USA v. Brown

Decision Date25 May 2010
Docket NumberCriminal No. 3:09cr339.
Citation715 F.Supp.2d 688
PartiesUNITED STATES of America v. Eluterrio S. BROWN, Jr.
CourtU.S. District Court — Eastern District of Virginia

OPINION TEXT STARTS HERE

Stephen Wiley Miller, Office of the U.S. Attorney, Richmond, VA, for United States of America.

MEMORANDUM OPINION

ROBERT E. PAYNE, Senior District Judge.

This matter is before the Court on the Defendant's Motion to Dismiss (Docket No. 15). For the reasons that follow, the motion will be denied.

BACKGROUND

On March 1, 2009, the Defendant, Eluterrio S. Brown, Jr., who had no home save for his car, pulled into the parking lot of a fast food restaurant. Shortly thereafter, Richmond police officers came up to Brown's vehicle to speak with him about a defective taillight. The officers discovered that Brown's license was suspended, then noticed a gun on the front passenger-side floorboard of the vehicle. The officers inspected the gun, observing it to be a .38 special loaded with five bullets. They also found “123 bullets in the trunk, a digital scale with cocaine residue on it in the center console, and 200 small, clear plastic baggies.” Gov. Oppo. at 2. State authorities charged Brown with defective equipment, driving on a suspended license, and carrying a concealed weapon.

When a background check indicated a prior conviction for a misdemeanor crime of domestic violence, the United States indicted Brown. The indictment charges him with violating 18 U.S.C. § 922(g)(9), which prohibits the possession of a handgun by a person “who has been convicted in any court of a misdemeanor crime of domestic violence.”

The prior domestic violence conviction occurred in 2003, based on an altercation between Brown and his wife in 2002. Brown does not appear to have used a weapon in the 2002 incident. As Brown describes the circumstances, the domestic violence charge was “in the process of being dismissed under a deferred adjudication procedure under Va.Code § 18.2-57.3 when an accident caused him to miss several required domestic violence classes, which triggered his conviction, without an attorney present, on June 30, 2003. Def. Reply at 1 n. 1.

Brown seeks to dismiss the indictment, alleging that the statute under which he is charged, 18 U.S.C. § 922(g)(9), violates the Second Amendment to the United States Constitution. Citing the recent decision of District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), and subsequent Second Amendment jurisprudence at the circuit level, Brown contends that courts must strictly scrutinize gun laws such as § 922(g) that strike at the heart of a person's Second Amendment right to possess a handgun for self-defense, and argues that § 922(g) cannot survive strict scrutiny.

DISCUSSION
A. Applicable Law

Fed.R.Crim.P. 12(b)(3)(B) permits a court to dismiss a defective indictment. An indictment is defective if it alleges a violation of an unconstitutional statute. See In re Civil Rights Cases, 109 U.S. 3, 8-9, 3 S.Ct. 18, 27 L.Ed. 835 (1883).

Accord United States v. Walker, 2010 U.S. Dist. LEXIS 39473, at *3 (E.D.Va. Apr. 21, 2010).

To begin, the Court must dispose of the Government's argument that “a defendant may not use a motion under Fed.R.Crim.P. 12(b) to obtain ‘summary judgment’ on a defense.” To support this proposition, the Government cites United States v. Reed, 114 F.3d 1067, (10th Cir.1997), a decision addressing an anomalous vagueness challenge outside the First Amendment context. There is also a similar line of decisional law, flowing from United States v. Knox, 396 U.S. 77, 84 n. 7, 90 S.Ct. 363, 24 L.Ed.2d 275 (1969), which stated, pursuant to a prior version of Fed.R.Crim.P. 12(b)(1), that “the trial judge [ ] may consider on a motion to dismiss the indictment only those objections that are ‘capable of determination without the trial of the general issue.’ Id. (quoting the prior version of Rule 12(b)(1)). However, as Rule 12(b) is organized today, the text of Rule 12(b)(3) requires that motions alleging a defect in an indictment be made before trial. 1

Because the present motion could require consideration of specific facts of the type that would ordinarily be considered at trial, an argument pursuant to Knox and its progeny has some persuasive force. However, the changes to Rule 12(b) require rejection of the Government's argument. Moreover, United States v. Chester, 367 Fed.Appx. 392 (4th Cir.2010), assessed a Second Amendment challenge to § 922(g)(9) in an identical procedural posture to that in which Defendant Brown now sits. 2 Thus, the motion is procedurally proper.

Turning to the constitutional underpinnings of the Defendant's claim, the Second Amendment 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.

