Opinion
22-CR-00080-BCW
12-01-2023
UNITED STATES OF AMERICA, Plaintiff, v. ALONZO MILLER, Defendant.
REPORT & RECOMMENDATION TO DENY DEFENDANT'S MOTION TO DISMISS
Jill A. Morris, United States Magistrate Judge
Before the Court is Defendant's Motion to Dismiss the Felon in Possession Count, charging him under 18 U.S.C. § 922(g)(1). (Doc. 23) Defendant contends that, based on the Supreme Court's decision in New York State Rifle & Pistol Association, Inc. v. Bruen, 142 S.Ct. 2111 (2022), the statute under which he is charged is unconstitutional. (Doc. 23) For the following reasons, it is recommended that Defendant's motion be denied.
I. BACKGROUND
On April 5, 2022, the Grand Jury returned an Indictment charging Defendant with one count of being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). (Doc. 1) On August 4, 2023, Defendant filed the instant motion to dismiss. (Doc. 23) The Government filed its suggestions in opposition on August 18, 2023 (Doc. 24), and Defendant replied on September 1, 2023 (Doc. 27).
II. LEGAL ANALYSIS
Defendant asserts that the Indictment should be dismissed on grounds that 18 U.S.C. § 922(g)(1) violates the Second Amendment to the United States Constitution, both facially and as applied. (Doc. 23) Defendant concedes that he has felony convictions for the purposes of his motion. (Doc. 23, p. 1) Defendant argues, in relevant part:
Mr. Miller is a convicted felon who merely possessed a firearm while driving a vehicle. He did not use the firearm in connection with another crime. For the statute to be constitutional as applied to him, the government must establish, under New York State Rifle & Pistol Association, Inc. v. Bruen, 142 S.Ct. 2111, 2130 (2022), that there was a historical tradition of permanently banning similarly situated felons from possessing firearms under any circumstances. The government will not be able to meet its burden because there are no statutes from the Founding era that banned felons from possessing firearms. Thus, 18 U.S.C. § 922(g)(1) is unconstitutional as applied to Mr. Miller and on its face. This nation's history of firearm regulation does not include statutes distinctly similar or even analogous to § 922(g)(1). Bruen does not permit the government to cobble together disparate bits of the historical record prohibiting dissimilar groups... and extrapolate from that broad legislative authority to disarm categories of citizens who are not “law abiding,” do not “conform to societal norms,” or “present an unacceptable risk of dangerousness,” whatever those phrases might mean.(Doc. 23) The Government maintains: (1) the Indictment is facially sufficient; (2) Defendant's as-applied challenge is premature; (3) the Second Amendment does not extend to the possession of a gun by a felon; and (4) even assuming the Second Amendment protected such conduct, 18 U.S.C. 922(g)(1) would still be constitutional because the statute is consistent with the nation's long-standing tradition of disarming citizens who are not engaging in lawful activity or are otherwise law-abiding. (Doc. 24)
While Defendant raises both a facial and an as-applied challenge to 18 U.S.C. § 922(g)(1), both challenges appear to be based on the same argument: the statute is unconstitutional in all its applications and as applied to Defendant because the plain text of the Second Amendment does not prohibit felons from possessing firearms, and historically this nation did not prohibit felons- whether they would be deemed dangerous or non-dangerous-from possessing firearms in the founding era. (Docs. 23, 27) Following the United States Supreme Court's decision in Bruen, there have been numerous attempts by defendants facing charges under 18 U.S.C. § 922(g)(1) to dismiss these charges as unconstitutional.
The Court first considers Defendant's facial challenge to 18 U.S.C. § 922(g)(1). A facial challenge does not fail “merely because there is some conduct that falls within the provision's grasp.” Johnson v. United States, 576 U.S. 591, 602 (2015). Following the Supreme Court's decision in Johnson, a criminal defendant challenging the facial validity of a statute is no longer required to establish that “no set of circumstances exist[ed] under which the [statute] would be valid.” United States v. Bramer, 832 F.3d 908, 909-10 (8th Cir. 2016)(quoting United States v. Stephens, 594 F.3d 1033, 1037 (8th Cir. 2010)). Facial challenges to the constitutionality of 18 U.S.C. § 922(g)(1) following Bruen have been unsuccessful, both in this Courtand in other jurisdictions. The rationale underlying such decisions is that Bruen did not overrule the pertinent portions of District of Columbia v. Heller, 554 U.S. 570 (2008) and McDonald v. City of Chicago, 561 U.S. 742 (2010), which addressed prohibitions on the possession of firearms by felons. Specifically, the Supreme Court stated in Heller that “[a]lthough we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons.” 554 U.S. at 626. The Heller Court further described “longstanding prohibitions on the possession of firearms by felons” as “presumptively lawful.” Id. at 626-27, n.26. This principle was reaffirmed two years later in McDonald, wherein the Court stated: “We made clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as ‘prohibitions on the possession of firearms by felons' .... We repeat those assurances here.” 561 U.S. at 786 (internal citations omitted).
