Opinion
3:23-cr-00069-TMB-KFR
01-11-2024
UNITED STATES OF AMERICA, Plaintiff, v. SAMSON COSTIGAN, Defendant.
REPORT AND RECOMMENDATION TO DENY MOTION TO DISMISS
KYLE F. REARDON, United States Magistrate Judge
Before the Court is a Motion to Dismiss (hereinafter “Motion”) filed by Defendant Samson Costigan, requesting dismissal of the Indictment on Second Amendment grounds. The government opposes the Motion. Oral argument was not requested and would not assist the Court. Because the Court is bound by Ninth Circuit precedent holding that the statute under which Defendant has been charged is constitutional, the Court recommends that the Motion be DENIED.
Doc. 24.
Doc. 25.
I. BACKGROUND
On August 17, 2023, Defendant was indicted by grand jury on one count of Felon in Possession of Firearms and Ammunition, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(8). The Indictment alleges that on or about June 5, 2023, Defendant was in possession of three firearms and two types of ammunition, despite knowing that he “had been convicted of a crime punishable by imprisonment for a term exceeding one year.” The Indictment further alleges that Defendant has a prior felony conviction, specifically a 2022 state conviction for manslaughter.
Doc. 2.
Id. at 1-2; see also 18 U.S.C. § 922(g)(1).
Doc. 2 at 2.
On December 4, 2023, Defendant filed the Motion, arguing that the count alleged against him should be dismissed pursuant to New York State Rifle & Pistol Association, Inc. v. Bruen. Defendant maintains that pre-Bruen Ninth Circuit precedent, which consistently upheld the validity of § 922(g)(1), is “no longer good law” and therefore no longer controls the issue of § 922(g)(1)'s constitutionality.Defendant then turns to Bruen's “history-and-text” standard for determining whether a gun regulation comports with the Second Amendment and argues that: (1) he and his alleged conduct are protected by Second Amendment; and (2) there is no American historical tradition prohibiting convicted felons from possessing firearms. As a result, Defendant argues, § 922(g)(1) unconstitutionally burdens his Second Amendment right to keep arms.
597 U.S. 1 (2022). '
Doc. 24 at 9.
Id. at 11-33.
The Court notes that Defendant asserts both a facial and an as-applied challenge to § 922(g)(1). There appears to be little difference between these challenges, as Defendant's sole argument is that § 922(g)(1) is unconstitutional in relation to his possession of firearms while being a felon. Defendant does not discuss his particular circumstances beyond acknowledging the Indictment's allegation that a manslaughter conviction was the felony that subjected him to § 922(g)(1)'s firearms possession ban. Doc. 24 at 1-2. In other words, Defendant does not argue that any other specific facts in this case, such as those underlying his prior felony conviction, render § 922(g)(1) unconstitutional as to him. The Court therefore construes Defendant's as-applied challenge, to the extent he is truly mounting one, as differing from his facial challenge only with respect to the fact of his manslaughter conviction. This difference has no bearing on the Court's analysis or recommended disposition.
The government opposes the Motion, arguing that Bruen did not overturn Ninth Circuit precedent upholding § 922(g)(1). Even if it did, the government contends, application of the Bruen standard shows that § 922(g)(1) does not violate the Second Amendment. The government therefore urges the Court to decline to dismiss the Indictment.
Doc. 25 at 6-7.
Id. at 8-19.
Id. at 21.
II. LEGAL STANDARD
A party may bring a pretrial motion to raise “any defense, objection, or request . . . that the court can determine without a trial on the merits.” Pursuant to this rule, a defendant may move to dismiss a “defective” indictment. Dismissal is proper when an indictment is “sought under a statute that is unconstitutional on its face or as applied.”
See United States v. Mayer, 503 F.3d 740, 747 (9th Cir. 2007).
Id.
III. DISCUSSION
The Second Amendment reads: “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 first U.S. Supreme Court case to undertake an “in-depth examination of the Second Amendment” was District of Columbia v. Heller. In Heller, the Supreme Court concluded that a District of Columbia regulation banning handgun possession in the home violated the Second Amendment, explaining that the right to keep and bear arms is an individual right held by the people without regard to any militia service. In so holding, the Supreme Court clarified that “nothing in [its] opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons.” The Supreme Court further emphasized that these prohibitions were “presumptively lawful.” Two years later, in McDonald ' v. City of Chicago, the Supreme Court “repeat[ed] [its] assurances” that Heller “did not cast doubt on such longstanding regulatory measures as prohibitions on the possession of firearms by felons.”
U.S. Const. amend. II.
554 U.S. 570, 635 (2008).
Id.
