United States v. Avila
| Decision Date | 08 May 2023 |
| Docket Number | CIVIL 22-cr-224-WJM-1 |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. 1. JONATHAN AVILA, Defendant. |
| Court | U.S. District Court — District of Colorado |
ORDER DENYING CONSTRUED MOTION TO DISMISS COUNT 4 OF INDICTMENT
Defendant Jonathan Avila is charged in the Indictment with two counts of distributing fentanyl and one count of distributing cocaine, each in violation of 18 U.S.C. § 841, and one count of possession of a firearm with an obliterated serial number, in violation of 18 U.S.C. § 922(k) (“Count 4”). (ECF No. 1.)
On November 19, 2022, Avila filed his Notice of Constitutional Question Regarding 18 U.S.C. § 922(k), which argues § 922(k) is unconstitutional under New York State Rifle and Pistol Association v. Bruen, 142 S.Ct. 2111 (2023). (ECF No. 26.) The Court construed this as a motion to dismiss Count 4 (“Construed Motion”). (ECF No 27.) The Court ordered full briefing on the Construed Motion. (See ECF Nos. 2934.) And the Court held oral argument on the Construed Motion on April 11, 2023. (See ECF Nos. 35-37.)
For the reasons stated below, the Construed Motion is denied.
The Government alleges that on or about April 30, 2022, Defendant knowingly possessed a firearm that had traveled in interstate commerce with the knowledge that the firearm had an obliterated serial number, in violation of 18 U.S.C. § 922(k). (ECF No. 1 at 2.)
United States Code, Title 18, Section 922(k) provides:
It shall be unlawful for any person knowingly to transport, ship, or receive, in interstate or foreign commerce, any firearm which has had the importer's or manufacturer's serial number removed, obliterated, or altered or to possess or receive any firearm which has had the importer's or manufacturer's serial number removed, obliterated, or altered and has, at any time, been shipped or transported in interstate or foreign commerce.
Federal Rule of Criminal Procedure 12(b) allows a party to raise “by pretrial motion any defense, objection, or request that the court can determine without a trial on the merits,” including the defense for “failure to state an offense.” Fed. R. Crim. P. 12(b)(1), 12(b)(3)(B)(v). “Thus, the Supreme Court has instructed, Rule 12 permits pretrial resolution of a motion to dismiss the indictment . . . when ‘trial of the facts surrounding the commission of the alleged offense would be of no assistance in determining the validity of the defense.'” United States v. Pope, 613 F.3d 1255,1259 (10th Cir. 2010) (quoting United States v. Covington, 395 U.S. 57, 60 (1969)). Because Defendant asserts § 922(k) is unconstitutional on its face, and not merely as applied to him, resolving the Construed Motion “doesn't require a trial because it focuses solely on the facts alleged in the indictment and their legal adequacy.” Id. at 1260 (citing United States v. Sampson, 371 U.S. 75, 78-80 (1962)) (emphasis in original). The Court “may entertain motions [like the Construed Motion] that require it to answer only pure questions of law.” Id.
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, 554 U.S. 570 (2008), the Supreme Court held these words secure an “individual right to possess and carry weapons in case of confrontation.” Id. at 592. A short two years later, the Court held this newly recognized right in one way or another applied against the states. McDonald v. City of Chicago, 561 U.S. 742, 791 (2010) (plurality opinion) (); id. at 806 (Thomas, J., concurring in part) (“[T]he right to keep and bear arms is a privilege of American citizenship that applies to the States through the Fourteenth Amendment's Privileges or Immunities Clause.”). For more than a decade, the Supreme Court was silent as lower courts rejected numerous challenges to gun regulations, even as some justices protested that refusing to step in amounted to “treatment of the Second Amendment as a disfavored right.” Rogers v. Grewal, 140 S.Ct. 1865 (2020) () (joined by Kavanaugh, J., as to all but Part II); 137 S.Ct. 1995 (2017) () (joined by Gorsuch, J.); Jackson v. City & Cnty. of San Francisco, 576 U.S. 1013 () (joined by Scalia, J.).
