Opinion
4:23-cr-526
06-14-2024
UNITED STATES OF AMERICA, PLAINTIFF, v. FRANKIE J. HUDSON, JR., DEFENDANT
MEMORANDUM OPINION AND ORDER
HONORABLE SARA LIOI, CHIEF JUDGE
On September 20, 2023, an indictment issued charging defendant Frankie J. Hudson, Jr. (“Hudson”) with one count of being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(8). (Doc. No. 1 (Indictment).) Specifically, the indictment provides that, on January 13, 2023, Hudson illegally possessed a Taurus, Model G3C, 9mm caliber pistol and ammunition, having previously been convicted of the following felony crimes: robbery, aggravated robbery, and participating in a criminal gang. (Id.)
Hudson now moves, pursuant to Fed. R. Crim. P. 12(b)(3)(B), to dismiss the indictment. (Doc. No. 33 (Motion).) Plaintiff United States of America (the “government”) opposes the motion. (Doc. No. 34 (Response).) Relying on the Supreme Court's 2022 decision in New York State Riffle & Pistol Ass'n, Inc. v. Bruen, 597 U.S. 1, 142 S.Ct. 2111, 213 L.Ed.2d 387 (2022), Hudson argues that the sole count in the indictment should be dismissed because the statute under which he is charged-§ 922(g)(1)-is unconstitutional, both facially and as applied to him. (Id. at 1.) The Court has already exhaustively addressed the constitutionality of § 922(g)(1) in the wake of Bruen, and it has specifically rejected each and every argument in that prior decision now raised by Hudson in his facial challenge of § 922(g)(1). United States v. Brown, No. 1:22-cr-704, 2023 WL 7323335, at *4 (N.D. Ohio Nov. 7, 2023) (holding that “[t]his Court is bound by Supreme Court and Sixth Circuit precedent finding restrictions on gun ownership by convicted felons, such as those found in § 922(g)(1), constitutional”); see United States v. Lucas, No. 5:22-cr-561, 2024 WL 895317 (N.D. Ohio Mar. 1, 2024) (same).
All page number references herein are to the consecutive page numbers applied to each individual document by the Court's electronic filing system.
This Court sees no reason to deviate from its prior analysis and instead adopts in full the reasoning set forth in its decision in Brown, supra. The Court writes now to briefly reiterate that binding precent continues to constrain the Court to deny any facial attack upon § 922(g)(1). Additionally, the Court will address Hudson's “as applied” challenge to the constitutionality of the felon-in-possession statute.
I. STANDARD OF REVIEW
Rule 12(b)(3)(B)(v) of the Federal Rules of Criminal Procedure provides that a defendant can move to dismiss an indictment for failing to state an offense. An indictment properly charges a criminal offense if it “first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense.” Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974). When evaluating the content of the indictment, a court must take the allegations in it as true. United States v. Lee, 919 F.3d 340, 349 (6th Cir. 2019) (quotation marks and citation omitted).
II. DISCUSSION
A. Binding Precedent Forecloses Hudson's Facial Challenge to § 922(g)(1)
Constitutional analysis begins with the text of the Constitution itself. The Second Amendment provides, in full, 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 District of Columbia v. Heller, 554 U.S. 570, 592, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), the Supreme Court held that the operative clause of the Second Amendment (i.e., “the right of the people to keep and bear Arms[] shall not be infringed”) conferred an individual right to “law-abiding, responsible citizens” to keep and bear arms regardless of service in the militia. See Bruen, 597 U.S. at 20.
Importantly, however, in conferring this right the Court also noted that the right was not absolute. Heller, 554 U.S. at 626. The Court cautioned that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons[.]” Id. (recognizing that the Second Amendment right to keep and bear arms “is not unlimited”). The Court has since reaffirmed its cautionary tone and explicitly refused to cast doubt on “longstanding prohibitions” for firearm possession (including those for felons). See McDonald v. City of Chicago, 561 U.S. 742, 786, 130 S.Ct. 2020, 177 L.Ed.2d 894 (2010) (“[The Court] made it clear in Heller that [the Court's] holding did not ‘cast doubt on such longstanding regulatory measures as ‘prohibitions on the possession of firearms by felons and the mentally ill . . . .' We repeat those assurances here.” (quoting Heller 554 U.S. at 626-27)).
