United States v. Adams

• Court: U.S. Court of Appeals — Eighth Circuit
• Writing for the Court: COLLOTON, Circuit Judge.
• Citation: United States v. Adams, 914 F.3d 602 (8th Cir. 2019)
• Decision Date: 29 January 2019
• Docket Number: No. 16-2529,16-2529
• Parties: UNITED STATES of America, Plaintiff - Appellee v. Alonzo L. ADAMS, Defendant - Appellant

914 F.3d 602

UNITED STATES of America, Plaintiff - Appellee

v.Alonzo L. ADAMS, Defendant - Appellant

No. 16-2529

United States Court of Appeals, Eighth Circuit.

Submitted: September 22, 2017

Filed: January 29, 2019

Jeffrey Q. McCarther, Assistant U.S. Attorney, U.S. ATTORNEY'S OFFICE, Kansas City, MO, for Plaintiff-Appellee.

Alonzo L. Adams, Leavenworth, KS, Pro Se.

Anita L. Burns, Assistant Federal Public Defender, Rebecca L. Kurz, FEDERAL PUBLIC DEFENDER'S OFFICE, Kansas City, MO, for Defendant-Appellant.

Before COLLOTON, BENTON, and KELLY, Circuit Judges.

COLLOTON, Circuit Judge.

A grand jury charged Alonzo Adams with unlawful possession of a firearm as a previously convicted felon, in violation of 18 U.S.C. § 922(g)(1). After the district court¹ denied his motion to dismiss the indictment, Adams conditionally pleaded guilty. On appeal, Adams argues that the district court erred by denying his motion, because § 922(g)(1) as applied to him is unconstitutional under the Second Amendment. Adams, however, failed even to address one element of his as-applied challenge in the district court, and he therefore forfeited his claim. There was no plain error in denying the motion to dismiss, so we affirm.

Adams’s instant conviction arose from a traffic stop in Kansas City, Missouri, in July 2014. Police officers pulled him over for failure to stop at a stop sign. After Adams told police that he was driving to meet his probation officer, the officers asked to search the vehicle. Adams consented to the search, and police discovered a handgun on the floor board under the driver’s seat. Adams denied that the handgun belonged to him, but lab analysis found his DNA on the trigger and magazine.

A grand jury charged him with unlawful possession of a firearm as a previously convicted felon, in violation of 18 U.S.C. § 922(g)(1). Adams had sustained a prior felony conviction in Missouri for carrying a concealed weapon. Adams moved to dismiss the indictment on the ground that § 922(g)(1) is unconstitutional as applied to him. Adams argued that District of Columbia v. Heller , 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), did not categorically exclude "non-violent felons" from Second Amendment protection. And he asserted that a conviction for carrying a concealed weapon is a non-violent felony. He then urged that § 922(g)(1) is unconstitutional as applied to him, because a permanent ban on firearms possession by a "non-violent felon" is not narrowly tailored to the government’s interest in public safety, so the prohibition did not satisfy strict scrutiny. The district court denied the motion on the ground that § 922(g)(1) serves an important governmental objective and satisfies intermediate scrutiny as applied to Adams.

Adams then pleaded guilty, and the district court sentenced him to 21 months’ imprisonment with three years of supervised release. As part of the plea agreement, Adams reserved the right to appeal the district court’s denial of his motion to dismiss.

The Second Amendment 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. II. "[T]he Second Amendment protects the right to keep and bear arms for the purpose of self-defense." McDonald v. City of Chicago , 561 U.S. 742, 749-50, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010). But "[l]ike most rights, the right secured by the Second Amendment is not unlimited." Heller , 554 U.S. at 626, 128 S.Ct. 2783. The Court in Heller said that "nothing in [its] 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." Id. at 626-27, 128 S.Ct. 2783. These regulatory measures are "presumptively lawful." Id. at 627 n.26, 128 S.Ct. 2783 ; accord McDonald , 561 U.S. at 786, 130 S.Ct. 3020 (plurality opinion).

After Heller and McDonald , we rejected a facial challenge to § 922(g)(1) ’s felon-in-possession ban. See United States v. Joos , 638 F.3d 581, 586 (8th Cir. 2011). But we have yet to address squarely whether § 922(g)(1) is susceptible to as-applied challenges. See United States v. Woolsey , 759 F.3d 905, 909 (8th Cir. 2014). An as-applied challenge asks the reviewing court to declare the disputed statute unconstitutional "on the facts of the particular case." Sanjour v. EPA , 56 F.3d 85, 92 n.10 (D.C. Cir. 1995). The as-applied challenger "does not contend that a law is unconstitutional as written but that its application to a particular person under particular circumstances deprived that person of a constitutional right." United States v. Marcavage , 609 F.3d 264, 273 (3d Cir. 2010). At a minimum, to succeed on an as-applied challenge, Adams must establish (1) that the Second Amendment protects his particular conduct, and (2) that his prior felony conviction is insufficient to justify the challenged regulation of Second Amendment rights.

