regulating gun rentals and rehaif

Rehaif v. United States, 139 S. Ct. 2191, 2194. (2019)

Regulating gun rentals and Rehaif

The author of "Regulating Gun Rentals" argues that the lack of oversight in gun rentals is yet another deficiency in our gun control system.  They argue "that, unlike gun ownership, on-premises gun rental does not implicate the core protections of the Second Amendment as defined in District of Columbia v. Heller. Heller explains that the Second Amendment confers an individual right “to keep and bear Arms” for the purpose of self-defense in the home. This right, however, refers only to ownership, and renters--by definition--do not own rented firearms. Moreover, gun rentals are, at best, only tangentially related to an individual's right to self-defense.

However I argue that although the author is correct in asserting that many gun rentals are not monitored and screened via background checks, the renter is still subject to federal and state laws even if the consent waivers signed at most ranges do not explicitly state the prohibitions. Author alleges that firearm renters are not charged because they do not actually own the firearm, they are just renting it for an hour. However, one does not need to "own" a firearm to be charged with possession.


The case of Rehaif, even though at its core is about knowledge of one's own prohibited status, the facts of the case highlight how possession of firearms at a range can still lead to an indictment.


Author states that regulating on-premises rentals like off-premises rentals
guarantees that the information on-premises renters provide goes through the same verification process, ensuring that someone who is restricted from possessing guns is also restricted from renting them. They state "On-premises renters are typically required only to fill out a form, which generally goes un- checked, or to show a form of identification. The absence of a requisite background check for on-premises gun rentals has permitted individuals to rent firearms when they otherwise would be prohibited from accessing them".

Author asserts that firearm rentals should be regulated like firearm sales and transfers via NICS background checks in order to ensure that someone who is barred from possessing a firearm is also screened and barred from renting a firearm. 




It is correct in that there are not background checks run as federal law ____ prohibits use of the NICS for non licensing, firearm acquisition, or criminal investigation. However, legal basis remains incorrect as anyone prohibited under the Brady Act is also prohibited from using a range rental as Brady prohibitions do not fall under prohibition exceptions in regards to lawful sporting purposes. Anyone 


Few people pay attention to the very specific facts of Rehaif and what brought defendant to the attention of the FBI. Many legal commentators will discuss how Rehaif was prosecuted for possession of ammunition and whether he knew of his status, but the documents below read that he charged under 18 U.S.C. 922(g)(5) and 924(a)(2). 


Courts have held that possession of a firearm can be found by proving actual possession, constructive possession, or joint constructive possession. see Commonwealth v. Heidler, 741 A.2d 213, 215 (Pa. Super. 1999). In the cases where defendant is not in actual possession of the prohibited firearm, the court must establish that the defendant had constructive possession or joint constructive possession to support the conviction under 18 U.S.C. section 922 (g). A defendant's mere presence at a place like a gun range where contraband is found is insufficient, standing alone, to prove that he exercised dominion and control over those items. The location and proximity of defendant to the contraband alone is not conclusive of guilt. However government can prove possession by establishing that the defendant either actually or constructively possessed the firearm. see United States v. Johnson, 857 F.2d 500, 501-02 & n. 2 (8th Cir.1988). An individual is said to have constructive possession over contraband if they had `ownership, dominion or control over the contraband itself, or dominion over the premises in which the contraband is concealed.'" United States v. Patterson, 886 F.2d at 219.

In the present case, of Rehaif, there was sufficient evidence to establish that he constructively possessed the firearm within the meaning of 18 U.S.C. § 922(g)(5). Prosecutors may have argued that prohibited defendant who lies on a rental waiver by withholding knowledge about their prohibition status would be a form of gaining dominion over the person and/or premises.

This begs the question of charging defendants for firearm rentals. Although Rehaif was charged formally for possession of firearms and ammunition and people who are looking at the larger case will assert that he was charged for possession of the firearms he private party transferred, the charging documents show the indictment for Glocks; the brand of firearm he used at the range.




