Opinion
CAUSE NO. EP-22-CR-1944(1)-KC
2023-04-20
UNITED STATES of America, v. (1) Daniel Antonio Tohme POSADA, Defendant.
Catherine S. Dos Santos, U.S. Attorney's Office, El Paso, TX, Patricia Josefina Acosta, Assistant U.S. Attorney, El Paso, TX, for United States of America. Felix Valenzuela, Valenzuela Law Firm, El Paso, TX, for Defendant.
Catherine S. Dos Santos, U.S. Attorney's Office, El Paso, TX, Patricia Josefina Acosta, Assistant U.S. Attorney, El Paso, TX, for United States of America. Felix Valenzuela, Valenzuela Law Firm, El Paso, TX, for Defendant. ORDER KATHLEEN CARDONE, UNITED STATES DISTRICT JUDGE
On this day, the Court considered Defendant Daniel Antonio Tohme Posada's Motion to Dismiss Indictment ("Motion"), ECF No. 27. For the reasons below, the Motion is DENIED.
I. BACKGROUND
In April 2020, Tohme was indicted in Texas state court for manslaughter, a felony offense. Compl. ¶ 3, ECF No. 1; see also Tex. Penal Code § 19.04. Sometime between October 27 and November 2, 2022, he purchased 45,000 rounds of .223 caliber ammunition in El Paso, Texas. Compl. ¶ 2. Days later, he told agents at a port of entry about the purchase, and they explained it was illegal because he was under felony indictment. Id. ¶ 4. Despite their warning, Tohme purchased another 10,000 rounds of .223 caliber ammunition on November 9. Id. ¶ 5.
The Court recites the facts alleged in the Complaint for context only, making no finding as to their veracity.
On December 7, 2022, Tohme was indicted with one count of receiving ammunition while under felony indictment, in violation of 18 U.S.C. § 922(n), which criminalizes the underlying conduct, and § 924(a)(1)(D), which imposes penalties for willful violations. See Indictment 1, ECF No. 13. On February 21, 2023, Tohme moved to dismiss his indictment, arguing that § 922(n) is unconstitutional under both the Second Amendment and the Due Process Clause of the Fifth Amendment. See generally Mot. On March 24, the United States (the "Government") filed an Opposition to Defendant's Motion to Dismiss ("Resp."), ECF No. 32.
II. STANDARD
Federal Rule of Criminal Procedure 12 allows a party to "raise by pretrial motion any defense, objection, or request that the court can determine without a trial on the merits." Fed. R. Crim. P. 12(b)(1). These include motions that allege "a defect in the indictment," including "failure to state an offense." Fed. R. Crim. P. 12(b)(3)(B)(v). A court may rule on a pretrial motion to dismiss an indictment when the alleged infirmity "is essentially one of law." United States v. Guthrie, 720 F. App'x 199, 201 (5th Cir. 2018) (quoting United States v. Fontenot, 665 F.3d 640, 644 (5th Cir. 2011)).
III. ANALYSIS
A. Second Amendment Challenge
The constitutional questions Tohme raises are appropriate for resolution at this stage of the proceedings. See United States v. Valencia, No. 5:17-CR-882-DAE(1)(2), 2018 WL 6182755, at *2 (W.D. Tex. Nov. 27, 2018) (collecting cases). He first argues that § 922(n) is unconstitutional in light of New York State Rifle & Pistol Ass'n v. Bruen, 597 U.S. 1, 142 S. Ct. 2111, 213 L.Ed.2d 387 (2022). Mot. 4-14.
The Government argues that the Court should analyze § 922(n) not under the Second Amendment, but under the Supreme Court's cases on pretrial liberty restrictions, primarily United States v. Salerno, 481 U.S. 739, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). Resp. 7-10. But Salerno's framework employs means-ends balancing, which the Supreme Court in Bruen clearly rejected for Second Amendment challenges. See Bruen, 142 S. Ct. at 2127; United States v. Rowson, 652 F. Supp. 3d 436, 455-56 (S.D.N.Y. Jan. 26, 2023) (rejecting a similar argument); United States v. Bartucci, 658 F. Supp. 3d 794, 798-99 (E.D. Cal. Feb. 23, 2023) (same). And nothing in Bruen suggests that courts should forego analysis under the Second Amendment in favor of another constitutional provision that also has some bearing on the proscribed conduct. Accordingly, the Court assesses Tohme's Second Amendment challenge the way it is presented, under Bruen.