Adams forfeited his claim by failing even to address the first point in the district court. Because Adams transported the handgun out of sight under his driver’s seat, Adams must show that the Second Amendment protects a right to carry a weapon concealed in a vehicle. Yet Adams never advanced this contention, and the district court could have denied his motion based on this deficiency alone. Adams simply assumed the existence of a constitutional right to carry a concealed weapon in a vehicle and argued only that his particular felony conviction could not justify a lifetime ban on possession. For the first time on appeal, Adams contends that the Second Amendment protects a right to carry a concealed firearm outside the home. To obtain relief on a forfeited claim, however, Adams must show that the district court made an obvious error that affected substantial rights and seriously affected the fairness, integrity, or reputation of the judicial proceedings. United States v. Olano , 507 U.S. 725, 734-36, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). An asserted legal error does not meet this standard if the proposition is "subject to reasonable dispute." Puckett v. United States , 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009).

It is not plain or obvious that the Second Amendment protects Adams’s conduct. There is at least reasonable dispute about whether the Second Amendment protects a right to carry a concealed weapon in a vehicle. The Supreme Court has described laws prohibiting concealed carry as a "well-recognized exception[ ]" to the right to keep and bear arms. Robertson v. Baldwin , 165 U.S. 275, 281-82, 17 S.Ct. 326, 41 L.Ed. 715 (1897). Heller cautioned that its holding did not recognize "a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose." 554 U.S. at 626, 128 S.Ct. 2783. As an example, the Court observed that "the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues." Id. Relying on these decisions, one circuit has concluded that the Second Amendment does not protect a right to concealed carry. See Peruta v. Cty. of San Diego , 824 F.3d 919, 939 (9th Cir. 2016) (en banc), cert. denied , ––– U.S. ––––, 137 S.Ct. 1995, 198 L.Ed.2d 746 (2017).

The history of prohibitions on concealed carry extends to the carrying of concealed weapons during travel. Even before cars and trucks, the Tennessee Supreme Court held that carrying a "navy six [pistol] in a scabbard hung to the horn of [a defendant’s] saddle" was grounds to convict the defendant for unlawfully carrying a pistol "that can be carried lawfully only openly in the hands." Barton v. State , 66 Tenn. 105, 105-06 (1874). Similarly, the Alabama Supreme Court affirmed the conviction of a defendant who concealed a pistol in a handbasket that the defendant carried with him on a train car. Diffey v. State , 86 Ala. 66, 5 So. 576, 576 (1889). After the advent of automobiles, the Court of Appeals for the District of Columbia upheld a conviction for carrying a concealed weapon under a vehicle seat. The court approved a jury instruction that said the governing statute applied if the defendant "had a pistol concealed in the automobile, though not on his person, but within his reach." Brown v. United States , 30 F.2d 474, 475 (D.C. Cir. 1929).

Several courts have discerned a meaningful distinction between open and concealed carrying in a vehicle. A California court emphasized that a concealed carry statute did not "prohibit the carrying of a firearm in a vehicle unless it be concealed," and concluded that a firearm could be carried openly inside the vehicle without violating the concealed carry law. People v. Frost , 125 Cal.App.Supp. 794, 12 P.2d 1096, 1097 (1932). On the other hand, carrying a firearm under a floor mat on the driver’s side of a truck violates the California law on carrying a concealed weapon in a vehicle. People v. Ellison , 196 Cal.App.4th 1342, 128 Cal.Rptr.3d 245, 248-51 (2011). Kentucky courts have ruled that a firearm carried inside the center console was concealed and violated Kentucky’s concealed carry law, see Mohammad v. Commonwealth , 202 S.W.3d 589, 590-91 (Ky. 2006), while a firearm placed on top of the center console was not concealed and did not violate the statute. See Pulley v. Commonwealth , 481 S.W.3d 520, 525 (Ky. Ct. App. 2016) ; see also Ensor v. State , 403 So.2d 349, 354-55 (Fla. 1981) ; State v. Pettit , 20 Ohio App.2d 170, 252 N.E.2d 325, 327-28 (1969) ; Shipley v. State , 243 Md. 262, 220 A.2d 585, 588-89 (1966) ; State v. Bordeaux , 337 S.W.2d 47, 49 (Mo. 1960).

To be sure, some have urged that concealed carrying of firearms is protected under the Second Amendment when the State forbids open carrying, on the view that...