U.S. v. Tooley

• Citation: 717 F.Supp.2d 580
• Decision Date: 16 July 2010
• Docket Number: Criminal Action No. 3:09-00194
• Court: U.S. District Court — Southern District of West Virginia
• Parties: UNITED STATES of America v. Carl Evan TOOLEY II.

717 F.Supp.2d 580

UNITED STATES of America

v.Carl Evan TOOLEY II.

Criminal Action No. 3:09-00194.

United States District Court, S.D. West Virginia.

June 14, 2010.

Opinion Denying Reconsideration July 16, 2010.

Lisa G. Johnston, U.S. Attorney's Office, Huntington, WV, for Plaintiff.

Lex A. Coleman, Federal Public Defender's Office, Charleston, WV, for Defendant.

MEMORANDUM OPINION AND ORDER

ROBERT C. CHAMBERS, District Judge.

Pending is the defendant's Motion to Dismiss (Doc. 20). For the reasons explained below, the motion is DENIED.

Background

In December 2008, the defendant's girlfriend, Adrianne Beasley, purchased a 12-gauge, pump-action shotgun to give him as a Christmas gift. In affidavit, Ms. Beasley explains that she and the defendant, Mr. Tooley, had previously spoken about getting a gun for protection. They lived in a dangerous neighborhood where drug activity was prevalent and break-ins common. When Ms. Beasley purchased the gun, she registered it in her own name ("Semple" at the time). Ms. Beasley states that shortlyafter receiving the gun, Mr. Tooley took it to shoot skeet once at a target range and thereafter kept it in the house for defense of himself, Ms. Beasley, and the home.

In March 2009, the defendant and Ms. Beasley separated. As Mr. Tooley began to pack his things, Ms. Beasley realized that he would be taking the gun and that it was still registered in her name. Not wanting to be connected to the gun when she no longer had any control over it, she called the local and state police departments and asked how to change its registration. The state police department told her to visit a registered firearms dealer, and recommended Mack and Dave's Department store.

That same morning, Ms. Beasley and the defendant went to Mack and Dave's to register the gun in Mr. Tooley's name. They were handed a form from the Bureau of Alcohol Tobacco and Firearms ("ATF"), ATF Form 4473, and told by an employee that "you have to answer yes to the first question and no to all the others" in order to transfer the gun. The form was several pages long, but the defendant and Ms. Beasley quickly completed it and handed it back to the Mack and Dave's employee. One of the questions on the form read as follows: "11.I. have you ever been convicted in any court of a misdemeanor crime of domestic violence? ( See Instructions for Question 11.I )." The defendant checked "No" in the box next to this question.

Contrary to his answer to question 11.I, the defendant had been convicted of misdemeanor crimes of domestic violence on three separate occasions. He was first convicted on or about June 3, 2002, in Lawrence County, Ohio Municipal Court, for Domestic Violence in violation of Ohio Revised Code § 2919.25. ¹ He was convicted in the Lawrence County Municipal Court a second time for the same charge on August 5, 2002. His third and final conviction was in the Magistrate Court of Cabell County, West Virginia, for Domestic Battery, Second Offense in violation of W.Va.Code § 61-2-28 on February 11, 2004. ^FN2,FN3 The defendant's former girlfriend, Ms. Misty Dawn Curtis, was the victim in each of the crimes. There is no evidence that a firearm was involved in any incident.

FN2. W.Va.Code § 61-2-28 provides in part:

(a) Domestic battery-Any person who unlawfully and intentionally makes physical contact of an insulting or provoking nature with his or her family or household member or unlawfully and intentionally causes physical harm to his or her family or household member, is guilty of a misdemeanor....

(c) Second offense-... A person convicted of a violation of subsection (a) ... after having been previously convicted of a violation of subsection (a) or (b) [domestic assault] ... is guilty of a misdemeanor ...

FN3. Count Two of the indictment includes only two of the defendant's prior domestic violence convictions: the June 3, 2002 charge, and the February 11, 2004 charge.

Information from the defendant's ATF form was transmitted to the FBI's National Instant Criminal Background Check System ("NICS"). The response came back to Mack and Dave's "delayed," which meant that the shotgun could be transferred to the defendant on March 14, 2009.The defendant and Ms. Beasley left Mack and Dave's and the defendant returned on his own to retrieve the shotgun on March 19, 2009. Three days later, on March 22, 2009, defendant pawned the gun for $60 to FFL Gold & Pawn. According to the ticket, the defendant was eligible to retrieve the shotgun on April 21, 2009.

