US v Carbajal-Flores - Undocumented immigrant in possession

[Euler]

Criminal charges filed in the Federal District of Northern Illinois in 2020 (docket)

As a reminder, 18 USC 922 is the Gun Control Act of 1968.

On March 8, the court dismissed the charge of possession of a firearm as unconstitutional as applied to the defendant.

Order said:

Defendant Heriberto Carbajal-Flores ("Carbajal-Flores") is charged with possession of a firearm while illegally or unlawfully in the United States, in violation of 18 U.S.C. § 922(g)(5).
...
In Bruen, the Supreme Court established a framework for analyzing whether a challenged firearm regulation violates the Second Amendment.
...
The government argues that the historical record establishes that legislatures categorically disarmed (1) individuals who were not members of the political community and (2) individuals who threatened the social order through their untrustworthy adherence to the rule of law. ... Because the government's arguments are identical in this case, this Court adopts and incorporates the reasoning of those opinions as to the finding that Section 922(g)(5) is facially constitutional.

This Court found that the British loyalist example in the "untrustworthy adherents to the law" historical analogue contained an exception allowing British loyalists to sign loyalty oaths. ... This exception necessarily requires an individualized assessment to determine if the former British loyalist is so "untrustworthy" or "dangerous" that they should be barred from possessing a weapon. ... The Court also determined that based on the government's historical analogue, where exceptions were made that allowed formerly "untrustworthy" British loyalists to possess weapons, the individuals who fell within the exception were determined to be non-violent during their individual assessments, permitting them to carry firearms. ...

... The Court notes, however, that Carbajal-Flores has never been convicted of a felony, a violent crime, or a crime involving the use of a weapon. Even in the present case, Carbajal-Flores contends that he received and used the handgun solely for self-protection and protection of property during a time of documented civil unrest in the Spring of 2020. Additionally, Pretrial Service has confirmed that Carbajal-Flores has consistently adhered to and fulfilled all the stipulated conditions of his release, is gainfully employed, and has no new arrests or outstanding warrants. The Court finds that Carbajal-Flores' criminal record, containing no improper use of a weapon, as well as the non-violent circumstances of his arrest do not support a finding that he poses a risk to public safety such that he cannot be trusted to use a weapon responsibly and should be deprived of his Second Amendment right to bear arms in self-defense. Thus, this Court finds that, as applied to Carbajal-Flores, Section 922(g)(5) is unconstitutional.
...

The analogy of undocumented immigrants to British loyalists is interesting. If a law-abiding, former enemy of the state could possess a firearm, an undocumented, but otherwise law-abiding, immigrant seems less extreme in comparison. Bonus points for the Summer of Floyd reference.

There's enough in this order for heads on both sides of the spectrum to explode.

Edited March 10, 2024 at 04:48 AM by Euler

[TomKoz]

Just deport him and be done with it.

[JTHunter]

It has already been established that Carbajal-Flores is a criminal as he is not a legal "resident" of this country.  To just dismiss the charges in light of that is stupid and tragic.

 

How soon will another "Laken Riley" case appear because this guy is freed?

[steveTA84]

On 3/10/2024 at 11:17 PM, JTHunter said:

To just dismiss the charges in light of that is stupid and tragic.

Obama apppinted judge just trying to set precedent so other illegals can’t get prosecuted.  Now, that said, the case can be made much easier to get rid of the FOID card. Why can an illegal get their case tossed, but we need FOID cards?….

[Euler]

1. Is the right to self-defense a uniquely American right that the government allows us to have?
2. Or is it a right which everyone has naturally, but the Constitution affirms and protects?

Choose one.

Immigration is a federal law (first enacted in 1921, well after the founding era), passed by Congress and signed by the president.

The Gun Control Act of 1968 (18 USC 922) is a federal law (enacted in 1968, well after the founding era), passed by Congress and signed by the president.

Does federal law supersede the Constitution?

1. Yes
2. No

Choose one.

Edited March 11, 2024 at 08:58 PM by Euler

[TomKoz]

All have a right to self defense.

Deport those here illegally.  Firearm issue is then moot.

[Dumak_from_arfcom]

And now, Pritzker can arm the illegals than can be hired as cops.  

 

 

[BobPistol]

Pay attention to the ruling.

 

The judge ruled it was unconstitutional AS APPLIED to the defendant.   It was not a precedent.  