Note: the lawful sporting purposes clause is for loans for interstate: 
27 C.F.R § 478.97(a) (2016): A licensee may lend or rent a firearm to any person for temporary use off the premises the licensee for lawful sporting purposes: Provided, that delivery of the firearm to such person is not prohibited by § 478.99(b) or § 478.99(c). Subdivision c reads: A licensed manufacturer, importer, or dealer shall not sell or otherwise dispose of any firearm or ammunition to any person who they know or have reasonable cause to believe that such person: Has been adjudicated as a mental defective or has been committed to any mental institution.



​Additionally, the licensee must comply with the requirements of § 478.102, and the licensee records such loan or rental in the records required to be kept by him under Subpart H of § 478.97(b).
A club, association, or similar organization temporarily furnishing firearms by loan, rental, or otherwise to participants in target or similar shooting activity for use at the time and place such activity is held does not, cause such association, or similar organization to be engaged in the business of a dealer in firearms or as engaging in firearms transactions. Therefore, licensing and record keeping requirements contained in this part pertaining to firearms transactions would not apply to this temporary furnishing of firearms for use on premises on which such an activity is conducted.





United States District Court, M.D. Florida.
Orlando Division
UNITED STATES OF AMERICA,
v.
Hamid Mohamed Ahmed Ali REHAIF.
No. 6:16-cr-3-Orl-28DAB.
May 18, 2016.
Verdict

You, the Jury, have found defendant, HAMID MOHAMED AHMED ALI REHAIF, guilty of Count One of the Indictment; that is, guilty of possessing a firearm in violation of 18 U.S.C. § 922(g)(5)(A). Now you must indicate which firearm or firearms defendant, HAMID MOHAMED AHMED ALI REHAIF, possessed in violation of 18 U.S.C. § 922(g)(5)(A).

We, the Jury, unanimously find the defendant, HAMID MOHAMED AHMED ALI REHAIF, possessed in violation of 18 U.S.C. § 922(g)(5)(A): 

A GIock 43: Yes x    No ___
A GIock 21: Yes x     No ___

SO SAY WE ALL, this 18th day of May, 2016.

*****************
United States District Court, M.D. Florida.
Orlando Division
UNITED STATES OF AMERICA,
v.
Hamid Mohamed Ahmed Ali REHAIF.
No. 6:16-cr-3-Orl-28 DAB.
January 6, 2016.

Indictment

18 U.S.C. § 922(g)(5)(A)
18 U.S.C. § 924(d) - Forfeiture
28 U.S.C. § 2461(c) - Forfeiture

The Grand Jury charges:

COUNT ONE
On or about December 2, 2015, in Brevard County, Florida, in the Middle District of Florida, and elsewhere, REHAIF the defendant herein, then being an alien illegally and unlawfully in the United States, did knowingly possess, in and affecting interstate and foreign commerce, a firearm, that is, a Glock handgun.
All in violation of Title 18, United States Code, Sections 922(g)(5)(A) and 924(a)(2).

COUNT TWO
On or about December 8, 2015, in Brevard County, Florida, in the Middle District of Florida, and elsewhere, REHAIF the defendant herein, then being an alien illegally and unlawfully in the United States, did knowingly possess, in and affecting interstate and foreign commerce, ammunition, that is, a box of 9mm ammunition.
All in violation of Title 18, United States Code, Sections 922(g)(5)(A) and 924(a)(2).



