Opinion
No. 04 Cr. 903 (GEL).
July 26, 2005
OPINION AND ORDER
Defendant Alton Campbell, charged with possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g), moves for various relief, including dismissal of the indictment and suppression of evidence. The motions will be denied.
I Dismissal of Indictment
Campbell argues that the indictment should be dismissed because the statute under which he is charged is beyond Congress's commerce power and violates the Second and Tenth Amendments. These arguments are foreclosed by precedent.
The Second Circuit has rejected the claim that the federal prohibition of possession by felons of firearms that have moved in interstate commerce exceeds Congress's power to regulate interstate commerce. United States v. Sorrentino, 72 F.3d 294 (2d Cir. 1995). The Court of Appeals has subsequently rebuffed Campbell's argument that this precedent is undermined by the Supreme Court's decisions in Jones v. United States, 529 U.S. 848 (2000) (construing 18 U.S.C. § 844(i) narrowly to avoid potentially unconstitutional application), and United States v. Morrison, 529 U.S. 598 (2000) (invalidating civil remedy provision of Violence Against Women Act). United States v. Gaines, 295 F.3d 293 (2d Cir. 2002);United States v. Santiago, 238 F.3d 213 (2d Cir. 2001). As Campbell candidly admits, every circuit court that has had occasion to pass on the issue has ruled the same way, without a single dissenting vote. (D. Mem. 6-8.) Although Campbell is entitled to raise the issue to preserve it for potential presentation to higher courts in the unlikely event the law should change, his argument is of no force here, for this Court must follow the binding rulings of the Second Circuit.
Campbell's Tenth Amendment argument is no more persuasive. He correctly notes that the Supreme Court held in Printz v. United States, 521 U.S. 898, 935 (1997), that Congress may not "command the States' officers, or those of their political subdivisions, to administer or enforce a federal regulatory program." But § 922(g) contains no such command. That this federal prosecution is based on evidence gathered by local law enforcement officers and voluntarily provided to federal prosecutors does not remotely conflict with the principle articulated and applied in Printz.
Nor does the statute trench on rights protected by the Second Amendment. Whatever the merit of the abstract academic arguments cited by Campbell about the theoretical nature of those rights, in concrete reality the Supreme Court has upheld the constitutionality of federal statutes prohibiting possession of firearms by convicted felons. Lewis v. United States, 445 U.S. 55 (1980). Lewis addressed a Fifth Amendment Equal Protection challenge to the firearm regulations, not a Second Amendment challenge. Nonetheless, the Court noted that "legislative restrictions on the use of firearms are neither based upon constitutionally suspect criteria, nor do they trench upon any constitutionally protected liberties," citing various Courts of Appeals decisions upholding firearm regulations, including § 922(g), against Second Amendment challenges. Lewis, 445 U.S. at 65 n. 8. Whether the "right to bear arms" protected by the Second Amendment is vested in citizens as individuals or as potential militiamen, neither courts nor academics nor any other authorities have contended that the right is vested in felons. Even Campbell admits as much. (D. Reply 5-6, citing dicta in United States v. Emerson, 270 F.3d 203, 261, 260 n. 61, 227 n. 21 (5th Cir. 2001).)
Finally, in addition to his constitutional arguments, Campbell argues that § 922(g) does not apply to "inoperable" firearms. The argument is premature. The indictment, which charges the defendant in the very terms used in the statute and does not refer to an inoperable firearm, is facially valid. Campbell's argument addresses the sufficiency of the evidence he anticipates will be introduced at trial, and is thus a matter to be raised by a motion for judgment of acquittal at the close of the Government's case. In any event, his argument without merit. The Second Circuit has recently rejected it, joining every other appellate court that has considered the issue. United States v. Rivera, ___ F.3d ___, 2005 WL 1663282 (2d Cir. July 18, 2005).
Accordingly, the motion to dismiss the indictment is denied.
