Defining "use" of a firearm.

• Author: Gilbert, Alan M.
• Position: Supreme Court Review

1. INTRODUCTION

   In Bailey v. United States,(1) the United States Supreme Court held that in order to "use" a firearm in relation to a drug-trafficking crime within the meaning of 18 U.S.C. [sections] 924(c) (1), a criminal defendant must actively employ the weapon.(2) In separate and unrelated cases, petitioners Roland J. Bailey and Candisha S. Robinson were convicted in the United States District Court for the District of Columbia of, inter alia, using or carrying a firearm in relation to a drug trafficking offense in violation of 18 U.S.C. [sections] 924 (c) (1). Different panels of the United States Court of Appeals for the District of Columbia affirmed(3) and reversed(4) the petitioners' convictions, respectively. The D.C. Circuit subsequently consolidated the two cases for en banc reconsideration, wherein the court affirmed both Bailey's and Robinson's convictions.(5) Bailey and Robinson then jointly petitioned for certiorari and the Supreme Court of the United States granted the petition in order to clarify the meaning of "use" under [sections] 924 (c) (1).(6)

   This Note argues that the Court properly concluded that a defendant must "actively employ" a firearm in a manner that makes the firearm an operative factor in the predicate crime in order to violate 18 U.S.C. [sections] 924(c) (1). The Note then explains how the unanimous decision, written by justice O'Connor, narrowed the scope of [sections] 924(c) (1) from the broad, far-reaching scope that O'Connor herself had implied in the majority opinion in Smith v. United States,(7) a previous Supreme Court decision regarding the scope of conduct reached by the statute.

   Finally, this Note discusses whether the Court's recommendation that prosecutors charge offenders who mix guns and drugs under the "carry" prong of [sections] 924(c) could lead lower courts to expand the statute's scope to reach the very conduct that the Court excluded in Bailey. As a normative matter, the Note argues that an astute definition of "carrying a firearm" should not include storing a firearm which is proximate to and accessible during a drug transaction.

2. Background

   1. LEGISLATIVE HISTORY OF 18 U.S.C. [sections] 924(c)(1)

      18 U.S.C. [sections] 924(c)(1) mandates an enhanced sentence for anyone who "during and in relation to any crime of violence or a drug-trafficking crime ... uses or carries a firearm."(9) The current version of [sections] 924(c)(1) resulted from a number of amendments that reflected Congress' concern over the increasing number of violent and narcotics-related crimes.(10) Congress originally adopted (section) 924(c) (1) as part of the Gun Control Act of 1968.(11) The section created a separate offense for using or unlawfully carrying a firearm during the commission of any felony, and penalized its violation with a sentence of not less than one year or more than ten years.(12)

      The pressures leading to the eventual adoption of [sections] 924(c) (1) were complex. Throughout the 1970's, an overcrowding of prisons, coupled with the failure of increased sentence lengths to reduce the amount of drug related crimes, led Congress to become disenchanted with mandatory minimum sentencing for drug crimes.(13) However, the continued escalation of violent crime in the 1970's and 1980's and the public dissatisfaction with judicial discretion in sentencing led to renewed support by Congress for mandatory sentencing.(14) As a result, Congress passed the Comprehensive Crime Control Act of 1984, which amended [sections] 924(c) (1) to read: "Whoever, during and in relation to any crime of violence ... uses or carries a firearm ... shall in addition to the punishment provided for such crime of violence, be sentenced to imprisonment for five years."(15) Pursuant to this amendment, the new predicate offense became "any crime of violence," and the statute required the firearm to be used or carried "during and in relation to" the predicate offense.(16)

      Courts quickly experienced difficulties in interpreting what constituted a "crime of violence," especially in the context of drug-trafficking.(17) Some courts held that drug trafficking did constitute a crime of violence while others arrived at the opposite conclusion.(18) This split led Congress to pass the Firearm Owners' Protection Act of 1986, which amended [sections] 924(c) (1) to include specifically the predicate offense of drug trafficking.(19)

      Congress has since amended [sections] 924(c) (1) to mandate harsher sentencing in cases where the defendant uses a more destructive class of weapons.(20) The sentence becomes ten years if the firearm used in the predicate offense is a short-barreled rifle, a short-barreled shotgun, or semiautomatic assault weapon; and the sentence becomes thirty years if the firearm is a machine-gun, a destructive device, or is equipped with a firearm silencer or firearm muffler.(21)

