Today our firm filed an amicus brief in the case of Russell Ernest Smith v. Commonwealth of Virginia in the Supreme Court of Virginia on behalf of Gun Owners of America, Inc. and Gun Owners Foundation in support of appellant Smith. The issue in this case was whether Smith “willfully and intentionally” made a false statement (on a Form 4473) that he was not under indictment, when in fact he had been indicted two days before but did not know it.
Our amicus brief argued that both the Commonwealth of Virginia and the Court of Appeals relied on federal case law to interpret a state statute, overlooking the fact that the statutes use materially different language. Further, the evidence was insufficient to establish a violation of Virginia Code 18.2-308.2:2 as Smith did not act with a “deliberate avoidance of learning the truth.” The court below unfairly inferred that smith’s decision to buy a firearm was in deliberate disregard of the felony charge against him. Finally, Virginia Code § 18.2-308.2:2 makes it a felony to give a false answer on any form “required by federal law,” but Form 4473 is neither “required” nor even authorized by federal law.
On November 5, 2011 the opinion of the Virginia Supreme Court unanimously overturned Smith’s conviction and dismissed the indictment against him. The Virginia Supreme Court reasoned that the words “willfully and intentionally” impose a “very strict standard of scienter.” In doing so, the Supreme Court rejected the Virginia Court of Appeals’ application of federal law standards to Virginia, “willfully and intentionally” statutory language, holding that they are “importantly different.”
Our amicus brief was the only brief that made the argument that the federal standard should not be applied, and that Smith’s conviction should thus be overturned. This was the reasoning adopted by the Virginia Supreme Court.