[ragsbo]

On 3/16/2024 at 2:43 PM, BobPistol said:

Pay attention to the ruling.

 

The judge ruled it was unconstitutional AS APPLIED to the defendant.   It was not a precedent.  

This has NEVER made sense to me. How can it be unconstitutional for one person but not for everyone one else? Doesn't that violate equal protection under the law?????? So their rights are more important than mine???? IF it is unconstitutional for ONE it is unconstitutional for ALL!

[ddan]

So where does this leave the FOID?

Still a 4473 disqualifier…

What if I am not a U.S. citizen? Can I apply for a FOID Card?

Yes, you will be required to provide an Alien Registration Number, I-94 Admission Number, or USCIS Number upon application to determine your eligibility. You can find these numbers on either your Permanent Resident Card or Employment Authorization Card. Subject to a narrow exception, if you are currently in the U.S. under a non-immigrant visa, you will not be eligible to obtain a FOID Card.

 

[Euler]

On March 16, 2024 at 02:54 PM CDT, ragsbo said:→

... How can it be unconstitutional for one person but not for everyone one else? ...

Courts classify challenges to a law's constitutionality into facial challenges (unconstitutional for everyone) and as-applied (unconstitutional for only the plaintiff/petitioner/appellant/whatever). A facial challenge seeks to invalidate the entire law. An as-applied challenge seeks to narrow its scope, generally because the law is vague or too broad.

In this case, the court didn't find it unconstitutional to prohibit foreign nationals in general from possessing firearms, because "the people" in the Constitution is generally interpreted as people who participate in the politics of the US (typically voting or running for office, but certainly could include speaking in public) and are not actively trying to destroy US civilization (e.g., violent criminals or hostile foreign agents). Nevertheless, the 2A rights of documented permanent residents are protected, since they are not prohibited from acquiring and possessing firearms. Although Carbajal-Flores is not classified as a permanent resident under federal immigration law, he has resided in the US for many years and intends to stay. Throughout his time here, he has been employed and has obeyed all other laws. In 1791 (in fact up until the 20th century), that would have been sufficient.

At the district level, the "as-applied" ruling really does apply to only Carbajal-Flores. If the federal government appeals it to CA7 and loses (i.e., CA7 affirms the district ruling), then it narrows the scope of GCA 1968 for all undocumented immigrants in Illinois, Indiana, and Wisconsin. It creates an interesting situation. Undocumented immigrants still aren't going to be able to purchase firearms legally, since they won't pass a NICS check, but they also wouldn't be able to be prosecuted federally for merely possessing a firearm.

On March 16, 2024 at 07:53 PM CDT, ddan said:→

So where does this leave the FOID?
...

It leaves it on shakier grounds. If undocumented immigrants cannot be prosecuted for federal weapons charges, it doesn't mean they cannot be prosecuted for state weapons charges. But if any state can prosecute someone for constitutionally protected conduct, it points out that the state law is federally unconstitutional. IMO the more arguments we have against the FOID, the better.

[mab22]

Doesn’t this also put a stick in the eye of the need for “permission slips to carry for self defense and or protection of personal property”?
 

[Euler]

The federal charges in this case were only about possession, not carry, since there's no such thing as federal carry laws.

[starwatcher]

Was he also charged for not having a FOID or only for the federal statutes?

 

If not can he still be charged for not having a FOID?

 

Either way this is good, shame the ruling was narrow and only applied in this one off case.

[Odinson]

So ruling was narrow and case is a one-off, but can't it be cited as precedent like Bruen was supposed to be? I am obviously NAL.

[Euler]

In federal court he was only charged with a GCA violation.

 

Theoretically the state could charge him with a FOID violation. It might have already done so, but dropped it in favor of the federal charge. He appears to live in Chicago. Searching Cook County criminal records requires going to a Cook County courthouse in person. Those records aren't Internet-accessible.

[Euler]

On 3/20/2024 at 3:07 PM, Odinson said:

So ruling was narrow and case is a one-off, but can't it be cited as precedent like Bruen was supposed to be? I am obviously NAL.

 

If it's not appealed, then it's not binding for other cases. It can be advisory.