B. Base Offense Level Calculation
The defendant also contends that he should be entitled to a base offense level of 6, instead of 14, under USSG § 2K2.1(b)(2), because all of the firearms and ammunition were possessed “solely for lawful sporting purposes and collection and [he] did not unlawfully discharge or otherwise unlawfully use such firearms or ammunition.” The defendant carries the burden to establish that he is entitled to this reduction by a preponderance of the evidence. United States v. Trafficanti, 381 Fed. Appx. 886, 891 (11th Cir. 2010); United States v. Wyckoff, 918 F.2d 925, 928 (11th Cir. 1990). In order to “determine the intended use of a firearm, a court should consider all surrounding circumstance...[to] include the number and type of firearms, the amount and type of ammunition, the location and circumstances of possession and actual use, the nature of the defendant's criminal history, and the extent to which possession was restricted by local law”. Trafficanti, 381 Fed. Appx. at 891, quoting USSG § 2K2.1, application note 6.
There is no support in the evidence or testimony to support this reduction. Presumably, the defendant argues that he should be entitled to this reduction because the evidence at trial only showed that he possessed the firearm at a shooting range. However, it is clear that this Court is not restricted to looking only at the evidence elicited at trial. USSG §§ 1B1.3 and 6A1.3. The defendant himself admits in his sentencing memorandum, that he possessed three separate firearms. Doc. 81, at 8. The United States anticipates that further evidence will be introduced at sentencing to establish that the defendant possessed a number of different firearms, including an AK-47, and that he personally purchased at least three other firearms. Again, presumably, the defendant will point to the hunting license as proof that he possessed the firearms and ammunition for “sport.” However, none of the firearms that he possessed can reasonably be considered firearms used for hunting. Wyckoff, 918 F.2d at 928. In addition, the amount of ammunition that the defendant possessed, and where he possessed it, do not indicate that it was possessed solely for sporting purposes or collection. Trafficanti, 381 Fed. Appx. at 891.
Quite the contrary, the United States will provide evidence that he possessed firearms for his personal protection and that he provided one of these firearms to someone else as a gift. Neither of these reasons are for sporting or collection purposes. Id., citing Wyckoff, 918 F.2d at 928. Moreover, the defendant admitted to agents, and others, that he was very familiar with firearms and that he had previously had “weapons training.” In addition, the defendant told several people that he was a private investigator and that he used the firearms for that purpose. Finally, the United States anticipates that evidence will be elicited at sentencing to show that the defendant threatened suicide and made veiled threats to kill others, presumably by shooting them.
Moreover, the second part of USSG § 2K2.1(b)(2) provides, “and did not unlawfully discharge or otherwise unlawfully use such firearms or ammunition.” Here, it was unlawful for the defendant to use, discharge, or possess any type of firearm because, at the time of the discharge, use, and possession, he was an illegal alien who was unlawfully in the United States. See USSG § 2K2.1(b)(2). Therefore, the defendant has not carried his burden to establish that he possessed the firearms and ammunition solely for sporting or collection purposes. As a result, his base offense level is correctly calculated as 12.


C. Number of Firearms Enhancement
Finally, the defendant argues that his guidelines should not be increased by two levels under USSG § 2K2.1(b)(1)(A) because the offense involved more than three but less than seven firearms. As mentioned previously, the defendant seems to concede that he did possess at least three firearms. However, the defendant seems to create an additional requirement that the United States show that he possessed more than three firearms “at one time.” This requirement is nowhere in the sentencing guidelines or case law. Moreover, the defendant has not cited to any legal authority to support this contention.



More information
2. At 10:10 a.m. on December 8, 2015, Melbourne Police arrived on scene at the Hilton Rialto Hotel, located at 200 Rialto Place, Melbourne, Florida 32901, regarding a complaint of a suspicious person staying at the hotel. After the arrival of the Melbourne Police Department, Melbourne Police Department called in a complaint to Homeland Security concerning reported suspicious activity at the Hilton Rialto Hotel. It was reported that Mr. Rehaif had weapons in his room and had provided a hotel employee with ammunition.


Government's Memorandum in Opposition to Defendant's Motion to Suppress Statements
II. STATEMENT OF THE FACTS
On December 8, 2015, the Hilton in Florida, contacted the Melbourne Police Department to report the suspicious activity of Defendant, who had been a customer at the hotel for 53 nights. The MPD responded to the hotel at approximately 10:00 a.m. The hotel reported that the Defendant frequently checked out, and then back in on the same day and always paid in cash. To date, the hotel reported that the Defendant had paid over $11,000 in room fees. The hotel went on to report that the Defendant may have firearms in his room. The hotel staff also provided that the Defendant had recently given two hotel employees various rounds of ammunition, specifically three .380 caliber rounds of ammunition and one round of .45 caliber ammunition. During this time, MPD began an investigation and gathered information from various hotel employees.

