Argument preview: Logan v. United States
In Logan v. United States, the Supreme Court will decide whether the "civil rights restored" provision of 18 U.S.C. § 921(a)(20) applies to convictions that did not result in the deprivation of civil rights at all, such that those convictions do not count as predicate offenses under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1).
Pursuant to 18 U.S.C. § 922(g)(1), a person cannot possess firearms if he is convicted of a crime punishable by more than one year's imprisonment. The Armed Career Criminal Act ("ACCA"), as codified at 18 U.S.C. § 924(e)(1), enhances the penalty (imposing a mandatory minimum fifteen-year sentence) for firearm-carrying felons who violate this statute and whose prior convictions include at least three violent felonies or serious drug offenses. Federal law defines a "violent felony" as a violent crime that is "punishable by imprisonment for a term exceeding one year." But state-classified misdemeanors count as violent felonies under the title if the sentences imposed for those crimes exceed two years. In 1986, Congress amended 18 U.S.C. § 921(a)(20), which was enacted as part of the Firearms Owners Protection Act ("FOPA"), so that any conviction which "has been expunged, or set aside or for which a person has been pardoned or has had [his] civil rights restored" does not count as a predicate offense "unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms."
In 2005, petitioner James D. Logan was convicted in the Western District of Wisconsin as a felon in possession of a firearm and received an enhanced sentence of fifteen years as an armed career criminal under Section 924(e)(1). Logan's three previous battery convictions"”though "misdemeanors" under Wisconsin law"”were treated as "violent felonies" for purposes of Section 924(e)(1) because they carried maximum terms of three years' imprisonment.
On appeal, Logan argued that his prior convictions should not count as violent felonies because they fell within the exemption provided by Section 921(a)(20). Specifically, and consistent with the First Circuit's holding in United States v. Indelicato (1996), Logan claimed that a conviction which did not result in the loss of civil rights (e.g., the rights to vote, serve on a jury, and hold public office) should be treated the same as a conviction resulting in terminated but restored rights.
In July 2006, the Seventh Circuit upheld Logan's conviction, holding that a state conviction which does not result in the loss of civil rights qualifies as a predicate offense under the ACCA. The Seventh Circuit rejected Indelicato's analysis, instead concluding that "restore" must be strictly interpreted according to its plain meaning. Resisting a textual analysis, the First Circuit in Indelicato had held that the "civil rights restored" provision in Section 921(a)(20) protects criminal defendants who never had their civil rights taken away. The First Circuit offered two rationales for this conclusion: (1) statutory logic"”it did not make sense that someone whose civil rights were never taken away received a greater sentence than a person who lost but then regained those rights, and (b) legislative history"”nothing indicated that Congress meant to distinguish between convicts who never lost civil rights and those who lost but regained them. On the other hand, the Second Circuit in McGrath v. United States (1995) opted to adhere to the literal language of "restore," reasoning that its role was "to give effect to the legislation Congress has passed, not to legislation it might pass if it further studied the question." The Seventh Circuit agreed with McGrath: "[t]he word "restore' means to give back something that had been taken away . . . the "restoration' of a thing never lost or diminished is a definitional impossibility." Citing Supreme Court precedent and statutory history, the court in Logan dismissed Indelicato's interpretation as an "imaginative reconstruction" of the statute, favoring instead a textualist approach. The Seventh Circuit thus concluded that the "civil rights restored" provision of Section 921(a)(20) only applies when a state deprives a defendant of civil rights and later restores them.
Petition for Certiorari
Logan filed a petition for certiorari, which the Supreme Court granted in February 2007.
