Opinion
22-00139-07-CR-W-BCW
05-22-2024
UNITED STATES OF AMERICA, Plaintiff, v. STEPHEN MANNING, Defendant.
REPORT AND RECOMMENDATION
W. BRIAN GADDY, UNITED STATES MAGISTRATE JUDGE.
Pending is Defendant Stephen Manning's Motion to Dismiss Count IX in the Indictment. Doc. 383.On March 15, 2024, the Government filed Suggestions in Opposition to Defendant's motion. Doc. 385. On March 24, 2024, Defendant filed his Reply. Doc. 388. For the reasons set forth below, the undersigned recommends Defendant's motion be DENIED.
Defendant's motion refers to “the indictment,” but he specifically identifies the superseding indictment (Doc. 236). See Doc. 383 at 2.
I. BACKGROUND
On April 5, 2023, the grand jury returned a superseding indictment charging Defendant and several others with conspiracy to distribute over five kilograms of cocaine, over 500 grams of methamphetamine, and fentanyl in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), (b)(1)(C), and 846 (Count One). Doc. 236 at 3-4. The grand jury also charged Defendant with being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (Count Nine). Id. at 56. Defendant moves to dismiss Count IX on the grounds that section 922(g)(1) violates the Second Amendment to the United States constitution, both facially and as applied. Doc. 383.
II. DISCUSSION
The Second Amendment provides “[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. Defendant is charged with being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1), which states:
It shall be unlawful for any person - (1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year . . . to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.18 U.S.C. § 922(g)(1).
Defendant contends section 922(g)(1) is unconstitutional based on the United States Supreme Court's decision in New York Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022). Doc. 383 at 1-2.He contends the statute is unconstitutional on its face and as applied. Id. at 2-4. The Government argues Supreme Court and Eighth Circuit precedent establishes section 922(g)(1)'s prohibition on felons bearing arms, nonviolent or otherwise, is constitutional. Doc. 385 at 2-6.
In arguing his motion, Defendant assumes and does not concede that he has been convicted of felony offenses. Doc. 838 at 2.
A. Relevant Precedent
In 2008, the Supreme Court decided District of Columbia v. Heller, which was its “first indepth examination of the Second Amendment.” 554 U.S. 570, 635 (2008). Therein, the Court found certain District of Columbia ordinances banning handguns to be unconstitutional under the Second Amendment. Id. But the Supreme Court also clarified the Second Amendment right to possess firearms belongs to “law-abiding citizens” and “is not unlimited.” Id. at 595, 635. The Court declared “nothing in [the Heller] opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons ....” Id. at 626. The Court noted such a prohibition was “presumptively lawful.” Id. at 627 n.26.
In 2010, the Supreme Court decided McDonald v. City of Chicago, 561 U.S. 742 (2010). In finding the Second Amendment is fully applicable to the States through the Fourteenth Amendment, the Court in McDonald repeated Heller's assurances. Id. at 786.
We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as “prohibitions on the possession of firearms by felons and the mentally ill,” “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” We repeat those assurances here.Id. (quoting Heller, 554 U.S. at 626-27).
In 2022, the Supreme Court decided Bruen, which forms the basis of Defendant's motion. In Bruen, the Court found a New York gun licensing law, which required a showing of a “special need for self-defense” to obtain a permit to carry a gun in public, was unconstitutional. 597 U.S. at 11. In reaching its decision, the Court stated, “the government must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to bear arms.” Id. at 19, 24. At the same time, the Court reiterated its holdings in Heller and McDonald, noting “the right secured by the Second Amendment is not unlimited” and referring to the right of “law-abiding” citizens to use arms for self-defense.” Id. at 21, 26, 29.
