United States v. Allam

• Docket Number: CASE NO. 1:23-CR-10
• Decision Date: 14 June 2023
• Citation: United States v. Allam, 677 F.Supp.3d 545 (E.D. Tex. 2023)
• Parties: UNITED STATES of America v. Ahmed Adballa ALLAM
• Court: U.S. District Court — Eastern District of Texas

677 F.Supp.3d 545

UNITED STATES of America v. Ahmed Adballa ALLAM

CASE NO. 1:23-CR-10

United States District Court, E.D. Texas

Signed June 14, 2023

John Bulkley Ross, Assistant U.S. Attorney, Joseph Robert Batte, U.S. Attorney's Office, Beaumont, TX, for United States of America.

Ryan Withington Gertz, Gertz Adair Law Firm, Beaumont, TX, Gary R. Bonneaux, Public Defender, Federal Defender's Office, Beaumont, TX, Thomas William Kelley, The Gertz Law Firm, Beaumont, TX, for Ahmed Adballa Allam.

MEMORANDUM AND ORDER

MARCIA A. CRONE, UNITED STATES DISTRICT JUDGE

Pending before the court is Defendant Ahmed Adballa Allam's ("Allam") Motion to Dismiss the Indictment (#22). Allam is charged with one count of possession of a firearm in a school zone, in violation of 18 U.S.C. § 922(q)(2)(A). Allam contends that, in light of the United States Supreme Court's decision in New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1, 142 S. Ct. 2111, 213 L.Ed.2d 387 (2022), and the United States Court of Appeals for the Fifth Circuit's recent decision in United States v. Rahimi, 61 F.4th 443, 448 (5th Cir. 2023), petition for cert. filed, (U.S. Mar. 21, 2023) (No. 22-915),¹ 18 U.S.C. § 922(q)(2)(A) runs afoul of the Second Amendment to the United States Constitution. The Government filed a response in opposition (#31). Having considered the motion, the Government's response, the record, the applicable law, and the relevant history, the court is of the opinion that the motion should be denied.

I. Background

Until July 2022, Allam lived with his family at their home in Brooklyn, New York. At that time, Allam left New York and headed toward the west coast. Allam left in his father's SUV, a black Toyota RAV4 ("SUV"), bearing a New York license plate. Early into Allam's trip, he stopped at a gun store in Pennsylvania. There, he purchased a Diamondback model DB15—an AR-15-platform rifle.² After Allam's firearm purchase, he proceeded to California, where he stayed for a few months until departing for Texas in December 2022.

Allam arrived in Beaumont, Texas, some time in early January 2023. It appears that Allam had been living in the SUV since he left New York and continued to do so after coming to Beaumont. The Beaumont Police Department ("BPD") became acutely aware of Allam's presence in Beaumont after receiving multiple complaints reporting that Allam would park for extended periods of time around St. Anthony Cathedral Basilica School ("School") and Temple Emanuel, a Jewish synagogue. Between January 24, 2023, and Allam's arrest on January 29, 2023, he consistently parked on the south-east side of Forsythe Street directly across from School grounds for hours on end. Allam's unusual activity concerned the School's principal, which motivated her to call BPD several times each day. Various members of the School's community asked Allam to move the SUV, and BPD officers interacted with Allam upwards of nine times during his stay on Forsythe Street. Allam usually parked the SUV approximately 50 feet from the School's playground. Additionally, during Allam's time on Forsythe Street, School students would periodically cross Forsythe Street to attend mass at the Basilica, which is off School property.

On the night of January 29, 2023, a BPD officer was posted on Forsythe Street to monitor Allam. Once Allam moved the SUV from its parked position, the BPD officer stopped him for a traffic violation, and additional BPD officers arrived as backup. Allam repeatedly failed to comply with many of the BPD officers' instructions, and he was eventually arrested. Upon conducting an inventory search, BPD officers found, among other things,³ the DB15 rifle, 150 rounds of ammunition, and a loaded thirty-round magazine.⁴ The location of the stop and Allam's subsequent arrest, as well as where he parked on Forsythe Street, was within 1,000 feet of the School's property.⁵

On February 1, 2023, a grand jury in the Eastern District of Texas returned a one-count Indictment charging Allam with possession of a firearm in a school zone, in violation of 18 U.S.C. § 922(q)(2)(A), which provides:

(2)(A) It shall be unlawful for any individual knowingly to possess a firearm that has moved in or that otherwise affects interstate or foreign commerce at a place that the individual knows, or has reasonable cause to believe, is a school zone.⁶

(B) Subparagraph (A) does not apply to the possession of a firearm--

(i) on private property not part of school⁷ grounds;

(ii) if the individual possessing the firearm is licensed to do so by the State in which the school zone is located or a political subdivision of the State, and the law of the State or political subdivision requires that, before an individual obtains such a license, the law enforcement authorities of the State or political subdivision verify that the individual is qualified under law to receive the license;

(iii) that is--

(I) not loaded; and

(II) in a locked container, or a locked firearms rack that is on a motor vehicle;

(iv) by an individual for use in a program approved by a school in the school zone;

(v) by an individual in accordance with a contract entered into between a school in the school zone and the individual or an employer of the individual;

(vi) by a law enforcement officer acting in his or her official capacity; or (vii) that is unloaded and is possessed by an individual while traversing school premises for the purpose of gaining access to public or private lands open to hunting, if the entry on school premises is authorized by school authorities.