Relying on Heller and McDonald, the Sixth Circuit has consistently held that § 922(g)(1) comports with the Second Amendment, stating that “‘prohibitions on felon possession of firearms do not violate the Second Amendment,' and ‘Congress's prohibition on felon possession of firearms is constitutional.'” United States v. Whisnant, 391 Fed.Appx. 426, 430 (6th Cir. 2010) (quoting United States v. Carey, 602 F.3d 738, 741 (6th Cir. 2010) (further citations omitted)); see United States v. Greeno, 679 F.3d 510, 517 (6th Cir. 2012) (noting that the right to keep and bear arms is not without its limitations and further noting that the Sixth Circuit has consistently relied on Heller “to reject Second Amendment challenges to federal felon-in-possession of a firearm convictions and related expungement exceptions” (collecting cases)), abrogated in part as discussed infra, Bruen, 597 U.S. at 19.
Bruen did not overturn Heller, McDonald, or Carey or otherwise relieve this Court of the obligation to follow Supreme Court and Sixth Circuit precedent. It did, however, settle on a standard for reviewing the constitutionality of regulations to firearm possession. Specifically, the Supreme Court laid out the framework for “applying the Second Amendment” as follows:
When 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.Bruen, 597 U.S. at 24. Bruen, thus, rejected the “popular” two step test previously adopted by some circuit courts after Heller, including the Sixth Circuit in certain decisions (see, e.g., United States v. Greeno, 679 F.3d 510, 518 (6th Cir. 2012)), that relied on the “means-end scrutiny” to evaluate laws under the Second Amendment. Instead, it limited the analysis to the “text and history” of the Second Amendment. See id. at 23.
As the Supreme Court in Bruen recognized, neither Heller nor McDonald engaged in means-end scrutiny. See id. at 2127. Likewise, the Sixth Circuit in Carey did not apply a means-end analysis. For this reason, recent district courts in the Sixth Circuit have underscored that “the Bruen Court did not overturn Heller or abrogate Carey: it altered the test for applying the Second Amendment.” See, e.g., United States v. El Bey, 1:21-cr-110, 2024 WL 22701, at *2 (S.D. Ohio Jan. 2, 2024) (citation omitted); United States v. Williams, No. 23-cr-20243, 2023 WL 8190690, at *4 (E.D. Mich. Nov. 27, 2023) (recognizing that “[b]ecause Carey reached its conclusion without applying a means-end scrutiny test, the Sixth Circuit's underlying view on the constitutionality of the felon in possession statute-and the controlling weight of that view postBruen-ostensibly remains unchanged”).
As it did in Heller, the Supreme Court emphasized that the Second Amendment protects the right of “ordinary, law-abiding citizens” to “carry a handgun for self-defense outside the home.” Id. at 10. But as it did in Heller, the Court in Bruen also recognized that the “right secured by the Second Amendment is not unlimited.” Id. at 21 (citation and quotation marks omitted). Indeed, in Bruen, five justices recognized that the decision did not “cast doubt on longstanding prohibitions on the possession of firearms by felons.” Id. at 81 (quoting Heller, 544 U.S. at 626-27) (Kavanaugh J., concurring and joined by Roberts, C.J.). In dissent, Justice Breyer, joined by Justices Sotomayor and Kagan, agreed that such statutes were not in doubt. See id. at 129-30 (Breyer, J., dissenting).
Although not as clear as the other separate opinions in Bruen, it seems likely that Justice Alito would not have cast doubt on any “longstanding prohibitions” against felons, bringing the total count to six justices. See Bruen, 367 U.S. 72 (Alito, J., concurring) (“Our holding decides nothing about who may lawfully possess a firearm or the requirements that must be met to buy a gun. Nor does it decide anything about the kinds of weapons that people may possess. Nor have we disturbed anything that we said in Heller or McDonald v. Chicago, 561 U.S. 742, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010), about restrictions that may be imposed on the possession or carrying of guns.”) See also Vincent v. Garland, 80 F.4th 1197, 1202 (10th Cir. 2023) (“Given the six [j]ustices' reaffirmation of the Heller language and the Court's apparent approval of ‘shall-issue' regimes and related background checks, we conclude that Bruen did not indisputably and pellucidly abrogate our precedential opinion in McCane.” (emphasis added)).
