Justification in § 922(g)(1) Cases Requires Imminent Threat at the Moment of Initial Firearm Possession

I. Introduction

In United States v. Fort (1st Cir. May 12, 2026), the First Circuit affirmed the conviction and 60-month sentence of Garrito “Tony” Fort for being a felon in possession of a firearm and ammunition under 18 U.S.C. §§ 922(g)(1) and 924(e). The case arose from a deadly altercation outside the home where Fort lived with his girlfriend: Fort brought a loaded pistol to confront a family friend about alleged damage to Fort’s car, and during the confrontation Fort fired two shots—killing the family friend and seriously injuring his girlfriend’s uncle.

Fort preserved two merits issues and a sentencing challenge: (1) whether he was wrongly precluded from presenting a common-law “justification” defense (encompassing duress, necessity, and self-defense) to the § 922(g)(1) charge, including a claim that the Second Amendment supports a broader, more defendant-favorable justification doctrine; (2) whether § 922(g)(1) is unconstitutional as applied to him under the Second Amendment, in light of New York State Rifle & Pistol Ass'n, Inc. v. Bruen; and (3) whether his above-Guidelines sentence was substantively unreasonable.

II. Summary of the Opinion

The First Circuit affirmed across the board. It held that Fort failed to make the threshold evidentiary showing required to submit a justification defense to the jury under United States v. Leahy, primarily because no “unlawful and present threat of death or serious bodily injury” existed when Fort first possessed and carried the gun from inside the residence to initiate the confrontation. The court rejected Fort’s attempt to focus the justification inquiry solely on the instant of the shooting and rejected his contention that District of Columbia v. Heller requires a more permissive justification defense.

On the Second Amendment claim, the court declined to resolve broader doctrinal questions (including whether as-applied challenges to § 922(g)(1) are cognizable post-Bruen and who bears the burden), concluding that Fort’s as-applied theory depended “almost entirely” on his failed justification narrative and was insufficient on this record.

Finally, the court upheld an upward variance to 60 months (from an advisory range of 24–30 months), finding the sentencing court reasonably emphasized that Fort’s unlawful possession led to death and maiming—the core harms § 922(g) aims to prevent—and that the case fell outside the mine-run possession scenario.

III. Analysis

A. Precedents Cited

  • United States v. Gottesfeld and United States v. Lebreault-Feliz: Cited for the proposition that a district court may preclude an affirmative defense if the defendant fails to produce sufficient evidence “to create a triable issue,” and for the First Circuit’s practice of reviewing the threshold-sufficiency question de novo.
  • United States v. Henderson: Reinforced that “imminence” in the justification framework requires a “real emergency giving rise to immediate danger,” and helped anchor the court’s conclusion that Fort’s arming himself to go outside to confront another person is incompatible with imminence at the moment of initial possession.
  • United States v. Diaz-Castro, United States v. Florentino-Rosario, and DeCaro v. Hasbro, Inc.: Used to distinguish standards of review across related contexts (exclusion of evidence, refusals to give instructions, and “split standard” review of jury instructions), even though the panel ultimately found Fort’s arguments failed under de novo review.
  • United States v. Leahy: The controlling First Circuit authority recognizing a justification defense in § 922(g) cases and defining its four elements—(i) unlawful and present threat of death or serious bodily injury, (ii) no reckless placement into the situation, (iii) no reasonable legal alternative, and (iv) direct causal relationship between the criminal conduct and avoidance of harm. The panel applied Leahy to conclude Fort failed at the first element (and, by the district court’s view, the others too).
  • Dixon v. United States and Patterson v. New York: Cited for the common-law allocation of burdens on justification-type defenses. The opinion reiterated that Fort bore the threshold burden to produce evidence sufficient to create a triable issue on each element of justification.
  • United States v. Alston and United States v. Bell: Referenced to underscore that “present threat” is ordinarily limited to an “immediate emergency,” supporting the First Circuit’s narrow construction of imminence.
  • United States v. Castro-Gómez: Supplied the objective framing: the inquiry does not depend on the defendant’s “subjective perceptions” but instead asks how a person of “ordinary firmness and judgment” would have experienced and acted under the circumstances.
  • United States v. Arthurs and United States v. Cowette: Addressed appellate use of the record: viewing justification-related facts in the light most favorable to the defendant (Arthurs) and consulting undisputed portions of the PSR and sentencing record where relevant (Cowette).
  • District of Columbia v. Heller: Invoked by Fort to argue the Second Amendment should expand justification/self-defense concepts in § 922(g) cases. The court rejected the argument as undeveloped and, in any event, inapplicable given that no threat existed when Fort first armed himself.
  • New York State Rifle & Pistol Ass'n, Inc. v. Bruen, United States v. Minor, Range v. Att'y Gen., United States v. Jackson, United States v. Hunt, United States v. Rahimi, United States v. Torres-Rosario, and United States v. Williams: The court situated Fort’s as-applied challenge within ongoing post-Bruen circuit divisions, but declined to decide cognizability or burden allocation because Fort’s argument depended on justification and failed on the facts presented.
  • United States v. Maldonado-Velazquez, United States v. Polaco-Hance, and United States v. Rivera-Morales: Governed substantive reasonableness review of the upward variance, requiring a justification proportionate to the variance’s magnitude and deference to the sentencing court’s weighing of § 3553(a) factors.