Id. at 626.
Id. at 626 n.26.
561 U.S. 742, 786 (2010).
The Ninth Circuit has relied on Heller and McDonald in answering the same question Defendant presents here. In United States v. Vongxay, the Ninth Circuit held that § 922(g)(1) “does not violate the Second Amendment as it applies to [the defendant], a convicted felon.” The court observed that Heller categorized longstanding prohibitions on the possession of firearms by felons as “presumptively lawful regulatory measures,” and declared that “[n]othing in Heller can be read legitimately to cast doubt on the constitutionality of § 922(g)(1). Moreover, the court squarely rejected the defendant's argument that Heller's language about firearm-possession bans for convicted felons was non-binding dicta, explaining that this language was “integral” to Heller in limiting that decision's scope. In several subsequent decisions, the Ninth Circuit continued to affirm the validity of § 922(g)(1) on similar grounds.
594 F.3d 1111, 1118 (9th Cir. 2010).
Id. at 1115 (quoting Heller, 554 U.S. at 626 n.26).
Id.
Van Der Hule v. Holder, 759 F.3d 1043, 1051 (9th Cir. 2014) (“We addressed whether § 922(g)(1) violates the Second Amendment in [Vongxay] and determined that it did not. . . . We see no reason to change our view now.”); United States v. Phillips, 827 F.3d 1171, 1175 (9th Cir. 2016) (stating that the court was required to “assum[e] the propriety of felon firearm bans . . . under Supreme Court precedent and [its] own”); United States v. Torres, 789 Fed. App'x 655, 657 (9th Cir. 2020) (noting that the court was still “bound under Vongxay and Heller to assume propriety of felon firearm bans”).
Defendant argues that Vongxay is no longer controlling law for two reasons: (1) Vongxay's reading of Heller is “incompatible with Bruen, which has repudiated any reliance on Heller's list of ‘presumptively lawful' exceptions to uphold felon disarmament statutes;” and (2) Vongxay “relied on a line of cases upholding felon disarmament laws under means-end scrutiny,” an analytical approach that Bruen rebuked. The Court disagrees and instead joins the large number of district courts within the Ninth Circuit, including in the District of Alaska, in determining that Bruen did not overturn Vongxay's holding that § 922(g)(1) does not violate the Second Amendment.
Doc. 24 at 8-9.
See, e.g., United States v. Delpriore, 634 F.Supp.3d 654 (D. Alaska 2022); United States v. Roberts, No. 3:23-cr-00057-TMB-KFR-1, 2024 WL 50889 (D. Alaska Jan. 4, 2024); United States v. Filoialii, No. 3:21-cr-00053-JMK, 2023 WL 5832153 (D. Alaska Sept. 8, 2023); United States v. Owens, N o. 3:23-cr-00026-SLG-KFR, 2023 WL 5291341 (D. Alaska Aug. 17, 2023); United States v. Jackson, 656 F.Supp.3d 1239 (W.D. Wash. 2023); United States v. Serrano, 651 F.Supp.3d 1192 (S.D. Cal. 2023); United States v. Hunt, - F.Supp.3d -, 2023 WL 6439410 (D. Or. 2023); United States v. Gamble, - F.Supp.3d -, 2023 WL 6460665 (D. Nev. 2023); United States v. Hill, 629 F.Supp.3d 1027 (C.D. Cal. 2022); United States v. Butts, 637 F.Supp.3d 1134 (D. Mont. 2022); United States v. Yates, No. 23-cr-0031-AMO-1, 2024 WL 69072 (N.D. Cal. Jan. 5, 2024); United States v. Page, No. CR 23-06-H-BMM, 2023 WL 8702081 (D. Mont. Dec. 15, 2023); United States v. Estrada, No. 1:22-cr-00256-BLW, 2023 WL 4181325 (D. Idaho June 26, 2023); United States v. Guthery, No. 2:22-cr-00173-KJM, 2023 WL 2696824 (E.D. Cal. Mar. 29, 2023); United States v. Chatman, Nos. 22-cr-00453-CRB-1 & 14-cr-00552-CRB-1, 2023 WL 3509699 (N.D. Cal. May 16, 2023).
To show that Ninth Circuit precedent has been “effectively overruled,” a party must demonstrate that “the reasoning or theory of [the] prior circuit authority is clearly irreconcilable with the reasoning or theory of intervening higher authority.” “The clearly irreconcilable requirement is a high standard. . . . [I]t is not enough for there to be some tension between the intervening higher authority and prior circuit precedent, or for the intervening higher authority to cast doubt on the prior circuit precedent.” Rather, if a court “can apply . . . prior circuit precedent without running afoul of the intervening authority it must do so.”
