Gun Laws and Undocumented Immigrants

“Mr. Carbajal-Flores is a legitimate hero. He’s the proverbial good guy with a gun.”

—Scott D. Pollock & Associates PC attorney Ross Cassingham to The Economist

Federal law bans undocumented immigrants from possessing guns, but are changes on the horizon?

Undocumented but Deeply Rooted

Heriberto Carbajal-Flores was illegally brought to the United States by his parents as a child. A carpenter in his early thirties, he lives in Chicago as an undocumented immigrant. Mr. Carbajal-Flores is married to a United States citizen, his children are United States citizens, and he is eligible for protection from deportation by DACA. The United States is his home.

According to Ross Cassington, who was one of Mr. Carbajal-Flores’s attorneys, “He is an American in all but paperwork.” Mr. Cassington recently joined Scott D. Pollock & Associates PC as an associate attorney specializing in representing noncitizens in immigration courts.

Mr. Carbajal-Flores was charged under Title 18 U.S.C. §922(g)(5)(A) of the United States Criminal Code, which legally disallows undocumented immigrants to possess firearms and ammunition. Ross Cassingham felt the law should not apply in this particular instance, as did United States District Court Judge Sharon Coleman, who decided Mr. Carbajal-Flores’s case.

June 1st, 2020

Chicago was full of protests on the night of June 1st, 2020. These protests erupted in response to the murder of a black man, George Floyd, by a white police officer in Minneapolis. That night, Mr. Carbajal-Flores, along with several other men, armed themselves to defend a tire shop in Little Village, a predominantly Mexican neighborhood, from potential looters. Mr. Carbajal-Flores borrowed a gun to protect the tire shop and defend himself and the neighborhood.

While protecting the tire shop, Mr. Carbajal-Flores noticed the same car drive by several times. Inside the car were passengers flashing guns. In response to this perceived threat, Mr. Carbajal-Flores fired seven warning shots to scare them off. He hit no one, and no one sustained injuries. Additionally, there was no property damage; cameras caught everything.

The scare tactic worked, but shortly after, he was arrested.

The police were overwhelmed that night and even told Mr. Carbajal-Flores and the other men to arm themselves. Unfortunately, this was after Mr. Carbajal-Flores was already in possession of a firearm.

March 2024

Four years later, the last charges filed against Mr. Carbajal-Flores were dropped. Judge Coleman ruled, “The Court finds that Carbajal-Flores’s criminal record, containing no improper use of a weapon, as well as the non-violent circumstances of his arrest, do not support a finding that he poses a risk to public safety such that he cannot be trusted to use a weapon responsibly and should be deprived of his Second Amendment right to bear arms in self-defense.”

The judge cited cases of former British Loyalists in the Revolutionary War who were allowed to keep their firearms because cases were determined on an individualized basis. She stated that Mr. Carbajal-Flores was entitled to an “individualized assessment” and that some undocumented immigrants are allowed to have guns.

Attorney Ross Cassingham had argued that Mr. Carbajal-Flores was a member of “the people” due to his ties to the United States. In this instance, the argument was sound.

The Future of Undocumented Immigrants and Gun Ownership

The First Amendment protects freedom of speech and religion for anyone in the United States. The Second Amendment, which gives Americans the right to bear arms, has been broadening its scope over the years and could be heading in the same direction. A recent case, Bruen, established that gun laws must be in line with the laws of the early republic, which is why Judge Coleman cited how British loyalists were treated after the Revolutionary War.

An appeal of the ruling in Mr. Carbajal-Flore’s case by the government’s lawyers is expected, so this is not over. Additionally, the overarching issue of undocumented immigrants and gun ownership continues and will likely soon head to the Supreme Court.

Scott D Pollock & Associates PC are closely following all cases related to undocumented immigrants and gun ownership. We will provide updates as they arise.

Head to The Economist to read more.