See, e.g., United States v. Rose, No. 22-00120-01-CR-W-HFS, 2023 WL 5280579 (W.D. Mo. July 31, 2023), report and recommendation adopted, No. 22-00120-CR-W-HFS, 2023 WL 5281691 (W.D. Mo. Aug. 16, 2023); United States v. Robinson, No. 4:22-CR-00070-BP, 2022 WL 18356667 (W.D. Mo. Dec. 1, 2022), report and recommendation adopted, No. 22-00070-01-CR-W-BP, 2023 WL 214163 (W.D. Mo. Jan. 17, 2023); United States v. Good, No. 21-00180-01-CR-W-HFS, 2022 WL 18107183 (W.D. Mo. Nov. 18, 2022), report and recommendation adopted, No. 21-00180-CR-W-HFS, 2023 WL 25725 (W.D. Mo. Jan. 3, 2023); United States v. Jones, No. 20-00354-01-CR-W-HFS, 2022 WL 17331287 (W.D. Mo. Oct. 19, 2022), report and recommendation adopted, No. 20-CR-00354-HFS, 2022 WL 17327498 (W.D. Mo. Nov. 29, 2022); United States v. Penn, Case No. 20-00266-01-CR-W-BP (W.D. Mo. Aug. 30, 2022).
United States v. Parker, No. 22-CR-4072-LTS-KEM, 2023 WL 3596453 (N.D. Iowa Apr. 25, 2023); United States v. Faust, No. 23-CR-2005-LTS-MAR, 2023 WL 4669028 (N.D. Iowa June 30, 2023), report and recommendation adopted, No. CR23-2005-LTS-MAR, 2023 WL 4626672 (N.D. Iowa July 19, 2023); United States v. Hammond, No. 422CR00177SHLHCA, 2023 WL 2319321 (S.D. Iowa Feb. 15, 2023); United States v. Butts, CR22-33-M-SWM, 2022 WL 16553037 (D. Mont. Oct. 31, 2022); United States v. Grant, No. 3:22-161-MGL-1, 2002 WL 16541138 (D.S.C. Oct. 28, 2022); United States v. Carrero, No. 2:22-cr-00030, 2022 WL 9348792, at *3 (D. Utah Oct. 14, 2022) (collecting cases); United States v. Riley, No. 1:22-cr-163 (RDA), 2022 WL 7610264, at *9 n.9 (E.D. Va. Oct. 13, 2022) (collecting cases); United States v. Price, No. 2:22-cr-00097, 2022 WL 6968457, at *7-*9 (S.D. W.Va. Oct. 12, 2022); United States v. King, 21-CR-255 (NSR), 2022 WL 5240928, at *5 (S.D.N.Y. Oct. 6, 2022); United States v. Charles, MO:22-CR-00154-DC, 2022 WL 4913900 (W.D. Tex. Oct. 3, 2022); United States v. Siddoway, Case No. 1:21-cr-00205-BLW, 2022 WL 4482739 (D. Idaho Sept. 27, 2022); United States v. Collette, MO:22-CR-00141-DC, 2022 WL 4476790 (W.D. Tex. Sept. 25, 2022); United States v. Hill, No. 21cr107 WQH, 2022 WL 4361917, at *2 (S.D. Cal. Sept. 20, 2022); United States v. Jackson, No. CR 21-51 (DWF/TNL), 2022 WL 4226229 (D. Minn. Sept. 13, 2022), aff'd, 69 F.4th 495 (8th Cir. 2023); United States v. Cockerham, Criminal No. 5:21-cr-6-DCB-FKB, 2022 WL 4229314, at *2 (S.D.Miss. Sept. 13, 2022); United States v. Harper, Case No. 21-CR-4085-LTS-KEM, 2022 WL 8288406 (N.D. Iowa Sept. 9, 2022), adopted by 2022 WL 4595060 (N.D. Iowa Sept. 30, 2022); United States v. Burrell, No. 21-20395, 2022 WL 4096865, at *3 (E.D. Mich. Sept. 7, 2022); United States v. Ingram, No. 0:18-557-MGL-3, 2022 WL 3691350, at *2 (D.S.C. Aug. 25, 2022).
