Harley v. Wilkinson

• Citation: 988 F.3d 766
• Decision Date: 22 February 2021
• Docket Number: No. 19-1632,19-1632
• Parties: Robert Timothy HARLEY, Plaintiff - Appellant, v. Robert M. WILKINSON, Acting Attorney General of the United States; Regina Lombardo, Acting Director, Bureau of Alcohol, Tobacco, Firearms, and Explosives, Defendants - Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

988 F.3d 766

Robert Timothy HARLEY, Plaintiff - Appellant,

v.Robert M. WILKINSON, Acting Attorney General of the United States; Regina Lombardo, Acting Director, Bureau of Alcohol, Tobacco, Firearms, and Explosives, Defendants - Appellees.

No. 19-1632

United States Court of Appeals, Fourth Circuit.

Argued: September 10, 2020

Decided: February 22, 2021

ARGUED: Marvin David Miller, LAW OFFICE OF MARVIN D. MILLER, Alexandria, Virginia, for Appellant. Thais-Lyn Trayer, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees. ON BRIEF: Joseph H. Hunt, Assistant Attorney General, Mark B. Stern, Patrick G. Nemeroff, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; G. Zachary Terwilliger, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellees.

Before KEENAN, WYNN, and RICHARDSON, Circuit Judges.

Affirmed by published opinion. Judge Keenan wrote the majority opinion, in which Judge Wynn joined. Judge Wynn wrote a concurring opinion. Judge Richardson wrote a dissenting opinion.

BARBARA MILANO KEENAN, Circuit Judge:

In 1993, Robert Harley (Harley) was convicted of misdemeanor assault and battery of a family member, in violation of Virginia Code § 18.2-57.2. As a result of this conviction, he is prohibited for life under 18 U.S.C. § 922(g)(9) from possessing a firearm unless he obtains a pardon or an expungement of his conviction. Harley filed this action seeking a declaration that Section 922(g)(9) is unconstitutional as applied to him. He argues that he no longer should be subject to the prohibition because he has demonstrated good behavior during the 27 years since his conviction.

The district court granted summary judgment to the defendants, the United States Attorney General and the Director of the Bureau of Alcohol, Tobacco, Firearms, and Explosives (collectively, the defendants), concluding that the prohibition in Section 922(g)(9) satisfies intermediate scrutiny as applied to Harley. After assuming without deciding that domestic violence misdemeanants retain some level of Second Amendment protection, the district court held that Section 922(g)(9) provides a reasonable fit for the governmental objective of protecting families from gun violence caused by convicted domestic abusers.

Upon our review, we agree with the district court and hold that 18 U.S.C. § 922(g)(9) is constitutional as applied to Harley. In reaching this conclusion, we adopt the approach of our sister circuits and decline to read into the statute an exception for good behavior or for the passage of time.

I.

In reviewing the district court's award of summary judgment to the defendants, we state the facts and draw all reasonable inferences in the light most favorable to Harley, the nonmoving party. Smith v. Collins , 964 F.3d 266, 274 (4th Cir. 2020). After graduating from high school in 1980, Harley joined the Fairfax County Department of Public Works (the County) as an unskilled laborer. Throughout his thirty-year career with the County, Harley was promoted numerous times, eventually rising to the rank of Industrial Electrician II. He also earned three advanced job-related certifications during his tenure. After retiring from the County, Harley began his own business as a licensed electrician.

In addition to his employment with the County, Harley served for decades as a volunteer firefighter and an emergency medical technician. He ultimately became the fire captain for the Dale City Volunteer Fire Department. Harley also was a member of the Department's board of directors. He won numerous awards for service related to his work as a volunteer firefighter.

In 1993, Harley pleaded guilty to misdemeanor assault and battery of a family member, in violation of Virginia Code § 18.2-57.2, based on an altercation he had with his then-wife. In an affidavit admitted into evidence in the present case, Harley's ex-wife stated that she continued a "friendly relationship" with Harley after the incident, and that they are "still friends to this day." Harley has not been convicted of any other crimes since the 1993 conviction. However, as noted above, Harley remains prohibited under 18 U.S.C. § 922(g)(9) from possessing a firearm based on that conviction.

Harley filed the present suit asserting that 18 U.S.C. § 922(g)(9) violates his Second Amendment rights and is unconstitutional as applied to him. In his complaint, Harley sought a declaratory judgment and an injunction prohibiting the government from enforcing Section 922(g)(9) against him.

After considering the parties’ evidence and arguments, the district court granted the defendants’ summary judgment motion, holding that Section 922(g)(9) is constitutional as applied to Harley. The court concluded that the statute satisfied the constitutional test for intermediate scrutiny, and that Harley's conviction qualified as a "misdemeanor crime of domestic violence" within the meaning of that statutory term. Harley appealed from the district court's judgment.

