In re U.S.

• Decision Date: 13 August 2009
• Docket Number: No. 09-4145.,09-4145.
• Citation: 578 F.3d 1195
• Parties: In re UNITED STATES of America, Petitioner.
• Court: U.S. Court of Appeals — Tenth Circuit

578 F.3d 1195

In re UNITED STATES of America, Petitioner.

No. 09-4145.

United States Court of Appeals, Tenth Circuit.

August 13, 2009.

Diana Hagen, Esq., Office of the United States Attorney, Salt Lake City, UT, Stephan Edward Oestreicher, Jr., U.S. Department of Justice, Washington, DC, for Petitioner.

DISSENT FROM ORDER

MURPHY, J., Circuit Judge, dissenting from order granting petition for writ of mandamus.

A majority of a panel of this court has today, by means of an unpublished order, issued a writ of mandamus in this case, a copy of which is attached to this dissent as an Addendum for purposes of context and reference. I dissent from the majority's unpublished order granting the government's petition for a writ of mandamus. While I would not deny the petition at this time, I would grant the government's pending motion to stay the trial, now scheduled to begin on Monday, August 17, 2009, and order further briefing on the constitutional question. I have no quarrel with the majority's view that the government's petition for a writ of mandamus is timely and that review of the pending appeal in United States v. Pope, No. 09-4150, is not a substitute for issuance of a writ in this case.

The right to mandamus relief must be "clear and indisputable," and the burden of proof is on the petitioner. In re Cooper Tire & Rubber Co., 568 F.3d 1180, 1187 (10th Cir.2009) (quotation omitted). In my view, the government has failed to meet this burden. This court has not yet passed on the constitutionality of 18 U.S.C. § 922(g)(9) in light of District of Columbia v. Heller, ___ U.S. ___, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008). That opinion's recognition of an individual right to bear arms for the defense of self, family, and property, id. at 2817-18, raises substantial questions about how 18 U.S.C. § 922(g)(9) may be constitutionally applied. Heller's dictum regarding the validity of "longstanding prohibitions on the possession of firearms by felons or the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions on the commercial sale of arms," 128 S.Ct. at 2816-17, does not address the question. The defendant is not a felon, there is no suggestion he is mentally ill, he did not possess the firearm in a school or government building, and the sale of the firearm is not at issue. Notably, the charge is not under a longstanding statute prohibiting possession of a firearm. The statute interdicting the possession of a firearm by a person previously convicted of a domestic violence misdemeanor, 18 U.S.C. § 922(g)(9), was enacted in 1996.¹ Our recent opinion in United States v. McCane, 573 F.3d 1037 (10th Cir.2009), is not on point because the McCane court was applying the statute prohibiting felons from possessing firearms, 18 U.S.C. § 922(g)(1), and that court relied entirely upon the dictum from Heller regarding possession of firearms by felons. McCane, 573 F.3d at 1047. There is simply no authority for the government's assertion that § 922(g)(9) is constitutional in light of Heller.

Case law interpreting 18 U.S.C. § 922(g)(9) does make clear that the intent behind the statute was to prevent future acts of violence by individuals deemed dangerous by Congress. United States v. Hayes, ___ U.S. ___, 129 S.Ct. 1079, 1087, 172 L.Ed.2d 816 (2009); United States v. Rogers, 371 F.3d 1225, 1229 (10th Cir. 2004). Yet Congress is bound by the Second Amendment, and it is not at all clear its finding regarding the dangerousness of domestic violence misdemeanants is constitutionally sufficient to warrant a blanket ban on firearm possession. Indeed, we do not even know the level of scrutiny to be given to this finding. See Heller, 128 S.Ct. at 2817 & n. 27 (declining to identify the appropriate level of scrutiny to review firearm restrictions, but rejecting rational-basis review). In summary, this case presents novel constitutional questions, and I would prefer further briefing before deciding them. I express no opinion on whether the district court's approach is correct,² but I cannot conclude the government has met its heavy burden of showing that the district court, in light of virtually no guidance from this court or the Supreme Court, is so far afield that the government is clearly entitled to relief.³

