Felon in Possession Not a Crime of Violence under Bail Reform Act

In United States v. Bowers, No. 05-4908 (3d Cir. Dec. 27, 2005), the Third Circuit has announced that felon in possession of a firearm, 18 U.S.C. § 922(g), is not a crime of violence for purposes of bail. The Bail Reform Act, 18 U.S.C. § 3142, requires a court to hold a detention hearing upon motion by the government if the defendant is charged with a crime of violence. The statute also lists factors to be considered in deciding whether to release a defendant, including whether the charged offense is a crime of violence.

The magistrate judge held a detention hearing and ordered Mr. Bowers detained. In affirming the magistrate’s order, the district court found that a detention hearing was justified solely because it deemed felon in possession a crime of violence. It also relied primarily upon this classification in upholding the magistrate’s decision to detain Mr. Bowers.

The Third Circuit disagreed with the district court’s rulings. In determining that the possession offense was clearly nonviolent, the Court agreed with the majority of its sister circuits that had addressed the issue, comprised of the D.C., Seventh, and Eleventh Circuits. See United States v. Johnson, 399 F.3d 1297 (11th Cir. 2005); United States v. Lane, 252 F.3d 905 (7th Cir. 2001); United States v. Singleton, 182 F.3d 7 (D.C. Cir. 1999). Only one Court had disagreed. See United States v. Dillard, 214 F.3d 88 (2d Cir. 2000). Likewise, the Third Circuit noted that its decision was consistent with its earlier decision in Royce v. Hahn, 151 F.3d 116, 124 (3d Cir. 1998), where the Court held that a categorical approach is appropriate for determining whether particular offenses are crimes of violence and ruled that § 922(g) is not a crime of violence under a statute with similar wording to § 3142.

The Court then listed the most persuasive reasons for classifying felon in possession as a nonviolent offense. First, the Court noted that the plain language of the statute applies to crimes that "involve[] a substantial risk" of violence. The Court then noted that the conclusion that the § 922(g) possession offense was a crime of violence was laden with "factual assumptions." Second, the Court recognized that a person’s mere status as a felon does not establish that his possession of a firearm will ultimately turn violent. Third, the Court noted that, even if a felon does use his weapon violently, that does not render his possession offense violent. Fourth, even if felon in possession is classified as nonviolent, the government may still move to detain defendants charged with the offense for other reasons. Finally, the Court took note that the Sentencing Commission had similarly deemed crimes of violence to exclude § 922(g) offenses.

Ultimately, the Third Circuit, per Judge Becker, reasonably concluded that it was "unwilling to infer that a felon will use a gun violently merely because he owns it." The Court then vacated the district court’s order and remanded for the district court to determine whether Mr. Bowers’ detention was otherwise necessary.