 

If the government appeals it to CA7 and loses, then it's binding for everybody in Indiana, Illinois, and Wisconsin. It it's appealed to the US Supreme Court, then it's binding for the whole country. Would they risk the law for one more conviction? I suspect they wouldn't, but I'm not the one who decides.

[mab22]

On 3/20/2024 at 3:16 PM, Euler said:

 

If it's not appealed, then it's not binding for other cases. It can be advisory.

 

If the government appeals it to CA7 and loses, then it's binding for everybody in Indiana, Illinois, and Wisconsin. It it's appealed to the US Supreme Court, then it's binding for the whole country. Would they risk the law for one more conviction? I suspect they wouldn't, but I'm not the one who decides.

This administration isn’t exactly “the sharp tool” in the shed, yes I said sharp, not sharpest.

[Bo69]

They will give the invaders free FOIDS and CCL. They might even tell them they have the right to constitutional carry and citizens don't. Just like they allow them to fly all over the country and walk through TSA without REAL ID,Passport etc.

 

Like democrats the invaders are above the law because Republicans allow them to be. 

[SiliconSorcerer]

On 3/20/2024 at 3:09 PM, Euler said:

In federal court he was only charged with a GCA violation.

 

Theoretically the state could charge him with a FOID violation. It might have already done so, but dropped it in favor of the federal charge. He appears to live in Chicago. Searching Cook County criminal records requires going to a Cook County courthouse in person. Those records aren't Internet-accessible.

A Misdemeanor they never charge anyone with, I've never seen anything but you need to get one and zero followup.

 

[2A4Cook]

So, when these tyranical loons accuse you of having "illegal "assault weapons"," just tell them that there ARE no illegal "assault weapons", only undocumented ones.

[Jeffrey]

On 3/22/2024 at 10:36 AM, 2A4Cook said:

So, when these tyranical loons accuse you of having "illegal ""assault weapons""," just tell them that there ARE no illegal ""assault weapons"", only undocumented ones.

Mine all identify as daisies.  Who would ever want to ban daisies? 

[Quiet Observer]

Will this affect the FOID? 

 

Republicans say FOID should be void if illegal immigrants can possess guns | Illinois | thecentersquare.com

[Euler]

On March 16, 2024 at 09:36 PM CDT, Euler said:→

...

On March 16, 2024 at 07:53 PM CDT, ddan said:→

So where does this leave the FOID?
...

It leaves it on shakier grounds. If undocumented immigrants cannot be prosecuted for federal weapons charges, it doesn't mean they cannot be prosecuted for state weapons charges. But if any state can prosecute someone for constitutionally protected conduct, it points out that the state law is federally unconstitutional. IMO the more arguments we have against the FOID, the better.

[mab22]

On 3/22/2024 at 10:36 AM, 2A4Cook said:

So, when these tyranical loons accuse you of having "illegal ""assault weapons""," just tell them that there ARE no illegal ""assault weapons"", only undocumented ones.

They are trying to change that with PICA... 😉You may want to rephrase that.

 

[Euler]

Matt Larosiere (possibly former -- policy director for FPC) talks about this case (for a long time):
Edited March 25, 2024 at 06:00 AM by Euler

[Molly B.]

 

[starwatcher]

How long does the government have to appeal this ruling?

 

I hope they do!!!

[mab22]

Don’t get excited, hold your breath, or bet your life savings on this. 
Just saying.

 

[Euler]

On March 26, 2024 at 01:45 PM CDT, starwatcher said:→

How long does the government have to appeal this ruling?

I hope they do!!!

Long answer:
By the Rules of Appellate Procedure, the government has 30 days to file an intent to appeal, which is not an appeal itself. 30 days from March 8 (the date of the decision) is April 7, which is a Sunday, so the real deadline is April 5. The government can also ask for an extension to file notice up to another 30 days. Filing the notice to appeal gives it another 60 days to file the actual appeal, although the government can ask for an extension of that up to 180 days. That may seem like a pretty slow process, but this case has been going since September 2020.

Short answer:
The government is going to have to file something by April 5 if it intends to do anything. "Something" won't necessarily be the appeal itself.

Meanwhile in my inbox today:

ISRA said:

A federal district court ruled that a person illegally in the US did not need a FOID card. ...

Um, no. The federal district court didn't say anything about a FOID. It ruled on part of the Gun Control Act of 1968.

It might have legal implications on the FOID, but we actually need to go down that road to go down that road.