Fraternal Order of Police v. U.S.

• Decision Date: 16 April 1999
• Docket Number: No. 97-5304,97-5304
• Citation: 173 F.3d 898
• Parties: FRATERNAL ORDER OF POLICE, Appellant, v. UNITED STATES of America, Appellee. District of Columbia Circuit
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 898

173 F.3d 898

FRATERNAL ORDER OF POLICE, Appellant, v. UNITED STATES of America, Appellee.

No. 97-5304.

United States Court of Appeals,District of Columbia Circuit.

Argued Jan. 12, 1999.

Decided April 16, 1999.

Appeal from the United States District Court for the District of Columbia (No. 97cv00145).

Robert M. Loeb, Attorney, U.S. Department of Justice, argued the cause on rehearing for appellee. With him on the briefs were Frank W. Hunger, Assistant Attorney General, Wilma A. Lewis, U.S. Attorney, and Mark B. Stern, Attorney, U.S. Department of Justice.

William J. Friedman, IV, argued the cause and filed the answer brief on rehearing for appellant.

Donna F. Edwards was on the brief for amicus curiae The National Network to End Domestic Violence.

Before: WILLIAMS, GINSBURG and RANDOLPH, Circuit Judges.

Opinion for the Court filed by Circuit Judge STEPHEN F. WILLIAMS.

STEPHEN F. WILLIAMS, Circuit Judge:

In Moldea v. New York Times Co., 22 F.3d 310, 311 (D.C.Cir.1994), at the outset of an opinion in which a panel on petition for rehearing abandoned its initial view, we quoted Justice Frankfurter's remark, "Wisdom too often never comes, and so one ought not to reject it merely because it comes late." Henslee v. Union Planters Nat. Bank & Trust Co., 335 U.S. 595, 600 69 S.Ct. 290, 93 L.Ed. 259 (1949) (Frankfurter, J., dissenting). It still seems good advice.

I. Background

In Fraternal Order of Police v. United States, 152 F.3d 998 (D.C.Cir.1998) ("FOP I"), this panel addressed two provisions of the 1996 amendments to the Gun Control Act of 1968, 18 U.S.C. § 921 et seq. The first was § 922(g)(9), which adds domestic violence misdemeanants--"any person who has been convicted in any court of a misdemeanor crime of domestic violence"--to the list of those for whom it is unlawful to possess a firearm "in or affecting interstate commerce" or to receive a firearm that has been shipped in interstate or foreign commerce. Besides covering additional persons, Congress also amended a pre-existing exemption, § 925(a)(1), which nullified the Gun Control Act's disabilities for "any firearm ... issued for the use of ... any State or any department, agency, or political subdivision thereof"; Congress excluded the newly covered persons from the section's benefits. Thus, domestic violence misdemeanants, unique among persons forbidden to possess guns under the Act, are not allowed to possess even government-issued firearms.

The Fraternal Order of Police challenged the amendments on a variety of grounds, including the equal protection element of the Fifth Amendment's due process clause. See Bolling v. Sharpe, 347 U.S. 497, 500, 74 S.Ct. 693, 98 L.Ed. 884 (1954). We found such a violation, holding that the amendments failed "rational basis" review because of their harsher treatment of domestic violence misdemeanants as compared to domestic violence felons. See id. at 1002-03.

The United States petitioned for rehearing on two grounds: that FOP had not properly raised an argument based on the irrationality of the relative treatment of misdemeanants and felons, and that we were incorrect to find the difference irrational. We granted the petition, and requested briefing and heard oral argument on both points. See Fraternal Order of Police v. United States, 159 F.3d 1362 (1998).

We now determine that although it was likely improvident to address the felon-misdemeanant equal protection question in our original opinion, it has now become appropriate to do so. We also reverse our previous position and hold that the challenged provisions do satisfy rational basis review. This requires us to reach FOP's other arguments: that § 922(g)(9) violates due process by burdening the fundamental right to bear arms, that it is beyond Congress's power under the commerce clause, and that it violates the Tenth Amendment. We reject all these claims.

II. Waiver of the felon-misdemeanant claim.

Although the felon-misdemeanant distinction was never the focus of FOP's arguments, the Order did raise it twice in this litigation: orally before the district court at the combined summary judgment/preliminary injunction hearing and in its reply brief here. After advancing FOP's principal equal protection argument--that it was irrational to focus on domestic violence misdemeanants to the exclusion of other misdemeanants--FOP's counsel said:

The other strangeness about it is that, if you are convicted of a felony, you are a convicted serial killer ... you can be rearmed, or if you somehow become a police officer after your conviction, you can keep your gun, because you're a convicted felon. Fine. The exemption section still obtains with respect to felonies.