In Bruen, the Supreme Court rejected the predominant "two-step" framework, which "combine[d] history with means-end scrutiny," that federal courts of appeals—including the Fifth Circuit—had previously used to assess Second Amendment challenges. See 142 S. Ct. at 2125-26; see also Nat'l Rifle Ass'n of Am., Inc. v. ATF, 700 F.3d 185, 194-96 (5th Cir. 2012) (adopting the two-step framework). In its place, Bruen set out a test that looks only to the plain text of the Second Amendment and to history. See 142 S. Ct. at 2126. Following Bruen, the Fifth Circuit held that the Supreme Court's new framework "render[ed] [its] prior [Second Amendment] precedent obsolete." United States v. Rahimi, 61 F.4th 443, 451 (5th Cir. 2023).
Under Bruen and Rahimi, the Court must first "determine whether 'the Second Amendment's plain text covers an individual's conduct.' " Rahimi, 61 F.4th at 453 (quoting Bruen, 142 S. Ct. at 2129-30 (alteration omitted)). "If so, then the 'Constitution presumptively protects that conduct,' and the Government 'must justify its regulation by demonstrating that it is consistent with the Nation's historical tradition of firearm regulation.' " Id. (quoting Bruen, 142 S. Ct. at 2130). "To carry its burden, the Government must point to 'historical precedent from before, during, and even after the founding [that] evinces a comparable tradition of regulation.' " Id. at 454 (quoting Bruen, 142 S. Ct. at 2131-32 (alterations in Rahimi)).
1. Whether Tohme as an individual is protected by the Second Amendment
Before deciding whether the amendment's plain text covers Tohme's conduct at step one of the Bruen framework, the Court must consider whether Tohme as an individual is part of "the people" granted the amendment's protections. See Rahimi, 61 F.4th at 451-53. It appears that nearly every court that has considered whether felony indictees are part of "the people" within the meaning of the Second Amendment has held, or at least assumed, that they are. See United States v. Jackson, 2023 WL 2242873, at *8-9 (D. Md. Feb. 27, 2023) (collecting cases, but assuming without deciding the issue). Because the Court would ultimately uphold the constitutionality of § 922(n) either way, and because there is a "strong presumption that the Second Amendment right . . . belongs to all Americans," it also assumes without deciding that Tohme, as someone under felony indictment, is part of "the people" protected by the Second Amendment. Rahimi, 61 F.4th at 451 (quoting District of Columbia v. Heller, 554 U.S. 570, 581, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008)).
But see United States v. Perez-Garcia, 628 F. Supp. 3d 1046, 1053-55 (S.D. Cal. Sept. 18, 2022) (in a challenge to a pretrial release condition under the Bail Reform Act, holding felony indictees are not part of "the people" because they are not "law-abiding"), aff'd sub nom. United States v. Garcia, No. 22-50314, 2023 WL 2596689 (9th Cir. Jan. 26, 2023) (affirming without an opinion); United States v. Fencl, No. 21-CR-3101 JLS, 2022 WL 17486363, at *2 (S.D. Cal. Dec. 7, 2022) (same), aff'd sub nom. Garcia, 2023 WL 2596689.
