Larry E. Hatfield v. WILLIAM P. BARR , Attorney General of the United States

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18‐2385
LARRY E. HATFIELD,
Plaintiff‐Appellee,
v.
W ILLIAM P. BARR , Attorney General of the United States,
Defendant‐Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 3:16‐cv‐00383‐JPG‐RJD — J. Phil Gilbert, Judge.
____________________
A RGUED A PRIL 12, 2019 — D ECIDED J UNE 6, 2019
____________________
Before FLAUM, EASTERBROOK , and S YKES , Circuit Judges.
EASTERBROOK , Circuit Judge. A person “who has been
convicted in any court of, a crime punishable by imprison‐
ment for a term exceeding one year” is forbidden to possess
a firearm. 18 U.S.C. §922(g)(1). When holding in District of
Columbia v. Heller, 554 U.S. 570, 635 (2008), that the Second
Amendment to the Constitution protects “the right of law‐
abiding, responsible citizens to use arms in defense of hearth

-- 1 of 10 --

2 No. 18‐2385
and home”, the Court added that “nothing in our opinion
should be taken to cast doubt on longstanding prohibitions
on the possession of firearms by felons” (id. at 626). McDon‐
ald v. Chicago, 561 U.S. 742, 786 (2010) (plurality opinion),
“repeat[s Heller’s] assurances” that felon‐dispossession stat‐
utes are valid. Notwithstanding these statements, a district
judge concluded in this suit that §922(g)(1) violates the Sec‐
ond Amendment by preventing nonviolent felons from pos‐
sessing guns. Hatfield v. Sessions, 322 F. Supp. 3d 885 (S.D. Ill.
2018). We recently held otherwise, see Kanter v. Barr, 919
F.3d 437 (7th Cir. 2019), and conclude that Kanter governs
this appeal as well.
Kanter was convicted of mail fraud, 18 U.S.C. §1341, for
bilking the Medicare program. He was sentenced to 366 days
in prison. After release he contended that §922(g)(1) is inva‐
lid, as applied to him, because fraud is not a violent crime,
and his conviction therefore does not portend misuse of fire‐
arms. We rejected that contention—not just because it ap‐
pears to be inconsistent with the Supreme Court’s state‐
ments but also because fraud is a thought‐out crime that
demonstrates disdain for the rights of others and disrespect
for the law. Whatever may be true of spontaneous or victim‐
less crimes, a person convicted of fraud is not the sort of
law‐abiding, responsible citizen to whom Heller referred.
Hatfield contends that his crime is less serious than Kan‐
ter’s because he was sentenced to three years’ probation ra‐
ther than imprisonment. That’s true, but the kind of crime is
the same: fraud to get federal benefits to which the applicant
was not entitled. Hatfield applied for and received benefits
from the Railroad Retirement Board, representing that he
was unemployed. In fact he was still working. His false

-- 2 of 10 --

No. 18‐2385 3
statements violated 18 U.S.C. §1001(a). Hatfield’s fraud cost
the federal government less than $2,000 (at least, the single
count of conviction specified a wrongful gain of only $1,628),
while Kanter’s fraud cost federal taxpayers at least $375,000
and probably a good deal more. (Kanter agreed to a civil
settlement of $27 million.) But both crimes were carried out
over six or more months and reflected studied efforts to
avoid legal obligations. The maximum penalty for each
crime was at least five years in prison, well over the one‐year
line drawn by §922(g)(1).
We grant that some judges in Binderup v. Attorney General,
836 F.3d 336 (3d Cir. 2016) (en banc), thought that a nonvio‐
lent felon who did not serve time in prison could mount a
successful challenge to §922(g)(1), although perhaps a single
day in prison would be enough to defeat such a claim. Kanter
did not have to decide whether to follow that approach,
which lacks the support of any other circuit (or even a major‐
ity in Binderup). Kanter collects decisions from many circuits
holding that §922(g)(1) is valid and properly applied to a va‐
riety of crimes and offenders. We now hold that §922(g)(1)
may be applied to a felon convicted of fraud, whose maxi‐
mum sentence exceeded a year, even if the actual punish‐
ment was less. Heller and McDonald treat felon‐dispossession
statutes as valid; the Justices did not make anything of how
much time any given felon spent in prison.
Congress has been of two minds about the sort of argu‐
ment Hatfield advances. He says that the nature of his crime
shows that allowing him to possess firearms would not pose
a danger to others. A statute, 18 U.S.C. §925(c), provides that
the Attorney General may lift the firearms disability for a
person who makes such a demonstration. But since 1992

