U.S. v. Lewitzke

• Decision Date: 12 May 1999
• Docket Number: No. 98-2292,98-2292
• Citation: 176 F.3d 1022
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Kirk J. LEWITZKE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1022

176 F.3d 1022

UNITED STATES of America, Plaintiff-Appellee, v. Kirk J. LEWITZKE, Defendant-Appellant.

No. 98-2292.

United States Court of Appeals, Seventh Circuit.

Argued Dec. 3, 1998.

Decided May 12, 1999.

John W. Vaudreuil (argued), Peggy A. Lautenschlager, Office of the United States Attorney, Madison, WI, for Plaintiff-Appellee.

Winston P. Brown (argued), Milwaukee, WI, for Defendant-Appellant.

Before CUDAHY, RIPPLE, and ROVNER, Circuit Judges.

ILANA DIAMOND ROVNER, Circuit Judge.

A jury found Kirk J. Lewitzke guilty of possessing six firearms after having been convicted of a misdemeanor crime of domestic violence, in violation of 18 U.S.C. § 922(g)(9). The district court ordered him to serve a prison term of fifteen months. Lewitzke appeals, contending that section 922(g)(9) irrationally bars persons convicted of domestic violence misdemeanors from possessing firearms, in violation of equal protection principles, and that the district judge erred at sentencing when she found that the guns he possessed were not used solely for sporting purposes (see U.S.S.G. § 2K2.1(b)(2)). ¹ We affirm.

I.

On June 24, 1997, Stephen W. Lawroski, a special agent with the federal Bureau of Alcohol, Tobacco and Firearms, conducted a warrant-authorized search of Lewitzke's home on the outskirts of Wausau, Wisconsin with the assistance of other law enforcement personnel. Six firearms and some three thousand rounds of ammunition were seized. Nearly ten years earlier, Lewitzke had pleaded guilty to charge of misdemeanor domestic battery. Consequently, pursuant to 18 U.S.C. § 922(g)(9), it was unlawful for Lewitzke to possess a firearm which has moved in interstate commerce; and a grand jury issued a one-count indictment charging him with that offense. The parties later stipulated that each of the guns seized from Lewitzke's home was manufactured outside the state of Wisconsin and consequently had been transported in interstate commerce prior to June 1997. R. 96 at 125.

Lewitzke was tried before a jury in February 1998. Defense witnesses testified that Lewitzke had become aware in January 1997 that he was no longer permitted to possess firearms in light of his prior domestic violence conviction, and that Lewitzke at that time had surrendered possession of every gun then in his possession to his father. The defense theory was that the guns found in Lewitzke's home in June 1997 had been left there by his father, brother, and friends. Lewitzke and his family had constructed a large earthen berm and shooting range in his backyard in the early 1990s, and defense witnesses testified that friends and family stopped by the house regularly to engage in recreational target shooting. Nonetheless, in the face of evidence that guns and/or ammunition had been found in nearly every room of Lewitzke's home, the jury found him guilty of unlawful possession.

Judge Crabb sentenced Lewitzke on May 12, 1998. The base offense level of 12 was enhanced by two levels because six firearms were involved. See U.S.S.G. § 2K2.1(b)(1)(B). Lewitzke urged the judge to reduce the offense level to 6, on the ground that the guns were used solely for a sporting purpose (target shooting). Id. § 2K2.1(b)(2). Judge Crabb denied the reduction, relying in part upon Agent Lawroski's opinion that several of the guns are not generally used for sporting purposes and in part upon where in Lewitzke's home two of the guns had been found, their locations suggesting to the judge that they were not being kept for sporting purposes. As we have noted, the judge sentenced Lewitzke to a prison term of fifteen months (the bottom of the guideline range), to be followed by a thirty-six-month period of supervised release.

II.

A.

In 1996, Congress added a new provision to the Gun Control Act of 1968 prohibiting anyone previously convicted of a "misdemeanor crime of domestic violence" from possessing any firearm or ammunition "in or affecting commerce." See 18 U.S.C. § 922(g)(9). A "misdemeanor crime of domestic violence" is defined as a federal or state misdemeanor which "has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim." 18 U.S.C. § 921(a)(33)(A). ² The Bureau of Alcohol, Tobacco and Firearms has taken the position that "[t]his definition includes all misdemeanors that involve the use or attempted use of physical force (e.g., simple assault, assault and battery) if the offense is committed by one of the defined parties." Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, Open Letter to All State and Local Law Enforcement Officials (last modified February 27, 1998) . "This is true whether or not the State statute or local ordinance specifically defines the offense as a domestic violence misdemeanor." Id.

