Kanter v. Barr

• Decision Date: 15 March 2019
• Docket Number: No. 18-1478,18-1478
• Citation: 919 F.3d 437
• Parties: Rickey I. KANTER, Plaintiff-Appellant, v. William P. BARR, Attorney General of the United States, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

919 F.3d 437

Rickey I. KANTER, Plaintiff-Appellant,
v.
William P. BARR, Attorney General of the United States, et al., Defendants-Appellees.

No. 18-1478

United States Court of Appeals, Seventh Circuit.

Argued September 7, 2018
Decided March 15, 2019

Mark A. Cameli, Malinda J. Eskra, Attorneys, Reinhart Boerner Van Deuren S.C., Milwaukee, WI, Monica Ann Mark, Attorney, Reinhart, Boerner, Van Deuren, Madison, WI, for Plaintiff-Appellant.

Michael L. Drezner, Attorney, Department of Justice, Civil Division, Federal Programs Branch, Patrick Nemeroff, Attorney, Department of Justice, Civil Division, Appellate Staff, Washington, DC, Jonathan H. Koenig, Attorney, Office of the United States Attorney, Milwaukee, WI, Luke N. Berg, Attorney, Office of the Attorney General, Wisconsin Department of Justice, Madison, WI, for Defendants-Appellees.

Alan Gura, Attorney, Gura PLLC, Alexandria, VA, for Amicus Curiae Second Amendment Foundation, Incorporated

Megan Brown, Attorney, Wiley Rein LLP, Ilya Shapiro, Attorney, Cato Institute, Washington, DC, for Amicus Curiae Cato Institute

Before Flaum, Ripple, and Barrett, Circuit Judges.

Flaum, Circuit Judge.

Rickey I. Kanter pleaded guilty to one count of mail fraud under 18 U.S.C. § 1341. Due to his felony conviction, he is prohibited from possessing a firearm under both federal and Wisconsin law. At issue in this case is whether the felon dispossession statutes— 18 U.S.C. § 922(g)(1) and Wis. Stat. § 941.29(1m) —violate the Second Amendment as applied to Kanter. Even if Kanter could bring an

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as-applied challenge, the government has met its burden of establishing that the felon dispossession statutes are substantially related to an important government interest. We therefore affirm the district court.

I. Background

A. Federal and Wisconsin Felon Dispossession Statutes

Section 922(g)(1) prohibits firearm possession by persons convicted of "a crime punishable by imprisonment for a term exceeding one year." 18 U.S.C. § 922(g)(1). State misdemeanors are included under the statute if they are punishable by more than two years in prison.¹ Id. § 921(a)(20)(B). However, the statute excludes anyone convicted of "any Federal or State offenses pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices." Id. § 921(a)(20)(A). Moreover, "[a]ny conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored" is not a conviction for purposes of the statute. Id. § 921(a)(20).

Although the firearms prohibition generally applies for life, the statute includes a "safety valve" that permits individuals to apply to the Attorney General for restoration of their firearms rights. Logan v. United States, 552 U.S. 23, 28 n.1, 128 S.Ct. 475, 169 L.Ed.2d 432 (2007). Specifically, the Attorney General² may remove the prohibition on a case-by-case basis if an applicant sufficiently establishes "that the circumstances regarding the disability, and the applicant’s record and reputation, are such that the applicant will not be likely to act in a manner dangerous to public safety and that the granting of the relief would not be contrary to the public interest." 18 U.S.C. § 925(c).

Since 1992, however, "Congress has repeatedly barred the Attorney General from using appropriated funds ‘to investigate or act upon [relief] applications,’ " rendering the provision "inoperative." Logan, 552 U.S. at 28 n.1, 128 S.Ct. 475 (quoting United States v. Bean, 537 U.S. 71, 74–75, 123 S.Ct. 584, 154 L.Ed.2d 483 (2002) ). The Committee on Appropriations eliminated funding because the restoration procedure under § 925(c) was "a very difficult task" that required ATF officials to "spend many hours investigating a particular applicant for relief." H.R. Rep. No. 102-618, at 14 (1992). Even then, there was "no way to know with any certainty whether the applicant [was] still a danger to public safety." Id. Accordingly, ATF officials were effectively "required to guess whether a convicted felon ... [could] be entrusted with a firearm." Id. Moreover, they were "forced to make these decisions knowing that a mistake could have devastating consequences for innocent citizens." Id. Ultimately, the Committee determined that "the $3.75 million and the 40 man-years annually spent investigating and acting upon these applications for relief would be better utilized by ATF in fighting violent crime." Id. The Committee addressed the funding issue again in 1995, adding that "too many of these felons whose gun ownership rights were restored went on to commit violent crimes with firearms." H.R. Rep. No. 104-183, at 15 (1995).