II.

Initially, we make two observations that inform our analysis in this case. First, we note that Harley does not challenge the fact of his conviction under Virginia Code § 18.2-57.2. Second, we emphasize that Harley does not contest the district court's conclusion that his conviction under Virginia Code § 18.2-57.2 qualifies as a misdemeanor crime of domestic violence for purposes of Sections 922(g)(9) and 921(a)(33)(A). Accordingly, we reject Harley's invitation to reweigh the facts underlying his prior Virginia conviction.

We review de novo the district court's decision granting summary judgment. Calloway v. Lokey , 948 F.3d 194, 201 (4th Cir. 2020) ; see also United States v. Gibert , 677 F.3d 613, 618 (4th Cir. 2012) ("We review de novo a challenge to the constitutionality of a federal statute."). A party is entitled to summary judgment if "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a).

Section 922(g)(9) prohibits individuals previously convicted of a "misdemeanor crime of domestic violence," as defined in 18 U.S.C. § 921(a)(33)(A), from possessing a firearm. As an initial matter, we observe that Harley does not challenge on appeal the district court's determination that his Virginia conviction qualifies under Section 922(g)(9) as a "misdemeanor crime of domestic violence." Instead, Harley argues that the district court improperly conducted its as-applied analysis under the Second Amendment because the court failed to consider Harley's personal history following his conviction. He contends that his individual characteristics, namely, the long passage of time since his misdemeanor conviction and his exemplary life in the many years since his conviction, render Section 922(g)(9) unconstitutional as applied to him.

In response, the defendants contend that under our decision in United States v. Staten , 666 F.3d 154 (4th Cir. 2011), the district court properly rejected Harley's as-applied challenge. According to the defendants, Harley's challenge is foreclosed because we held in Staten that Section 922(g)(9) survives intermediate scrutiny by providing a reasonable fit to meet a substantial governmental interest. We agree with the defendants’ argument.

Like our sister circuits, we apply a two-prong approach in considering as-applied Second Amendment challenges. United States v. Chester , 628 F.3d 673, 680-83 (4th Cir. 2010) ; see also United States v. Marzzarella , 614 F.3d 85, 89 (3d Cir. 2010) ; United States v. Reese , 627 F.3d 792, 800-01 (10th Cir. 2010) ; United States v. Chovan , 735 F.3d 1127, 1137 (9th Cir. 2013) ; GeorgiaCarry.Org, Inc. v. U.S. Army Corps of Eng'rs , 788 F.3d 1318, 1322 (11th Cir. 2015) ; Tyler v. Hillsdale Cnty. Sheriff's Dep't , 837 F.3d 678, 685-86 (6th Cir. 2016) (en banc); United States v. Jimenez , 895 F.3d 228, 232 (2d Cir. 2018) ; Medina v. Whitaker , 913 F.3d 152, 156 (D.C. Cir. 2019) ; Kanter v. Barr , 919 F.3d 437, 441-42 (7th Cir. 2019). Under the first prong of this approach, we address whether the challenged regulation "burdens or regulates conduct that comes within the scope of the Second Amendment." Chester , 628 F.3d at 680. If the challenged regulation satisfies this first prong, or if we assume without deciding that the regulation meets this requirement, we turn to perform under our second prong a "means-end" review, in which we consider the regulation under the appropriate level of constitutional scrutiny. Id.

Here, under the first prong, we will assume without deciding that domestic violence misdemeanants are entitled to some degree of Second Amendment protection. Staten , 666 F.3d at 160-61. Therefore, we proceed to the second prong of the analysis, in which we apply intermediate scrutiny to consider Harley's challenge to Section 922(g)(9). Id. at 161 ; Chester , 628 F.3d at 683. Under the standard of intermediate scrutiny, the government bears the burden of establishing a reasonable fit between the challenged law and a substantial governmental objective. Staten , 666 F.3d at 161. A statute may meet this standard despite being overinclusive in nature. Id. at 167.

Our analysis in this case is governed directly by our decision in Staten , in which we rejected an as-applied Second Amendment challenge to Section 922(g)(9). Staten , 666 F.3d at 168. There, relying on extensive social science research presented by the government, we concluded that the government had established that:

(1) domestic violence is a serious problem in the United States; (2) the rate of recidivism among domestic violence misdemeanants is substantial; (3) the use of firearms in connection with domestic violence is all too common; (4) the use of firearms in connection with domestic violence increases the risk of injury or homicide during a domestic violence incident; and (5) the use of firearms in connection with domestic violence often leads to injury or homicide.

Id. at 167. Based on this...