Can the prohibition on possessing firearms while employed by a felon apply to cover situations in which the person carrying the firearms is not paid by the felon? In yesterday’s decision in United States v. Weaver, the Fourth Circuit says “yes.”
The government charged several alleged members of the Pagans Motorcycles Club (“PMC”) with violating 18 U.S.C. § 922(h). That provision prohibits the possession of firearms while “employed for” a convicted felon. The charges were based on orders the defendants allegedly received from PMC national vice president Floyd Moore, a convicted felon prohibited from possessing a firearm. The government conceded, however, that it could not (and would not seek to) prove that Moore paid the defendants. Rather, the government offered to prove that Moore sought to circumvent the prohibition against his possession of firearms by ordering the defendants to carry arms when accompanying him. The government alleged that Moore bragged that he did not need to carry a gun because other PMC members carried guns for him.
On a motion to dismiss the § 922(h) charges, the district court (Judge Johnston, S.D. W. Va.) held that the statute required the government to prove some sort of payment. In light of this holding and the government’s concession that it could not put forward such proof, the district court dismissed the § 922(h) charges.
Judge Wilkinson reasoned that the text of the statute imposes no compensation requirement, and that although “employ” can mean “to provide with a job that pays wages,” the term is not limited to this meaning. “By treating compensation as an essential condition of § 922(h),” Judge Wilkinson wrote,” the district court narrowed the intended scope of the statute, adding an element of proof not present in the plain language.” After some additional textual analysis, the opinion also explains that the district court’s interpretation “overlooks the structure and purpose of the statute,” which is, in part, an anti-circumvention provision that prevents convicted felons who themselves may not possess firearms (under § 922(g)) from employing armed bodyguards. This discussion relies in part on legislative history purporting to show that “Congress explicitly targeted the members of criminal organizations.” Finally, the opinion looks to precedent analyzing employment relationships in different contexts to “reinforce the proposition that law does not treat compensation as the sine qua non of an employer-employee relationship.”
The Fourth Circuit’s unanimous opinion is not quite the last word on the application of § 922(h) to the PMC defendants. That is because the opinion does not adopt “a definitive definition” (and, really, should we care about any other kind?) of the disputed statutory term. The panel leaves that task to the trial court upon remand, observing that “[w]e do not know whether the government can prove that the defendants breached § 922(h).” In the end, the panel’s narrow holding is simply that compensation is not “the sine qua non of the words ’employed for’ in § 922(h).”
The battle now returns to the district court.