   2. THE CIRCUIT COURT'S INTERPRETATION OF 18 U.S.C. [sections] 924 (C) (1)

      While the 1986 amendment clarified that [sections] 924(c) (1) did indeed reach the use of firearms where the predicate crime was one of drug trafficking, the amendment failed to guide the courts in construing what constituted "use" of a firearm under the statute.(22) Accordingly, the circuit courts were forced to wrestle with the issue of defining the nebulous term.(23) Although the majority of circuits concluded that the statute reached a broad range of conduct, the statute was applied inconsistently and unpredictably. In some circuits, for example, the mere presence of firearms at the scene of a drug trafficking crime was sufficient to constitute use, since the weapons could be used to protect the defendants' drugs, cash, or paraphernalia, and thereby increase the likelihood that the crime would succeed.(24) Other circuits, however, required that a firearm be strategically placed and readily available for use during the underlying crime.(25) In some of these circumstances, the conduct constituting "use" was interpreted so broadly that the scope of use may have been enlarged beyond what Congress originally intended.(26)

   3. SMITH V. UNITED STATES: THE SUPREME COURT SPEAKS ON [sections] 924(c)(1)

      The Supreme Court first considered the scope of [sections] 924(c) (1) in Smith v. United States,(27) a case where the Court attempted to resolve a split in the circuits over whether the term "use" was to be defined broadly enough to bring guns used as barter in drug deals within the purview of the statute.(28) The defendant in Smith was convicted under [sections] 924(c) (1) after he offered an undercover police officer a MAC-10 machine gun in exchange for a two ounces of cocaine.(29) The defendant appealed his case to Supreme Court arguing that [sections] 924(c) (1)'s penalty only covers situations in which the firearm was used as a weapon.(30)

      Writing for the majority, Justice O'Connor concluded that a defendant who trades a firearm for drugs does in fact "use" it during and in relation to a drug trafficking crime within the meaning of [sections] 924(c) (1).(31) In arriving at this conclusion, Justice O'Connor rejected the defendant's contention that the statute only referred to situations wherein the firearm was used as a weapon.(32) Instead, she reasoned that the term "use," not defined by the statute, should be construed "in accord with its ordinary or natural meaning."(33) The majority then concluded that the defendant "used" his firearm within the ordinary or natural meaning of the word.(34) "By attempting to trade his MAC-10 for the drugs, he `used' or `employed' it as an item of barter to obtain cocaine; he `derived service' from it because it was going to bring him the very drugs he sought."(35) Although Justice O'Connor's majority decision limited the Court's holding to the narrow case of firearms used for barter in drug transactions, the decision nonetheless implied that the "use" requirement be interpreted broadly.(36)

      Justice Scalia, in dissent, argued that "to use an instrumentality ordinarily means to use it for its intended purpose."(37) He consequently asserted that the ordinary meaning of "using a firearm" is using the firearm as a weapon.(38) Justice Scalia then declared that the majority's interpretation produced a "strange dichotomy," since using a firearm for any purpose necessarily includes carrying a firearm, thereby blurring the line between the two prongs of the Statute.(39) Justice Scalia also noted that under the 1984 version of the statute, Congress clearly wanted to deter the use of firearms which facilitated violent crime.(40) Thus, the purpose of [sections] 924(c) (1) was not being served if the statute reached situations where a defendant did not use or intend to use the firearm in violent manner.(41) As a result, Justice Scalia concluded that the defendant's use of a firearm as an item in commerce did not constitute "use" under the meaning of [sections] 924(c) (1).(42)

      The Smith court's implication of a broadly-defined use requirement opened the door to an expansive interpretation of [sections] 924(c) (1) that could further Congress' war against drugs and violent crime.(43) It also lent support to the similarly broad standards previously utilized by the circuit courts to interpret the scope of conduct within the purview of [sections] 924 (c) (1).(44) However, because the Smith decision failed to give an express opinion on the breadth of the statute or resolve the inconsistencies in the lower courts, it remained to be seen whether the courts would continue to utilize [sections] 924(c) (1) to deter violent and drug trafficking crimes.(45) As a result, the issue was ripe for the Supreme Court's consideration(46)in United States v. Bailey.(47)

3. Facts and Procedural History

   1. BAILEY'S ARREST, TRIAL, AND PANEL APPEAL

      On May 2, 1988, two District of Columbia Metropolitan police officers stopped Roland J. Bailey's vehicle after noticing that Bailey was driving without a front license plate or inspection stickers.(48) After...