So what's the rationality of, not only looking at one kind of misdemeanor instead of all violent misdemeanors, but leaving every felon able to be a law enforcement officer and carry a weapon in the public interest? I mean the States may regulate that, but the Federal government isn't.

So if you looked just at the Federal enactment, it's irrational to say that convicted felons can be police officers and carry weapons, and people convicted of one kind of misdemeanor cannot.

March 7, 1997 Hr'g Tr. at 50-51. Neither the government nor the district court addressed the misdemeanant-felon distinction.

FOP's oral argument on the felon-misdemeanant distinction was enough to satisfy the general requirement that an issue on appeal be raised in the trial court. The government complains that it lost any "opportunity to make a record as to the relevant facts and legal arguments" because of FOP's timing in raising the issue below. Gov't Reh'g Br. at 4. But the government did not, as it could have, seek to submit a post-argument brief or supplemental affidavits on the felon-misdemeanant question. See Fed.R.Civ.P. 56(e) ("The court may permit [summary judgment] affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits."). Furthermore, the issue presented is essentially a legal one, and the government has not identified in its rehearing petition or briefs any type of factual evidence it would have introduced if given the opportunity.

In any event, the District Court for the District of Columbia regularly considers arguments raised for the first time at oral argument in deciding dispositive motions. See Joslin Co. v. Robinson Broadcasting Corp., 977 F.Supp. 491, 493 (D.D.C.1997) (motion to dismiss); Jones v. WMATA, 1997 WL 198114, at * 1, n. 1, No. Civ. A. 95-2300-LFO (D.D.C. April 10, 1997) (summary judgment); Richardson v. National Rifle Ass'n, 871 F.Supp. 499, 501 (D.D.C.1994) (summary judgment). If the felon-misdemeanant issue had been properly briefed on appeal, it would have been proper for us to address it.

But FOP failed to raise the issue in its opening brief on appeal. Although two passages in that brief might be read in isolation as related to the felon-misdemeanant equal protection argument, context makes clear that neither one actually did so. The first vague allusion was merely ancillary to FOP's commerce clause argument, see FOP Br. at 34-35, and the second, though vague, plainly related solely to FOP's claim of irrational discrimination among misdemeanants, see FOP Br. 39-40. Unsurprisingly, the government did not address the felon-misdemeanant distinction in its brief.

FOP's reply brief, however, did raise it, saying, albeit in the context of its commerce clause argument, that "[t]his limited elimination of a long-standing exception is irrational.... Permitting a person convicted of a felony on a domestic partner to benefit from the exception but not a person convicted of a misdemeanor on a domestic partner serves no legitimate goal." FOP Reply Br. at 16.

Normally, because of the likely unfairness to parties and risk of improvident decisions, we would refuse to consider an argument that an appellant failed to raise before its reply brief. See, e.g., Doolin Sec. Sav. Bank v. OTS, 156 F.3d 190, 191 (D.C.Cir.1998); McBride v. Merrell Dow & Pharms., Inc., 800 F.2d 1208, 1210-11 (D.C.Cir.1986). Here, however, the felon-misdemeanant issue was raised energetically by the court at oral argument (perhaps because, although defectively raised, it appeared comparatively straightforward), but the government, though responding on the merits, made no mention of FOP's waiver of the issue. Oral Arg. Tr. at 35-39. Accordingly, we think it was within the court's discretion to treat the government as having waived the waiver. See United States v. Hollingsworth, 27 F.3d 1196, 1203 (7th Cir.1994) (en banc); cf. Ochran v. United States, 117 F.3d 495, 503 (11th Cir.1997) (weighing "prejudice to the parties" and "interest of justice" in determining whether to treat government as having waived appellant's failure to raise argument below).

That of course is not to say that affirmative exercise of the discretion was wise. We have already telegraphed that with the more complete briefing we see the issue as coming out the other way. In retrospect, it may well have been imprudent to address the merits on so thin an argumentative record.

Now, however, both parties have weighed in on the issue in considerable detail. The court has worked through it not once but twice. So there is no special risk of reaching an improvident decision; and, as the government has had (and taken) the opportunity to respond, the most important respect in which reaching the issue might have been "unfair" is also absent. One might also think it "unfair" in a relevant sense to be faced with the risk of losing a case on the basis of an argument that one's adversary failed to raise in the time and space allotted. But that seems weak here, as the government shares some of the responsibility for our having missed the procedural objection initially.

Thus, there is no bar to resolving the felon-misdemeanant issue at this stage. In addition, there is an affirmative reason for doing so: judicial...