-- 3 of 10 --

4 No. 18‐2385
Congress has withheld funds to implement §925(c). See
United States v. Bean, 537 U.S. 71 (2002). Hatfield maintains
that this renders §922(g)(1) invalid. We rejected a similar ar‐
gument in Kanter, and it is no stronger now.
Hatfield’s premise—and the premise of §925(c)—is that it
is possible to separate persons with felony convictions into
two categories: dangerous and harmless. If that belief were
supported by evidence, then the contention that failure to
implement the statute creates a constitutional problem
would have some oomph. If we could know reliably who
will be “law‐abiding, responsible citizens” despite felony
convictions, the Supreme Court might include them among
those protected by the Second Amendment. But Hatfield’s
brief does not show or even contend that it is possible to
predict a felon’s future dangerousness.
Data show different propensities to commit crimes but
do not supply any way to predict who will commit those
crimes. A study recently released by the Sentencing Com‐
mission found that 64% of felons who committed violent
crimes are arrested for renewed criminality following re‐
lease, while only 40% of those convicted of nonviolent
offenses are caught committing crimes in the future. Recidi‐
vism Among Federal Violent Offenders 3 (Jan. 2019). So it is safe
to say that Hatfield is less likely to commit new felonies than
a person convicted of, say, bank robbery. Yet 40% is still a
substantial recidivism rate, and without some way to know
who will commit new crimes—and whether those crimes are
likely to entail the threat or use of violence—it is not possible
to declare that any particular felon could be entrusted with
firearms. This may be why Congress withdrew funding from

-- 4 of 10 --

No. 18‐2385 5
the §925(c) program. No one wants to pay for a program that
does not have a prospect of success.
Hatfield’s brief in this court is data‐free. When asked at
oral argument whether he knew of any study showing that it
is possible to predict future dangerousness, Hatfield’s law‐
yer said that he did not—and added that he had not looked
for one. He insisted that the Attorney General bears the bur‐
den of proving that it is not possible to predict felons’ future
dangerousness. Lawyers love to play games with burden‐
shifting, but Hatfield’s effort to avoid the subject is unavail‐
ing. He is the plaintiff, and plaintiffs bear the burden of pro‐
duction and the risk of non‐persuasion.
If the subject were something other than a felon‐
dispossession statute, the Attorney General would bear a
burden of justification. Before concluding in United States v.
Skoien, 614 F.3d 638 (7th Cir. 2010) (en banc), that 18 U.S.C.
§922(g)(9) is compatible with the Second Amendment, we
considered data about the recidivism rates of persons within
the scope of that paragraph. That was essential because
§922(g)(9) bans the possession of firearms by persons con‐
victed of domestic‐violence misdemeanors, a kind of offense
that the Justices did not mention in Heller or McDonald. And
we added in Ezell v. Chicago, 651 F.3d 684, 703 (7th Cir. 2011),
that the government must demonstrate that regulatory
measures not already approved by the Supreme Court are
substantially related to an important goal. But §922(g)(1)
deals with felonies, and someone who wants us to carve out
particular felonies (or felons) from a category that the Su‐
preme Court has said is presumptively valid must supply an
adequate basis for that distinction. Hatfield, who has not
tried to show that it is possible to say whether he, and others

-- 5 of 10 --

6 No. 18‐2385
like him, are to a constitutionally dispositive degree less
dangerous than other felons, must accept that the Supreme
Court’s norm applies to him. He is not entitled to possess
firearms.
R EVERSED

-- 6 of 10 --

No. 18-2385 7
S YKES, Circuit Judge, concurring in part and concurring in
the judgment. This case is indistinguishable from Kanter v.
Barr, 919 F.3d 437 (7th Cir. 2019), which rejected a Second
Amendment challenge to 18 U.S.C. § 922(g)(1), the felon-
dispossession statute, as applied to a person convicted of
mail fraud, a nonviolent federal felony. Like Rickey Kanter,
Larry Hatfield was convicted of a nonviolent fraud felony:
making false statements to obtain federal benefits, 18 U.S.C.
§ 1001(a). He sued for relief from § 922(g)(1), raising a simi-
lar as-applied Second Amendment challenge. A district
judge was persuaded and granted relief, but that was before
our decision in Kanter.
In its first three paragraphs, the majority opinion suc-
cinctly explains why Kanter requires us to reverse. Majority
Op. at pp. 1–3. I agree and would end the discussion there.
But my colleagues go well beyond a straightforward applica-
tion of Kanter, reading the Supreme Court’s dicta in District
of Columbia v. Heller, 554 U.S. 570, 626–27, n.26 (2008)—that
the opinion should not be understood to cast doubt on
“presumptively lawful regulatory measures” such as felon-
dispossession laws—as lifting the government’s burden of
justification in as-applied challenges to § 922(g)(1), including
as-applied challenges by persons convicted of nonviolent
felonies.
That’s incorrect under the law of this circuit. Kanter as-
sumed that nonviolent felons are within the scope of the
Second Amendment’s protections and applied intermediate
scrutiny, requiring the government to demonstrate that
disarming someone like Rickey Kanter—a person convicted
of a nonviolent fraud felony—is substantially related to an
important public-safety interest. 919 F.3d at 447–50. Indeed,