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In 1981, Wisconsin adopted its own felon dispossession law. See Wis. Stat. § 941.29(1m). Section 941.29(1m) prohibits an individual from possessing a firearm if he has "been convicted of a felony in" Wisconsin or "a crime elsewhere that would be a felony" in Wisconsin. Id. § 941.29(1m)(a)–(b).

B. Factual Background

Kanter lives in Mequon, Wisconsin. He was previously the owner, operator, and CEO of Rikco International, LLC. Rikco International, which did business as "Dr. Comfort," manufactured therapeutic shoes and inserts for individuals with diabetes and severe foot disease. The company marketed the shoes and inserts to podiatrists, who in turn sold them to individual consumers. Most of the shoes and inserts were billed to, and paid for by, Medicare. Medicare only paid for inserts that met certain thickness and hardness standards.

In April 2004, Kanter submitted his inserts to Medicare to determine whether they met those requirements. Medicare rejected Kanter’s inserts because they were too thin. Kanter then submitted revised samples, which Medicare approved. However, Kanter continued to sell the noncompliant inserts while representing that they were Medicare-approved. All told, Medicare paid Kanter’s company $375,000 for the noncompliant inserts.

On May 24, 2011, Kanter pleaded guilty to one count of mail fraud under 18 U.S.C. § 1341 based on a shipment of the noncompliant inserts to a podiatrist in Florida. Section 1341 carries a maximum penalty of twenty years in prison and a $250,000 fine. Kanter was sentenced to one year and one day in prison and two years of supervised release. He was also ordered to pay a criminal penalty of $50,000, and he reimbursed Medicare over $27 million in a related civil settlement.

Kanter has since served his time and paid his criminal penalty, and he has not been charged with any additional criminal activity. However, because of his felony conviction, he is permanently prohibited from owning a firearm under federal and Wisconsin law.

C. Procedural Background

Kanter brought suit in the Eastern District of Wisconsin, arguing that 18 U.S.C. § 922(g)(1) and Wis. Stat. § 941.29(1m) are unconstitutional under the Second Amendment as applied to him. The United States moved to dismiss his claim under Rule 12(b)(6), and Wisconsin moved for judgment on the pleadings under Rule 12(c). In response, Kanter moved for summary judgment, arguing that his status as a nonviolent offender with no other criminal record meant that both statutes were unconstitutional as applied to him.

The district court granted defendants' motions and denied Kanter’s motion. In so doing, the district court held that, even assuming felons are entitled to Second Amendment protection, the application of the federal and Wisconsin felon dispossession laws to Kanter is substantially related to the government’s important interest in preventing gun violence. The court reasoned that Congress and the Wisconsin legislature are entitled to categorically disqualify all felons—even nonviolent felons like Kanter—because both have found that such individuals are more likely to abuse firearms. The court also noted that this "bright line categorical approach ... allows for uniform application and ease of administration." The district court entered judgment on January 2, 2018, and this appeal followed.

II. Discussion

We review de novo a district court’s ruling on a motion to dismiss for

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failure to state a claim and a motion for judgment on the pleadings. Landmark Am. Ins. Co. v. Hilger , 838 F.3d 821, 824 (7th Cir. 2016). In doing so, "we accept all well-pleaded facts as true and draw reasonable inferences in the plaintiffs' favor." Roberts v. City of Chicago , 817 F.3d 561, 564 (7th Cir. 2016). To avoid dismissal, "the complaint must ‘state a claim to relief that is plausible on its face.’ " Id. (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ).

A. Legal Standard³

The Second Amendment states: "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. In District of Columbia v. Heller , the Supreme Court identified the "core" of the Second Amendment as "the right of law-abiding,...