United States v. Walter

• Decision Date: 20 April 2023
• Docket Number: 3:20-cr-0039
• Citation: United States v. Walter, 3:20-cr-0039 (D. V.I. Apr 20, 2023)
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. ROMEO WALTER, KENAN THOMAS, NIJOHNTEA WALKER, Defendants.
• Court: U.S. District Court — Virgin Islands

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UNITED STATES OF AMERICA, Plaintiff, v. ROMEO WALTER, KENAN THOMAS, NIJOHNTEA WALKER, Defendants.

No. 3:20-cr-0039

United States District Court, D. Virgin Islands, St. Thomas and St. John Division

April 20, 2023

Kyle Payne, Esq. Adam Sleeper, Esq. UNITED STATES ATTORNEY'S OFFICE ST THOMAS, U.S. VIRGIN ISLANDS For the United States of America

Kia D Sears, Esq. ASSISTANT FEDERAL DEFENDER ST THOMAS, U.S. VIRGIN ISLANDS For Defendant Kenan Thomas

Lorenzo J. Palomares Starbuck, Esq. PALOMARES-STARBUCK &amp ASSOCIATES MIAMI, FLORIDA For Defendant Romeo Walter

Carl Williams, Esq. SMITH WILLIAMS, PLLC ST. THOMAS, U.S. VIRGIN ISLANDS For Defendant Nijohntea Walker

MEMORANDUM OPINION

ROBERT A. MOLLOY CHIEF JUDGE

BEFORE THE COURT are the following motions: Defendant Kenan Thomas' (“Thomas”) Motion to Dismiss Counts 2-9 under the Second Amendment, filed on September 28, 2022 (ECF No. 179); and Defendant Romeo Walter's (“Walter”) Motion to Dismiss Counts 5, 6, 7, 8, 9 of the Indictment and Motion Adopting Codefendant Motion to Dismiss, filed on September 29, 20222 (ECF No. 180.) The United States of America (“the Government”) opposed the motions. (ECF No. 189.) Thomas filed a reply in which he indicated that he joins and adopts the arguments in Walter's motion to dismiss. (ECF No. 193.) For the following reasons, the Court will deny the motions.

I. BACKGROUND

A grand jury indicted Thomas and Walter (collectively “Defendants”) with nine counts of firearms laws violations. (ECF No. 12.) On November 9, 2022, the Government moved to dismiss several counts from the Indictment. On December 6, 2022, the Court granted the Government's motion and dismissed Counts Five, Eight, and Nine against Thomas and Walter and Counts Five, Six, Seven, Eight and Nine against Defendant Nijohntea Walker. (ECF No. 192.) The remaining counts against Walter and Thomas-the subject of the instant motions-are Count One and Two, felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), Count Three and Seven, possession of a firearm with an obliterated serial number in violation of 18 U.S.C. §§ 922(k), 924(a)(1)(B) and 2 and 23 V.I.C. § 481(b), Count Four, possession of a firearm in a school zone in violation of 18 U.S.C. §§ 922(q), 924(a)(1)(B) and 2, and Count Six, unauthorized possession of a firearm in violation of 14 V.I.C. § 2253(a). Thomas and Walter make facial challenges to these statutes in light of the Supreme Court's decision in N.Y. State Rifle & Pistol Ass'n, Inc. v. Bruen, 142 S.Ct. 2111 (2022).

II. LEGAL STANDARD

The Second Amendment to the U.S. Constitution provides that “[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. In Bruen, the Supreme Court clarified the framework courts must use to analyze Second Amendment challenges while also reaffirming District of Columbia v. Heller, 554 U.S. 570 (2008) and McDonald v. Chicago, 561 U.S. 742 (2010), in which the Court “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.” Bruen, 142 S.Ct. at 2122. The Supreme Court rejected the two-step approach that the Courts of Appeals had developed to assess the Second Amendment claims, finding that step one, “which demands a test rooted in the Second Amendment's text, as informed by history,” is consistent with Heller, but step two, which involves “means-end scrutiny,” is not supported by Heller and McDonald. Id. at 2127. Bruen held “that the Second and Fourteenth Amendments protect an individual's right to carry a handgun for self-defense outside the home,” id. at 2122, and the following standard applies to the Second Amendment challenges:

[W]hen the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct. To justify its regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation's historical tradition of firearm regulation. Only if a firearm regulation is consistent with this Nation's historical tradition may a court conclude that the individual's conduct falls outside the Second Amendment's “unqualified command.”

Id. at 2126.

III. DISCUSSION

Defendants argue that the Second Amendment's plain text protects their conduct, which was not prohibited by the colonial and founding-era laws. The Government argues that the Second Amendment does not protect felons and the prohibition statutes at issue are constitutionally sound.

