Stimmel v. Sessions

• Decision Date: 04 January 2018
• Docket Number: No. 15-4196,15-4196
• Citation: 879 F.3d 198
• Parties: Terry Lee STIMMEL, Plaintiff-Appellant, v. Jefferson B. SESSIONS, III, Attorney General; Federal Bureau of Investigation; Bureau of Alcohol, Tobacco, Firearms and Explosives; United States of America; Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

879 F.3d 198

Terry Lee STIMMEL, Plaintiff-Appellant,

v.Jefferson B. SESSIONS, III, Attorney General; Federal Bureau of Investigation; Bureau of Alcohol, Tobacco, Firearms and Explosives; United States of America; Defendants-Appellees.

No. 15-4196

United States Court of Appeals, Sixth Circuit.

Argued: August 2, 2017

Decided and Filed: January 4, 2018

ARGUED: Derek A. DeBrosse, BARNEY DEBROSSE, LLC, Columbus, Ohio, for Appellant. Patrick G. Nemeroff, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees. ON BRIEF: Derek A. DeBrosse, BARNEY DEBROSSE, LLC, Columbus, Ohio, for Appellant. Patrick G. Nemeroff, Michael S. Raab, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees. James R. McGuire, MORRISON & FOERSTER LLP, San Francisco, California, Julie Y. Park, MORRISON & FOERSTER LLP, San Diego, California, for Amicus Curiae.

Before: BOGGS, GRIFFIN, and WHITE, Circuit Judges.

GRIFFIN, J., delivered the opinion of the court in which WHITE, J., joined. BOGGS, J. (pp. 212–15), delivered a separate dissenting opinion.

GRIFFIN, Circuit Judge.

Plaintiff Terry Lee Stimmel tried to purchase a firearm at a Walmart store in 2002. However, the store rejected Stimmel’s offer because a mandatory national background check revealed that he had been convicted of misdemeanor domestic violence in 1997 and federal law prohibits domestic violence misdemeanants from possessing firearms. 18 U.S.C. § 922(g)(9). Thereafter, he unsuccessfully appealed to the Federal Bureau of Investigation ("FBI") and challenged the law in district court. Following the district court’s dismissal of his complaint, Stimmel appeals.

The gravamen of Stimmel’s appeal to this court is a question of first impression in our circuit: whether the firearm restriction, 18 U.S.C. § 922(g)(9), unconstitutionally burdens his Second Amendment rights. We hold that it does not.

In affirming the district court, we join the growing consensus of our sister circuits that have unanimously upheld the constitutionality of the domestic violence misdemeanant restriction to firearms possession. Here, the record contains sufficient evidence to reasonably conclude that disarming domestic violence misdemeanants is substantially related to the government’s compelling interest of preventing gun violence and, particularly, domestic gun violence. Because Stimmel’s conviction remains in effect, and he fails to rebut the government’s evidence that domestic violence misdemeanants pose a significant risk of future armed violence, we conclude that § 922(g)(9) survives intermediate scrutiny.

I.

In 1997, Stimmel pleaded no contest to violating Ohio Revised Code § 2919.25(A), which prohibits "knowingly caus[ing] or attempt[ing] to cause physical harm to a family or household member," a misdemeanor crime of first-degree domestic violence. According to the arrest report, Stimmel "threw his wife up against a wall" during an argument and "knock[ed] her to the floor." Stimmel then "tried to remove her wedding rings," and she "received a cut to her head." He was sentenced to 180 days in jail, with all but one day suspended on condition of Stimmel’s good behavior for two years, and a $100 fine. He was also ordered to stay away from the victim, to whom he is no longer married. Stimmel has not been convicted of another crime since.

In 2002, Stimmel tried to buy a firearm to "defend[ ] his home and his family." When he failed the required national background check, he appealed to the FBI. The FBI denied his appeal because, as a domestic violence misdemeanant, he is subject to a firearm restriction under 18 U.S.C. § 922(g)(9). Thereafter, Stimmel challenged the statute in district court. He asserted five claims there, but on appeal argues only that: (1) § 922(g)(9) unconstitutionally burdens his Second Amendment rights; and (2) Congress’s creation of a relief program available to certain disarmed individuals, but not Stimmel, violates his Fifth Amendment right to equal protection under the law.

The district court dismissed Stimmel’s complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), concluding his Second Amendment challenge to § 922(g)(9)"fail[s] as a matter of law" and his equal protection challenge fails because he is not similarly situated to persons barred from owning firearms under § 922(g)(4).

Stimmel v. Lynch , No. 5:14CV2081, 2015 WL 5730104, at *7–8 (N.D. Ohio Sept. 28, 2015). The district court held that the domestic violence misdemeanant restriction does not "implicate the Second Amendment" because it "falls squarely within the authority to disarm serious lawbreakers in existence well before the enactment of the Second Amendment." Id. at *5. In the alternative, the district court applied strict scrutiny and ruled that § 922(g)(9) was narrowly tailored to achieve the government’s compelling interest of preventing domestic gun violence. Id. at *6–7. The district court rejected Stimmel’s argument that he has abided by the law ever since his conviction, cautioning that he was not to be "afforded rights simply by virtue of being conviction-free for numerous years." Id. at *7.