On March 25, 2009, the NICS issued a "delayed denial" for the transfer of the shotgun to Mr. Tooley, based on the defendant's February 11, 2004 conviction for domestic battery. On March 26, 2009, the case was referred to the ATF in Charleston for investigation and retrieval of the shotgun.

ATF Special Agent Jason C. Lawler contacted the defendant by phone on April 7, 2009. Agent Lawler informed the defendant that he was not supposed to possess a firearm because of his prior misdemeanor domestic violence conviction. The defendant told Lawler that he understood and explained that he had pawned the shotgun. The next day, April 8, 2009, Agent Lawler recovered the shotgun from FFL Gold & Pawn in Huntington.

ATF determined that the firearm had traveled in interstate commerce prior to being possessed by the defendant. He was indicted on August 26, 2009 on two counts. The pending charges include: Count I-making false statements in records required to be kept by federally licensed firearms dealers (the ATF form 4473 completed by the defendant on March 10, 2009 at Mack and Dave's); and, Count II-possessing a firearm after having been previously convicted of a misdemeanor crime of domestic violence-in violation of 18 U.S.C. § 924(a)(1)(A) and 922(g)(9). The defendant moves to dismiss his indictment on grounds that it is unconstitutional under the Second Amendment. The challenge is largely based on the U.S. Supreme Court's decision in District of Columbia v. Heller, wherein the Court, for the first time, recognized the Second Amendment Right to "keep and bear arms" as an individual right; rather than a collective right relevant only to service in a militia. 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008).

Standard of Review

The Court may, at any time during the pendency of a case, hear a claim that an indictment "fails to invoke the court's jurisdiction or to state an offense." Fed.R.Crim.P. 12(b)(3)(B). An indictment is defective if it alleges a violation of an unconstitutional statute, or if the "allegations therein, even if true, would not state an offense." United States v. Thomas, 367 F.3d 194, 197 (4th Cir.2004); see also, In re Civil Rights Cases, 109 U.S. 3, 8-9, 3 S.Ct. 18, 27 L.Ed. 835 (1883). A court must dismiss an indictment it finds to be defective.

Analysis

The Second Amendment to the United States Constitution provides: "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 2. For many years, the prevailing thought in federal courts was that this right was a collective right connected with service in a state organized militia (or an individual right which could only be exercised in connection with militia service). See Love v. Pepersack, 47 F.3d 120, 122 (4th Cir.1995); United States v. Warin, 530 F.2d 103, 106 (6th Cir.1976); Gillespie v. City of Indianapolis, 185 F.3d 693 (7th Cir.1999); Hickman v. Block, 81 F.3d 98, 99 (9th Cir.1996); Cases v. United States, 131 F.2d 916, 923 (1st Cir.1942); United States v. Rybar, 103 F.3d 273, 286 (3d Cir.1996); United States v. Hale, 978 F.2d 1016 (8th Cir.1992);United States v. Oakes, 564 F.2d 384 (10th Cir.1977); United States v. Wright, 117 F.3d 1265 (11th Cir.1997); but cf. United States v. Emerson, 270 F.3d 203, 260 ("We reject the collective rights and sophisticated collective rights models for interpreting the Second Amendment. We hold ... that it protects the right of individuals, including those not then actually a member of any militia or engaged in active military service or training, to privately possess and bear their own firearms ...").

These militia-dependant interpretations of the Second Amendment were soundly rejected by the Supreme Court in Heller, 554 U.S. 570, 128 S.Ct. 2783 (2008). The question before the Heller court was the constitutionality of a District of Columbia statute that "generally prohibit[ed] the possession of handguns" by all persons within the District, save a few narrowly defined exceptions. Id. at 2788. It also prohibited lawful gun owners from keeping their firearms loaded or effectively "functional" within the home. Id. The outcome of the case depended upon whether the Court interpreted the Second Amendment as a right which could only be exercised in connection with a militia (in which case the statute would be lawful) or whether the right was broader and protected some individual right to keep firearms for a citizen's own use-unconnected with any militia (in which case the broad D.C. gun ban would likely fail to pass constitutional muster). In reviewing the Second Amendment, the Court divided it into its operative clause-"the right of the people to keep and bear Arms, shall not be infringed," and its prefatory clause-"[a] well regulated Militia, being necessary to the security of a free State." Id. at 2789. After conducting a historical inquiry into the meaning of the statute's text, the Court determined that the operative clause did encompass an individual citizen's right to keep and bear arms apart from militia service and that this phrase was not to be limited by the prefatory clause. Id. at 2801-02. The prefatory clause, the Court explained, announces a purpose for enacting the amendment but does not define the right protected. Id. In fact, the Court found that the "core" of the Second Amendment protection was, not participation in a militia, but protecting an interest in "the right of...