Miller v. Gammie, 335 F.3d 889, 890, 893 (9th Cir. 2003) (en banc).
Close v. Sotheby's, Inc., 894 F.3d 1061, 1073 (9th Cir. 2018) (quoting United States v. Robertson, 875 F.3d 1281, 1291 (9th Cir. 2017)).
Id.
Defendant has not shown that Vongxay's recognition of § 922(g)(1)'s constitutionality is clearly irreconcilable with Bruen. “Bruen created a new standard to evaluate whether modern firearms regulations comport with the Second Amendment, [but] . . . did not question the constitutionality of regulations disarming felons.” To the contrary, the majority opinion in Bruen “recognized the continuing validity” of these “longstanding” laws and emphasized that its holding was “in keeping with Heller.” Several of the separate opinions similarly recognized Bruen's consistency with Heller and McDonald. In a concurrence, Justice Kavanaugh-joined by Chief Justice Roberts-approvingly quoted McDonald to reiterate that the Supreme Court's Second Amendment jurisprudence should not be interpreted to “cast doubt on [the] longstanding prohibitions on the possession of firearms by felons.” Justice Breyer-joined by Justices Kagan and Sotomayor in dissent-agreed with Justice Kavanaugh in “understanding] [Bruen] . . . to cast no doubt on [this] aspect of Heller's holding.” Justice Alito likewise indicated in his concurrence that Bruen had not “disturbed anything that [the Supreme Court] said in Heller or McDonald . . . about restrictions that may be imposed on the possession or carrying of guns.” Considerable evidence thus supports the notion that Bruen preserved Heller and McDonald's endorsements of the validity of felon disarmament laws. Accordingly, the Court disagrees with Defendant that Vongxay's reliance on these statements renders that case incompatible with Bruen.
United States v. Endsley, No. 3:21-cr-00058-TMB-MMS-1, 2023 WL 6476389, at *3 (D. Alaska Oct. 5, 2023).
Roberts, 2024 WL 50889 at *5 (quoting Bruen, 597 U.S. at 17).
Bruen, 597 U.S. at 81 (Kavanaugh, J., concurring).
Id. at 129 (Breyer, J., dissenting).
Id. at 72 (Alito, J., concurring).
Furthermore, to the extent that Vongxay does not follow the precise analysis articulated in Bruen, this inconsistency does not demonstrate that the two cases are clearly irreconcilable. In setting forth a new standard for evaluating Second Amendment challenges, Bruen rejected the widely accepted two-step framework the Courts of Appeals had previously used. At the first step, the government had an opportunity to establish the challenged law regulates activity falling outside the' scope of the right as originally understood. Courts then ascertained the original scope of the right based on its historical meaning. If the government could prove the regulated conduct fell beyond the Second Amendment's original scope, the analysis stopped there because the regulated activity was “categorically unprotected.” But if the historical evidence was inconclusive or “suggest[ed] the regulated activity was not categorically unprotected,” the analysis proceeded to step two. At the second step, courts analyzed “how close the law c[ame] to the core of the Second Amendment right and the severity of the law's burden on that right.”If a “core” Second Amendment right was burdened, courts applied strict scrutiny to determine whether the law was “narrowly tailored to achieve a compelling governmental interest.” Otherwise, courts applied intermediate scrutiny and considered whether the regulation was “substantially related to the achievement of an important governmental interest.”
Id. at 18 (citing Kanter v. Barr, 919 F.3d 437, 441 (7th Cir. 2019)).
Id. (citing United States v. Focia, 869 F.3d 1269, 1285 (11th Cir. 2017)).
Id. (quoting United States v. Greeno, 679 F.3d 510, 518 (6th Cir. 2012)) (internal quotation marks omitted).
Id. (quoting Kanter, 919 F.3d at 441) (internal quotation marks omitted).
Id. (quoting Kanter, 919 F.3d at 441) (internal quotation marks omitted).
Id. at 18-19 (quoting Kolbe v. Hogan, 849 F.3d 114, 133 (4th Cir. 2017)) (internal quotation marks omitted).
Id. at 19 (quoting Kachalsky v. County of Westchester, 701 F.3d 81, 96 (2d Cir. 2012)).