In the two years since Bruen was decided, federal criminal defendants and prisoners across the country have attempted to leverage the ruling in Bruen to contest their indictments charging, or convictions for, being a felon in possession of firearms and/or ammunition under § 922(g)(1). Unfortunately for Hudson and those making similar challenges, the vast majority of courts to address the issue, including this one and other courts within the Sixth Circuit, have concluded that the ruling in Bruen did not “overturn, re-write, or alter” the Supreme Court's prior determinations that restrictions on the right of convicted felons to possess weapons are constitutional. See United States v. Haywood, No. 22-20417, 2023 WL 3669333, at *1-2 (E.D. Mich. May 25, 2023) (citing Heller, 554 U.S. at 625-26 and collecting lower court cases); see, e.g., United States v. Miller, No. 1:22-cr-645, 2023 WL 6065116, at *3-4 (N.D. Ohio Sept. 18, 2023) (refusing to declare § 922(g)(1) unconstitutional); United States v. Taylor, No. 1:23-cr-289, 2023 WL 5957107, at *3 (N.D. Ohio Sept. 12, 2023) (denying motion to dismiss indictment charging violation of § 922(g)(1) premised on Bruen); United States v. Bluer, No. 22-cr-20557, 2023 WL 3309844, at *6 (E.D. Mich. May 8, 2023) (recognizing the “overwhelming consensus” that “Bruen is no barrier to a § 922(g)(1) prosecution”); United States v. Davis, No. 5:19-cr-159, 2023 WL 373172, at *2 (E.D. Ky. Jan. 24, 2023) (“Bruen did nothing to change the prohibition on the possession of firearms by felons, which remains well-settled law.” (collecting cases)).
The Sixth Circuit has yet to directly rule on Bruen's effect, if any, on the constitutionality of federal felon-in-possession laws. See United States v. Bowers, No. 22-6095, 2024 WL 366247, at *3 (6th Cir. Jan. 31, 2024) (“No binding case law addresses the constitutionality of § 922(g)(1) in light of Bruen . . . [n]either the Supreme Court nor the Sixth Circuit has yet to address the issue.”) Several other circuits have, however, joined the majority of courts that have upheld felon-in-possession statutes under the Bruen constitutional framework. See United States v. Canada, No. 22-4519, 2024 WL 2807182, at *1 (4th Cir. June 3, 2024) (rejecting facial challenge to § 922(g)(1) under Bruen); United States v. Dubois, 94 F.4th 1284, 1293 (11th Cir. 2024) (“Bruen did not abrogate” Eleventh Circuit law upholding the constitutionality of felon-in-possession prohibitions (referencing United States v. Rozier, 598 F.3d 768 (11th Cir. 2010))); United States v. Jackson, 69 F.4th 495, 505-06 (8th Cir. 2023) (upholding § 922(g)(1)); Vincent v. Garland, 80 F.4th 1197, 1202 (10th Cir. 2023) (same). And since this Court first visited the issue in Brown, the clear majority of district courts both in and outside the Sixth Circuit have continued to hold that Bruen did not call into question the constitutionality of statutes, like § 922(g)(1), that restrict the gun ownership rights for convicted felons. See, e.g., United States v. Coleman, No. 3:23-cr-134, 2024 WL 2112324, at *2-3 (E.D. Va. May 10, 2024) (rejecting facial and as-applied challenges to § 922(g)(1) under Bruen); United States v. Campbell, No. 23-cr-141, 2024 WL 2113474, at *6 (E.D. Pa. May 10, 2024) (similar); United States v. Smith, No. 21-cr-11082, 2024 WL 1776350, at *1 (E.D. Mich. Apr. 24, 2024) (“Bruen did not disturb the settled law in this Circuit that § 922(g)(1) is constitutional as applied to any felon, and consequently the statute is constitutional both on its face and as applied to [defendant]” (citations omitted)); United States v. Richards, No. 1:23-cr-58, 2024 WL 1678942, at *3 (S.D. Ohio Apr. 18, 2024) (noting that while some courts since Bruen have found § 922(g)(1) unconstitutional, “the vast majority of courts” have upheld felon-in-possession statutes (collecting cases)); United States v. Gibson, No. 3:23-cr-329, 2024 WL 1619604, at *2-3 (N.D. Ohio Apr. 15, 2024) (denying challenge under Bruen to § 922(g)(1) charge and collecting cases from district courts within the Sixth Circuit).