The question presented in the petition was whether the "civil rights restored" provision under Section 921(a)(20) should apply to civil rights that were never lost, thereby exempting Logan's predicate state offenses for misdemeanor battery from enhanced penalties under Section 924(e)(1). In his petition for certiorari, Logan focused on the circuit split between Indelicato on the one hand and, on the other, McGrath and the Seventh Circuit's decision in his case"”the former supporting the view that the exemption provision should apply to Logan's prior convictions while the latter do not. Logan further argued that the Supreme Court should grant certiorari because of the issue's importance"”both in practice (the Seventh Circuit decision focuses too literally on the term "restored" and ignores the common-sense application of Section 921(a)(20)) and in statutory intent (following McGrath's approach would broaden the government's prosecutorial opportunities beyond what was envisioned by the authors of the 1986 Firearms Owners Protection Act).
Opposing certiorari, the government argued that Section 921(a)(20) was not irrational because "Congress sought to exclude convictions for which a State has forgiven a defendant, whether by restoration of rights, expungement of a conviction, or pardon." However, the retention of civil rights"”unlike the restoration of civil rights"”does not imply forgiveness. The government further argued that Congress not only intended the result produced by Logan's case but in fact, Congress mandated that very statutory result in Section 922(g)(9), which bars a person convicted of domestic violence from possessing a firearm, and Section 921(a)(33)(B)(ii), which exempts from this bar defendants who "has had civil rights restored (if the law of the applicable jurisdiction provides for the loss of civil rights under such an offense)".
Moreover, the government argued, Indelicato's approach contradicts Supreme Court precedent. The First Circuit in Indelicato relied on the absence of legislative history that specifically distinguishes between civil rights restored and civil rights retained. Not only does the statutory language in Section 921(a)(33)(B)(ii) contradict this, but the Supreme Court in Whitfield v. United States (2005) also held that the "mere silence in the legislative history" does not justify ignoring a statute's plain meaning. As the Court explained in Harrison v. PPG Industries, Inc. (1980): "[I]t would be a strange canon of statutory construction that would require Congress to state in committee reports or elsewhere in its deliberations that which is obvious on the face of the statute." In addition, the government argued that the Supreme Court should not review the question presented because the Indelicato court may eventually reconsider its holding in light of Section 921(a)(33)(B)(ii), which, enacted just fifteen days before the Indelicato decision, was not addressed by the First Circuit in its opinion. The government also claimed that the issue presented will arise too infrequently to warrant the Supreme Court's review because (a) misdemeanors are normally not punishable by more than two years (while Section 921(a)(20)(B) mandates that the sentence exceed two years) and (b) almost all the states take away civil rights from a felon, thereby triggering the possible application of the "civil rights restored" exemption.
In his merits brief, Logan emphasized statutory purpose and anti-absurdist arguments. First, Logan argued that a sensible reading of Section 921(a)(20) in light of Supreme Court precedents, such as Caron v. United States (1998), requires that convictions for which civil rights were retained be included within the "civil rights restored" exemption. Congress enacted the Firearms Owners Protection Act to ensure that federal law respect state law determinations of what predicate convictions subject someone to the federal firearm ban and enhanced penalties. Congress also chose the status of civil rights following a conviction as the measure for assessing a state's determination of trustworthiness"”the underlying touchstone for determining whether Section 921(a)(20) should apply. The Supreme Court's holding in Caron emphasized that the process is irrelevant in the trustworthiness inquiry, so that there is no meaningful difference between rights restored and rights retained.
Second, Logan argued that excluding retained civil rights from the exemption clause contradicts the purpose of the FOPA, which was enacted to broaden the exemption provision under Section 921(a)(20) and allow state law (rather than federal law under Dickerson v. New Banner Inst., Inc. (1983)) to determine whether a prior conviction should be subject to enhanced penalties. Because fewer convictions qualified as a predicate offense, the FOPA narrowed the prosecutorial reach of Sections 922(g)(1) and 924(e). Further, Logan argued that there is lack of legislative history showing that Congress contemplated situations where civil rights were retained. Thus, excluding such convictions from the exemption clause broadens the application of these statutes beyond what Congress intended.