B. Legal Reasoning

1. The core holding on justification: timing and imminence

The opinion’s most concrete doctrinal contribution is its insistence that, in a § 922(g)(1) prosecution, the justification inquiry cannot be artificially narrowed to the instant when violence erupts. The panel treated the relevant “criminal conduct” as Fort’s possession of the firearm and asked whether a qualifying threat existed when he first possessed and carried it—i.e., while still inside the home and when he chose to go outside with the weapon concealed.

Applying United States v. Leahy and United States v. Henderson, the court held the first element (“unlawful and present threat of death or serious bodily injury”) was not met because:

  • Fort was inside while Coletti was outside; no immediate danger compelled arming himself.
  • Fort’s stated purpose for bringing the gun was “intimidation” and “scare tactics,” not emergency defense.
  • A nonviolent resolution had been offered: Fort had been told Coletti would pay for damage.

With imminence absent at the moment of initial possession, the defense could be precluded without sending it to a jury, consistent with the “triable issue” threshold discussed in United States v. Gottesfeld and United States v. Lebreault-Feliz.

2. Objective assessment over subjective fear

Even though the facts were viewed favorably to Fort, the court emphasized an objective framework drawn from United States v. Castro-Gómez: the justification analysis does not turn on Fort’s subjective fear or expectations but on what a person of ordinary firmness and judgment would have faced and done. This reinforced the conclusion that voluntarily escalating a property-damage dispute by bringing a loaded firearm cannot be treated as compelled by an “immediate emergency.”

3. The Second Amendment does not “rescue” a failed Leahy showing here

Fort argued District of Columbia v. Heller implies a more defendant-friendly justification/self-defense doctrine in gun-possession prosecutions. The court rejected this as both insufficiently explained and, critically, irrelevant on these facts: even if some hypothetical case might reveal a mismatch between Leahy’s elements and the Second Amendment’s self-defense principles, Fort’s conduct still began with unjustified possession and a deliberate choice to initiate confrontation while armed.

4. As-applied Second Amendment challenge: avoided doctrinal leaps, resolved on record

After New York State Rifle & Pistol Ass'n, Inc. v. Bruen, courts have struggled with whether and how persons convicted of felonies may bring as-applied challenges to § 922(g)(1). The panel acknowledged the landscape by citing decisions pointing both directions, including Range v. Att'y Gen. and United States v. Jackson.