The challenged statute, 18 U.S.C. § 922(g)(9), forbids the possession of a firearm by any person “who has been convicted in any court of a misdemeanor crime of domestic violence.” The phrase “misdemeanor crime of domestic violence” is defined to require “the use or attempted use of physical force, or the threatened use of a deadly weapon” against a close relative or “similarly situated” person. Id. § 921(a)(33)(A). Until very recently, courts considering the constitutionality of § 922(g)(9) during the relatively short time in which it has been in effect 3 have uniformly and rather peremptorily found that the statute did not offend the Second Amendment. See, e.g., United States v. Finnell, 27 Fed.Appx. 166, 167 (4th Cir.2001); United States v. Lewis, 236 F.3d 948, 950 (8th Cir.2001).

The equation changed, however, when the Supreme Court issued Heller, wherein the Court recognized, in addition to militiamen's armament rights, a “core lawful purpose of self-defense” guaranteed by the Second Amendment. 128 S.Ct. at 2818. The decision invalidated a District of Columbia statute that “generally prohibit[ed] the possession of handguns” by all persons within the District, save for a few narrowly defined exceptions, and prohibited lawful gun owners from keeping them loaded or effectively “functional.” Id. at 2788. Thus, at the end of the majority opinion, the Court stated that, [a]ssuming that [the gun possessor] is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home.” Id. at 2822.

Heller recognized, however, that [l]ike most rights, the right secured by the Second Amendment is not unlimited.” Id. at 2816. The decision went on explicitly to disavow any effect “on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings,” id. at 2816-17, and identified “these presumptively lawful regulatory measures” as exemplary, not to be taken as an exhaustive list, id. at 2817 n. 26.

Thus, the Supreme Court identified that the challenged “total ban on handguns” id. at 2788, could not pass constitutional muster, while simultaneously recognizing that some gun regulations would not run afoul of the Second Amendment. Accordingly, some level of constitutional scrutiny appeared necessary for courts to assess the viability of statutes that regulate the possession of firearms. However, the Court provided no guidance on that issue other than eliminating two varieties of scrutiny from the field (rational basis scrutiny and Justice Breyer's proposed “interest-balancing” test), finding that the D.C. gun ban could not survive “any of the standards of scrutiny that we have applied to enumerated constitutional rights,” id. at 2817, and hinting at the fundamentality of the right, id. at 2798 (“By the time of the founding, the right to have arms had become fundamental for English subjects.”). Instead, the Court merely observed, cryptically, that “there will be time enough to expound upon the historical justifications for the exceptions we have mentioned if and when those exceptions come before us.” Id. at 2821.

After Heller, most courts considering motions to dismiss indictments charging violations of 18 U.S.C. § 922(g)(9) have relied on the “presumptively lawful regulatory measures” language in Heller, analogizing § 922(g)(9) to § 922(g)(1), which prohibits felons from possessing firearms, and which Heller held out as an example of a presumptively lawful regulation. See, e.g., United States v. Holbrook, 613 F.Supp.2d 745, 776 (W.D.Va.2009) (finding that Heller provided no reason to doubt the legality of § 922(g)(9)); United States v. Booker, 570 F.Supp.2d 161, 164-65 (D.Me.2008) ([P]ersons who have been convicted of a misdemeanor crime of domestic violence must be added to the list of ‘felons and the mentally ill’ against whom the ‘longstanding prohibitions on the possession of firearms' survive Second Amendment scrutiny.”) (quoting Heller, 128 S.Ct. at 2816-17). Courts have even observed that there is greater reason to uphold § 922(g)(9) than the presumptively lawful § 922(g)(1). See United States v. White, 593 F.3d 1199, 1206 (11th Cir.2010) ([B]oth an armed robber and tax evader lose their right to bear arms on conviction under § 922(g)(1). In contrast, a person convicted under § 922(g)(9) must have first acted violently ....”); Booker, 570 F.Supp.2d at 164 ([A]s a predictor of firearm misuse, the definitional net cast by § 922(g)(9) is tighter than the net cast by § 922(g)(1).”).

Two circuit court decisions, however, have viewed Heller as mandating rigorous historical and constitutional examination of regulations that Heller did not explicitly identify as “presumptively lawful.” The Seventh Circuit, in United States v. Skoien, 587 F.3d 803 (7th Cir.2009), vacated, rehearing en banc granted, United States v. Skoien, No. 08-3770, 2010 WL 1267262, 2010 U.S.App. LEXIS 6584 (7th Cir. Feb. 22, 2010), conducted perhaps the most...

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