Third, Logan argued that the surrounding statutory provisions support the reading that the "civil rights restored" clause includes convictions for which civil rights were never lost. As the government pointed out in opposing certiorari, Section 921(a)(33)(B)(ii) contains the parenthetical phrase "loss of civil rights," which clarifies the meaning of the "civil rights restored" provision. Pursuant to Supreme Court precedents such as Barnhart v. Sigmon Coal Co. (2002), which held that "[d]iffering language within the same statute should yield different results," Logan argued that Section 921(a)(20) should be read distinctly from Section 921(a)(33). Moreover, Logan argued that excluding convictions for which civil rights were retained from Section 921(a)(20) leads to absurd results because it would treat persons convicted of less serious offenses the same or worse than persons convicted of more serious offenses. Such an absurd result contradicts the "sensible construction" approach mandated by Supreme Court precedents, including United States v. Granderson (1994) and K-Mart Corp. v. Cartier, Inc. (1988), and upsets societal norms.
Fifth, Logan argued that the "rule of lenity" requires that the "civil rights restored" provision include civil rights retained. The Supreme Court in Granderson held that the rule of lenity should apply to resolve statutory ambiguities in the defendant's favor. Logan argues that the lenity rule should apply here because it is plausible that the exemption provision include rights retained; Congress failed to give fair warning to individuals who may be prosecuted under Section 922(g)(1) as to the statutory uncertainty; and excluding convictions for which civil rights were retained from the exemption clause can lead to enhanced penalties under Section 924(e)(1).
The government countered by stressing a textualist reading of Section 921(a)(20). By definition, the word "restored" cannot mean the same thing as "retained"; hence, the plain meaning of the exemption clause mandates that it only apply to convictions leading to restored civil rights. The government further claimed that Caron does not apply to Logan's situation because, unlike the defendant in Caron, Logan did not lose and recover any of his civil rights. The government added that the crux of the inquiry is not about how the civil rights were restored, but whether they were restored.
Moreover, the statute's structure confirms its plain meaning because the final sentence of Section 921(a)(20) addresses subsequent acts (pardon, expungement, or restoration of civil rights) that exempt an otherwise predicate offense from qualifying as such. Logan, in contrast, argues that because his civil rights were never taken away, his misdemeanor convictions should not even qualify as predicate offenses in the first place. A pardon, expungement, or setting aside of a conviction or the restoration of civil rights all imply a change in a defendant's legal status through an act of forgiveness. Logan however did not receive any forgiveness or relief. And counter to Logan's argument, Section 921(a)(20) only defers to a state's determination of a defendant's legal status, not to its determination of an individual's trustworthiness. Finally, the parenthetical to Section 921(a)(33)(B)(ii) clarifies the meaning of "restored" because Congress enacted the statute ten years after Section 921(a)(20) and only after some appellate courts questioned, in dicta, whether Congress intended Section 921(a)(20) to apply to persons who never lost their civil rights.
In response to Logan's claim that Congress's silence on the issue should be construed to include "rights retained" under Section 921(a)(20), the government argued that the absence of legislative history on point does not justify a departure from the statute's plain meaning. The government further argued that the canon against absurdities is inapplicable here because there is significant contextual evidence that Congress intended the very result of Section 921(a)(20). At most, Logan has pointed at mere anomalies, rather than absurdities"”and even the anomalies that Logan identifies are not significant. Finally, citing Muscarello v. United States (1998), the government argued that Logan's resort to the rule of lenity is misplaced because that rule applies only if, after exhausting ordinary tools of statutory interpretation, "there is a grievous ambiguity or uncertainty in the statute." No such ambiguity or uncertainty exists in this case.
In resolving the case, the Supreme Court must choose between two statutory interpretations of "restored" as espoused by Indelicato and McGrath. Both Supreme Court precedent and statutory history favor the McGrath approach adopted by the Seventh Circuit.
