U.S. v. Masciandaro

• Decision Date: 24 March 2011
• Docket Number: No. 09–4839.,09–4839.
• Citation: 638 F.3d 458
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Sean MASCIANDARO, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

638 F.3d 458

UNITED STATES of America, Plaintiff–Appellee,

v.Sean MASCIANDARO, Defendant–Appellant.

No. 09–4839.

United States Court of Appeals, Fourth Circuit.

Argued: Dec. 8, 2010.Decided: March 24, 2011.

ARGUED: Antigone Gabriella Peyton, Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, Washington, D.C., for Appellant. Jeffrey Zeeman, Office of the United States Attorney, Alexandria, Virginia, for Appellee. ON BRIEF: Michael S. Nachmanoff, Federal Public Defender, Rachel S. Martin, Assistant Federal Public Defender, Office of the Federal Public Defender, Alexandria, Virginia; Matthew Levy, Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, Washington, D.C., for Appellant. Neil H. MacBride, United States Attorney, Alexandria, Virginia, for Appellee.Before WILKINSON and NIEMEYER, Circuit Judges, and PATRICK MICHAEL DUFFY, Senior United States District Judge for the District of South Carolina, sitting by designation.Affirmed by published opinion. Judge NIEMEYER wrote the opinion for the court, in which Judge WILKINSON and Senior Judge DUFFY joined except as to Part III.B. Judge WILKINSON wrote the opinion for the court as to Part III.B, in which Senior Judge DUFFY joined. Judge NIEMEYER wrote a separate opinion as to Part III.B.

OPINION

NIEMEYER, Circuit Judge, writing for the court except as to Part III.B:

Sean Masciandaro was convicted of carrying or possessing a loaded handgun in a motor vehicle within a national park area, in violation of 36 C.F.R. § 2.4(b). He challenges his conviction on two grounds: (1) that he was improperly charged under § 2.4(b), because after he was arrested but before he was tried, that regulation was superseded by a more lenient regulation that provided for state law to govern the legality of his actions; or alternatively (2) that section 2.4(b) violates the Second Amendment as applied to him and facially.

Because we conclude that the holding in United States v. Hark, 320 U.S. 531, 64 S.Ct. 359, 88 L.Ed. 290 (1944), as well as the general federal savings statute, 1 U.S.C. § 109, denies defendants an automatic entitlement to the benefit of post-arrest changes in the law, we find that Masciandaro was properly tried under the law as it existed on the date of his arrest.

On Masciandaro's constitutional challenge, we conclude that Masciandaro's Second Amendment claim to a right to carry or possess a loaded handgun for self-defense is assessed under the intermediate scrutiny standard, and, even if his claim implicates the Second Amendment, a question we do not resolve here, it is defeated by applying that standard. We conclude that the government has amply shown that the regulation reasonably served its substantial interest in public safety in the national park area where Masciandaro was arrested. Thus, we hold that 36 C.F.R. § 2.4(b) is constitutional as applied to Masciandaro's conduct.

Although Masciandaro has also mounted a separate facial challenge to § 2.4(b), we conclude that this challenge is foreclosed by our determination that the regulation is constitutional on an as-applied basis.

Accordingly, we affirm.

I

On June 5, 2008, at about 10:00 a.m., United States Park Police Sergeant Ken Fornshill, who was conducting a routine patrol of Daingerfield Island, near Alexandria, Virginia, observed a Toyota hatchback parked illegally. The vehicle was parked parallel to the side of the parking lot, in violation of the sign indicating “Front End Parking Only.” As Sgt. Fornshill approached the vehicle, he saw Masciandaro and his girlfriend sleeping inside and awoke them by tapping on the window. He asked Masciandaro for his driver's license, which Masciandaro produced from a messenger bag located in the vehicle's rear compartment. While Masciandaro was retrieving his license, Sgt. Fornshill noticed a large “machete-type” knife protruding from underneath the front seat, prompting him to ask Masciandaro whether there were any other weapons in the vehicle. When Masciandaro replied that he had a loaded handgun in the same bag, Sgt. Fornshill placed Masciandaro under arrest. Following a search, Fornshill uncovered a loaded 9mm Kahr semiautomatic pistol, and at the police station, Masciandaro produced an expired Virginia concealed weapon carry permit.

Daingerfield Island, where Masciandaro was arrested, is not an island but an outcropping of land extending into the Potomac River near Alexandria. The area, which is managed by the National Park Service, is used for recreational purposes and includes a restaurant, marina, biking trail, wooded areas, and other public facilities.

