United States v. Gleaves

• Decision Date: 06 February 2023
• Docket Number: 3:22-cr-00014
• Parties: UNITED STATES OF AMERICA v. ELBERT BRYANT GLEAVES COREY MONTE PICKETT DEZZION JOEDON PICKETT
• Court: U.S. District Court — Middle District of Tennessee

UNITED STATES OF AMERICA v. ELBERT BRYANT GLEAVES COREY MONTE PICKETT DEZZION JOEDON PICKETT

No. 3:22-cr-00014

United States District Court, M.D. Tennessee, Nashville Division

February 6, 2023

MEMORANDUM OPINION

On April 11, 2022, a federal grand jury returned an eight-count Superseding Indictment. Counts One, Two and Four allege the unlawful and knowing possession of ammunition on March 18 2021 by all three defendants - each a convicted felon - in violation of 18 U.S.C. §§ 922(g)(1). Count Three alleges that Corey Pickett's possession of ammunition that day also violated 18 U.S.C. § 922(g)(9) because he had previously been convicted of a misdemeanor crime of violence. Counts Five and Six allege that Elbert Gleaves and Dezzion Pickett unlawfully possessed a firearm, on August 31 2021 and December 21, 2021, respectively, again in violation of 18 U.S.C. §§ 922(g)(1). Count Seven charges D Pickett with knowingly possessing with intent to distribute fentanyl and marijuana on December 21, 2021 in violation of 21 U.S.C. § 841(a)(1), and Count Eight charges him with possessing a firearm in furtherance of that crime in violation of 18 U.S.C. 924(c)(1)(A).

Now before the Court are motions filed by both Picketts. C Pickett moves to dismiss Counts Two and Three, as does D. Pickett in relation to Counts Four and Six. D. Pickett also moves to sever the first five counts from the last three counts.

I. C. Pickett's Motions to Dismiss Counts Two and Three (Doc. Nos. 72, 74) &D. Pickett's Motion to Dismiss Counts Four and Six (Doc. No. 90)

Last term, in New York State Rifle & Pistol Ass'n, Inc. v. Bruen,U.S., 142 S.Ct. 2111 (2022), the United States Supreme Court rejected the two-step test that various courts of appeals (including the Sixth Circuit^[1]) applied to Second Amendment challenges. Generally speaking, at the first step (usually called the “history test”), the government could justify its regulation by “establish[ing] that the challenged law regulates activity falling outside the scope of the [Second Amendment] right as originally understood,” by the Framers of the Constitution. Id. at 2126. “If the government can prove that the regulated conduct falls beyond the Amendment's original scope, then the analysis can stop there; the regulated activity is categorically unprotected.” Id. (internal quotation marks omitted). If necessary, however, a court would then proceed to the second prong (the “means/end test”) and analyze “how close the law comes to the core of the Second Amendment right” along with “the severity of the law's burden on that right.” Id.

In Bruen, however, the Supreme Court found this to be “one step too many.” Id. at 2127. Instead, and consistent with its earlier decision in District of Columbia v. Heller, 554 U.S. 570 (2008), the Supreme Court held that the proper test “requires courts to assess whether modern firearms regulations are consistent with the Second Amendment's text and historical understanding.” Bruen, 142 S.Ct. at 2131.

Notwithstanding Heller's observation that the Second Amendment “surely elevates above all other interests the right of law-abiding, responsible citizens to use arms” for self-defense, Heller, 554 U.S. at 635, and Bruen's acknowledgment that the petitioners before the court were “undisputed[ly] . . . ordinary law-abiding, adult citizens” who presented the issue of whether the “Second Amendment's text draws a home/public distinction with respect to the right to keep and bear arms,” Bruen, at 2134, Defendants contend the firearm charges in this case must be dismissed as unconstitutional based on Bruen. It appears that every court to have considered the matter has disagreed, with at least one court observing that such arguments constitute a “fantastical reading of Bruen, ” United States v. Isaac, No. 522CR117LCBHNJ1,2023 WL 1415597, at *2 (N.D. Ala. Jan. 31, 2023), and another observing that those advancing such arguments “see[] something in Bruen that simply is not there,” United States v. Medrano, No. 3:21-CR-39, 2023 WL 122650, at *1 (W.D. Va. Jan. 6, 2023); see, United States v. Moore, No. 3:20-CR-00474-IM-1, 2023 WL 154588, at *2 (D. Or. Jan. 11, 2023) (collecting cases rejecting challenges by defendants to the constitutionality of Section 922(g)(1) post-Bruen); United States v. Butts, No. CR 22-33-M-DWM, 2022 WL 16553037, at *4 (D. Mont. Oct. 31, 2022) (same).