-- 7 of 10 --

8 No. 18-2385
Kanter explicitly held that “[t]he government has met its
burden in this case.” Id. at 448. That holding applies here
because Hatfield too was convicted of a nonviolent fraud
felony and his case is not meaningfully different. It’s enough
to say that and be done.
My colleagues go much further, departing from the law
of this circuit and altering our framework for resolving
Second Amendment challenges—the very framework Kanter
faithfully applied. My colleagues hold that in an as-applied
challenge to a felon-dispossession law, the plaintiff “bear[s]
the burden of production and the risk of non-persuasion.”
Majority Op. at p. 5. That’s precisely the opposite of the
approach taken in Kanter—indeed, in all of our post-Heller
Second Amendment cases. 919 F.3d at 447–50; see, e.g., United
States v. Meza–Rodriguez, 798 F.3d 664, 672–73 (7th Cir. 2015);
Ezell v. City of Chicago, 651 F.3d 684, 701–03 (7th Cir. 2011);
United States v. Yancey, 621 F.3d 681, 683 (7th Cir. 2010);
United States v. Williams, 616 F.3d 685, 692–93 (7th Cir. 2010);
United States v. Skoien, 614 F.3d 638, 640 (7th Cir. 2010).
The majority takes this approach based on that now-
famous dicta from Heller about “presumptively lawful
regulatory measures.” But that passage was entirely unex-
plained and is hard to reconcile with the rest of the Court’s
opinion. At most (and most plausibly), the passing reference
to the “presumptive” validity of felon-dispossession laws
implies that § 922(g)(1) is not facially unconstitutional. To
say that a law is “presumptively” valid leaves open the
possibility of as-applied challenges, and the Heller dicta
sheds no doctrinal light on how to deal with an as-applied
challenge to a law prohibiting firearm possession. To date,

-- 8 of 10 --

No. 18-2385 9
that’s how we’ve read this unelaborated language from
Heller, as the cases I’ve just cited show.
I see no reason to change course. We haven’t been asked
to do so here. The government did not argue that Hatfield
has the burden of production and risk of nonpersuasion.
Rather, the government argued that (1) felons as a class are
categorically outside the Second Amendment right; and
(2) alternatively, it has satisfied its burden of justification
under the intermediate standard of scrutiny. This way of
framing the analysis is consistent with circuit law, as Kanter
itself reflects. There the panel discussed but did not decide
the step-one question and instead proceeded directly to step
two, applying our established framework and rejecting the
as-applied challenge under intermediate scrutiny.
We should simply apply Kanter’s holding without further
comment. It’s not necessary to say more. Breaking new
doctrinal ground is especially unwarranted when the appeal
is conclusively resolved by existing circuit precedent and no
one has sought any change in circuit law. As it stands, most
of the majority opinion—almost everything after the applica-
tion of Kanter—essentially describes rational-basis review,
which the Supreme Court has expressly ruled out in Second
Amendment cases. Heller, 554 U.S. at 628 n.27 (“If all that
was required to overcome the right to keep and bear arms
was a rational basis, the Second Amendment would be
redundant with the separate constitutional prohibitions on
irrational laws, and would have no effect.”). Whatever else
we might attribute to Heller’s enigmatic dicta about “pre-
sumptively lawful” firearm regulations, we cannot read it to
say something that directly contradicts the Court’s clear and
emphatic instruction that rational-basis review does not

-- 9 of 10 --

10 No. 18-2385
apply. Accordingly, I join the majority’s application of Kanter
and its decision to reverse, but that is all.
Kanter controls and resolves this appeal in its entirety.
For that reason—and no others—we must reverse.

-- 10 of 10 --