2. Whether the Second Amendment's plain text covers Tohme's conduct
Since Tohme himself is presumably covered by the Second Amendment, the Court considers whether his conduct—receiving ammunition—is covered as well. The Second Amendment clearly protects the act of receiving: "The amendment grants [people] the right 'to keep' firearms, and 'possession' is included within the meaning of 'keep.' " Id. at 454 (citing Bruen, 142 S. Ct. at 2134-35). And "a necessary predicate to possession" is "receipt." United States v. Simien, 655 F. Supp. 3d 540, 551 (W.D. Tex. Feb. 10, 2023); see also Ball v. United States, 470 U.S. 856, 862, 105 S.Ct. 1668, 84 L.Ed.2d 740 (1985) ("[W]hen received, a firearm is necessarily possessed." (quoting United States v. Martin, 732 F.2d 591, 592 (7th Cir. 1984))). Indeed, as courts have observed, "[i]f receiving a firearm were illegal, but possessing or carrying one remained a constitutional right, one would first need to break the law to exercise that right." United States v. Hicks, 649 F Supp. 3d 357, 360 (W.D. Tex. Jan. 9, 2023); United States v. Quiroz, 629 F. Supp. 3d 511, 515-16 (W.D. Tex. Sept. 19, 2022).
Of course, the Second Amendment's plain text protects the right to bear arms, not ammunition, which Tohme is charged with receiving. But "[t]he right to keep and bear arms . . . 'implies a corresponding right to obtain the bullets necessary to use them.' " Luis v. United States, 578 U.S. 5, 26, 136 S.Ct. 1083, 194 L.Ed.2d 256 (2016) (Thomas, J., concurring) (quoting Jackson v. City & Cnty. of San Francisco, 746 F.3d 953, 967 (9th Cir. 2014)). And the .223 caliber bullets that Tohme allegedly purchased appear to be " 'in common use[ ]' such that they fall within the scope of the amendment." Rahimi, 61 F.4th at 454 (quoting Bruen, 142 S. Ct. at 2143); Indictment 1. Because the amendment's plain text covers receiving .223 caliber ammunition, Tohme passes the first step of Bruen's framework.
3. Historical Justification
At Bruen's second step, the Government must show that § 922(n) "is consistent with this Nation's historical tradition of firearm regulation." 142 S. Ct. at 2126. This standard does not require the Government to identify a " 'historical twin'; rather, a 'well-established and representative historical analogue' suffices." Rahimi, 61 F.4th at 454 (quoting Bruen, 142 S. Ct. at 2133 (emphasis in Bruen)). At bottom, "[t]he core question is whether the challenged law and proffered analogue are 'relevantly similar,' " especially regarding "how the challenged law burdens the right to armed self-defense, and why the law burdens that right." Id. (quoting Bruen, 142 S. Ct. at 2132-33 (emphasis in Bruen)).
Bruen observed that "when a challenged regulation addresses a general societal problem that has persisted since the 18th century, the lack of a distinctly similar historical regulation addressing that problem is relevant evidence that the challenged regulation is inconsistent with the Second Amendment." 142 S. Ct. at 2131 (emphasis added). Seizing on this language, Tohme argues that the Government must proffer not just a "relevantly similar" historical analogue but a "distinctly similar" one. Mot. 9-10. But this observation from Bruen illustrates the type of evidence courts can consider, not a separate standard of review. See Rahimi, 61 F.4th at 454 ("The core question is whether the challenged law and proffered analogue are 'relevantly similar.' " (quoting Bruen, 142 S. Ct. at 2132)). As discussed below, the Government's lack of a distinctly similar analogue to § 922(n) weighs against the law's constitutionality, but it is not dispositive.
The Government proffers three groups of "relevantly similar" historical restrictions: (1) laws that disarmed felony indictees in pretrial detention, (2) laws that disarmed "dangerous or untrustworthy" people, and (3) surety statutes. Resp. 21. For pretrial detention laws, the Government cites the federal Judiciary Act of 1789. Id. at 27. It also cites cases and scholarship discussing colonial and early American bail laws and practices. See id. Because the constitutionality of § 922(n) can be sustained based on these sources alone, the Court does not address the Government's other proffered analogues.