II. Suppression of Evidence
Campbell moves to suppress the firearm seized from him, and a statement taken from him after his arrest. Presumably, Campbell's objection to the statement derives from the contention that it was the fruit of an illegal arrest; he makes no argument that the statement was itself involuntary or that there was any illegality in the interrogation that produced it, and Campbell himself provides a copy of a waiver form, signed by him, on which he is advised of, and expressly waives, his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966). However, Campbell presents no argument that the seizure was unconstitutional, contending solely that because warrantless searches and seizures are presumptively unreasonable, the Government must demonstrate a lawful basis for the seizure and arrest. (D. Mem. 12.)
In fact, however, Campbell's own declaration goes a long way toward demonstrating the legality of the arrest and seizure. His unsworn, unsigned statement asserts, in its totality, that he was approached by a police officer who "demanded to know where a gun was, and when I did not comply, the officer said it was in my knapsack. . . . I then said it was in my front left pants pocket. The officer reached into this pocket and took out a gun." (Declaration of Alton Campbell, dated May 19, 2005.) The declaration itself demonstrates that the officer had probable cause to search Campbell's pocket, since Campbell admitted to carrying a concealed firearm (a violation of New York law, N.Y. Penal § 265.02(6)), and then to arrest him when the gun was found.
Under these circumstances, the only conceivable objection to the officer's conduct could be a claim (not specifically raised by Campbell) that the officer stopped Campbell without reasonable suspicion. However, Campbell does not assert that he was forcibly seized by the officer at all, only that the officer asked him a question, which does not in itself constitute a seizure. Florida v. Bostick, 501 U.S. 429, 434 (1991). Even assuming that the officer stopped Campbell before questioning him, Campbell describes at most a minimal seizure requiring only a reasonable suspicion. Terry v. Ohio, 392 U.S. 1 (1968). Indeed, it is clear from Campbell's account that the intrusion was minimal; the officer did not even frisk Campbell until Campbell admitted that he possessed a gun.
The Government presents evidence, and Campbell does not dispute, that two 911 calls on the evening of his arrest, at 9:08 p.m., reported a black man with a red T-shirt and braided hair who had a firearm either "out" or "inside [a] backpac[k]" at E. 167th Street and Grand Concourse. Campbell was arrested at 9:40 p.m. at E. 172d Street and Grand Concourse. A photograph taken upon his arrest depicts him as a black man with braided hair wearing a red T-shirt or sweatshirt, and his declaration indicates that he was carrying a "knapsack." Under those circumstances, the officer plainly had sufficient reasonable suspicion to stop Campbell and ask if he was carrying a gun.
Nothing in Campbell's declaration raises an issue of fact that requires an evidentiary hearing. On the undisputed facts, the officer legally asked Campbell if he had a gun, and Campbell confessed to having a gun in his pocket. The officer, thus provided with probable cause, searched the pocket and found the gun, which was therefore lawfully seized. Since the officer at that point was fully empowered to arrest Campbell, Campbell's later statement to the police was not the fruit of an unlawful arrest, and Campbell provides no other argument to justify its suppression. Accordingly, the motion to suppress the gun and the statement is denied.
III. Additional Relief
Campbell also submits a number of additional boilerplate requests for relief, without providing any supporting argument, authority, or factual predicate. To the extent he seeks permission to make additional discovery demands or make additional motions if further discovery provides a basis for the same, the motion is granted. To the extent he seeks an order directing the Government to provide discovery as required by law, the motion is denied as moot, since the Government represents that it has already done so, and Campbell provides no argument or assertion that it has failed in any respect to comply with its obligations. Finally, to the extent Campbell seeks to preclude the Government from cross-examining him with respect to prior convictions, and from using "similar act" evidence at trial, the motion is denied without prejudice as premature, as there is currently no indication that the Government seeks to do either, and certainly no indication that the Government plans to do so in a way that violates Rules 404(b) and 609, Fed.R.Evid., which expressly permit the use of such evidence for these purposes under various circumstances.
CONCLUSION
Accordingly, for the reasons stated above, defendant's motions are denied except to the limited extent stated above.
SO ORDERED.