On February 7, 2023, Allam filed the pending motion to dismiss pursuant to Federal Rule of Criminal Procedure 12(b)(3)(B). Allam contends that 18 U.S.C. § 922(q)(2)(A), in conjunction with 18 U.S.C. § 921(a)(26)(B),⁸ is facially unconstitutional because it violates the Second Amendment, relying upon Bruen and Rahimi. The Government opposes Allam's motion, contending that 18 U.S.C. § 922(q)(2)(A) is constitutional despite both Bruen and Rahimi.

II. Analysis

A. Procedural Mechanism

Federal Rule of Criminal Procedure 12(b)(3)(B) permits a court to dismiss a defective indictment. An indictment predicated on a statute that is unconstitutional is defective and, thus, must be dismissed. United States v. Barber, No. 4:20-CR-384-SDJ, 2023 WL 1073667, at *2 (E.D. Tex. Jan. 27, 2023) ("[A]n indictment premised on a statute that is unconstitutional must be dismissed."); United States v. Brown, 715 F. Supp. 2d 688, 689 (E.D. Va. 2010); see In re Civil Rights Cases, 109 U.S. 3, 8-9, 3 S.Ct. 18, 27 L.Ed. 835 (1883) ("An indictment is defective if it alleges a violation of an unconstitutional statute.").

B. Second Amendment Challenge

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. In District of Columbia v. Heller and McDonald v. Chicago, the Supreme Court "recognized that the Second and Fourteenth Amendments protect the right of an ordinary, law-abiding citizen to possess a handgun in the home for self-defense."⁹ Bruen, 142 S. Ct. at 2122 (citing District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008); McDonald v. Chicago, 561 U.S. 742, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010)). Recently, in Bruen, the Supreme Court held, "consistent with Heller and McDonald, that the Second and Fourteenth Amendments protect an individual's right to carry a handgun for self-defense outside the home." Id.

1. Bruen's Framework

Before Bruen, and in response to the Supreme Court's decision in Heller, circuit courts "coalesced around a similar 'two-step inquiry for analyzing laws that might impact the Second Amendment.' " Rahimi, 61 F.4th at 450 (quoting United States v. McGinnis, 956 F.3d 747, 753 (5th Cir. 2020), cert. denied, — U.S. —, 141 S. Ct. 1397, 209 L.Ed.2d 134 (2021)). Courts would first "ask 'whether the conduct at issue falls within the scope of the Second Amendment right.' To make that determination, 'we look to whether the law harmonizes with the historical traditions associated with the Second Amendment.' " McGinnis, 956 F.3d at 754 (quoting Nat'l Rifle Ass'n of Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms, & Explosives, 700 F.3d 185, 194 (5th Cir. 2012), cert. denied, 571 U.S. 1196, 134 S.Ct. 1364, 188 L.Ed.2d 296 (2014)). "If the conduct fell outside the scope of the Second Amendment right, then the challenged law was constitutional." Rahimi, 61 F.4th at 450 (citing McGinnis, 956 F.3d at 754). "But if the conduct fell within the scope of the right, then we proceeded to the second step of the analysis, which applied either intermediate or strict scrutiny." Id.

Bruen altered the structure of the Second Amendment analysis and set out the framework that must be applied to Second Amendment challenges going forward. The Supreme Court rejected the circuit courts' two-step approach and held that "it is one step too many."¹⁰ Bruen, 142 S. Ct. at 2127. Accordingly, Bruen articulated a new framework:

[W]hen the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct. To justify its regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation's historical tradition of firearm regulation. Only if a firearm regulation is consistent with this Nation's historical tradition may a court conclude that the individual's conduct falls outside the Second Amendment's unqualified command.

Id. at 2126 (internal quotation marks and citations omitted); see Rahimi, 61 F.4th at 450.

2. Step One: The Second Amendment's Plain Text

At the first step of Bruen's framework, a court must determine whether "the Second Amendment's plain text covers an individual's conduct." Bruen, 142 S. Ct. at 2126. Before analyzing whether Allam's conduct falls...