a. Why § 922(n) and historical pretrial detention laws burden Second Amendment rights
Section 922(n) and the historical pretrial detention laws referenced by the Government burden Second Amendment rights for similar reasons—both aim to keep guns away from allegedly dangerous people. The Judiciary Act of 1789 denied bail in capital cases based on a case-by-case assessment of the strength of the evidence. See Act of Sept. 24, 1789, ch. XX, 1 Stat. 73, § 33 (1789) (barring bail in capital cases except where the judge "exercise[d] their discretion [ ] regarding the nature and circumstances of the offence, and of the evidence."). And the states' contemporary bail provisions worked similarly. See Matthew J. Hegreness, America's Fundamental and Vanishing Right to Bail, 55 Ariz. L. Rev. 909, 921-23 & n.40 (2013); Albert W. Alschuler, Preventive Pretrial Detention and the Failure of Interest-Balancing Approaches to Due Process, 85 Mich. L. Rev. 510, 555 (1986). Ultimately, defendants were detained pretrial when they posed a risk of flight or a danger to the community. See Sandra G. Mayson, Dangerous Defendants, 127 Yale L.J. 490, 502 (2018); Donald B. Verrilli, Jr., The Eighth Amendment and the Right to Bail: Historical Perspectives, 82 Colum. L. Rev. 328, 348 & n.13 (1982) (collecting sources); John N. Mitchell, Bail Reform and the Constitutionality of Pretrial Detention, 55 Va. L. Rev. 1223, 1230 (1969).
Section 922(n) and its precursors focus on safeguarding the community as well. In 1938, Congress restricted people indicted for "crimes of violence" from accessing firearms, "[seeking] to protect the public . . . [from] those who, by their past conduct, had demonstrated their unfitness to be entrusted with [firearms and ammunition]." Cases v. United States, 131 F.2d 916, 921 (1st Cir. 1942); see also United States v. Weatherford, 471 F.2d 47, 51-52 (7th Cir. 1972) ("[T]he purpose of Congress in enacting this legislation was to eliminate firearms from the hands of criminals."). In 1961, Congress expanded the law's restrictions to apply to all felony indictees, aiming to "make it more difficult for the criminal elements in our society to obtain firearms." Act of Oct. 3, 1961, Pub. L. No. 87-342, 75 Stat. 757; 107 Cong. Rec. 10,229 (1961). And in 1968, Congress made clear that both state and federal indictments triggered the statute's prohibitions, reiterating its commitment to "keep[ing] guns out of the hands of those who have demonstrated that 'they may not be trusted to possess a firearm without becoming a threat to society.' " Pub. L. No. 90-617, § 102, 82 Stat. 1213, 1216 (1968); Scarborough v. United States, 431 U.S. 563, 572, 97 S.Ct. 1963, 52 L.Ed.2d 582 (1977) (quoting 114 Cong. Rec. 14773 (1968)). "[T]he 1968 Act reflect[ed] a [ ] concern with keeping firearms out of the hands of categories of potentially irresponsible persons." Barrett v. United States, 423 U.S. 212, 220, 96 S.Ct. 498, 46 L.Ed.2d 450 (1976); see also United States v. Laurent, 861 F. Supp. 2d 71, 83-84 (E.D.N.Y. 2011). The Government's proffered analogue and § 922(n) thus reflect a shared aim to protect the community from firearms in the hands of those the state deems dangerous.
Though Congress did not pass § 922(n) in its current form until 1986, courts consider the laws cited here to be its forebears. See, e.g., Quiroz, 629 F. Supp. 3d at 517-18; United States v. Laurent, 861 F. Supp. 2d 71, 82-84 (E.D.N.Y. 2011) (providing a comprehensive overview of § 922(n)'s evolution).
b. How § 922(n) and historical pretrial detention laws burden Second Amendment rights
The Court next considers how § 922(n) and historical pretrial detention laws burden Second Amendment rights. There are some notable differences. Most prominently, pretrial detention laws burdened the rights of just detained defendants, disarming them only as an incident to their detention. In contrast, § 922(n) applies to all indictees, whether or not they are detained, and it burdens their rights directly.