In accordance with Bruen's statement that the Government has the burden of showing that a restriction is supported by “this Nation's historical tradition of firearm regulation,” the Government's brief in this case discusses at length this country's “longstanding constitutional tradition of felon-disarmament laws.” (See Doc. No. 103 at 8-23). Defendants have not filed a response to the Government's historical analysis. Recognizing that it is being presented with “the arguments of non-historian lawyers, citing cases by non-historian judges, who relied on arguments by other non-historian lawyers,” United States v. Kelly, No. 3:22-CR-00037, 2022 WL 17336578, at *3 (M.D. Tenn. Nov. 16, 2022), the Court has no real basis to dispute the characterization of that history.

Regardless, and whatever lesson Bruen was intended to teach, this Court need not pretend that it is writing on an empty chalkboard when the overwhelming weight - if not all post-Bruen decisions - have rejected the contention that the felon-in-possession laws are now unconstitutional. In its brief, the Government cites 89 district court decisions that have rejected the same sort of arguments as those presented here. (Doc. No. 105 at 24, n. 12).^[2] In the week or so since the Government's filing, at least six more decisions have been rendered, again unanimously reaching the conclusion that Section 922(g)(1) is constitutional, notwithstanding Bruen. See, United States v. Isaac, 5:22-cr-117-LCB-HNJ-1,2023 WL 1415597, at *1 (N.D. Ala. Jan. 31,2023); United States v. Taylor, No. 322CR00022GFVTEBA1,2023 WL 1423725, at *4 (E.D. Ky. Jan. 31,2023); United States v. Barber, No. 4:20-CR-384-SDJ, 2023 WL 1073667 (E.D. Tex. Jan. 27, 2023); United States v. Brown, No. CR 20-260-1,2023 WL 424260, at *3 (E.D. Pa. Jan. 26, 2023); United States v. Rush, No. 22-CR-40008-JPG, 2023 WL 403774, at *3 (S.D. Ill. Jan. 25, 2023); United States v. Davis, No. CR 5:19-159-DCR, 2023 WL 373172, at *2 (E.D. Ky. Jan. 24, 2023).

Having read a great number of those opinions, having considered the Sixth Circuit's pre-Bruen jurisprudence regarding the constitutionality of Section 922(g)(1), see, e.g., United States v. Napier, 233 F.3d 394, 403 (6th Cir. 2000) (noting that “[e]very circuit court which has had occasion to address the issue has upheld § 922 generally against challenges under the Second Amendment”), and having throughly reviewed the parties' arguments in this case, the Court agrees with the overwhelming consensus that Bruen is not an elixir for a federal firearm law violation committed by a felon. It does so, however, with a couple of observations.

First, it is far from clear that the Supreme Court in Bruen intended it opinion to be a wholesale evisceration of settled felon-in-possession laws. Take for example, the opening paragraph of the opinion:

In District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), and McDonald v. Chicago, 561 U.S. 742, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010), we 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. In this case, petitioners and respondents agree that ordinary, law-abiding citizens have a similar right to carry handguns publicly for their self-defense. We too agree, and now hold, 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.

Bruen, 142 S.Ct. at 2122 (emphasis added) On no less than 10 occasions thereafter, the majority opinion speaks in terms of “law-abiding” citizens, id. at 2125, 2131,2133, 2134, 2138, 2150, 2156, something that, by definition, felons in possession of a firearm are not. Moreover,

[t]he concurrences and dissent in Bruen underscore that the Supreme Court foresaw the legal challenges which may arise as a result of Bruen, including the issue now raised in the present motion[s] to dismiss[.] That Justices Kavanaugh, Roberts, and Alito each determined the need to highlight the particular language in Heller setting forth certain presumptively lawful “longstanding prohibitions” demonstrates a desire to make clear the limits of the Supreme Court's decision in Bruen and to emphasize the remaining viability of the Supreme Court's statements in Heller and its progeny as to specific conduct which falls outside of the protection of the Second Amendment and which may be properly curbed by gun regulations.

United States v. Minter, No. 3:22-CR-135, 2022 WL 10662252, at *6 (M.D. Pa. Oct. 18, 2022); see also, United States v. Siddoway, No. 1:21-CR-00205-BLW, 2022 WL 4482739, at *1 (D. Id. Sept. 27, 2022) (noting that “at least five justices” explicitly suggested that Heller was not overruled).

Even though the majority opinion in Bruen did not address the issue specifically, it did say that its holding was “in keeping with Heller.” Id. at 2126. There, while finding that a District of Columbia statute banning possession of a handgun in the home violated the Second Amendment, the Supreme Court in Heller also made clear that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons[.]” Heller, 554 U.S. at 626. Bruen does not appear to even implicitly cast doubt on this statement in Heller.

In making the observation about...