United States v. Triggs
| Decision Date | 02 November 2018 |
| Docket Number | 16-cr-51-jdp |
| Citation | 347 F.Supp.3d 385 |
| Parties | UNITED STATES of America, Plaintiff, v. Robert M. TRIGGS, Defendant. |
| Court | U.S. District Court — Western District of Wisconsin |
Diane Louise Schlipper, U.S. Attorney's Office, Madison, WI, for Plaintiff.
Defendant Robert Triggs is charged with possession of firearms after having been convicted of a misdemeanor crime of domestic violence, in violation of 18 U.S.C. § 922(g)(9). Triggs moves to dismiss the indictment, contending that § 922(g)(9) violates his rights under the Second Amendment. Dkt. 15.
The Seventh Circuit has already upheld § 922(g)(9) against a facial challenge. United States v. Skoien , 614 F.3d 638 (7th Cir. 2010). The court applied intermediate scrutiny and concluded that dispossessing those who have been convicted of misdemeanor crimes of domestic violence is substantially related to the important governmental objective of preventing armed violence. But the last two sentences of the court's opinion left an opening for a potential as-applied challenge: Id. at 645.
Seeking to take advantage of the opening left by the court of appeals, Triggs contends that § 922(g)(9) is unconstitutional as applied to him. The court held an evidentiary hearing (the transcript is Dkt. 22), and the parties submitted extensive post-hearing briefs (Dkt. 23, Dkt. 24, and Dkt. 30).
The Seventh Circuit has not set out a comprehensive framework for evaluating as-applied challenges to the various sections of § 922(g), and there is no consensus among the other circuits either. But following the Seventh Circuit's general approach to Second Amendment challenges, I must assume that, despite his convictions, Triggs has rights under the Second Amendment. Although § 922(g)(9) is a presumptively lawful categorical restriction on firearm possession, and one that has already passed facial review, that statute impairs rights at the core of the interests protected by the Second Amendment because it prohibits the possession of any firearm for any purpose.
So the government has the burden to show that its application of § 922(g)(9) to Triggs is substantially related to the important interest of preventing gun violence. The Seventh Circuit has not expressly explained what it would take to meet that burden or what evidence a district court can consider on the issue. But Skoein and United States v. Williams , 616 F.3d 685 (7th Cir. 2010), suggest that the government's burden can be met by showing that the defendant's criminal history involves violent crimes, and that a district court can consider the actual conduct underlying the defendant's convictions.
Under that standard, the government has met its burden. Triggs's criminal history includes two convictions for domestic violence, one of which involved choking his victim. Following the example of the defendant in Skoein , those two convictions alone would be sufficient to justify the application of § 922(g)(9) over a Second Amendment objection. But there is more. Triggs's criminal history, which continues to 2015, includes other violent and dangerous conduct, including an assault on his girlfriend's sister. Even though Trigg's ample criminal history includes no felonies, it shows that he poses an elevated risk of violence, and therefore the Second Amendment is not a bar to his prosecution. I will deny his motion to dismiss the indictment.
There is surprisingly little guidance regarding what facts and evidence a court may consider in the context of a motion to dismiss like Triggs's. Both sides here assume that the court may find facts about Triggs's criminal history and his conduct to determine whether he presents an elevated risk of gun violence. The parties dispute whether the evidence must be admissible under the Federal Rules of Evidence, an issue I discuss in the analysis section. At this point, I will set out the evidence that was presented to the court, and I'll explain how I'll consider it in the analysis section.
As detailed in the pretrial services report, Dkt. 11, from 2003 to 2012, Robert Triggs accumulated multiple arrests, served several terms of probation, and was jailed twice. Two of his misdemeanor convictions disqualify him from firearm possession: a 2003 conviction for disorderly conduct, which included a $50 assessment for domestic abuse (Dkt. 21-7); and a 2008 conviction for battery as an act of domestic abuse (Dkt. 21-1).