More specifically, Justice Kavanaugh, joined by Chief Justice Roberts, stated “the Second Amendment allows a ‘variety' of gun regulations.” Bruen, 597 U.S. at 81 (Kavanaugh, J., concurring). He also echoed the Court's prior statements in Heller and McDonald: “[N]othing in our opinions should be taken to cast doubt on longstanding prohibitions on possession of firearms by felons and the mental ill ....” Id. (citations omitted). Similarly, Justice Alito proclaimed Bruen does not “disturb[ ] anything that we said in Heller or McDonald . . . about restrictions that may be imposed on the possession or carrying of guns.” Id. at 72 (Alito, J., concurring). Finally, Justice Breyer, joined by Justices Kagan and Sotomayor, stated the Bruen opinion “cast[s] no doubt on” Heller indicating certain firearm regulations - including the prohibition on felons possessing firearms - are "presumptively lawful.” Id. at 129 (Breyer, J., dissenting).
Both before and after Bruen, the Eighth Circuit has concluded section 922(g)(1) is constitutional on its face. See United States v. Cunningham, 70 F.4th 502, 506 (8th Cir. 2023); United States v. Woolsey, 759 F.3d 905, 909 (8th Cir. 2014); see also United States v. Doss, Case No. 22 3662, 2023 WL 8299064, at *1 (8th Cir. Dec. 1, 2023) (recognizing the Court has rejected facial challenges to section 922(g)(1)). In addition, since Bruen, the Eighth Circuit has determined section 922(g)(1) is constitutional as applied to convicted felons, regardless of the type of underlying conviction, because section 922(g)(1) “is consistent with the Nation's historical tradition of firearm regulation.” United States v. Jackson, 69 F.4th 495, 502 (8th Cir. 2023) (quoting Bruen, 597 U.S. at 24); see also Cunningham, 70 F.4th at 506. The Court further stated, “Congress acted within the historical tradition when it enacted § 922(g)(1) and the prohibition on possession of firearms by felons.” Jackson, 69 F.4th at 505. The Eighth Circuit also held there is no need for “felony-by-felony” determinations regarding the constitutionality of section 922(g)(1) as applied to a particular defendant. Cunningham, 70 F.4th at 506; Jackson, 69 F.4th at 501-02.
B. Defendant's Facial Challenge
Defendant argues section 922(g)(1) is unconstitutional on its face. Doc. 383 at 3-4. A facial challenge claims a law is unconstitutional in all its applications. United States v. Veasley, 98 F.4th 906, 909 (8th Cir. 2024) (quoting Bucklew v. Precythe, 587 U.S. 119, 138 (2019)). For a law to be facially unconstitutional, there must be no set of circumstances under which the challenged statute would be valid. Id. (citation omitted). “If some applications [of the statute] are constitutional, then facially speaking, the statute is too.” Id. (citations omitted).
As noted above, facial challenges of section 922(g)(1)'s constitutionality have been unsuccessful in the Eighth Circuit. Cunningham, 70 F.4th at 506; Jackson, 69 F.4th at 502. Defendant acknowledges in his motion that Jackson is controlling authority. Doc. 383 at 14. He contends, however, that “Jackson applied Bruen incorrectly, misinterpreted and misrepresented the historical record, and was wrongly decided.” Doc. 383 at 2. The Eighth Circuit's conclusion in Jackson and other recent decisions that section 922(g)(1) is facially constitutional remains binding authority. This Court cannot depart from the Eighth Circuit's controlling precedent “until overruled by [the] court en banc, by the Supreme Court, or by Congress.” M.M. ex rel. L.R. v. Special Sch. Dist. No. 1, 512 F.3d 455, 459 (8th Cir. 2008). Applying Eighth Circuit precedence, the undersigned recommends the Court find section 922(g)(1) is constitutional on its face and deny Defendant's facial challenge to the statute.
