U.S. v. Michael R., 95-10442

Citation90 F.3d 340
Decision Date08 July 1996
Docket NumberNo. 95-10442,95-10442
Parties97 Cal. Daily Op. Serv. 5075, 96 Daily Journal D.A.R. 8187 UNITED STATES of America, Plaintiff-Appellee, v. MICHAEL R., Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Paul Scott Simon, Tucson, Arizona, for defendant-appellant.

Jesse J. Figueroa, Assistant United States Attorney, Tucson, Arizona, for plaintiff-appellee.

Appeal from the United States District Court for the District of Arizona, Richard M. Bilby, District Judge, Presiding. D.C. No. CR-95-327-TUC-RMB.

Before: PREGERSON and TROTT, Circuit Judges, EZRA, District Judge. *

DAVID ALAN EZRA, District Judge:

This appeal presents a constitutional challenge to the juvenile handgun possession law, 18 U.S.C. § 922(x)(2). The question of constitutionality under the Commerce Clause is one of first impression in the Ninth Circuit, indeed in any court of appeals. Also on appeal here is the trial court's denial of appellant's suppression motion. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 1294. We AFFIRM.

I.

On June 23, 1995, Clayton Alan Kidd ("Kidd"), a Lieutenant with the Tucson Police Department, was on patrol in a relatively high crime area; he was working in conjunction with the Community Response Team ("CRT"), a special unit established to monitor gang activity in Tucson. Kidd was working "plainclothes," wearing jeans and a T-shirt and driving an unmarked white Ford Taurus.

At around 10:30 p.m., while driving through a Quik-Mart parking lot at the corner of 29th and Craycroft Streets, Kidd saw a small white pickup, with two people in the cab, driving towards him. Both the driver and passenger of the pickup made eye contact with Kidd. Kidd noticed that they were Hispanic males with very short, almost shaven hair. A nine-year veteran on the police force, Kidd suspected from their appearance and demeanor that the occupants of the truck might be gang members.

Kidd contended that the occupants of the pickup began to "mad-dog" him, which is a stern expression that Kidd understood to be a prelude to violence in the local teenage gang culture. Kidd testified that in his experience as a police officer, he knew of young people who had been shot as a result of this type of activity.

When Kidd exited the parking lot on Craycroft, the white pickup pulled out into traffic close behind him. Kidd made several turns and the white pickup followed. Kidd called for back-up surveillance of the pickup truck, notifying his counterpart that a vehicle was following him and may need to be stopped.

As Kidd was driving up Woodland Street in a residential section going approximately the speed limit, the pickup tried to pass him on the left. Kidd accelerated to prevent the pickup from passing him because he was concerned that he would be in a dangerous position while the cars were adjacent to each other.

Several blocks later, two marked police cars stopped the truck. As the uniformed police officers approached the truck, three individuals lying down in the back of the truck sat up. One of the officers asked the occupants if anybody had any weapons. Several said no; one juvenile named Michael R. (herein referred to as "John Doe" or "Doe") remained silent and put his head down. Per the officer's instructions, the individuals in the back of the truck stepped out one by one; when Doe stepped out of the truck, the officers heard the sound of metal hitting the asphalt. Upon further investigation, they found a small .22 caliber Jennings pistol which had fallen from John Doe's pants and immediately arrested Doe.

The United States Attorney's Office filed an information, charging Doe under the terms of the Federal Juvenile Delinquency Act, for knowingly and intentionally possessing a handgun in violation of 18 U.S.C. § 922(x)(2). Doe moved to suppress the weapon as the fruits of an illegal search. The trial court denied that motion. The trial court also denied Doe's constitutional challenge to the statute, holding that section 922(x)(2) was consistent with Congress's power to regulate commerce. These two rulings are the basis of Doe's appeal.

II.

Doe's challenge to the constitutionality of 18 U.S.C. § 922(x)(2) is based on the Supreme Court's decision in United States v. Lopez, --- U.S. ----, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), which held that a statute proscribing possession of firearms in a school zone is beyond Congress's Commerce Clause powers. The district court distinguished Lopez from the facts here and found section 922(x)(2) constitutional. 1

Since the constitutionality of the statute is a question of law, we review the district court's holding de novo. United States v. Sahhar, 56 F.3d 1026, 1028 (9th Cir.1995).

