18 U.s.c. Sec. 922(g)(9) and the Lambert Due Process Exception Requiring Actual Knowledge of the Law: United States v. Hutzell, 217 F.3d 966 (8th Cir. 2000)

• Publication year: 2021

80 Nebraska L. Rev. 103. 18 U.S.C. sec. 922(g)(9) and the Lambert Due Process Exception Requiring Actual Knowledge of the Law: United States v. Hutzell, 217 F.3d 966 (8th Cir. 2000)

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18 U.S.C. §922 (g)(9) and the Lambert Due Process Exception Requiring Actual Knowledge of the Law: United States v. Hutzell, 217 F.3d 966 (8th Cir. 2000)

Brian E. Sobczyk

I. INTRODUCTION

On September 30, 1996, Congress amended 18 U.S.C. §922 (g) by adding subsection (9),(fn1) thereby making unlawful the possession of a firearm by a person who has been convicted of a misdemeanor domestic violence offense.(fn2) Violations of this statute subject the defendant to a fine and/or imprisonment for up to ten years,(fn3) and actual knowledge of the prohibitions in 18 U.S.C. §922 (g)(9) is not required.(fn4)

104Generally, when a statute does not require knowledge of the law, it is a well accepted rule that ignorance of the law is no excuse.(fn5) But, according to the Supreme Court in Lambert v. California,(fn6) the due process principles of notice and fair warning create an exception to that rule when the conduct made unlawful by a regulation is (1) malum prohibitum,(fn7) and (2) "wholly passive," which means that the conduct must be neither an act nor the "failure to act under circumstances that should alert the doer to the consequences of his deed."(fn8)

In United States v. Hutzell,(fn9) the question arose as to whether the Lambert due process exception requires actual knowledge for a violation of 18 U.S.C. §922 (g)(9). The indictment in Hutzell was predicated on a misdemeanor domestic violence conviction that occurred prior to the enactment of 18 U.S.C. §922 (g)(9). While this fact does not change the overall analysis under Lambert, it arguably makes it more difficult to justify a conviction absent actual knowledge of the law. This is because, in Hutzell, after the defendant's misdemeanor domestic violence conviction, it was perfectly legal for him to possess firearms. Yet, without his knowledge, that possession suddenly became unlawful with the subsequent enactment of 18 U.S.C. §922 (g)(9). Thus, given the "long tradition of widespread lawful gun ownership by private individuals in this country,"(fn10) the facts in Hutzell seem to place on the defendant an unfair burden of knowing that his conduct was unlawful.

However, the Hutzell court held that the Lambert due process exception did not require actual knowledge of 18 U.S.C. §922 (g)(9). In so holding, the Eighth Circuit reasoned that the defendant's domestic violence conviction itself put him on notice of the potential for increased government regulation regarding his possession of firearms.(fn11)

This Note concludes that, although the court in Hutzell reached the correct holding, the court's analysis is not of sufficient depth and clar-

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ity to be truly convincing. In leading up to such conclusion, this Note begins by detailing the due process exception set forth by the Supreme Court in Lambert. The Note then looks at cases dealing with a similar due process issue regarding 18 U.S.C. §922 (g)(8), which makes possession of firearms unlawful for persons against whom a domestic violence protection order is in effect. Such cases are important, because many of them are discussed and relied upon in the cases that the Hutzell court cites in support of its holding. Next, this Note turns to 18 U.S.C. §922 (g)(9) and the few cases that have dealt with the issue at stake in Hutzell. Then, the Note discusses Hutzell in detail, making clear the court's reasoning. Finally, in Part III, this Note examines the shortcomings of the Hutzell opinion and suggests a more indepth and convincing analysis.

II. BACKGROUND

A. The Lambert Due Process Exception

The key to determining whether the Due Process Clause of the Fifth Amendment requires actual knowledge of the law lies in the case of Lambert v. California.(fn12) Lambert involved a defendant who was convicted under section 52.39 of the Los Angeles Municipal Code, which prohibited convicted felons from remaining in the City of Los Angeles for more than five days without registering.(fn13) At the time of her arrest for this violation, the defendant in Lambert had been a resident of Los Angeles for seven years, during which time she had been convicted in Los Angeles of the crime of forgery, a felony in California, but had not registered under the Municipal Code.(fn14) Thus, the issue as defined by the Court was "whether a registration act of this character violates due process where it is applied to a person who has no actual knowledge of his duty to register, and where no showing is made of the probability of such knowledge."(fn15)