The Supreme Court has traditionally applied a textualist reading of statutes, as evident in Dodd v. United States (2005), Conn. National Bank v. Germain (1992), and Chapman v. United States (1991). In Germain, the Court stated: "we must presume that [the] legislature says in a statute what it means and means in a statute what it says there." Thus, writing for the majority in Dodd, Justice O'Connor looked to the statutory text in determining the statute of limitations for collateral attacks on criminal convictions ("[w]e believe that the text of [the statute] settles this dispute"), even if this might lead to harsh outcomes. Further, the Supreme Court's holdings in Whitfield v. United States (2005) and Harrison v. PPG Industries, Inc. (1980) both undercut Indelicato's reliance on the absence of legislative history that distinguishes between civil rights restored and civil rights retained. Indeed, mere silence on the issue is not a strong argument for adopting policy rationales instead of following the statutory text.
On Logan's side are the statutory purpose and anti-absurdist arguments. In their dissenting opinion in Dodd, Justices Stevens, Souter, Ginsburg, and Breyer focused on how Congress would not have intended to authorize the perverse outcome of a literal reading of the statute. Logan has also emphasized the illogical result of imposing lesser punishment on those who lost but had their civil rights restored than those who never lost them at all. However, the Supreme Court has invoked the anti-absurdist canon in situations where statutes are ambiguous (Clinton v. City of New York (1998); United States v. Granderson (1994)) or in reading broad terms narrowly (Church of the Holy Trinity v. United States (1892)). Neither of those situations applies here. Likewise, the rule of lenity does not apply because there is no statutory ambiguity as required by Muscarello v. United States (1998).
Even if the dissenting Justices in Dodd applied a statutory purpose test, the petitioner probably could not garner their sympathies since the statutory history of Section 921(a)(20)"”when considered in the context of Section 921(a)(33)"”actually lends credence to the notion that Congress intended this very result. As the government points out, Section 922(g)(9) bars firearm possession by a person convicted of a misdemeanor crime of domestic violence. In Section 921(a)(33)(B)(ii), Congress exempts from consideration prior misdemeanor domestic violence convictions for which the defendant "has had civil rights restored (if the law of the applicable jurisdiction provides for the loss of civil rights under such an offense)." Logan cites Barnhart v. Sigmon Coal Co. (2002), to argue that Section 921(a)(20) and 921(a)(33) should be read distinctly, but there is greater Supreme Court precedent supporting the government's position. More significantly, Section 921(a)(33) was enacted ten years after Section 921(a)(20), lending evidence that that the parenthetical, "loss of civil rights," was intended to clarify the latter's exemption clause.
Moreover, even if a textual reading of a statute leads to unfavorable results, the Supreme Court has vigorously affirmed legislative deference. For example, in Tyler v. Cain (2001), the Court stated: "even if we disagreed with the legislative decision to establish stringent procedural requirements for retroactive application of new rules, we do not have license to question the decision on policy grounds." Similarly in West Virginia University Hospitals v. Casey (1991), Justice Scalia stated that judicial speculation of congressional decision-making "profoundly mistakes the Court's role with respect to unambiguous statutory terms." Such sentiments of legislative deference undermine Logan's "sensible construction" argument.
In sum, Logan has an uphill battle. The weight of Supreme Court precedent"”both in favoring a textualist approach and in deferring to Congress"”supports the Seventh Circuit's holding. The appointments of Justices Roberts and Alito only further tilt the odds against Logan. Like Justices Thomas and Scalia, Justices Roberts and Alito are likely to use a plain language approach. This was evident in Rapanos v. United States (2006), in which the four Justices advocated a textualist reading of "navigable waters" in the federal Clean Water Act. (See http://writ.news.findlaw.com/dorf/20060621.html). Justices Stevens, Souter, Ginsburg, and Breyer wrote a strongly purposivist dissent. Justice Kennedy might swing the vote, as he did in Rapanos, but the statutory history of Section 921(a)(20), seen in light of Section 921(a)(33), undercuts the intent argument in this case.