When a statute "addresses a 'general societal problem that has persisted since the 18th century, the lack of a distinctly similar historical regulation addressing that problem is relevant evidence that the challenged regulation is inconsistent with the Second Amendment.' " Rahimi, 61 F.4th at 454 (quoting Bruen, 142 S. Ct. at 2131). And the problem that § 922(n) addresses—the supposed danger of indictees—has "existed for the entirety of our Nation's existence." United States v. Stambaugh, 641 F. Supp. 3d 1185, 1193 (W.D. Okla. Nov. 14, 2022). Thus, the fact that the Government proffers only detention laws—rather than laws that, like § 922(n), directly burdened the Second Amendment rights of all felony indictees—provides some indication that § 922(n) may not be consistent with the Nation's history of gun regulation. See Rahimi, 61 F.4th at 454.
But the Government claims there is a good reason that no such laws existed at the founding. Resp. 27-28. It contends that felonies were almost exclusively capital crimes during the 18th century, and few charged with capital crimes were released before trial. Id. at 27 (citing, inter alia, Mayson, supra, at 502; United States v. Rowson, 652 F. Supp. 3d 436, 470-72 (S.D.N.Y. Jan. 26, 2023)). Thus, "the founding generation may have foregone gun . . . restrictions specifically targeting those charged with serious crimes as unnecessary because they were often detained," and necessarily stripped of their firearms in the process. Id. at 28.
Courts before and after Bruen have adopted this view of history. See, e.g., Range v. Att'y Gen. U.S., 53 F.4th 262, 280-81 (3d Cir. 2022), reh'g en banc granted, opinion vacated, 56 F.4th 992 (3d Cir. 2023); Medina v. Whitaker, 913 F.3d 152, 158 (D.C. Cir. 2019) (citing Baze v. Rees, 553 U.S. 35, 94, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008) (Thomas, J., concurring)); Rowson, 652 F. Supp. 3d at 470-72. But other courts, as well as academics, have cast doubt on the Government's assertions. See Kanter v. Barr, 919 F.3d 437, 459 (7th Cir. 2019) (Barrett, J., dissenting); Verrilli, supra, at 349.
According to these authorities, not all felonies were capital crimes in the founding era. Certainly, during the early days of the British colonies, nearly all felonies were punishable by death. See Verrilli, supra, at 348-9; Rowson, 652 F. Supp. 3d at 470-72 (citing Hermine Herta Meyer, Constitutionality of Pretrial Detention, 60 Geo. L.J. 1139, 1162 n.133 (1972)). But "[d]uring the period leading up to the founding, the connection between felonies and capital punishment started to fray." Kanter, 919 F.3d at 459 (Barrett, J., dissenting). So, "[b]y the time the Constitution was ratified . . . 'felony' was [no longer] 'very strongly connected with capital punishment.' " Id. (quoting John D. Bessler, Cruel & Unusual 52-53 (2012)). In the late 18th and early 19th centuries, even crimes like arson, burglary, and robbery were no longer capital offenses in many states. See Lawrence M. Friedman, Crime and Punishment in American History 73 (1993); Verrilli, supra, at 348-49 & n.134 (citing Mitchell, supra, at 1227 n.22 (providing a state survey)).
And though the evidence is sparse, it appears that many people charged with felonies—even capital felonies—were released before trial in the founding era. The Government states that " '[c]apital defendants have been excluded from bail'—and thus detained—'since [ ] colonial days.' " Resp. 27 (quoting Mayson, supra, at 502). But other research suggests they were not categorically excluded. Instead, "the scant court records that are extant show frequent instances of capital defendants, even those arrested for murder [ ], being released on bail before trial." Verrilli, supra, at 349. At least some scholarship indicates that, contrary to the Government's stance, pretrial release for defendants accused of felonies, as well as capital offenses, was "routine" and a "common pattern." See Caleb Foote, The Coming Constitutional Crisis in Bail: I, 113 U. Pa. L. Rev. 959, 981-82 (1965).