Undoubtedly, if the defendant were acquitted under the district court's proposed instruction, the government would be unable to obtain appellate review. Our case law is clear, however, that the inability to correct an error on appeal is necessary, but not sufficient, to warrant the extraordinary remedy of mandamus relief. In re Cooper Tire & Rubber Co., 568 F.3d at 1187. I do not agree, furthermore, with the statement in the majority's order that a future panel of this court may "review fully the underlying merits" of the proposed instruction. Maj. Order at 1200. The majority order holds, as a matter of law, that the government is clearly and indisputably entitled to prosecute individuals under 18 U.S.C. § 922(g)(9) without the jury being instructed on an affirmative defense of a lack of prospective dangerousness. The majority's legal determination is, at a minimum, binding under the law of the case doctrine with respect to the defendant's right to an affirmative defense instruction. See Kennedy v. Lubar, 273 F.3d 1293, 1299 (10th Cir.2001) (stating law of the case doctrine applies to mandamus decisions actually deciding issues on the merits).

I would grant a stay of the proceedings below and order further briefing on the constitutional question.

APPENDIX

ORDER

Before KELLY, MURPHY, and HARTZ, Circuit Judges.

Petitioner United States of America has filed a petition for a writ of mandamus seeking an order from this court preventing the district court from instructing the jury that defendant, Rick Engstrum, may not be deprived of his Second Amendment right to bear arms under 18 U.S.C. § 922(g)(9), if he can show by a preponderance of the evidence that he does not pose a prospective risk of violence. For the following reasons, we grant the writ, and direct the district court not to instruct the jury on this Second Amendment defense, including not giving the proposed jury instruction.

Background

Defendant initially filed a motion to dismiss the one-count indictment charging him with violating 18 U.S.C. § 922(g)(9), which prohibits persons with misdemeanor convictions for domestic violence from possessing firearms. He argued that § 922(g)(9) was unconstitutional as applied to him because it impermissibly burdened his Second Amendment right to possess a firearm in his home for self-defense and protection of his home. This argument was based on the Supreme Court's recent decision in District of Columbia v. Heller, ___ U.S. ___, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008). Defendant did not make a facial challenge to § 922(g)(9).

In considering the motion to dismiss the indictment, the district court began by conducting a strict scrutiny analysis of § 922(g)(9). The court noted that the "Supreme Court has stated that the purpose of § 922(g)(9) is to keep firearms out of the hands of those who are `presumptively risky.'" United States v. Engstrum, 609 F.Supp.2d 1227, 1233 (D.Utah 2009) (quoting Dickerson v. New Banner Inst., Inc., 460 U.S. 103, 112 n. 6, 103 S.Ct. 986, 74 L.Ed.2d 845 (1983)). Concluding that the Black's Law Dictionary definition of "risk" indicates a "prospective view," the district court found that the compelling interest being furthered by the statute is "the protection of domestic partners and children from firearms violence by keeping firearms out of the hands of those who pose a prospective risk of violence." Id. (emphasis added). The district court then determined that

Congress and the Tenth Circuit have sufficiently narrowed the scope of § 922(g)(9)'s deprivation of Second Amendment rights, so that it may be presumed that those included within the scope of § 922(g)(9) pose a prospective risk of violence to an intimate partner or child. The Court therefore finds that § 922(g)(9) is narrowly tailored, and therefore, presumptively lawful.

Id. at 1235.

The district court next considered the defendant's as-applied challenge that he was entitled to an exception to the statute for home defense. The district court determined that no such exception was constitutionally required under the facts of this case. Id. The court concluded its order with the following statement:

While it is troubling to the Court that § 922(g)(9) may be used to deprive otherwise law abiding citizens, who pose no prospective risk of violence, of their Second Amendment rights as a result of a single past transgression, the Court cannot say, as a matter of law, that Defendant poses no prospective risk of violence, and that he is constitutionally entitled to an exception to § 922(g)(9).

Id. The district court then denied defendant's motion to dismiss the indictment.

Based on the district court's use of the "no prospective risk of violence" language in its order denying the motion to dismiss the indictment, the defendant filed a motion requesting a proposed jury instruction that would require the government to prove, in addition to the statutory factors in § 922(g)(9), that defendant posed no prospective risk of violence. The government filed an opposition brief to the proposed instruction, arguing that the proposed instruction represented an incorrect statement of the law because (1) the government should not bear the burden of proving an element that is not in the statute, and (2) the proposed instruction was inconsistent with the district court's earlier order denying the motion to dismiss the indictment and the Supreme Court's decision in Heller.

The district court granted the defendant's request for the proposed instruction in part, concluding that defendant was entitled to raise the issue as an affirmative defense, if he proved by a preponderance...