In the absence of further analysis from the Supreme Court, lower courts “coalesced around a ‘two-step' framework for analyzing Second Amendment challenges that combine[d] history with means-end scrutiny.” Bruen, 142 S.Ct. at 2125. The first step entailed determining whether the regulated (or prohibited) conduct is within the scope of the Second Amendment right. Id. at 2126. If the Government could “prove that the regulated conduct falls beyond the Amendment's original scope, ‘then the analysis [could] stop there; the regulated activity is categorically unprotected.'” Id. (quoting United States v. Greeno, 679 F.3d 510, 518 (6th Cir. 2012)). “But if the historical evidence at this step is ‘inconclusive or suggests that the regulated activity is not categorically unprotected,' the courts generally proceed[ed] to step two.” Id. (quoting Kanter v. Barr, 919 F.3d 437, 441 (7th Cir. 2019)). At this second step, if the law regulated conduct at the “core” of the Second Amendment, courts applied strict scrutiny; if the law regulated conduct beyond the “core,” courts applied intermediate scrutiny. Id. at 2126-27.
Despite this broad consensus and the agreement of the United States with the approach developed by the lower courts, the Supreme Court held the lower courts employed “one step too many.” Id. at 2127. Id. Bruen instructs lower courts “to assess whether modern firearms regulations are consistent with the Second Amendment's text and historical understanding” and go no further. Id. at 2131. In doing so, courts should “consider whether ‘historical precedent' from before, during, and even after the founding evinces a comparable tradition of regulation.” Id. at 2131-32. This task, the Court acknowledged, “will often involve reasoning by analogy,” which “requires a determination of whether the two regulations are ‘relevantly similar.'” Id. at 2132 ).
While the Court did not “provide an exhaustive survey of the features that render regulations relevantly similar under the Second Amendment,” it identified “at least two metrics: how and why the regulations burden law-abiding citizen's right to armed selfdefense.” Id. at 2132-33. “Therefore, whether modern and historical regulations impose a comparable burden on the right of armed self-defense and whether that burden is comparably justified are central considerations when engaging in an analogical inquiry.” Id. at 2133 (internal quotation marks omitted). Finally, the Court clarified that while “courts should not ‘uphold every modern law that remotely resembles a historical analogue, . . . analogical reasoning requires only that the government identify a well-established and representative historical analogue, not a historical twin.” Id. at 2133 (emphasis in original).
In the Construed Motion, Defendant relies heavily on a decision from the Southern District of West Virginia: United States v. Price, 2022 WL 6968457 (S.D.W. Va. Oct. 12, 2022). He argues § 922(k) is “facially unconstitutional in light of” Bruen because “bearing arms is a constitutional right that is not subject to means-end scrutiny” and “does not account for any governmental interest in punishing the bearer of a firearm with [an] altered, obliterated, or removed serial number.” (ECF No. 26 at 3.) Moreover, because “serial numbers ‘were not broadly required for all firearms manufactured and imported in the United States until the passage of the Gun Control Act of 1968,'” Defendant argues § 922(k) is inconsistent with this country's history and tradition of gun regulation at the time of the founding. (Id. (quoting Price, 2022 WL 6968457, at *5).) Beyond pointing to Price, Defendant does little in the Construed Motion to analyze the impact of Bruen on the constitutionality of § 922(k).
In response, the Government argues Price was wrongly decided. (ECF No. 30 at 3.) In the Government's view, Price and Defendant alike define the regulated conduct at too high a level of generality. (Id. at 3.) It emphasizes that “in neither Heller nor Bruen ‘did the Supreme Court distill the challenged regulation to so abstract a level as mere possession or mere carrying of a firearm.” (Id. (quoting United States v. Reyna, 2022 WL 17714376, at *4 (N.D. Ind. Dec. 15, 2022).) The Government also asserts that to meaningfully compare the conduct regulated by § 922(k) with the plain text of the Second Amendment that conduct should be defined as “possessing a firearm with an obliterated serial number,” not mere possession as held by Price. (Id. at 4.) According to the Government, such conduct does not implicate the right guaranteed in the Second Amendment. (Id.)
The Government stresses that...
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