.....

Then, as law enforcement discussed how best to approach the Defendant, the Defendant appeared in the hotel lobby. At that time, the Defendant was approached by uniformed MPD officers and SA Slone and asked if he would answer some questions. Upon this initial encounter, the Defendant was “patted down” as a precaution since the original call from the hotel indicated that the Defendant may be in possession of a firearm.
Then, the Defendant told SA Slone that he would answer questions. At that point, the Defendant accompanied SA Slone to one of the empty hotel conference rooms. Around this time, SA Acosta joined SA Slone and the Defendant. An MPD officer stood near the door in the conference room but did not participate in the interview. At no time did anyone provide the Defendant with his Miranda rights or place the Defendant in custody, or the functional equivalent of custody.
During the interview, the Defendant provided SAs Acosta and Slone consent to search his hotel room and subsequently also consented to a search of his cell phones and a storage facility located in Palm Bay, Florida. Law enforcement recovered various rounds of ammunition from the Defendant's hotel room and storage facility.
During the interview, the Defendant discussed his immigration status and initially claimed that he had recently enrolled in Kaiser University in Melbourne. Based on that information, SA Acosta asked another law enforcement officer to contact Kaiser University in order to confirm the Defendant's admission status. Later, however, the Defendant acknowledged that he was not enrolled at Kaiser University and that he was aware that he was in violation of his immigration status. The Defendant then admitted to owning three firearms at different times. In addition, the Defendant admitted that he has gone to two different gun ranges on multiple occasions and fired a number of firearms.
At the conclusion of the interview and after SA Acosta was able to confirm the Defendant's immigration status as well as locating a number of rounds of ammunition in his hotel room, the Defendant was arrested and charged by criminal complaint. 


In the instant case, law enforcement did not respond with the intent to place the Defendant in custody or to arrest him. Rather, they responded to investigate a complaint made by Hilton Hotel staff which is where the Defendant was temporarily residing. Once on scene at the hotel, law enforcement received information from the hotel staff that the Defendant was known to have firearms in his room and had given ammunition to two different hotel employees as “souvenirs.” After receiving this information, law enforcement officers decided to further investigate the complaint by speaking with the Defendant.