Masciandaro was charged with “carrying or possessing a loaded weapon in a motor vehicle” within national park areas, in violation of 36 C.F.R. § 2.4(b), and failing to comply with a traffic control device (the parking sign), in violation of 36 C.F.R. § 4.12. These regulations were promulgated by the Secretary of the Interior under 16 U.S.C. § 3, which authorizes the Secretary to “make and publish such rules and regulations as he may deem necessary or proper for the use and management of the parks, monuments, and reservations under the jurisdiction of the National Park Service.” Violations of these regulations are punishable by a fine of not more than $500 or imprisonment not exceeding six months, or both. Id.

At trial, Masciandaro explained that he carried the handgun for self-defense, as he frequently slept in his car while traveling on business, and that while traveling, he often kept cash, a laptop computer, and other valuables on hand. The place where Masciandaro was arrested on June 5, 2008, was 20 miles from his residence in Woodbridge, Virginia.

On April 30, 2008, slightly more than a month before Masciandaro was arrested, the Secretary of the Interior proposed a revision to 36 C.F.R. § 2.4, which was designed to harmonize the regulation of firearms in national parks with that by the States. See General Regulations for Areas Administered by the National Park Service and the Fish and Wildlife Service, 73 Fed. Reg. 23,388 (Apr. 30, 2008). The proposal advocated adding a new provision to § 2.4 which would allow individuals to possess loaded, operable firearms within national parks whenever it was legal to do so under the laws of the state in which the park was located, so long as the individual was not otherwise prohibited from doing so by federal law. Id. On December 10, 2008—six months after Masciandaro's arrest but less than two months before his trial—the Secretary published a final version of the regulation, to take effect January 9, 2009, which provided:

Notwithstanding any other provision in this Chapter, a person may possess, carry, and transport concealed, loaded, and operable firearms within a national park area in accordance with the laws of the state in which the national park area, or that portion thereof, is located, except as otherwise prohibited by applicable Federal law.

73 Fed. Reg. 74,966, 74,971–72 (codified at 36 C.F.R. § 2.4(h)).

When 36 C.F.R. § 2.4(h) took effect, Masciandaro had not yet been tried, and he promptly filed a motion with the magistrate judge to dismiss the charges against him, arguing that § 2.4(h) had effectively superseded § 2.4(b). He also argued that, in any event, § 2.4(b) violated the Second Amendment, as applied to him and facially. The magistrate judge denied the motion to dismiss, and, on February 3, 2009, found Masciandaro guilty on both counts. The judge imposed a $150 fine on the handgun violation and a $50 fine on the parking violation. Masciandaro appealed only the conviction on the handgun charge to the district court.

On March 19, 2009, while Masciandaro's appeal to the district court was pending, the District Court for the District of Columbia issued a preliminary injunction, blocking enforcement of newly promulgated § 2.4(h), because the Department of the Interior had failed to conduct the required environmental impact analysis. See Brady Campaign to Prevent Gun Violence v. Salazar, 612 F.Supp.2d 1 (D.D.C.2009). Responding to this ruling, Congress promptly added language to an unrelated piece of legislation, which in essence reinstated § 2.4(h) by statute. See Credit Card Accountability Responsibility and Disclosure Act of 2009 (“Credit CARD Act”), codified at 16 U.S.C. § 1a–7b(b). Section 512 of the Credit CARD Act provides:

The Secretary of the Interior shall not promulgate or enforce any regulation that prohibits an individual from possessing a firearm including an assembled or functional firearm in any unit of the National Park System or the National Wildlife Refuge System if—

(1) the individual is not otherwise prohibited by law from possessing the firearm; and

(2) the possession of the firearm is in compliance with the law of the State in which the unit of the National Park System or the National Wildlife Refuge System is located.

16 U.S.C. § 1a–7b(b).

On appeal, the district court rejected Masciandaro's argument for application of § 2.4(h) in lieu of § 2.4(b) and affirmed the magistrate judge's ruling. United States v. Masciandaro, 648 F.Supp.2d 779 (E.D.Va.2009). Relying mainly on United States v. Hark, 320 U.S. 531, 64 S.Ct. 359, 88 L.Ed. 290 (1944), the court held that it was proper to try Masciandaro under the law as it existed at the time of his arrest. Id. at 784–85. Addressing the constitutionality of § 2.4(b), the court did not decide what level of scrutiny to apply but held that even applying strict scrutiny, the provision was narrowly tailored to serve the compelling governmental interest in public safety and thus was constitutional on an as-applied basis. Id. at 788–91. The court rejected Masciandaro's facial challenge because he had not “demonstrat[ed] from actual fact ” that a substantial number of instances exist in which § 2.4(b) could not be applied constitutionally. Id. at 792–94.

From the judgment of the district court, dated August 26, 2009, Masciandaro filed this appeal.

II

Masciandaro contends first that he...