United States v. Perez

• Court: U.S. Court of Appeals — Second Circuit
• Writing for the Court: John M. Walker, Jr., Circuit Judge
• Citation: United States v. Perez, 6 F.4th 448 (2nd Cir. 2021)
• Decision Date: 29 July 2021
• Docket Number: August Term 2019,No. 19-620-cr,19-620-cr
• Parties: UNITED STATES of America, Appellee, v. Javier PEREZ, Defendant-Appellant.

6 F.4th 448

UNITED STATES of America, Appellee,

v.Javier PEREZ, Defendant-Appellant.

No. 19-620-cr

August Term 2019

United States Court of Appeals, Second Circuit.

Argued: February 13, 2020

Decided: July 29, 2021

Yuanchung Lee, Federal Defenders of New York, Inc., Appeals Bureau, for Defendant-Appellant Javier Perez.

Tanya Hajjar (Kevin Trowel, on the brief), Assistant United States Attorneys, for Mark J. Lesko, Acting United States Attorney for the Eastern District of New York, for Appellee.

Before: Walker, Carney, and Menashi,^* Circuit Judges.

Judge Menashi concurs in the judgment in a separate opinion.

John M. Walker, Jr., Circuit Judge:

Defendant-Appellant Javier Perez appeals from a judgment of conviction for possessing a firearm and ammunition while unlawfully present in the United States. Perez challenges the statute of conviction, 18 U.S.C. § 922(g)(5), on the basis that it violates the Second Amendment right to bear arms by imposing a categorical bar on his ability to possess a firearm or ammunition. Assuming without deciding that, even as an undocumented alien, he is entitled to Second Amendment protection, we hold that 18 U.S.C. § 922(g)(5), as applied to Perez, withstands intermediate scrutiny. Accordingly, we AFFIRM the judgment of the district court (Carol B. Amon, J. ) in its entirety.

BACKGROUND

Javier Perez was born in rural Mexico in 1989 and entered the United States without authorizing documents at the age of 13. From that time until his arrest in 2018, he was self-employed as a carpenter. After residing with relatives in Brooklyn, New York for several years, he eventually secured his own apartment. Perez became involved with the Ninos Malos gang in his youth, but asserts that he has not been a member since 2012. In or around 2017, he moved to New Haven, Connecticut to live with his girlfriend and her young son. He has two children, who were born in the United States and are living with their mother in Brooklyn, and whom he visits and helps support financially.

The Offense Conduct

On July 23, 2016, Perez was attending a barbeque in the Sunset Park neighborhood of Brooklyn when a violent fight broke out down the street. Several young men wielding bats and machetes were attacking a member of a rival gang. At some point during the fight, Perez borrowed a firearm from an acquaintance, approached the fight, and fired several shots into the air. Hearing the gunshots, the young men scattered, and Perez returned to the barbeque and gave the gun back to his acquaintance.

A few days later, the New York Police Department (NYPD) obtained a video recording of the incident that showed the shooter to be a man later identified as Perez. The NYPD identified the firearm as a .380 caliber Davis Industries semiautomatic pistol by matching its shell casing to that of a gun used in a subsequent shooting on October 8, 2016, also in Brooklyn. In April 2017, after Perez was arrested by NYPD officers for a separate offense, he admitted to being the shooter at the July 23, 2016 incident and that he had borrowed and fired the gun to intimidate the gang members. When he fired the gun, he was unlawfully present in the United States.

Procedural History

On April 30, 2018, a grand jury indicted Perez on possession of a firearm and ammunition while being an alien illegally and unlawfully in the United States, in violation of 18 U.S.C. § 922(g)(5). Perez moved to dismiss the indictment, arguing that § 922(g)(5) on its face violated the Second Amendment by erecting a categorical bar on the possession of firearms by illegal or unlawful aliens. The district court denied the motion to dismiss the indictment. Assuming without finding that the Second Amendment affords constitutional protection to undocumented aliens, the district court concluded that § 922(g)(5) survives intermediate scrutiny and thus is constitutional. Perez entered a conditional plea of guilty that preserved his right to challenge § 922(g)(5) under the Second Amendment, and was sentenced to 20 months’ imprisonment and 3 years’ supervised release. This appeal followed.

