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Mental States and Elements

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by: Ryan • December 29, 2011 • no comments

Today's Supreme Court decision in Rainoldi - while a disappointing result - is too thoughtful and thorough an opinion for me to have a quick opinion on the quality of its legal analysis. I had previously faulted the court's opinion in Rutley because I felt it really was inserting the court's own policy choice in its conclusion, while claiming there was an objective clarity to legislative intent that wasn't there. At first blush, I think I'm less likely to feel that way about Rainoldi.

There are a couple of quick points I wanted to make, because every Supreme Court opinion - especially the ones the defense loses - offers some insight into other issues, other arguments, that can and should be made. Even after a quick read, that's true here.

First, there was this quote: "In that regard, we note that the state alleged that he "knowingly" and "intentionally" attempted to purchase and possess a firearm, and the jury was instructed in accordance with those allegations."

The court has said that before, in State v. Lane, but it's always nice to have that principle clearly re-stated.

There was another discussion that does not have significant import in and of itself but is worth highlighting. It can be summed up with this quote: "Clearly, then, the underlying policy of ORS 166.270 is that persons who have been convicted of a felony pose a risk to the public." While no doubt true that that is the policy - although it was more true in the era that existed before we made practically every crime a felony - there are plenty of felons who are no more dangerous for having a felony than you or me. (Well, certainly me. I'm a badass.) The example that is often used is Martha Stewart, but she is far from the only one. If you've got a felon in possession client who - by any objective standard - is not a danger, whether it's because of the age of the felony, the type of felony, the otherwise law-abiding history, etc., please A Guide to As-Applied Challenges to Felon in Possession for a constitutional challenge to the conviction.

Facial challenges to the constitutionality of felon in possession charges won't ever succeed in my opinion, and as-applied challenges take a lot of work, but this could be a very fruitful line of argument. It's worth mentioning in this post, as well, that people who may not know that they're felons may be the very people on whose behalf an as-applied constitutional challenge should be made.

Lastly, I would note that court in today's opinion does seem to require a very high standard for dispensing of a mental state. This is not an opinion that will have much effect on other crimes, particularly crimes that don't involve a "status." Therefore, if you've got an "unusual" dangerous weapon - such as a shoe or a riding crop or an asp or a belt - you should still be arguing that the defendant must know it's a dangerous weapon and asking a jury instruction to the effect.