United States v. Chapman

• Decision Date: 04 January 2012
• Docket Number: No. 10–5071.,10–5071.
• Citation: 666 F.3d 220
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Ronald Mark CHAPMAN, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

666 F.3d 220

UNITED STATES of America, Plaintiff–Appellee,

v.Ronald Mark CHAPMAN, Defendant–Appellant.

No. 10–5071.

United States Court of Appeals, Fourth Circuit.

Argued: Oct. 26, 2011.Decided: Jan. 4, 2012.

ARGUED: Richard W. Weston, Weston Law Office, Huntington, West Virginia, for Appellant.

Stephan Edward Oestreicher, Jr., United States Department of Justice, Washington, D.C., for Appellee. ON BRIEF: R. Booth Goodwin II, United States Attorney, Charleston, West Virginia, Lisa G. Johnston, Assistant United States Attorney, Office of the United States Attorney, Huntington, West Virginia; Lanny A. Breuer, Assistant Attorney General, Greg D. Andres, Deputy Assistant Attorney General, Kevin R. Gingras, United States Department of Justice, Washington, D.C., for Appellee.

Before NIEMEYER and DIAZ, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Affirmed by published opinion. Senior Judge HAMILTON wrote the opinion, in which Judge NIEMEYER and Judge DIAZ joined.

OPINION

HAMILTON, Senior Circuit Judge:

Section 922(g)(8) of Title 18 of the United States Code prohibits a person who is subject to a domestic violence protective order issued under certain specified circumstances from, inter alia, possessing a firearm or ammunition in or affecting interstate commerce. 18 U.S.C. § 922(g)(8). The sole issue raised on appeal by Ronald Chapman (Chapman) is whether his conviction on one count of violating § 922(g)(8) survives his as-applied constitutional challenge under the Second Amendment, U.S. Const. amend. II. For reasons that follow, we affirm the judgment of the district court.

I

On December 28, 2009, police officers from the Milton, West Virginia Police Department responded to a 911 dispatch involving shots being fired at the residence of Chapman's ex-wife, where he had been living for approximately two months. Minutes before the 911 dispatch, Chapman's ex-wife had found him in the master bedroom with a .45 caliber handgun. Chapman informed her that he planned to kill himself. As Chapman's ex-wife attempted to wrestle the handgun away from him, two shots were fired into the bedroom wall. Chapman then retrieved a shotgun from the closet, which Chapman's ex-wife also wrestled away from him. Chapman then picked up a .38 caliber revolver. At this point, Chapman's ex-wife fled to a neighbor's residence across the street where she made the 911 call. After Chapman's ex-wife had fled her residence, Chapman fired a shot out of the master bedroom window in her direction.

Upon arriving at the scene, the officers surrounded the ex-wife's residence. After approximately ten minutes, the officers convinced Chapman to exit the residence. Upon exiting, Chapman was placed under arrest on state charges of wanton endangerment. These charges were later dismissed. The officers then entered the residence to ensure that no one else was inside. Upon entry, the officers saw three firearms in plain view. Chapman's ex-wife then entered the residence and aided the officers in finding three more firearms and 991 rounds of ammunition.

Chapman was subsequently indicted on one count of knowingly possessing six firearms and 991 cartridges of ammunition while simultaneously being subject to a domestic violence protective order (DVPO), in violation of § 922(g)(8) and 18 U.S.C. § 924(a)(2). With respect to the particulars of Chapman's DVPO, the indictment alleged that it: (1) was issued after a hearing of which Chapman received actual notice, and at which he had an opportunity to participate; (2) restrained Chapman from abusing, harassing, stalking, or threatening his intimate partner, or engaging in other conduct that would place his intimate partner in reasonable fear of bodily injury; (3) included a finding that Chapman represents a credible threat to the physical safety of his intimate partner; and (4) by its terms, explicitly prohibited the use, attempted use, or threatened use of physical force against his intimate partner that would reasonably be expected to cause bodily injury.

The intimate partner Chapman's DVPO sought to protect was not Chapman's ex-wife; rather, the DVPO sought to protect a woman with whom Chapman had been in a romantic relationship for the immediately preceding approximately three-and-one-half years. The DVPO reflects a judicial finding that Chapman likely committed domestic abuse. The DVPO was effective from November 3, 2009 until May 3, 2010, and expressly informed Chapman that he “shall not possess any firearms (even those for which [he] has a license to posses) or ammunition while this protective order is in effect as this may violate federal law.” (J.A. 378).