The district court also determined that Stimmel, having committed the "volitional act of domestic violence," could not pursue his equal protection claim because he was not similarly situated to those prohibited from possessing weapons after being adjudicated mentally ill or committed to a mental institution. Id. at *8.

Stimmel timely appeals.

II.

We review de novo the district court’s grant of defendants' motion to dismiss Stimmel’s complaint for failure to state a claim. Linkletter v. W. & S. Fin. Grp., Inc. , 851 F.3d 632, 637 (6th Cir. 2017). In doing so, we accept Stimmel’s well-plead factual allegations as true and construe the complaint in the light most favorable to him. Hill v. Blue Cross & Blue Shield of Mich. , 409 F.3d 710, 716 (6th Cir. 2005).

III.

The Gun Control Act of 1968 bars firearm possession by certain groups of individuals, including convicted felons, and those "adjudicated as a mental defective or who ha[ve] been committed to a mental institution." See 18 U.S.C. § 922(g)(1), (4). In 1996, Congress added the domestic violence misdemeanant restriction, § 922(g)(9). Pub. L. No. 104–208, Tit. VI, § 658, 110 Stat. 3009–371 to 3009–372 (1996). Recognizing that "[e]xisting felon-in-possession laws ... were not keeping firearms out of the hands of domestic abusers, because many people who engage in serious spousal or child abuse ultimately are not charged with or convicted of felonies," Congress extended "the federal firearm prohibition to persons convicted of misdemeanor crimes of domestic violence" to "close this dangerous loophole." United States v. Hayes , 555 U.S. 415, 426, 129 S.Ct. 1079, 172 L.Ed.2d 816 (2009) (internal quotation marks, citation, and bracket omitted).

Specifically, the statute provides that:

It shall be unlawful for any person ... who has been convicted in any court of a misdemeanor crime of domestic violence ... to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

See § 922(g) – (g)(9). To qualify as a "misdemeanor crime of domestic violence" for purposes of § 922(g)(9), the predicate offense must have as an element the "use or attempted use of physical force, or the threatened use of a deadly weapon" by a person who has a specified relationship with the victim. See 18 U.S.C. § 921(a)(33)(A)(ii). Stimmel, then his victim’s spouse, pleaded no contest to "knowingly caus[ing] or attempt[ing] to cause physical harm to a family or household member" in violation of Ohio Revised Code § 2919.25(A), and thus falls squarely within § 922(g)(9) ’s scope.

IV.

On appeal, Stimmel argues the domestic violence misdemeanant restriction violates his Second Amendment rights. The Second Amendment provides that "[a] well[-]regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." U.S. Const. amend. II. The Amendment guarantees "an individual right to keep and bear arms" without regard to militia service. District of Columbia v. Heller , 554 U.S. 570, 595, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008).

Every circuit that has considered a post- Heller Second Amendment challenge to § 922(g)(9) has upheld the statute, albeit under varying frameworks and rationales. See United States v. Chovan , 735 F.3d 1127, 1139 (9th Cir. 2013) ; United States v. Staten , 666 F.3d 154, 160–61 (4th Cir. 2011) ; United States v. Booker , 644 F.3d 12, 22–26 (1st Cir. 2011) ; United States v. Skoien , 614 F.3d 638, 639–45 (7th Cir. 2010) (en banc); United States v. White , 593 F.3d 1199, 1205–06 (11th Cir. 2010) ; cf. Fisher v. Kealoha , 855 F.3d 1067, 1070 (9th Cir. 2017) (per curiam); United States v. Chester , 514 Fed.Appx. 393, 394–95 (4th Cir. 2013) (per curiam); In re United States , 578 F.3d 1195, 1200 (10th Cir. 2009) (mem) (nonprecedential order attached to published dissent).

A.

As a threshold matter, District of Columbia v. Heller theoretically could resolve the constitutional question Stimmel poses here. See Tyler v. Hillsdale Cty. Sheriff's Dep't , 837 F.3d 678, 686–88 (6th Cir. 2016) (en banc). The Second Amendment’s core right allows "law-abiding, responsible citizens to use arms in defense of hearth and home." Heller , 554 U.S. at 635, 128 S.Ct. 2783. But this fundamental right is "not unlimited." Id . at 626, 128 S.Ct. 2783. By acknowledging that "law-abiding, responsible citizens" are at the core of the Amendment’s protections, the Heller Court presumed certain individuals can be "disqualified" from exercising Second Amendment rights. See id. at 635, 128 S.Ct. 2783.

To that end, the Court cautioned that:

[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the

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