But the First Circuit declined to resolve (i) whether as-applied challenges to § 922(g)(1) are cognizable and (ii) who bears the burden (noting United States v. Williams as an example of placing a burden on the defendant), because Fort’s as-applied theory was tethered to his justification claim and lacked specificity beyond that. The panel also noted the government’s reliance on a tradition of disarming “dangerous or non-law-abiding persons,” consistent in spirit with the Supreme Court’s emphasis in United States v. Rahimi that firearm regulation may disarm those presenting a credible threat to others’ safety.

5. Substantive reasonableness: harm caused by unlawful possession justified an upward variance

Under United States v. Maldonado-Velazquez and United States v. Polaco-Hance, an above-Guidelines sentence must be justified by the case’s circumstances and the offender’s characteristics, and the court must explain why the case falls outside the Guidelines’ “ordinary situation.”

The sentencing court did so by focusing on a straightforward aggravator: Fort’s illegal possession of the pistol culminated in death and severe injury—“the worst type of harm” § 922(g) seeks to prevent. The panel treated Fort’s appellate arguments as a request to reweigh disputed facts and mitigation, which United States v. Rivera-Morales cautions against in deference to the district court.

C. Impact

  • Clarifies the “start time” for justification in possession offenses. The opinion reinforces that in a possession-based crime, justification must be evaluated at (and cannot ignore) the moment the defendant initially possesses/carries the contraband, not only when later danger materializes. This tightens the practical availability of justification in § 922(g) cases where a defendant arms himself before an encounter.
  • Limits Second Amendment reframing of common-law defenses (at least on these facts). Without foreclosing a constitutional argument in some future case, the decision signals skepticism toward using Heller to expand justification in ways that excuse proactive arming for intimidation.
  • Post-Bruen as-applied litigation remains unsettled in the First Circuit. By declining to decide cognizability or burden allocation, the court preserves flexibility for a future case that squarely presents a historically grounded, fact-specific as-applied record not reducible to justification.
  • Sentencing takeaway: Even when Guidelines enhancements (including cross-references) are not applied, district courts may still vary upward significantly when the unlawful possession is closely connected to grave real-world harm, so long as the § 3553(a) explanation is specific and proportional.

IV. Complex Concepts Simplified

  • “Justification” (duress/necessity/self-defense) in § 922(g) cases: A narrow, common-law safety valve allowing otherwise illegal gun possession only when the defendant can show an immediate, unlawful threat of death/serious injury, no reckless self-creation of the situation, no reasonable legal alternative, and a direct link between possessing the gun and avoiding harm.
  • “Threshold showing” / “triable issue”: Before the jury hears an affirmative defense, the judge may require enough evidence on each element such that a reasonable jury could find for the defendant; otherwise the defense is kept from the jury.
  • Objective vs. subjective fear: The law asks what a reasonable person of ordinary firmness would have perceived and done, not merely what the defendant says he feared.
  • “As-applied” Second Amendment challenge: A claim that a statute may be constitutional in general but unconstitutional when applied to a particular person under particular facts. Here, the court did not decide the full doctrinal framework because Fort’s application depended on a justification story the court found legally insufficient.
  • “Substantive reasonableness” review: Appellate deference to sentencing outcomes so long as the district court reasonably explains the sentence under § 3553(a) and the sentence falls within the broad range of permissible outcomes—even if the appellate court might have imposed something different.

V. Conclusion

United States v. Fort underscores a practical and often dispositive rule for § 922(g)(1) defendants: a justification defense must be supported by evidence of an immediate, unlawful threat at the time the defendant first possesses the firearm, and courts will not isolate the analysis to the later moment when violence erupts if the defendant proactively armed himself to confront or intimidate. The decision also signals that, while post-Bruen debates about as-applied challenges to § 922(g)(1) persist, a defendant cannot convert a weak justification record into a successful Second Amendment claim. Finally, it reaffirms that grave harms flowing from unlawful possession can justify substantial upward variances when the sentencing court provides a careful § 3553(a) explanation.