United States v. Perez-Gallan
| Decision Date | 10 November 2022 |
| Docket Number | PE:22-CR-00427-DC |
| Parties | UNITED STATES OF AMERICA, v. (1) LITSSON ANTONIO PEREZ-GALLAN, |
| Court | U.S. District Court — Western District of Texas |
UNITED STATES OF AMERICA,
v.
(1) LITSSON ANTONIO PEREZ-GALLAN,
No. PE:22-CR-00427-DC
United States District Court, W.D. Texas, Pecos Division
November 10, 2022
MEMORANDUM OPINION
DAVID COUNTS UNITED STATES DISTRICT JUDGE
Before Bruen, the Second Amendment looked like an abandoned cabin in the woods. A knot of vines, weeds, and roots, left unkempt for decades, crawling up the cabin's sides as if pulling it under the earth. Firearm regulations are that overgrowth. Starting with the Federal Firearms Act in 1938, laws were passed with little-if any-consideration given to their constitutionality. That is, until the Supreme Court intervened in Bruen.
No longer can lower courts account for public policy interests, historical analysis being the only tool. But after growing unchecked for almost 100 years, today's tangle of gun laws has left lower courts with a gordian knot. And after engaging with this Nation's tradition of firearm regulations several times already, the Court's unanswered question is whether Bruen demands lower courts manicure the Second Amendment's landscape by scalpel or chainsaw.
BACKGROUND
The facts are simple. Defendant Litsson Antonio Perez-Gallan was driving an 18wheeler near the Mexico-United States border in Presidio, Texas when he entered a border patrol checkpoint. After Defendant was directed to a secondary inspection area, he was
asked whether he was armed. Defendant said yes; he had a pistol with him. Defendant consented to a search, and border patrol agents found the pistol in Defendant's backpack.
Agents also found a Kentucky state court order in Defendant's wallet (“Court Order”). The Court Order outlined Defendant's conditions of release stemming from his May 2022 arrest for assault. The Government later discovered a separate restraining order against Defendant from a Kentucky family court (“Restraining Order”). Defendant was indicted in June 2022 for one count under 18 U.S.C. § 922(g)(8), which makes it a crime to possess a firearm while subject to a court order.
Defendant moved to dismiss the indictment on August 25, 2022. After multiple continuances and extensions of time to respond, the Government responded to Defendant's motion in early October. Yet even though the Court has consistently reiterated after Bruen that the Government must prove through a historical inquiry that the challenged regulation complies with this Nation's tradition, the Government's response did not analyze any history even close to 1791. The Government's authorities closest to 1791 were the Militia Act of 1662 and a Fifth Circuit decision from 2001, leaving some 339 years of intervening history unaddressed. As a result, the Court ordered the parties to submit supplemental briefing on various issues, which the parties filed on October 28, 2022.
DISCUSSION
Before reaching § 922(g)(8)'s constitutionality, the Court must resolve a threshold issue-whether § 922(g)(8) even applies. For § 922(g)(8) to apply, the underlying state court order must:
(A) have been issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate
(B) restrain such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and
(C) by its terms explicitly prohibits the use, attempted use or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury.[1]
The Government acknowledges it has no proof Defendant had actual notice, the opportunity to participate, or was even present when the Restraining Order was issued, so the Court addresses only the Court Order. Defendant's Court Order prohibited him from “threatening to commit or committing acts of domestic violence or abuse against the alleged victim or other family or household member.”[2] Defendant argues that because the Court Order's language doesn't “explicitly prohibit[] the use, attempted use, or threatened use of physical force,” § 922(g)(8) is not applicable.[3]
Yet the Fifth Circuit has held that a court order need not perfectly match § 922(g)(8)'s language.[4] Indeed, in line with the First, Fourth, Ninth, and Eleventh Circuits, respectively, the Fifth Circuit reasoned, “if the commonly understood definitions of terms in the protective order include acts involving ‘physical force,' the protective order is sufficient to support a conviction under § 922(g)(8).”[5]
Defendant's Court Order prohibited him from committing or threatening to commit “abuse”-which is commonly understood to include “violent acts involving physical force
within the [statutory] definition.”[6] Thus, following the Fifth Circuit's precedent, the Court finds Defendant's Court Order satisfies § 922(g)(8)'s required elements.
I. The Second Amendment and Bruen's new framework.
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.”[7] In Heller, the Supreme Court held that the Second Amendment protects the right to possess a firearm in the home for self-defense.[8] And just last term, in New York State Rifle & Pistol Ass'n, Inc. v. 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.”[9]
Before Bruen, courts of appeals had “coalesced around a ‘two-step' framework” when assessing Second Amendment claims, combining a historical analysis with means-end scrutiny.[10] For the first step, the court would establish the Second Amendment's original scope through a historical analysis.[11] If the regulated conduct fell outside the Amendment's original scope, “the analysis can stop there; the regulated activity is categorically unprotected.”[12] But if not outside the Amendment's scope or “inconclusive,” the court would proceed to step two.[13]
In step two, a court would generally analyze “how close the law comes to the core of the Second Amendment right and the severity of the law's burden on that right.”[14] If the “core” Second Amendment right-self-defense in one's home-was burdened, the court would apply strict scrutiny.[15] Otherwise, it would apply intermediate scrutiny, considering whether the Government had shown that the regulation is “substantially related to the achievement of an important governmental interest.”[16]
But in Bruen, Justice Thomas stated the two-step approach was “one step too many.”[17] In its place, Justice Thomas enumerated a new standard courts must follow:
“[W]hen the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation's historical tradition of firearm regulation. Only then may a court conclude that the individual's conduct falls outside the Second Amendment's “unqualified command.”[18]
So the threshold question is whether the Second Amendment's plain text covers Defendant's conduct.
II. Bruen's first step: “possessing” a firearm under the Second Amendment's plain text.
Defendant is charged with violating 18 U.S.C. § 922(g)(8), which, as stated above, prohibits possession of a firearm by any person who is subject to a court order that:
(A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate;
(B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or
engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and
(C) (i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or (ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury.
The Court has already answered the question of whether “keep and bear arms” includes possession of a firearm-it does. According to Justice Scalia in Heller, to “keep arms” means to “have weapons.” The plain meaning of “have” is “to be in possession of.”[19]And the Government doesn't contest this interpretation. Thus, the Second Amendment's “keep and bear arms” language plainly encompasses possession.
Bruen's first step asks a strictly textual question with only one answer: the Second
Amendment's plain text covers possession of a firearm. Because the Constitution presumptively protects possessing a firearm, § 922(g)(8)'s constitutionality hinges on whether regulations prohibiting those subject to a protective order from possessing a firearm align with the Nation's historical tradition of firearm regulation.
III. Bruen's second step: the historical evidence for protective orders.
The Government must now show that § 922(g)(8) complies with the historical understanding of the Second Amendment.[20] According to Bruen, the historical inquiry has two forms-one that is straightforward and one reasoned through analogy. For example, if a challenged regulation addresses a “general societal problem that has persisted since the 18th century,” this historical inquiry is “straightforward.”[21] But other regulations may require a
“more nuanced” approach.[22] In those cases, courts can reason by analogy, which involves finding a historical analogue-but not a “historical twin”-that is “relatively similar” to the modern regulation.[23]...
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