Another source

On December 8, 2015, (DHS), ICE, HSI and (FBI) agents encounter REHAIF at the Rialto Hilton lobby. Agents asked REHAIF if they could speak with him, at which time he consented to have a non-custodial interview. Agents asked REHAIF if he had any weapons or ammunition in his room, at which time he stated that he had ammunition in the room but had sold the guns associated with the ammunition within the last two to three months. Agents asked REHAIF for voluntary consent to retrieve the ammunition from his room, at which time he stated that the ammunition was in a box in his bag. REHAIF gave consent for agents to go to his room and retrieve the ammunition. Agents located a box of 9mm ammunition in the room inside a black bag. The box contained 28 rounds of 9mm caliber ammunition.
During the interview REHAIF also stated that he had been shooting firearms at a shooting range in Orlando, Florida, and at the Frogbones shooting range located in Melbourne, Florida. REHAIF stated that he had purchased three firearms from different people but had since sold them. When asked what type of handguns he had purchased REHAIF stated that he had purchased a Cobra .380 caliber and a High-Point .9mm handgun. REHAIF alleged that he could not remember the manufacturer for the third gun.
A check of Frogbones shooting range revealed that on October 26, 2015, REHAIF had been at the range, at which time he rented eye protection, range time for two, three, or four shooters, paper targets, and had paid $30.64 in cash. When asked about this event at the shooting range that day, REHAIF stated that he went with some friends to shoot but he had his own handguns. Frogbones records also show that on December 2, 2015, REHAIF was at the Frogbones shooting range, at which time he purchased a box of 9mm ammunition and a paper target. On this date, he also rented the following items: ear muff, eye protection, a Glock 43 firearm, and range time for one shooter, for which time he paid $46.29 in cash. When agents asked about this event on that day, REHAIF stated that he went and rented a handgun Glock 43 and Glock 21. REHAIF stated that the ammunition found in his hotel room was left over from his December 2nd visit to the shooting range.
Agents asked REHAIF what happened to the three guns he had purchased. He stated that he had sold one to a pawn shop on beachside in Melbourne, that he had given the Cobra .380 to his girlfriend as a present, and couldn't remember the manufacture of the third handgun. REHAIF also informed agents that on October 26, 2015, he had purchased a hunting license from Wal-Mart.
Agents asked REHAIF if he had any other ammunition or a storage unit to store his belongings. REHAIF stated that he had a storage unit at 4510 Babcock Street, Melbourne, Florida. Agents asked REHAIF for voluntary consent to search the storage unit at which time he gave agents written consent to search. Agents went to the storage unit, but a manager informed agents that on November 30, 2015, REHAIF's belongings had been removed from the storage unit due to lack of payment. The storage unit manager informed agents that they had found in the storage unit, and taken possession of, several rounds of different caliber ammunition, and they delivered those rounds of ammunition to agents, that is, eleven rounds of .223 ammunition, and one hundred seventy-three rounds of 9mm ammunition,
The investigation further revealed that all the rounds of ammunition recovered from REHAIF's room were manufactured outside the state of Florida; therefore, agents have concluded the ammunition was shipped or transported in interstate or foreign commerce.
Based on the above facts, the undersigned affiant believes there is probable cause to charge REHAIF with violating the Federal Firearms law, to wit: Title18, United States Code, Section 922(g)(5), that is, being an alien illegally or unlawfully in the United States and in possession of ammunition.
This concludes my affidavit.
<<signature>>

Both of the firearms that petitioner used were manufactured in Austria before importation to the United States through Georgia; the ammunition was manufactured in Idaho. This satisfies the interstate clause per United States v. Lopez, 514 U.S. 549 (1995). On December 8, 2015, an employee at the Melbourne hotel where petitioner was staying called the police to report that petitioner was acting suspiciously. An FBI agent followed up on the tip and interviewed petitioner. During their conversation, petitioner admitted to the agent that he had fired two firearms at the shooting range and that he was aware that his student visa had expired. Petitioner consented to a search of his hotel room, which turned up the remaining ammunition that petitioner had purchased at the shooting range six days earlier. A grand jury in the Middle District of Florida indicted petitioner on two counts of [joint] possession of a firearm or ammunition in violation of 18 U.S.C. 922(g)(5) and 924(a)(2). Section 922(g)(5) prohibits “an alien illegally or unlawfully in the United States” from possessing a firearm or ammunition that has traveled in interstate commerce. 18 U.S.C. 922(g)(5)(A). Pursuant to 18 U.S.C. 924(a)(2), “whoever knowingly violates” Section 922(g) “shall be fined as provided in this title, imprisoned not more than 10 years, or both.” At trial, the government asked the district court to instruct the jury that the United States is not required to prove that the defendant knew he was illegally or unlawfully in the United States.


this case is not a suitable vehicle for considering the mens rea required by Sections 922(g) and 924(a)(2) for two further reasons. First, as noted, the undisputed facts demonstrate that petitioner knew of his restricted status. He does not dispute that, upon receiving his student visa, he certified that he would comply with the visa’s condition requiring him to pursue a full course of study. He acknowledges (Pet. 2) that he was advised by email of the termination of his immigration status after he was academically dismissed from FIT, 11 months before he possessed two firearms and purchased ammunition. And the FBI agent who interviewed petitioner shortly thereafter testified that petitioner “admitted * * * that he was aware that his student visa was out of status” at the time he visited the shooting range. Pet. App. 3a-4a. Contrary to petitioner’s assertion (Pet. 12), he 13 has no “viable defense” that he lacked the mens rea he contends should be required under the statute.