The federal gun charge at issue here arises from an incident in November 2015, which was described at the evidentiary hearing by Tomah police officer Aaron Hintz. Triggs's oldest son and his friends made comments on social media about shooting a teacher, and Tomah police were asked to investigate the incident. Triggs was called to the school, and Officer Hintz was assigned to account for any firearms in the homes of the students. Triggs acknowledged to Hintz that he possessed guns, and he agreed that Hintz could check the guns at the Triggs home. On the way, Hintz checked Triggs's record and determined that he might be prohibited from possessing firearms as a result of the 2008 domestic battery conviction. Hintz found Triggs's three long guns in the Triggs living room, hanging unsecured and unlocked on a gun rack. Ammunition was on the bottom shelf of the gun rack, also unsecured. Hintz asked Triggs whether he had ever tried to purchase a firearm since his 2008 conviction. Triggs told him that about three years earlier he had tried to purchase a gun but was denied. After confirming Triggs's disqualifying conviction, Hintz removed the firearms from the home, and the case was referred to the U.S. Attorney for prosecution.
Officer Hintz also summarized his history of contact with Triggs. Hintz testified that in his first five years on the job at the Tomah police force, from 2005 to 2010, he had approximately 12 contacts with Triggs and that he had arrested Triggs for criminal traffic offenses, on warrants, and on probation holds and violations.
At the hearing, Triggs called his ex-wife and his current wife to put his criminal history in context. Triggs's ex-wife, Candy Donoho, testified to the trajectory of their relationship: they began dating in high school around 1995, became engaged in 1999, and married in 2000. They have two children, ages 15 and 11 at the time of the hearing. They had one separation during their marriage for about six months and ultimately divorced in 2005. They share joint custody and placement of the two children. Donoho described Triggs as a good father, and an avid deer hunter with both a rifle and bow. Donoho said that she never saw Triggs misuse a firearm.
Donoho described the incident that led to the 2003 conviction, which occurred during their separation. Triggs came to Donoho's home at bar time; he was drunk. Triggs wanted to get back together but Donoho did not. Donoho described the incident as follows:
I don't remember all the details, but I know that he kind of got in my face. He wasn't like trying to hurt me, but he was just trying to make me, like, realize he was hurting and he wanted to be back and be a family again. He kind of backed me into a corner, and I just kind of, like, pushed him, and then I punched him twice and—in hopes that that would have knocked him out just so he could go to sleep and, like, think about it the next day, like, when he was sober, we could talk about things. I just knew he wasn't in the right state of mind to even have, like, that discussion at that time.
Donoho's cell phone was damaged; Donoho said she dropped it. A police officer arrived on the scene (apparently a neighbor called because he heard yelling). Donoho told police what happened and Triggs was arrested. Despite this incident, Donoho testified that she never felt unsafe with Triggs and she believes that the kids are safe as well. The government provided the judgment of conviction, Dkt. 21-7, the original criminal complaint, Dkt. 21-5, and the amended criminal complaint, Dkt. 21-6. According to the description of the incident in the original complaint, Donoho told the officers that Triggs had thrown and broken two phones.1
Triggs also called his current wife, Rebecca. She described their relationship: they met in 2012, became engaged in 2014, and married in July of 2015. They own a home in Tomah where they raise Triggs's children from his marriage with Donoho, another child of Triggs from another relationship, and Rebecca's child. Rebecca confirmed that Triggs is an avid deer hunter and a passionate outdoorsman. Rebecca herself has been the victim of domestic violence and currently works as a domestic violence and sexual assault advocate for the Ho-Chunk Nation. She testified that she feels safe in the home with Triggs, that he has never engaged in any physical contact motivated by anger with her, and that she has never seen him misuse any firearm.
The last witness was Wilbert Steinborn, the police officer who investigated the incident that became Triggs's 2015 conviction for disorderly conduct. Steinborn's testimony was consistent with the criminal complaint, which stated that Triggs had gotten into a running dispute with a woman who worked near his home and parked her car on the public street in front of Triggs's house. The dispute escalated to an angry confrontation and Triggs was charged with disorderly conduct and damaging the woman's car. Triggs denied causing the damage, but ultimately he pleaded guilty to a count of disorderly conduct and the criminal damage charge was dismissed but read in, which means that that conduct could be considered in sentencing. (The case had not been resolved at the time of the hearing, but information about the plea is available on...
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