Bruen rejected the second half of this approach, which it deemed “one step too many” because Heller and McDonald did not support applying means-end scrutiny in a Second Amendment context. The Supreme Court set forth a new standard, under which a court must first determine whether “the Second Amendment's plain text covers an individual's conduct.” If it does not, then the regulation is valid and the analysis ends there. But if the Second Amendment's text covers the conduct at issue, then the conduct is “presumptively protect[ed],” and the court must then determine whether the government has met its burden to “justify its regulation by demonstrating that it is consistent with this Nation's historical tradition of firearm regulation.” “Only if a firearm regulation is consistent with this Nation's historical traditional may a court conclude that the individual's conduct falls outside the Second Amendment's [protection].”
Id.
Id. at 24.
Id.
Id.
Vongxay did not apply the means-end scrutiny that Bruen now forbids. Rather, in addition to relying on Heller, the Ninth Circuit examined the Second Amendment's text and historical understanding. The Ninth Circuit observed that “denying felons the right to bear arms is consistent with the explicit purpose of the Second Amendment” and noted that it had identified analogous “historical gun restrictions” that supported § 922(g)(1)'s constitutionality. Although Vongxay did not fully engage in the core historical analysis that Bruen now requires and acknowledged that “the historical question ha[d] not been definitively resolved,”“that limited tension between Vongxay and Bruen is not enough to find that Bruen effectively overruled Vongxay.”
Vongxay, 594 F.3d at 1116-17; see also id. at 1118 (“[M]ost scholars of the Second Amendment agree that the right to bear arms was ‘inextricably . . . tied to' the concept of a ‘virtuous citizen[ry]' that would protect society through ‘defensive use of arms against criminals, oppressive officials, and foreign enemies alike,' and that ‘the right to bear arms does not preclude laws disarming the unvirtuous citizens (i.e. criminals).'” (quoting Don. B. Kates, Jr., The Second Amendment: A Dialogue, 49 LAW & CONTEMP. PROBS. 143, 146 (1986))).
Id. at 1118.
United States v. Jackson, 656 F.Supp.3d 1239, 1243 (W.D. Wash. 2023) (internal quotation marks omitted); see also supra note 27 (listing examples of district courts within the Ninth Circuit that have addressed § 922(g)(1) and determined that Bruen did not overrule Vongxay); see also Vincent v. Garland, 80 F.4th 1197, 1199-1202 (10th Cir. 2023) (determining that Bruen did not abrogate circuit precedent that relied on Heller's language about “longstanding” felon-in-possession restrictions to uphold § 922(g)(1), explaining that Bruen “did not indisputably and pellucidly abrogate” that precedent); United States v. Jackson, 69 F.3th 495, 502, 505 n.3 (8th Cir. 2023) (concluding that § 922(g)(1) is constitutional based on historical tradition of legislatures “employ[ing] status-based restrictions to disqualify categories of persons from possessing firearms,” and opining that in Heller, the Supreme Court “presumed that . . . regulations [forbidding the possession of firearms by felons] are constitutional because they are constitutional,” though the Supreme Court “termed the conclusion presumptive because the specific regulations were not at issue in Heller”); United States v. Jones, 88 F.4th 571, 574 (5th Cir. 2023) (rejecting argument that district court committed plain error by determining § 922(g)(1) is constitutional and compiling intra-circuit cases holding the same).
In sum, the Court remains bound by Vongxay because it is possible to apply that case's reasoning consistently with Bruen. Though Defendant requests the Court to examine the history of felon-in-possession laws, the Court declines to do so because it would not change the Court's position that Vongxay commands a ruling that § 922(g)(1) is constitutional.
IV. CONCLUSION
The Court concludes that § 922(g)(1) remains constitutional in the wake of Bruen. Therefore, the Court recommends that Defendant's Motion to Dismiss at Docket 24 be DENIED.
NOTICE OF RIGHT TO OBJECT
Under 28 U.S.C. § 636(b)(1), a district court may designate a magistrate judge to hear and determine matters pending before the Court. For dispositive matters, a magistrate judge reports findings of fact and provides recommendations to the presiding district court judge. A district court judge may accept, reject, or modify, in whole or in part, the magistrate judge's findings and recommendations.
Id. § 636(b)(1)(C).
A party may file written objections to the magistrate judge's findings and recommendations within fourteen (14) days. A response to the objections may be filed within seven (7) days after any objection is filed. Objections and responses are limited to five (5) pages in length and should not merely reargue positions previously presented. Rather, objections and responses should specifically identify the findings or recommendations objected to, the basis of the objection, and any legal authority in support. Reports and recommendations are not appealable orders. Any notice of appeal pursuant to Fed. R. App. P. 4(a)(1) should not be filed until entry of the district court's judgment.
Id.; L.M.J.R. 7(a)(1).
L.M.J. R. 7(a)(2).
See Hilliard v. Kincheloe, 796 F.2d 308 (9th Cir. 1986).