While the Sixth Circuit has not squarely addressed the constitutionality of felon-in-possession statutes following Bruen, recent unreported decisions have signaled a likelihood that it will not disturb existing Sixth Circuit precedent finding § 922(g)(1) constitutional. See United States v. Vaughn, No. 23-5790, 2023 WL 9789018, at *1 (6th Cir. Sept. 28, 2023) (order denying motion for release pending appeal, noting that “Carey remains the binding law in this circuit”); In re Clark, No. 22-1401, 2023 U.S. App. LEXIS 30481, at *3 (6th Cir. Nov. 15, 2023) (denying permission to file a second or successive habeas petition challenging the constitutionality of § 922(g)(1) conviction, concluding that Bruen did not “cast doubt on longstanding prohibitions on possession of firearms by felons” (quoting Bruen, 597 U.S. at 81 (Kavanaugh, J., concurring)))) (only LEXIS cite available). See also United States v. Fanning, No. 1:23-cr-252, Doc. No. 41, at 4 (N.D. Ohio Jan. 16, 2024) (noting that “Vaughn and Clark are unreported but serve as fairly recent illustrations of the Sixth Circuit's commitment to Carey post-Bruen” (emphasis added)).
Several circuits, including the Sixth Circuit, have rejected Bruen challenges on a plain error review. See, e.g., United States v. Storck, No. 23-5648, 2024 WL 2217903, at *8 (6th Cir. May 16, 2024) (rejecting plain error attack on § 922(g)(1) because there is no “precedent explicitly holding that § 922(g)(1) is unconstitutional and because it is unclear that Bruen dictates such a result” (quoting United States v. Johnson, 95 F.4th 404, 417 (6th Cir. 2024)); United States v. Jones, 88 F.4th 571, 573-74 (5th Cir. 2023), cert denied, Jones v. United States, 144 S.Ct. 1081 (2024).
As detailed by Hudson, some district courts have dismissed § 922(g)(1) charges based on similar motions, many of which were limited to “as applied” challenges. (Doc. No. 33, at 2-3 (collecting district court cases, including United States v. Harper, No. 1:21-cr-236, 2023 WL 5672311, at *1 (M.D. Pa. Sept. 1, 2023) (§ 922(g)(1) unconstitutional as applied to defendant))). Recently, a panel of the Ninth Circuit-in a 2-1 decision-and a district court in this Court's judicial district endorsed “as applied” challenges to § 922(g)(1) in light of Bruen. See United States v. Durate, No. 22-50048, 2024 WL 2068016, at *24 (9th Cir. May 9, 2024); United States v. Hostettler, No. 5:23-cr-654, 2024 WL 1548982, at *7 (N.D. Ohio Apr. 10, 2024); see also Range v. Att'y Gen., 69 F.4th 96, 106 (3d Cir. 2023) (en banc) (holding that Section 922(g)(1) unconstitutional as applied to the defendant, whose predicate offense was a non-violent misdemeanor). There is nothing in the analyses or conclusions in those cases that convinces the Court to disregard biding precedent and abandon its prior rulings on the constitutionality of § 922(g)(1).
In short, Hudson seeks to extend the scope of Bruen well beyond its appropriate application. On multiple occasions, the Supreme Court has acknowledged the history, tradition, and, most importantly, constitutional muster of federal regulations restricting felons' right to possess firearms. Hudson's facial challenge fails to provide any compelling reason for the Court to deviate from its prior decisions on this matter-consistent with binding precedent from the Supreme Court and the Sixth Circuit and the vast majority of decisions from other courts-that Bruen does not cast doubt on the constitutionality of §§ 922(g)(1). The Court rejects Hudson's facial challenge to § 922(g)(1).
A. Hudson's “As Applied” Challenge Also Fails
This Court has now determined on multiple occasions-consistent with the vast majority of courts-that § 922(g)(1) is constitutional on its face. Yet, even if the Court had ascribed to the minority view, it would have found, at the very least, § 922(g)(1) is constitutional as applied to individuals like Hudson who are dangerous felons. Contrary to Hudson's position, even courts in the minority do not support the view that Congress lacks the ability to disarm dangerous felons. See also United States v. Gonzalez, No. 22-1242, 2022 WL 4376074, at *2 (7th Cir. Sept. 22, 2022) (finding that it would be “frivolous” to argue that § 922(g)(1) is unconstitutional as applied to someone convicted of a violent felony).