Though the Court is not well-positioned to reach a definitive historical conclusion on the scope of pretrial release for felony indictees at the founding, the Government's characterization of the practice as an extreme rarity appears inaccurate. Compare id., with Resp. 27-28. Instead, reputable sources indicate that during the founding era, only some felonies led to capital charges, and only some capital charges led to pretrial detention—meaning that some felony indictees were released awaiting trial. See, e.g., Verrilli, supra, at 349. Thus, the Government's lack of "distinctly similar" laws burdening all felony indictees—not just detained indictees—is "relevant evidence that [§ 922(n)] is inconsistent with the Second Amendment." Rahimi, 61 F.4th at 454 (quoting Bruen, 142 S. Ct. at 2131).
While relevant, the Government's lack of evidence is not dispositive. Under Bruen, the Government needs to point to an "analogue," not a "historical twin." Id. (quoting Bruen, 142 S. Ct. at 2133 (emphasis in Bruen)). "Such an approach is necessary in order for Bruen to make sense, because a list of the laws that happened to exist in the founding era is . . . not the same thing as an exhaustive account of what laws would have been . . . permissible." United States v. Kelly, No. 3:22-CR-00037, 2022 WL 17336578, at *2 (M.D. Tenn. Nov. 16, 2022) (emphasis omitted); see also Jackson, 2023 WL 2242873, at *12.
"[I]n order to bridge historical gaps," Bruen allows courts to "engag[e] in . . . common sense reasoning—that, for example, heavy restrictions are typically more problematic than light ones." Kelly, 2022 WL 17336578, at *6. And historical detention laws were far more burdensome than § 922(n) is. When the government detains a defendant, it "strips [them] of all Second Amendment rights." Jackson, 2023 WL 2242873, at *17; see also United States v. Slye, No. 1:22-mj-144, 2022 WL 9728732, at *2 & n.4 (W.D. Pa. Oct. 6, 2022). In contrast, § 922(n) restricts only sending and receiving arms while under indictment, not possessing arms previously received. It follows that "[i]f an indictment [was] constitutionally sufficient to trigger a complete prohibition on a defendant's Second Amendment rights" at the founding, "then it must also be sufficient to temporarily restrict the right to acquire or transport arms while a felony indictment is pending." Jackson, 2023 WL 2242873, at *17; see also Kelly, 2022 WL 17336578, at *6.
As one court concluded in a similar context—considering the constitutionality of a firearms restriction imposed under the Bail Reform Act—"[i]t would be illogical to conclude that the Court has the authority to set conditions temporarily depriving [a defendant] of [their Second Amendment] protections by ordering his detention but lacks the authority to impose far less severe restrictions, such as ordering his release [ ] with a firearms restriction." Slye, 2022 WL 9728732, at *2. That same principle applies here. Cf. Kaley v. United States, 571 U.S. 320, 330, 134 S.Ct. 1090, 188 L.Ed.2d 46 (2014) (" '[I]t would be odd to conclude that the Government may not restrain property' on the showing often sufficient to 'restrain persons.' " (quoting United States v. Monsanto, 491 U.S. 600, 615, 109 S.Ct. 2657, 105 L.Ed.2d 512 (1989) (emphasis in Monsanto))).
Ultimately, § 922(n) and the historical pretrial detention laws proffered by the Government burden the Second Amendment for similar reasons. And though they burden the right in different ways, those differences do not render § 922(n) unconstitutional. Tohme's challenge to § 922(n) thus fails. See Rahimi, 61 F.4th at 454. This conclusion is consistent with the robust majority of courts to have considered § 922(n)'s constitutionality since Bruen. See Jackson, 2023 WL 2242873, at *18; United States v. Stennerson, No. CR 22-139-BLG-SPW, 2023 WL 2214351, at *2 (D. Mont. Feb. 24, 2023); Bartucci, 658 F. Supp. 3d at 807-08; United States v. Gore, No. 2:23-CR-04, 2023 WL 2141032, at *4 (S.D. Ohio Feb. 21, 2023); Simien, 655 F. Supp. 3d at 551-52; Rowson, 652 F. Supp. 3d at 472; Kelly, 2022 WL 17336578, at *6; United States v. Kays, 624 F. Supp. 3d 1262, 1268 (W.D. Okla. Aug. 29, 2022). Though two district courts within the Fifth Circuit have held the law unconstitutional, the Court respectfully disagrees with them for the reasons above. See Hicks, 649 F. Supp. 3d at 365-66; Quiroz, 629 F. Supp. 3d at 527.
