more people sympathize with his motivations than any school shooter or mass murderer, with countless memes and videos valorizing him.
The percentage of people cheering or memeing Thompson’s killing who might actually carry out an attack of their own is probably much lower than those who’ve done the same for the Columbine attack, but it may not be zero. And the attention, even the negative attention, may contribute, however unintentionally, to this happening again. The phenomenon isn’t just reinforced by those who want these kinds of attacks to happen but by everyone who treats it as an expected part of life–which is often all of us.
“[W]e, the public, have contributed to the production and direction of this script. Again and again and again,” Densley and Peterson wrote of Columbine. “Through our obsession with true crime and films, books, memes and entire websites devoted to Columbine. By releasing CCTV footage of the shooting to the public. By running our children through regular lockdowns and active shooter drills starting in preschool through 12th grade. By sending them to school through secure entrances with clear backpacks and bulletproof binders. Society and culture have reared a Columbine generation, modeling that this is just part of childhood in America.”
That is one reason we limit the use of the shooter’s name in our reporting. But the reality is that people are interested in these attacks. Shooters are trying to create a spectacle, and spectacles are hard to ignore–even if one part of stopping them is to give them less attention.
There’s no guarantee the UnitedHealthcare CEO’s murder will inspire copycats. Hopefully, it won’t. But the factors that have led school shooters to try and recreate the Columbine attack for 25 years are present here and, perhaps, in more abundance than any similar act of violence we’ve seen in a long time.
That’s it for now.
I’ll talk to you all again soon.
Thanks,
Stephen Gutowski
Founder
The Reload