A. Section 922(g)(1) - Felon in Possession of a Firearm

Section 922(g)(1) prohibits any person “who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year” from possessing a firearm. 18 U.S.C. § 922(g)(1). Since “the right secured by the Second Amendment is not unlimited,” the Supreme Court in Heller reaffirmed “longstanding prohibitions on the possession of firearms by felons” and “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” Heller, 554 U.S. at 626-27. Bruen confirmed the validity of Heller in no uncertain terms, including its explanation that the Second Amendment “‘elevates above all other interests the right of law-abiding, responsible citizens to use arms” for self-defense.” Bruen, 142 S.Ct. at 2131 (quoting Heller, 554 U.S. at 635). In keeping with Heller, the Supreme Court held that New York's public-carry licensing requirement that “an applicant demonstrates a special need for self-defense” violates the Constitution “in that it prevents law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms.” Bruen, 142 S.Ct. at 2122, 2156.

Relying on the Supreme Court's clear identification of the Second Amendment right in Heller and Bruen as the right of “law-abiding” citizens to keep and bear arms, numerous post-Bruen courts have concluded that Section 922(g)(1) disqualifying convicted felons from the Second Amendment's protection is consistent with Bruen. See, e.g., United States v. Gleaves, No. 3:22-CR-00014, 2023 WL 1791866, at *2 (M.D. Tenn. Feb. 6, 2023) (“[T]he Court agrees with the overwhelming consensus that Bruen is not an elixir for a federal firearm law violation committed by a felon.”); United States v. Isaac, No. 522CR117LCBHNJ1, 2023 WL 1415597, at *5 (N.D. Ala. Jan. 31, 2023) (“Bruen did not disturb Heller but took great lengths to clarify it, and nothing in Bruen conflicts with the Eleventh Circuit's construction of Heller regarding § 922(g)(1)'s harmony with the Second Amendment.”); United States v. Brown, No. CR 20-260-1, 2023 WL 424260, at *2 (E.D. Pa. Jan. 26, 2023) (noting that the Supreme Court's “Second Amendment jurisprudence does not extend to 18 U.S.C. § 922(g)” and finding that, “until the Supreme Court directs otherwise, Mr. Brown's facial challenge to § 922(g) fails”); United States v. Garrett, No. 18 CR 880, 2023 WL 157961, at *3 (N.D. Ill. Jan. 11, 2023) (noting “the controlling law of this circuit upholding the categorical felony firearms ban of § 922(g)”); United States v. Coleman, No. 3:22-CR-8-2, 2023 WL 122401, at *2 (N.D. W.Va. Jan. 6, 2023) (“the reach of Bruen ends at the feet of those individuals who are not law-abiding citizens”); United States v. Reese, No. 19-CR-257, 2022 WL 16796771, at *1 (W.D. Pa. Nov. 8, 2022) (finding “that Section 922(g) remains constitutional in light of Heller and McDonald, and Bruen does not alter that conclusion”); United States v. Young, No. CR 22-054, 2022 WL 16829260, at *7-8 (W.D. Pa. Nov. 7, 2022) (finding that “Bruen, Heller and McDonald dictate that Defendant's alleged conduct does not fall within the scope of the Second Amendment's protections due to his felony drug convictions” and noting that, after Bruen, “virtually all of the district courts to have considered facial challenges to the constitutionality of 18 U.S.C. Sections 922(g), 923, and 924, have uniformly upheld their constitutionality”); United States v. King, No. 21-CR-255 (NSR), 2022 WL 5240928, at *5 (S.D.N.Y. Oct. 6, 2022) (finding that Section 922(g)(1) is constitutional and noting that “the Bruen majority opinion makes abundantly clear that Heller and McDonald stand as controlling precedents” and “repeatedly notes that the petitioners are ‘law-abiding' citizens”); United States v. Jackson, No. CR 21-51 (DWF/TNL), 2022 WL 4226229, at *2 (D. Minn. Sept. 13, 2022) (denying facial challenge to Section 922(g)(1) and noting that, “[following Heller and McDonald, the Eighth Circuit upheld the constitutionality of 18 U.S.C. § 992(g)(1) in United States v. Seay, 620 F.3d 919, 924 (8th Cir. 2010),” which “remains good law” after Bruen); United States v. Cockerham, No. 5:21-CR-6-DCB-FKB, 2022 WL 4229314, at *2 (S.D.Miss. Sept. 13, 2022) (finding that Section 922(g)(1) is not unconstitutional and noting that, after Bruen, “Federal courts nationwide have rejected similar facial constitutional challenges to the felon-in-possession statute.”); United States v. Ingram, No. CR 0:18-557-MGL-3, 2022 WL 3691350, at *3 (D.S.C. Aug. 25, 2022) (finding that under Heller and Bruen, the Second Amendment does not protect possession of firearms by “non-law-abiding citizens”).

The Court finds that, pursuant to Heller, as reaffirmed by Bruen, the Second Amendment protects conduct by “law-abiding” citizens, not convicted felons. The Court joins the majority of post-Bruen courts in finding that Heller, as reaffirmed by Bruen, dictates that...