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Revisiting Elonis

Last Thursday, I wrote about the Supreme Court's decision in Elonis v. US, in which it reversed Elonis' conviction for making threats in some Facebook posts.  I was dismissive of the opinion, which dodged the First Amendment issue, and did little to clarify the one issue the Court did address, the intent required for violation of the statute.  And I concluded that there was no application of Elonis to the Ohio statutes on menacing and stalking, since those, unlike the Federal statute here, did require a knowing intent.

But there was something nagging at me, and when my buddy John Martin called me and told me he thought I'd missed the boat, I knew he wasn't talking about the ferry to Staten Island.  The Ohio courts have expanded the concept of "strict liability" over the past decade or so, and Elonis' analysis of the mens rea requirement in criminal statutes might give you some fodder for future arguments.

Let's start with two weapons under disability cases.  First up is State v. ClayThe disability statute says that "no person shall knowingly" possess a gun under certain circumstances, and the third subsection includes someone who is "under indictment or has been convicted" of a drug offense.  The issue in Clay was whether the defendant had to know that he was under indictment.  The Supreme Court decided that the "knowing" requirement only pertained to possession of the gun.  What about the indictment?  RC 2901.21(B) says that the mens rea element defaults to recklessness unless the legislature manifested a clear intent to make the statute strict liability.  The court decided that the legislature didn't indicate an intent to impose strict liability, so recklessness it was:  the defendant had to be reckless in knowing that he was under indictment.

State v. Johnson came just two years later.  Johnson was charged with weapons disability based on two prior drug convictions, and stipulated to those convictions at trial.  He took it up on appeal, though, arguing that he didn't stipulate to any mens rea element regarding those convictions.  The 8th District bought it, based upon Clay:  after all, the "under indictment" subsection is the same as the "has been convicted" subsection, and Clay held that the subsection required recklessness, so the omission of that element in Johnson doomed the conviction.

BZZZZT!  Wrong answer, said the Supreme Court.  After an exhaustive recitation of Ohio case law on the subject, the court came to the bewildering conclusion that since the section provided a "knowing" intent but the subsection provided none, no mens rea was required for the subsection, without even getting into whether the legislature intended strict liability.  And, of course, this overruled Clay without expressly overruling Clay.

Now, there was a way of distinguishing Johnson from Clay.  The court could have held that Clay's situation was a mistake of fact - he didn't know he was under indictment - while Johnson's was a mistake of law:  he didn't realize that his convictions (a misdemeanor drug offense and selling counterfeit drugs) created the disability.  Mistake of fact can be excused, mistake of law cannot, The End.  Instead, what we have a situation where a defendant can be charged with having a weapon under disability if he's charged in a secret indictment that he knows nothing about. 

Does that square with Elonis?  While the decision was based to a certain extent on statutory interpretation, it was also based on the concept that due process demands an interpretation which requires a mens rea.  Take a look at this language:

The fact that the statute does not specify any required mental state, however, does not mean that none exists. We have repeatedly held that mere omission from a criminal enactment of any mention of criminal intent should not be read as dispensing with it.  This rule of construction reflects the basic principle that wrongdoing must be conscious to be criminal.  This principle is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil.  The central thought is that a defendant must be "blameworthy in mind" before he can be found guilty, a concept courts have expressed over time through various terms such as mens rea, scienter, malice aforethought, guilty knowledge, and the like. Although there are exceptions, the general rule is that a guilty mind is a necessary element in the indictment and proof of every crime.  We therefore generally interpret criminal statutes to include broadly applicable scienter requirements, even where the statute by its terms does not contain them.

That's certainly doesn't suggest that every crime requires a mens rea (that gets into the old law school stuff about malum per se versus malum prohibitum), but it pretty much puts the kibosh to the idea that the legislature is free to impose strict liability whenever it wants. 

This problem isn't limited to weapons under disability offenses.  Given the court's interpretation in Johnson - basically, if the statute has an intent element in one portion but not in another, the "other" portion is strict liability - there's a whole raft of crimes where some significant aspect doesn't require any intent.  If you're a teacher and have sex with a student, it doesn't matter whether you know it's a student or not, you're guilty of sexual battery.  If you import child porn through interstate commerce, you have to know what the character of the material is, but your knowledge of whether it came through interstate commerce is immaterial.  And if you sell a firearm to a minor, the State doesn't have to show any intent element regarding the fact that it is a minor.

Interestingly, Clay did make the argument that due process required the State to prove some level of intent.  The court declined to address it, because Clay hadn't raised it in the appeals court.  Elonis provides a basis for making that argument from here on out.


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