DISCUSSION

The sole issue on appeal is whether 18 U.S.C. § 922(g)(5) as applied to Perez violates the Second Amendment. Section 922(g)(5) prohibits "an alien ... illegally or unlawfully in the United States" from "possess[ing] ... any firearm or ammunition" in or affecting commerce.¹ We employ a two-step framework to determine the constitutionality of a restriction on firearms: (1) we assess whether the law burdens conduct protected by the Second Amendment; (2) we determine and apply the appropriate level of scrutiny.² We review de novo the district court's decision that the statute was constitutional as applied.³

I. Whether the Second Amendment Applies to Perez

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." Perez argues that "the people" includes aliens like him, who are present unlawfully but have developed substantial connections to the country. We have not decided whether the Second Amendment protects undocumented immigrants.

The Supreme Court outlined the contours of the Second Amendment in the seminal decision, District of Columbia v. Heller .⁴ Based on extensive historical analysis, Heller broadly declared that the Second Amendment confers a right to bear arms while leaving details of the right to further adjudication. Heller read the Second Amendment to codify a preexisting right for the individual to "possess and carry weapons in case of confrontation."⁵ That right, however, does not extend to the "carry[ing] [of] arms for any sort of confrontation."⁶ Noting that the right is "not unlimited,"⁷ the Court considered the scope of the Second Amendment along two dimensions: what types of "arms" are protected and who are among "the people." First, the Second Amendment protects the sorts of weapons that were "in common use at the time" that were typically owned by "law-abiding citizens for lawful purposes."⁸ This right, of law-abiding persons to protect themselves and family members in the home using a weapon in common use, is "the central component " guaranteed by the Second Amendment.⁹

Second, Heller suggested that "the people" in the text of the Second Amendment is a term of art that refers to members of the "political community."¹⁰ Heller relied on the Supreme Court's prior decision in United States v. Verdugo-Urquidez ,¹¹ which examined the Fourth Amendment's reference to "the people," and opined: "[Its uses] suggest[ ] that ‘the people’ protected by the Fourth Amendment, and by the First and Second Amendments, ... refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community."¹² Based on this reading of "the people," we have previously concluded that, "[a]lthough the [ Heller ] Court uses ‘citizens’, presumably at least some non-citizens are covered by the Second Amendment."¹³ For example, permanent resident aliens who are law-abiding, pay taxes, and contribute to political campaigns have established connections with this country that may qualify them to be among "the people" who have a Second Amendment right.¹⁴

Relying on Heller and Verdugo-Urquidez , Perez argues that he is among "the people" who possess a right to bear arms because he has developed "sufficient connection[s] with" the United States, having lived continuously in this country for the fifteen years preceding his arrest. This analysis oversimplifies a question of some complexity. Heller and Verdugo-Urquidez suggested that a person may be among "the people" if he has developed connections with the United States, but that those connections must be sufficiently great to qualify him as a member of the "national" or "political" community. While Perez appears to have put down roots in this country through years of steady employment and a familial and social network, his status as an unlawfully present alien necessarily makes him ineligible to vote or hold certain government offices and subjects him to deportation at any time. Excluded from participation in our democratic political institutions, it is uncertain whether he can qualify as being part of the "national" or "political" community.¹⁵ Regardless, reaching this issue here risks "introducing difficult questions into our jurisprudence,"¹⁶ such as how "the people" in this context coheres with different but related designations in other enumerated rights. For example, "person," as used in the Fifth and Fourteenth Amendments, has "long been recognized" to include unlawful aliens and confer on them due process rights.¹⁷

Taking a different approach to the question, various of our sister courts have read Heller to exclude entirely from the Second Amendment groups who have defied the law or are otherwise "unvirtuous."¹⁸ Heller identified the right of "law-abiding, responsible" persons to keep arms to be at the heart of the Second Amendment, and validated "longstanding prohibitions on the possession of firearms by felons and the mentally ill."¹⁹ Although Heller itself left open whether certain groups are wholly excluded from the Second Amendment's protections or, instead, have a right that legislatures may severely restrict, some circuits have relied on the foregoing passages in Heller to conclude that undocumented aliens like Perez are not entitled to Second Amendment protections because they are not "law-abiding."²⁰ Yet other circuits have held or assumed that unauthorized aliens are included in "the people" but concluded that § 922(g)(5) is a permissible restriction.²¹

Our court has declined to address the extent to which the Second Amendment protects conduct or individuals beyond the core guarantee of a law-abiding person's right to keep firearms for self-defense.²² Recognizing that Heller left a "vast terra incognita " as to what conduct or...