Oral Argument Recap: Dean v. US

Stanford student John Dalton discusses last week’s oral argument in No. 08-5274, Dean v. US.

Arguing for petitioner, Scott Forster began by contending that – based on the text and legislative history of the statute – Section 924(c) must contain an intent requirement. As has been a recent trend, the Court began delving into the depths of grammar. Chief Justice Roberts began an exchange with what he believed to be the strongest point for the other side, that the language of the statute was in passive voice (i.e., the firearm is discharged) rather than active (i.e., the defendant discharged the firearm). Mr. Forster responded that even the passive tense has some object and thus, the mens rea requirements that the Court has created are still applicable. After some back and forth on this point, Justice Ginsburg posited that under the Government’s reading, the statute would allow the defendant to be charged with extra time if the security guard in the bank were to apprehend him, take away the gun, and then the gun discharged while under the security guard’s control.

Justice Scalia then pushed the hypothetical further and asked whether, under the Government’s view, the defendant could be deemed to have “brandished” the gun if the security guard grabbed the gun and waved it around. Justice Souter then noted that the brandish provision of the statute required a purpose to intimidate, which leads to a larger problem because the definition of brandish shows that Congress knows how to create a specific intent element if it chooses. Mr. Forster responded by arguing that Congress must affirmatively remove a mens rea element; in his view, Congress’s inclusion of a specific definition of brandish does not mean that Congress intended to make the discharge provision strict liability. Justice Souter was unmoved by this argument, claimed that it would not be improper at all, and noted other case law in which the presumption against mens rea does not apply – such as vehicular manslaughter, in which the rationale for the lack of a mens rea requirement is that the person acts in a way that creates risk. Mr. Forster attempted to answer the question by saying that the statute was focused on the conduct of an individual, rather than the issue of punishing negligence.

Chief Justice Roberts then chimed in, arguing that Dean’s reading of the statute would allow criminals to always claim that they accidentally fired the gun – a claim that is difficult to disprove. Mr. Forster countered that under the Court’s decision in Harris, such a claim would be evaluated by the judge as a sentencing enhancement rather than an element of the offense. Justice Ginsburg then asked whether the legislative history of the bill included an earlier version with an explicit intent requirement for discharge. Mr. Forster conceded that such a provision had existed, but he argued that based on the “during and in relation to” language, an intent requirement still existed. Justice Breyer appeared unconvinced by this rationale or any rationale relying solely on the language, and he noted that sometimes accidental shootings are more dangerous. In his response, Mr. Forster again relied on Smith to support his argument that that the “in relation to” requirement clarifies that the discharge cannot be accidental.

Justice Scalia responded by noting that the “in relation to” clause is only in the prologue applying to the use or carrying of a firearm, not the discharge. Mr. Forster countered that because such a reading would lead to absurd results (e.g., the gun being discharged years after the crime), it must extend to that clause. Justice Ginsburg refuted the absurd results claim by noting that the “in relation to” clause certainly applies to using and carrying the firearm in relation to the bank robbery, and now the only question left is whether the gun was discharged, during that same robbery. She later reiterated that Congress included an intent requirement for use and for brandish, so it seems like it could have given an intent requirement to discharge if it had desired.

Arguing for the United States, Assistant to the Solicitor General Deanne Maynard began by emphasizing that the text of the statute has no mens rea requirement, but instead merely requires that a fact occur (i.e. the firearm be discharged) during the commission of a felony. Justice Scalia asked whether the statute would cover a discharge that occurs during a bank robbery because the robber sees someone he doesn’t like. Ms. Maynard responded affirmatively, stating that the “during and in relation” to language applies only to the offense and not the sentencing factors.

Justice Scalia then asked whether the identity of the brandisher or discharger was relevant. Ms. Maynard stated that the identity was irrelevant as Congress was concerned solely with the gun being brandished or discharged, not with who was doing it. Chief Justice Roberts then posed a hypothetical in which the police officer takes away the weapon and later discharges it accidentally. Ms. Maynard maintained that the statute would cover these third-party discharges, but she also added that if the Court were uncomfortable with such a result, it could hold that those actions were not part of the manner in which the defendant committed the offense and thus fell outside of the scope of the enhancement. Justice Scalia interjected to remind the Court that none of this need be decided in the present case as the current felon was the one who discharged the weapon.

Justice Stevens then began a line of questioning on Dean’s argument that Congress must make clear when it does not intend a mens rea requirement to apply. Ms. Maynard first emphasized the element/sentencing enhancement dichotomy. Justice Stevens pushed on this distinction and asked whether this was crucial to the Government, or if the Government would hold that there was no presumption of mens rea with elements of the offense either. Ms. Maynard claimed that in reality that distinction was not even necessary, as for this crime, there is still underlying wrongful conduct (i.e. the robbery) and so whether the discharge of the firearm was an element or not, is irrelevant. In response, Chief Justice Roberts noted that two individuals who committed the exact same crime could be given different sentences based entirely on the fortuity that one individual’s firearm was accidentally discharged while the other one’s did not. Ms. Maynard responded by pointing out that criminals are often subject to extra penalties due to the unintended consequences of their acts.

In response to a question by Justice Breyer about whether the rule of lenity should apply in cases – such as this one – involving mandatory minimum sentencing, Ms. Maynard emphasized the drafting history of the statute, noting that the House’s version clearly had an intent requirement, but the mandatory minimum was also higher – 20 years – while the Senate version removed the intent requirement and dropped the minimum sentence. She then argued that “in relation to” modifies only the use or carry provision and does not even extend to possession, much less the enhancement factors. Justice Stevens responded to this argument by asking why, if the “during and in relation to” clause doesn’t extend to the sentencing factors, the discharge even has to occur during the crime. Ms. Maynard responded that the present tense of the clause (i.e. “is discharged”) shows that the discharge must occur while one is using or possessing the firearm during the commission of the felony. Continuing this exchange, Ms. Maynard repeatedly emphasized that the elements contained in the first paragraph of the statute set forth whether the crime was committed and the only question remaining is the sentence, which is determined by the “is discharged” provision.

On rebuttal, Mr. Forster attempted to reemphasize that silence by Congress was not sufficient to eliminate a mens rea requirement.