Of relevance in the present appeal, Chapman subsequently moved to dismiss the indictment on the ground that § 922(g)(8), as applied to him, violated his right to bear arms in his home for self-defense under the Second Amendment to the United States Constitution. The government opposed Chapman's motion to dismiss. Both sides filed memorandums in support of their respective positions, with the government offering quotations and citations to scholarly social science evidence in its filings. Chapman filed a response to the government's memorandum in which he did not challenge the validity of the government's social science evidence.

The district court held a hearing on Chapman's motion to dismiss. The district court subsequently rejected Chapman's as-applied Second Amendment challenge and denied his motion to dismiss his indictment. United States v. Chapman, 2010 WL 2403791 (S.D.W.Va. June 14, 2010).

Chapman subsequently entered a conditional plea of guilty to violation of §§ 922(g)(8) and 924(a)(2), as alleged in the single-count indictment, pursuant to a plea agreement that reserved his right to appeal the district court's denial of his motion to dismiss his indictment with respect to his as-applied Second Amendment challenge. See Fed.R.Crim.P. 11(a)(2).

The district court sentenced Chapman to time served (approximately six months) and two years of supervised release. Chapman noted this timely appeal.

II

We review de novo the district court's rejection of Chapman's as-applied Second Amendment challenge to § 922(g)(8). See United States v. Malloy, 568 F.3d 166, 171 (4th Cir.2009) (“This court reviews a challenge to the constitutionality of a federal statute de novo.”), cert. denied, ––– U.S. ––––, 130 S.Ct. 1736, 176 L.Ed.2d 212 (2010).

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. As the Supreme Court held in District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), the right of the people to keep and bear arms, as provided in the Second Amendment, is an individual right without regard to militia service, id. at 595, 128 S.Ct. 2783; the core right being “the right of law-abiding, responsible citizens to use arms in defense of hearth and home,” id. at 635, 128 S.Ct. 2783.

We analyze Chapman's as-applied Second Amendment challenge to § 922(g)(8) under a two-part approach. United States v. Chester, 628 F.3d 673, 680 (4th Cir.2010). See also United States v. Staten, 666 F.3d 154, 159 (4th Cir.2011) (applying Chester's two-part approach). The first part asks whether the challenged law imposes a burden on conduct falling within the scope of the Second Amendment's guarantee as historically understood. Chester, 628 F.3d at 680. If the answer to this question is no, that is the end of the matter. Id. If the answer is yes, then we move on to consider the second part of the two-part approach, which involves application of the appropriate form of means-end scrutiny. Id.

Chapman takes the position that § 922(g)(8) imposes a burden on conduct falling within the scope of the Second Amendment's guarantee as historically understood. The government takes the opposite position. We need not and do not resolve this issue because, assuming arguendo that Chapman's Second Amendment rights are intact and that he is entitled to some measure of Second Amendment protection to keep and possess firearms and ammunition in his home for self-defense, our following analysis leads us to conclude that intermediate scrutiny applies and § 922(g)(8)(A)-(B) and (C)(ii), as-applied to Chapman, survives intermediate scrutiny.¹ Cf. Staten, 666 F.3d at 160–61 (addressing as-applied challenge to 18 U.S.C. § 922(g)(9) and not resolving whether § 922(g)(9) imposes a burden on conduct falling within scope of the Second Amendment's guarantee as historically understood, because, assuming arguendo that it does, government carried its burden of defending statute under intermediate scrutiny).

Having arrived at the second part of the two-part approach, Chapman contends that strict scrutiny is the appropriate form of means-end scrutiny to test the constitutionality of § 922(g)(8). This is so, he argues, because his claim is within the core right identified in Heller—the right of a law-abiding, responsible citizen to possess and carry a weapon for self-defense.

Relying upon our decision in Chester, 628 F.3d at 673, the government urges us to hold that intermediate scrutiny is the appropriate standard of scrutiny for Chapman and similarly situated persons, which is also the level of scrutiny applied by the district court below.² In Chester, we held that intermediate scrutiny was the appropriate standard to analyze the defendant's challenge to § 922(g)(9), which statute prohibits a person who has been convicted of a misdemeanor crime of domestic violence from possessing, shipping, or receiving a firearm or ammunition in or affecting interstate commerce. In so holding, we reasoned that, by virtue of his criminal history as a domestic violence misdemeanant, Chester's claim of the right to possess a firearm in his home for the purpose self-defense “[w]as not within the core right identified in Heller—the right of a ...