U.S. v. Engstrum
| Decision Date | 10 April 2009 |
| Docket Number | No. 2:08-CR-430 TS.,2:08-CR-430 TS. |
| Citation | 609 F.Supp.2d 1227 |
| Parties | UNITED STATES of America, Plaintiff, v. Rick ENGSTRUM, Defendant. |
| Court | U.S. District Court — District of Utah |
Carol A. Dain, United States Attorney's Office, Salt Lake City, UT, for Plaintiff.
This matter is before the Court on Defendant's Motion to Dismiss Indictment, filed December 18, 2008.1 Defendant was charged in the Indictment with one count of Possession of a Firearm following a Domestic Violence Conviction, in violation of 18 U.S.C. § 922(g)(9).2 Defendant argues that the statute, as applied, is unconstitutional because it impermissibly infringes on his Second Amendment right to keep and bear arms. The government argues that Defendant's claim is "without merit"3 because § 922(g)(9) has never been found to impermissibly burden Second Amendment rights under any form of heightened scrutiny. Because the Court finds that § 922(g)(9), as applied to this defendant, is narrowly tailored to a compelling government interest, Defendant's Motion will be denied.
The following facts are taken from the government's Memorandum in Opposition.4 Defendant and his girlfriend (the "Girlfriend") were residing at a home in West Valley City, Utah (the "Residence") on May 9, 2008. On that day, Defendant and the Girlfriend got into an argument and the Girlfriend left the Residence.
On May 10, 2008, the Girlfriend returned with the police to retrieve her personal belongings, but no one answered the door when the Girlfriend knocked. Later that day, she returned with a friend (the "Friend"), in another attempt to retrieve her belongings. The Friend remained outside while the Girlfriend entered the Residence. While the Girlfriend was inside, she and Defendant got into another argument. During that argument, Defendant told the Girlfriend that she could not have her personal belongings if she left him and he grabbed her arm. The Girlfriend claimed she feared for her safety5 and so pulled a can of mace out of her back pocket and attempted to spray the Defendant. The mace did not work for the Girlfriend, but Defendant took the pepper spray from the Girlfriend and turned it on her. The Girlfriend then left the Residence and the Friend called the police. Before police arrived, Defendant threw the Girlfriend's belongings out of the Residence.
When police arrived at the Residence, the Girlfriend informed police that Defendant kept a gun in his bedroom, although the gun was never used or displayed in any way by the Defendant prior to the police arriving. Defendant allowed the police to enter the Residence, where one officer noticed an unspent round on the floor of the Residence. When officers inquired about the gun, Defendant advised them that it was in his bedroom dresser drawer, and that he had unloaded it when he learned that law enforcement would be arriving at the Residence. The officers found the unloaded gun from the bedroom dresser drawer. The gun was not taken from the Residence at that time.
On May 22, 2008, West Valley Police contacted Defendant and inquired about the gun. Defendant indicated that he owned the gun and that it was a gift from his father. There is no evidence to indicate that Defendant had ever used the firearm. However, Defendant was advised that he could not have a gun due to a prior misdemeanor domestic violence conviction. Defendant indicated to police that he would surrender the gun and ammunition. Police arrived at the Residence later that day and Defendant signed a consent to search form and surrendered the gun and ammunition.
Facts raised by Defendant, and undisputed by the government,6 also show that the firearm was purchased by Defendant's father, the prior owner of the Residence. Defendant's father utilized the firearm for lawful purposes, and kept the firearm near his bed for home protection. Defendant came into possession of the firearm after Defendant's father passed away and Defendant came to live in the Residence.
A facially valid indictment, returned by a legally constituted and unbiased grand jury, is enough to call for a trial on the merits.7 Thus, pretrial dismissal of an indictment is a "rare exception,"8 appropriate only in rare circumstances, where the Court is able to make "a determination that, as a matter of law, the government is incapable of proving its case beyond a reasonable doubt."9 When presented with a motion to dismiss the indictment, "the question is not whether the government has presented sufficient evidence to support the charge, but solely whether the allegations in the indictment, if true, are sufficient to establish a violation of the charged offense."10
Defendant argues in his Motion that he could not have committed the crime for which he is charged because, "under the circumstances he possessed the firearm, he had an absolute right to do so under the Second Amendment to the United States Constitution." Defendant does not make a facial challenge to 18 U.S.C. § 922(g)(9), and concedes, for the purposes of this Motion, that "he is a person otherwise covered by 18 U.S.C. § 922(g)(9)."11 Defendant argues, however, that the statute impermissibly burdens his Second Amendment right to keep and bear arms by punishing him for maintaining a firearm in the Residence solely for the purpose of home defense. The government argues that dismissal of the indictment is improper because Defendant has conceded, for the purposes of this Motion, that he covered by § 922(g)(9), and because application of Heller does not require exceptions to be made to § 922(g)(9).
In order to succeed, Defendant must show that application of Heller to the facts of this case requires a finding that Defendant's Second Amendment rights are impermissibly burdened by denying Defendant the right to maintain a firearm within the Residence for the sole purpose of home defense.
The Supreme Court recently clarified the meaning of the Second Amendment in District of Columbia v. Heller.12 Defendant argues that the United States Supreme Court, in Heller, established that the right to keep and bear arms is an "absolute"13 right guaranteed to each individual by the United States Constitution. The government responds that the Heller Court did not declare the right to be absolute, but rather that it was "subject to reasonable restrictions."14 Both arguments are incorrect.
In Heller, the Supreme Court invalidated two District of Columbia laws, the first of which banned all handguns, and the second required that all long guns be kept inoperative, either through disassembly or through a trigger lock.15 In striking down those laws, the Court held that the Second Amendment protected a long-standing individual right to keep and bear arms.16 According to the Supreme Court, the constitutional protection of that right was intended to protect a well-regulated militia, but the right itself was a well-established right to self- and home-preservation and defense.17 Moreover, the Heller Court declared that the right is a fundamental right,18 although not an unlimited one.19 The proper question, then, is not whether Defendant has a fundamental right to keep and bear arms, but whether the restrictions placed on this Defendant's fundamental right by 18 U.S.C. § 922(g)(9) are constitutional.
Before analyzing whether § 922(g)(9) is constitutional, as applied to Defendant, the Court must determine the appropriate level of scrutiny to apply. Unfortunately, the Heller Court rejected calls to specify a precise test by which alleged violations of the Second Amendment were to be judged.20 However, the Heller Court expressly rejected the application of the rational basis test,21 as well as the "interest-balancing inquiry" suggested by Justice Breyer.22 Justice Breyer suggested that courts ought to inquire "whether the statute burdens a protected interest in a way or to an extent that is out of proportion to the statute's salutary effects upon other governmental interests."23 The majority responded: 24
Relevant to the present case, the Heller Court also indicated that certain existing restrictions on Second Amendment rights were presumptively lawful. "Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms."25
Although not expressly stated by the Heller Court, strict scrutiny appears the appropriate level of scrutiny for two reasons. First, the Heller Court described the right to keep and bear arms as a fundamental right that the Second Amendment was intended to protect.26 The Tenth Circuit has declared that, where fundamental rights are at stake, strict scrutiny is to be applied.27 Second, the Heller Court categorized Second Amendment rights with other fundamental rights which are analyzed under strict scrutiny.28 The Court will, therefore, apply strict scrutiny analysis to the application of § 922(g)(9) to Defendant, and require that the government show that § 922(g)(9) is narrowly tailored to serve a compelling government interest, as applied to the facts of this case.29
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