Such challenges have also been unsuccessful in this Court. See, e.g., United States v. Srader, No. 22-00140-CR-W-HFS, 2024 WL 1308122, at *1-2 (W.D. Mo. Mar. 27, 2024); United States v. Miller, No. 22-00080-CR-W-BCW, 2023 WL 8355439, at *3-4 (W.D. Mo. Dec. 1, 2023); United States v. Rose, No. 22-00120-01-CR-W-HFS, 2023 WL 5280579, at *2-6 (W.D. Mo. July 31, 2023), report and recommendation adopted, 2023 WL 5281691 (W.D. Mo. Aug. 16, 2023); United States v. Robinson, No. 22-00070-CR-W-BP, 2022 WL 18356667, at *2-3 (W.D. Mo. Dec. 1, 2022), report and recommendation adopted, 2023 WL 214163 (W.D. Mo. Jan. 17, 2023); United States v. Good, No. 21-00180-CR-W-HFS, 2022 WL 18107183, at *4-7 (W.D. Mo. Nov. 18, 2022), report and recommendation adopted, 2023 WL 25725 (W.D. Mo. Jan. 3, 2023); United States v. Jones, No. 20-00354-CR-W-HFS, 2022 WL 17331287, at *3-5 (W.D. Mo. Oct. 19, 2022), report and recommendation adopted, 2022 WL 17327498 (W.D. Mo. Nov. 29, 2022).
C. Defendant's As-Applied Challenge
An as applied challenge requires the court “to examine a statute based on a defendant's individual circumstances.” Veasley, 98 F.4th at 909. “The as-applied challenger does not contend that a law is unconstitutional as written but that its application to a particular person under particular circumstances deprived that person of a constitutional right.” United States v. Adams, 914 F.3d 602, 605 (8th Cir. 2019) (citation and internal quotations omitted). The Eighth Circuit has held section 922(g)(1) is constitutional as applied to violent and non-violent felons, and it has reiterated “there is no need for felony-by-felony litigation regarding the constitutionality of § 922(g)(1).” See United States v. Cameron, 99 F.4th 432, 435-36 (8th Cir. 2024) (holding section 922(g)(1)'s prohibition of convicted felons possessing ammunition constitutional as applied to a defendant with prior felony convictions involving firearms, domestic violence, child endangerment, and attempted burglary); Cunningham, 70 F.4th at 506 (concluding section 922(g)(1) constitutional as applied to a defendant with two non-violent felony convictions); Jackson, 69 F.4th at 501-02 (holding section 922(g)(1) constitutional as applied to a defendant with non-violent felony drug convictions). As recently as May 16, 2024, the Eighth Circuit continued to recognize the “[t]he longstanding prohibition on possession of firearms by felons is constitutional” and that there is no “need for felony-by-felony litigation regarding the constitutionality of § 922(g)(1).” United States v. Lindsey, Case No. 23-2871, 2024 WL 2207445, at *1 (8th Cir. May 16, 2024).
Here, Defendant contends section 922(g)(1) is unconstitutional as applied to him. Doc. 383 at 3. His arguments are without merit and are foreclosed by Eighth Circuit precedent. Further, he fails to present a cogent argument as to why section 922(g)(1), when applied to him, is unconstitutional.For these reasons, the undersigned recommends the Court find section 922(g)(1) constitutional as applied and deny Defendant's as applied challenge.
Even if an as-applied challenge were allowed, the Court would observe that Defendant has prior convictions for crimes of violence, including first-degree robbery, armed criminal action, assault, and resisting arrest. Doc. 276 at 3; Doc. 383 at 2.
III. CONCLUSION
Based on the foregoing, it is
RECOMMENDED that the Court, after making an independent review of the record and applicable law, enter an order denying Defendant's Motion to Dismiss Count IX in the [Superseding] Indictment (Doc. 383).
Counsel are reminded they have fourteen days in which to file objections to this Report and Recommendation. Failure to file written objections to this Report and Recommendation within fourteen days from the date of its service shall bar an aggrieved party from attacking the Report and Recommendation before the assigned United States District Judge. 28 U.S.C. § 636(b)(1).
IT IS SO ORDERED.