Doe argues that the district court ruling is erroneous because section 922(x)(2) intrudes upon state criminal jurisdiction in violation of the Tenth Amendment. Doe contends that section 922(x)(2), like its counterpart section 922(q) which was reviewed in Lopez, is unconstitutional because it is a "criminal statute that by its terms has nothing to do with 'commerce' or any sort of economic enterprise." Lopez, --- U.S. at ---- - ----, 115 S.Ct. at 1630-31. Furthermore, Doe maintains that section 922(x)(2) has no "jurisdictional element" which would operate to ensure that, on a case-by-case basis, there was an effect on interstate commerce. Id. at ----, 115 S.Ct. at 1631.

The Government defends the statute as a whole: the Government contends that 18 U.S.C. § 922(x) clearly regulates commerce by prohibiting the sale, delivery, and transference of a handgun to a juvenile. The Government argues that section 922(x)(2) is an essential part of a larger, more comprehensive regulation to curb the bustling underground market in firearms and drugs. We agree.

At the outset, we note that the instant constitutional challenge of 18 U.S.C. § 922(x) is a case of first impression; there are no published circuit court cases addressing the constitutionality of this statute. 2 The analysis below therefore relies heavily on comparisons to Lopez. Although there are a number of parallels between section 922(q), the statute in Lopez, and section 922(x), the statute in question here, there are a few critical distinctions that are pivotal to our holding.

The Supreme Court identified three broad categories that Congress can regulate or protect under the Commerce Clause: (1) "the use of the channels of interstate commerce"; (2) "the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities"; and (3) "those activities having a substantial relation to interstate commerce." Lopez, --- U.S. at ---- - ----, 115 S.Ct. at 1629-30. The government concedes, and we agree, that if section 922(x) is to be sustained, it must be under the third category.

In Lopez, the Supreme Court held in a narrow decision that the Gun-Free School Zone Act of 1990 (hereinafter "18 U.S.C. § 922(q)" or "section 922(q)") was not a valid exercise of Congress's commerce powers because the activities regulated under that statute were too far removed from interstate commerce. Lopez, --- U.S. at ----, 115 S.Ct. at 1634. It stated, "The possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce." Id. The Supreme Court also rejected the "costs of crime" and the "national productivity" rationale proffered by the Government as overreaching the breadth of the Commerce Clause. Id. at ----, 115 S.Ct. at 1632.

18 U.S.C. § 922(x)(2) is different. First, we note that this statute is part of a larger regulation that deals with the sale, delivery, or transfer of firearms to a juvenile. The parent statute, § 922(x), in relevant part, provides:

(1) It shall be unlawful for a person to sell, deliver, or otherwise transfer to a person who the transferor knows or has reasonable cause to believe is a juvenile--

(A) a handgun; or

(B) ammunition that is suitable for use only in a handgun.

(2) It shall be unlawful for any person who is a juvenile to knowingly possess--

(A) a handgun; or

(B) ammunition that is suitable for use only in a handgun.

18 U.S.C. § 922(x). Read as a whole, § 922(x) by its terms regulates commerce: subsection (1) is targeted at curbing the supply of handguns and suitable ammunition, while subsection (2) restricts the demand for these firearms. We find that under the statute, Congress is in effect regulating interstate commerce by attacking both the supply and demand for firearms with respect to juveniles.

Second, we have no doubt that possession of a handgun by a juvenile, as a general matter, could have a substantial effect on interstate commerce. The legislative history 3 indicates that Congress enacted this statute to help control crime "by stopping commerce in handguns with juveniles nationwide." House Conf. Rep. No. 103-711, 390-91, 103d Cong., 2d Sess., reprinted in 1994 U.S.C.C.A.N. 1858, 1859. Congress defended the enactment of this statute as consistent with the Commerce Clause on three grounds: (a) the movement of the component parts, ammunition, and raw materials in interstate commerce; (b) the deterrence effect of violent crime on the travel of ordinary citizens and foreigners; and (c) the related effort to control gun possession and drug flow. Id.

The first two grounds are self-explanatory: possession of a handgun by a juvenile implicates interstate commerce through the manufacturing process and by its deterrent effect on interstate travel. We also find a nexus between this statute and Congress's efforts to control firearms and drug trafficking. In today's drug culture, it is not uncommon for runners to be under 18 years old. And as reflected by the crime statistics, many of them carry guns. It is logical, then, that a statute regulating the sale, transfer, and...

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