Tohme labels his Motion as an as-applied and a facial challenge. See Mot. 13-14. But his arguments do not distinguish between the two and, in substance, discuss only the statute's facial validity. See id. at 4-14. The Court thus finds that both challenges fail, for the reasons above. See Rahimi, 61 F.4th at 453.
The Fifth Circuit has yet to rule on the issue post-Bruen, though an appeal is pending in Quiroz. See Oral Argument Heard, United States v. Quiroz, No. 22-50834 (5th Cir. Feb. 8, 2023), ECF No. 67.
B. Fifth Amendment Challenge
Tohme also argues that § 922(n) is unconstitutional because it violates his right to procedural due process under the Fifth Amendment. Mot. 14-19. "[Courts] analyze procedural due process questions using a two-step inquiry: First . . . whether the state has deprived a person of a liberty or property interest; [second,] . . . whether the procedures relative to that deprivation were constitutionally sufficient." Welch v. Thompson, 20 F.3d 636, 639 (5th Cir. 1994) (citing Ky. Dep't of Corrs. v. Thompson, 490 U.S. 454, 460, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989)); see also Coleman v. Dretke, 395 F.3d 216, 221 (5th Cir. 2004). The Bill of Rights may, in at least some circumstances, serve as a source of protected liberty interests. See, e.g., United States v. Rehlander, 666 F.3d 45, 48 (1st Cir. 2012); Doe I v. Evanchick, 355 F. Supp. 3d 197, 216-17 (E.D. Pa. 2019), aff'd sub nom. Doe I v. Governor of Pa., 977 F.3d 270 (3d Cir. 2020); Shelby v. City of El Paso, No. EP-12-CV-0200-DCG, 2013 WL 12086210, at *7 (W.D. Tex. June 5, 2013), aff'd, 577 F. App'x 327 (5th Cir. 2014).
Tohme contends that the Government deprived him of a liberty interest by depriving him of his Second Amendment rights. Mot. 15. But in rejecting his Bruen challenge to the constitutionality of § 922(n), the Court has concluded that Tohme does not have a Second Amendment right to receive ammunition while under indictment. In that sense, Tohme's case resembles Richardson v. Texas Secretary of State, 978 F.3d 220 (5th Cir. 2020). There, the Fifth Circuit held that the plaintiffs lacked a liberty interest in the right to vote by mail, in part because the state statute on which they relied as the source of their liberty interest had in fact denied them the right to vote by mail under their particular circumstances. Id. at 224-25, 232 ("It would 'stretch the concept too far to suggest that a person is deprived of liberty' when the Court has said that he has no right to the object of his alleged liberty interest.") (quoting Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 572, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) (cleaned up)).
The Seventh Circuit has applied these principles to a liberty interest derived from the Second Amendment. See Culp v. Raoul, 921 F.3d 646, 658 (7th Cir. 2019). The court held that when "[t]here has been no Second Amendment . . . violation, and [ ] without any authority for the[ ] proposition that the Due Process Clause independently confers" a right to bear arms, a party "cannot show that they have been deprived of a liberty interest." Id. (citing Swarthout v. Cooke, 562 U.S. 216, 219, 131 S.Ct. 859, 178 L.Ed.2d 732 (2011)). The Court finds the Seventh Circuit's reasoning to be persuasive and consistent with broader procedural due process principles established by the Fifth Circuit. Compare id., with Richardson, 978 F.3d at 232. Because Tohme does not have a Second Amendment right to receive ammunition while under indictment, he does not have a protected liberty interest in that same conduct. See Culp, 921 F.3d at 658. Therefore, his procedural due process claim is unavailing. See id.
IV. CONCLUSION
For the reasons above, Defendant's Motion, ECF No. 27, is DENIED.
SO ORDERED.