From: "Shawn G. Bosley" To: firearms-alert@shell.portal.com, fap@world.std.com Date: Thu, 7 Dec 1995 08:14:10 PST Subject: JUDICIAL: Supreme Court Summary Regarding Gun Use (more info) The following summary is from CORNELL: (Further discussion should be sent to ca-firearms or fap) --------------------------------------------------------------- AN E-BULLETIN LEGAL INFORMATION INSTITUTE -- CORNELL LAW SCHOOL lii@lii.law.cornell.edu --------------------------------------------------------------- The following Supreme Court decisions just arrived on the ftp site ftp.cwru.edu. These are not the decisions themselves nor excerpts from them, but summaries (syllabi) prepared by the Court's Reporter of Decisions. Instructions for accessing or ordering the full text of any of these decisions are provided at the end of this bulletin. ================================================================ BAILEY v. UNITED STATES Docket 94-7448 -- Decided December 6, 1995 ================================================================ Petitioners Bailey and Robinson were each convicted of federal drug offenses and of violating 18 U. S. C. 924(c)(1), which, in relevant part, imposes a prison term upon a person who -- during and in relation to any . . . drug trafficking crime . . . uses or carries a firearm.-- Bailey's 924(c)(1) conviction was based on a loaded pistol that the police found inside a bag in his locked car trunk after they arrested him for possession of cocaine revealed by a search of the car's passenger compartment. The unloaded, holstered firearm that provided the basis for Robinson's 924(c)(1) conviction was found locked in a trunk in her bedroom closet after she was arrested for a number of drug-related offenses. There was no evidence in either case that the defendant actively employed the firearm in any way. In consolidating the cases and affirming the convictions, the Court of Appeals sitting en banc applied an -- accessibility and proximity -- test to determine "use" within 924(c)(1)'s meaning, holding, in both cases, that the gun was sufficiently accessible and proximate to the drugs or drug proceeds that the jury could properly infer that the defendant had placed the gun in order to further the drug offenses or to protect the possession of the drugs. Held: 1. Section 924(c)(1) requires evidence sufficient to show an active employment of the firearm by the defendant, a use that makes the firearm an operative factor in relation to the predicate offense. Evidence of the proximity and accessibility of the firearm to drugs or drug proceeds is not alone sufficient to support a conviction for -- use -- under the statute. Pp. 6-14. (a) Although the Court of Appeals correctly ruled that -- use -- must connote more than mere possession of a firearm by a person who commits a drug offense, the court's accessibility and proximity standard renders -- use -- virtually synonymous with -- possession -- and makes any role for the statutory word -- carries -- superfluous. Section 924(c)(1)'s language instead indicates that Congress intended -- use -- in the active sense of -- to avail oneself of.-- Smith v. United States, 508 U. S. ___, ___ . This reading receives further support from 924(c)(1)'s context within the statutory scheme, and neither the section's amendment history nor Smith, supra, at ___, is to the contrary. Thus, to sustain a conviction under the -- use -- prong of 924(c)(1), the Government must show that the defendant actively employed the firearm during and in relation to the predicate crime. Under this reading, "use" includes the acts of brandishing, displaying, bartering, striking with, and firing or attempting to fire, a firearm, as well as the making of a reference to a firearm in a defendant's possession. It does not include mere placement of a firearm for protection at or near the site of a drug crime or its proceeds or paraphernalia, nor the nearby concealment of a gun to be at the ready for an imminent confrontation. Pp. 6-14. (b) The evidence was insufficient to support either Bailey's or Robinson's 924(c)(1) conviction for -- use -- under the active-employment reading of that word. Pp. 14-15. 2. However, because the Court of Appeals did not consider liability under the -- carry -- prong of 924(c)(1) as a basis for upholding these convictions, the cases must be remanded. P. 15. 36 F.3d 106, reversed and remanded. O'Connor, J., delivered the opinion for a unanimous Court. --------------------------------------------------------------- HOW TO ACCESS OR ORDER EMAIL DELIVERY OF ITEMS REPORTED IN THIS BULLETIN --------------------------------------------------------------- The full text of these decisions is archived at the ftp site ftp.cwru.edu in several formats (filtered ascii, original ascii, and WordPerfect). You can also access the decisions using the LII's gopher server at gopher.law.cornell.edu, or through our World Wide Web server at http://www.law.cornell.edu/. If you don't have access to a gopher or WWW client, you can access one via telnet. Telnet to telnet.law.cornell.edu and log in as www. Finally, if you have only email access to the internet, you can retrieve these documents by sending a mail message to liideliver@lii.law.cornell.edu. 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