For example, in Range-a decision relied upon by Hudson-the Third Circuit found that the government “has not shown that the Nation's historical tradition of firearms regulation supports depriving [the defendant] of his Second Amendment right to possess a firearm.” Range, 69 F.4th at 106. But the Court emphasized that its decision was “a narrow one[,]” limiting its ruling as to the constitutionality of § 922(g)(1) “only as applied to” the defendant “given his violation of” a statute that prohibits making false statements to obtain food stamps; a non-violent offense. Id. Similarly, in Hostettler-another case highlighted by Hudson-the district court determined that § 922(g)(1) was not constitutional as applied to the defendant. 2024 WL 1548982, at *7. In reaching this conclusion, the Court noted the government failed to meet its burden of demonstrating that “Hostettler's predicate drug [possession] offense (or prior federal conviction for being a felon in possession) serves as an adequate proxy for dangerousness or identifying any other distinctly similar historical analogue to justify disarmament.” Id. at *5.
Unlike the defendants in Range and Hostettler, Hudson was previously convicted of violent crimes-robbery and aggravated robbery (see Doc. No. 1, at 1), neither or which could be “fairly characterized as analogous to the Range defendant's conviction of making a false statement to obtain food stamps.” See United States v. El Bey, 1:21-cr-110, 2024 WL 22701, at *4 (S.D. Ohio Jan. 2, 2024) (rejecting “as applied” challenge to § 922(g)(1) where defendant had previously been convicted of felonious assault and kidnapping). Under Ohio law, robbery, a third degree felony, categorically involves the “[u]se” or “threat[] of the immediate use of force against another.” Ohio Rev. Code § 2911.02(A)(3). The section of the aggravated robbery statute under which Hudson was convicted is satisfied when a person, attempting or committing a theft offense inflicts, or attempts to inflict, serious physical harm on another. Ohio Rev. Code § 2911.01(A)(3). Both crimes require some level of violence or the threat of violence against another.
The docket for Mahoning County Court of Common Pleas Case No. 2011 CR 01282 A (State v. Hudson) can be viewed at: https://ecourts.mahoningcountyoh.gov/eservices/searchresults (last visited June 12, 2024).
Courts have rejected “as applied” challenges to § 922(g)(1) under Bruen for dangerous individuals with a history of robbery. See, e.g., United States v. Berry, Nos. 5:22-cr-536, 5:23-cr-222, 4:23-cr-503, 2024 WL 1141720, at *20 (N.D. Ohio Mar. 15, 2024) (rejecting an “as applied” challenge under Bruen because the defendant had been convicted under Ohio's robbery statute, which is “‘distinctly similar' to the historical predicates on which the United States relies that support disarmament based on dangerousness”) (citation omitted); Miller, 2023 WL 6065116, at *3 (rejecting defendant's “as applied” challenge under Bruen because defendant was convicted of burglary, burglary with intimidation, and aggravated robbery under Ohio law, noting that “[a]ll of these convictions involve some level of violence or the possibility of harm to others”); United States v. Taylor, 1:23-cr-289, 2023 WL 5957107, at *3 (N.D. Ohio Sept. 12, 2023) (distinguishing Range on grounds that the defendant was convicted of aggravated robbery, having a weapon while under a disability, and drug trafficking, “none [of which] can be fairly characterized as nonviolent or otherwise analogous to making a false statement to obtain food stamps”); United States v. Jordan, 680 F.Supp.3d 850, 853 (N.D. Ohio 2023) (noting that “even if this Court were to adopt [defendant's] theory that ‘only dangerous persons' could be disarmed, his challenge would still fail” because he was convicted of dangerous crimes, including aggravated robbery).
As a result of his robbery and aggravated robbery convictions, Hudson would be unable to show that, even under the minority view, application of § 922(g)(1) post-Bruen was unconstitutional as applied to him. Accordingly, his “as applied” challenge also fails.
III. CONCLUSION
For the reasons set forth above, the Court denies Hudson's motion to dismiss the indictment.
IT IS SO ORDERED.