Lewitzke contends that section 922(g)(9), in prohibiting persons convicted of domestic violence from possessing firearms, violates the equal protection component of the Fifth Amendment's due process clause. See Bolling v. Sharpe, 347 U.S. 497, 499, 74 S.Ct. 693, 694, 98 L.Ed. 884 (1954); Buckley v. Valeo, 424 U.S. 1, 93, 96 S.Ct. 612, 670, 46 L.Ed.2d 659 (1976); Markham v. White, 172 F.3d 486, 491-92 (7th Cir.1999). He asserts that it is illogical to preclude all those who have been convicted of domestic violence crimes from possessing a gun, no matter how long ago their offenses may have occurred. He also suggests that it is irrational to single out those who engage in domestic violence for the firearms ban, when those convicted of other violent misdemeanors may be just as likely to misuse their guns. Whether the firearms ban contained in section 922(g)(9) is contrary to the mandate that all citizens be afforded equal protection of the law is a question of law that we address de novo. E.g., United States v. Wilson, 159 F.3d 280, 285 (7th Cir.1998), petition for cert. filed (U.S. Mar. 29, 1999) (No. 98-8724).

The parties agree that the classification at issue in this case need only have a rational basis to survive equal protection scrutiny. See United States v. Jester, 139 F.3d 1168, 1171 (7th Cir.1998); Sklar v. Byrne, 727 F.2d 633, 637 (7th Cir.1984). In other words, singling out persons convicted of domestic violence offenses for the firearms disability must be "rationally related to a legitimate [governmental] interest." City of New Orleans v. Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513, 2517, 49 L.Ed.2d 511 (1976) (per curiam). This test amounts to "the most relaxed and tolerant form" of equal protection review. City of Dallas v. Stanglin, 490 U.S. 19, 26, 109 S.Ct. 1591, 1596, 104 L.Ed.2d 18 (1989). No doubt is voiced here as to the legitimacy of the purpose served by the statute--protecting the public (and in particular the potential victims of domestic violence) from the grievous harm that firearms can inflict when placed in the wrong hands. See Dickerson v. New Banner Institute, Inc., 460 U.S. 103, 118-19, 103 S.Ct. 986, 995, 74 L.Ed.2d 845 (1983); Baer v. City of Wauwatosa, 716 F.2d 1117, 1123 (7th Cir.1983). The sole issue posed is whether this particular firearms ban rationally serves that interest. We need only be satisfied that there are " 'plausible reasons' " for the classification in question in order to sustain it. F.C.C. v. Beach Communications, Inc., 508 U.S. 307, 313-14, 113 S.Ct. 2096, 2101, 124 L.Ed.2d 211 (1993), quoting United States R.R. Retirement Bd. v. Fritz, 449 U.S. 166, 179, 101 S.Ct. 453, 461, 66 L.Ed.2d 368 (1980).

The rationale for keeping guns out of the hands of those convicted of domestic violence crimes is eminently reasonable. Persons convicted of such offenses have, by definition, already employed violence against their domestic partners on one or more occasions. Congress could reasonably believe that such individuals may resort to violence again, and that in the event they do, access to a firearm would increase the risk that they might do grave harm, particularly to the members of their household who have fallen victim to their violent acts before. See National Ass'n of Government Employees, Inc. v. Barrett, 968 F.Supp. 1564, 1573 (N.D.Ga.1997) ("The court does not doubt that limiting the ability of a domestic violence misdemeanant to possess a firearm is reasonably related to Congress' purpose of protecting public safety by keeping firearms out of the hands of potentially dangerous or irresponsible persons."), aff'd. and adopted by Hiley v. Barrett, 155 F.3d 1276 (11th Cir.1998); Gillespie v. City of Indianapolis, 13 F.Supp.2d 811, 824 (S.D.Ind.1998) (Barker, C.J.), appeal pending (No. 98-2691). In fact, the legislative history reflects precisely this concern. The sponsor of the legislation, Senator Frank Lautenberg, noted that "the presence of a gun dramatically increases the likelihood that domestic violence will escalate into murder." 142 Cong. Rec. S11227 (daily ed. Sept. 25, 1996). ³

Lewitzke's observation that the ban applies to anyone convicted of domestic violence, no matter how long ago, does not undermine the validity of the statute. The legislature is entitled to handle the problems it confronts with "rough accommodations" where fundamental rights and suspect classes are not concerned. Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 1161, 25 L.Ed.2d 491 (1970), quoting Metropolis Theater Co. v. City of Chicago, 228 U.S. 61, 69, 33 S.Ct. 441, 443, 57 L.Ed. 730 (1913); see Listle v. Milwaukee County, 138 F.3d 1155, 1158-59 (7th Cir.1998). Drawing the line more finely here is by no means an easy task--at what point, exactly, a domestic violence conviction becomes too old to reflect an individual's propensity to violence...