On March 5, 2014, the Supreme Court issued its decision in Rosemond v. United States. The question in this case was whether the federal offense of aiding and abetting the use of a firearm during and in relation to a crime of violence or drug trafficking crime requires proof of intentional facilitation or encouragement of the use of the firearm, or merely proof of simple knowledge that the principal used a firearm during a crime of violence or drug trafficking crime in which the defendant also participated.

In an opinion delivered by Justice Kagan, the Court held by a vote of 7-2 that: For purposes of “aiding and abetting” liability under 18 U.S.C. § 924(c), which prohibits “us[ing] or carr[ying] a firearm “during and in relation to any crime of violence or drug trafficking crime, the government must show that the defendant actively participated in the underlying drug trafficking or violent crime with advance knowledge that a confederate would use or carry a gun during the crime’s commission. The decision of the Tenth Circuit was vacated and remanded for further proceedings.

Justice Kagan was joined by Chief Justice Roberts and Justices Kennedy, Breyer, Sotomayor, and Ginsburg. Justice Scalia also joined the opinion, with the exception of footnotes 7 and 8. Justice Alito concurred in part and dissented in part, joined by Justice Thomas.

To discuss these cases, we have John Malcolm, Director and Ed Gilbertson and Sherry Lindberg Gilbertson Senior Legal Fellow at the Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies.

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