The Lambert Court held that the defendant's conviction violated the due process principles of notice and fair warning. In so holding, the Court acknowledged that "[t]he rule 'that ignorance of the law will not excuse' is deep in our law."(fn16) Nevertheless, it recognized that due process places certain limits on the exercise of a local government's police power in defining offenses.(fn17) Thus, the Court imposed a due process exception to the rule that ignorance of the law is no excuse, holding that for a conviction under section 52.39 of the Los Angeles

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Municipal Code to stand, the prosecution must show "actual knowledge of the duty to register or proof of the probability of such knowledge and subsequent failure to comply."(fn18)

The requirements for application of the Lambert exception are twofold: the prohibited conduct must be (1) "wholly passive,"(fn19) and (2) malum prohibitum.(fn20) As to the latter element, a determination that conduct is malum prohibitum must depend greatly on the common law. With respect to the first element, however, the Lambert Court distinguished "wholly passive" conduct from "the failure to act under circumstances that should alert the doer to the consequences of the deed."(fn21) This distinction means that if the violation is accompanied by (1) "any activity,"(fn22) or (2) "circumstances which might move one to inquire as to" the existence of the regulation,(fn23) then the conduct is not wholly passive, and the Lambert exception does not apply. Thus, only if a regulation criminalizes conduct that is both wholly passive and malum prohibitum will the due process principles of notice and fair warning require that a person have actual knowledge of the law in order to be convicted.

B. 18 U.S.C. §922 (g)(8) and Relevant Cases

Although this Note focuses on whether Lambert applies to a violation of 18 U.S.C. §922 (g)(9), it is relevant to note that an almost identical issue has been litigated in the context of 18 U.S.C. §922 (g)(8), which was enacted on September 13, 1994.(fn24) Section 922(g)(8) makes it unlawful for anyone who is subject to a domestic violence protection order to possess a firearm.(fn25) One significant difference between 18

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U.S.C. §§ 922(g)(8) and (g)(9) is that the former makes possession of a firearm unlawful only while the protection order is in effect, whereas the latter presumably makes such possession unlawful indefinitely. Thus, since a person who has been convicted of misdemeanor domestic violence arguably has less reason to think that his/her actions will be subject to continuing governmental scrutiny than does a person who is subject to a continuing protection order, a conviction under 18 U.S.C. §922 (g)(9) is perhaps more unfair absent actual knowledge of the law. Furthermore, the cases that address 18 U.S.C. §922 (g)(8) all involve protection orders that were issued after enactment of the federal statute, so these cases lack an analogy to the pre-enactment domestic violence conviction in Hutzell. However, these cases certainly merit discussion, for they involve many of the same due process issues as are discussed in this Note with regard to 18 U.S.C. §922 (g)(9).

In United States v. Wilson, the defendant's wife obtained a plenary order of protection against the defendant on September 1, 1995.(fn26) At no time subsequent to the issuance of this order was the defendant actually notified that his possession of a firearm was prohibited while the order remained in effect. On September 10, 1996, with the protection order still in effect, police found the defendant in possession of a shotgun, rifle, and handgun.(fn27) As a result, the defendant was indicted and subsequently convicted for violating 18 U.S.C. §922 (g)(8).(fn28)

On appeal to the Seventh Circuit, the defendant argued, among other things, that his due process rights under the Fifth Amendment had been violated because he lacked any notice that his possession of a firearm was prohibited.(fn29) In summarily rejecting this due process argument, although it cited to the holding in Lambert, the Seventh Circuit did not attempt to analyze whether the elements of the Lambert due process exception were met. Instead, the Wilson court simply invoked the rule that "ignorance of the law is no defense to a criminal prosecution"(fn30) and held that the defendant "has not shown that the present statute falls into an exception to this general rule, and the fact that he was unaware of the existence of [18 U.S.C.] § 922(g)(8) does not render his conviction erroneous."(fn31)

In a vigorous dissent in Wilson, Chief Judge Posner objected to the majority's reliance on the maxim that ignorance of the law is no excuse, arguing instead that "[i]t is wrong to convict a person of a crime if he had no reason to believe that the act for which he was convicted

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was a crime, or even that it was wrongful."(fn32) According to this dissent, the defendant had no way of predicting that his possession of firearms might be prohibited, for the following reasons: (1) "[t]he law is malum prohibitum, not malum in se,"(fn33) (2) "there is no indication that guns played any part in the" defendant's abuse of his...