The Bruen opinion, on which Defendant relies to support his assertion of unconstitutionality, is not a departure from this precedent. To the contrary, Bruen explicitly stated that its holding was “in keeping with Heller.” 142 S.Ct. at 2126. Furthermore, Justice Kavanaugh, joined by Chief Justice Roberts, stated in a concurrence that “the Second Amendment allows a ‘variety' of gun regulations” including “longstanding prohibitions on the possession of firearms by felons.” 142 S.Ct. at 2162 (Kavanaugh, J., concurring). Justice Alito also stated in his concurrence, “Nor have we disturbed anything that we said in Heller or McDonald.” Id. at 2157 (Alito, J., concurring). Justice Breyer, joined by Justices Sotomayor and Kagan, understood Bruen to “cast no doubt on” Heller's treatment of laws prohibiting firearms by felons. Id. at 2189 (Breyer, J., dissenting).
It is against this backdrop that the Court must analyze Defendant's motion to dismiss. The Eighth Circuit has rejected constitutional challenges to 18 U.S.C. § 922(g)(1) consistent with Heller and McDonald. See, e.g., United States v. Woolsey, 759 F.3d 905, 909 (8th Cir. 2014); United States v. Joos, 638 F.3d 581, 586 (8th Cir. 2011). Bruen does not dictate a different result. Defendant's facial challenge to 18 U.S.C. § 922(g)(1) should therefore be denied.
Defendant also argues that 18 U.S.C. § 922(g)(1) is unconstitutional as applied. Defendant acknowledges he is a convicted felon, however, he asserts that he possessed a firearm while driving a vehicle, not in connection with another crime.(Doc. 23) “An as-applied challenge asks the reviewing court to declare the disputed statute unconstitutional on the facts of the particular case.” United States v. Adams, 914 F.3d 602, 605 (8th Cir. 2019) (internal quotations and citations omitted). “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.” Id. (internal quotations and citations omitted).
The Bond Report (Doc. 34) also reflects felony convictions, and the parties stipulated the Pretrial Services Officer's testimony would be consistent with the Report. (Doc. 35).
The Eighth Circuit has recently held that to resolve Second Amendment as-applied challenges, a court must first ask “whether the firearm regulation at issue governs conduct that falls within the plain text of the Second Amendment.” United States v. Sitladeen, 64 F.4th 978, 984 (8th Cir. 2023). If the conduct falls within the plain text, the Government must “identify an American tradition justifying the regulation.” Id. (quoting Bruen, 142 S.Ct. at 2138). Applying the test enumerated in Bruen, the Eighth Circuit in United States v. Jackson, 69 F. 4th 495 (8th Cir. 2023), recently held that Section 922(g)(1) was constitutional as applied to the defendant. Id. at 501, 506. In Jackson, the defendant had two prior state convictions for selling a controlled substance and maintained that their “non-violent” nature did not render him “more dangerous than the typical law-abiding citizen.” Id. at 498, 501. But the Eighth Circuit declined to contrive a threshold of violence within the spectrum of all felonies because the statute (forbidding firearm possession based on a person's status as a felon) “is consistent with the Nation's historical tradition of firearm regulation.” Jackson, at 502 (quoting Bruen, 142 S.Ct. at 2130); see also id. at 502 (“we conclude that there is no need for felony-by-felony litigation regarding the constitutionality of § 922(g)(1)”); id. at 504 (“Legislatures historically prohibited possession by categories of persons based on a conclusion that the category as a whole presented an unacceptable risk of danger if armed.”). Eleven days later, a different panel of the Eighth Circuit cited Jackson and declined to address an as-applied challenge to Section 922(g)(1) stating:
[the defendant] asserts that the Second Amendment guaranteed his right to possess a firearm, despite his status as a twice-convicted felon, because neither of his prior offenses qualified as a “violent” offense based on the elements of the crime. This contention is foreclosed by United States v. Jackson, No. 22-2870, ___F.4th ___,___, 2023 WL 3769242, at *4 (8th Cir. June 2, 2023), where we concluded that there is no need for felony-by-felony determinations regarding the constitutionality of § 922(g)(1) as applied to a particular defendant. The longstanding prohibition on possession of firearms by felons is constitutional, and the district court properly denied the motion to dismiss.United States v. Cunningham, 70 F.4th 502, 506 (8th Cir. 2023).
Here, Defendant relies on his classification as a felon to support the argument that 18 U.S.C. § 922(g)(1) deprived him of a constitutional right. (See Doc. 23, pp. 10-19) As he raises no other factual argument regarding why the statute might be unconstitutional as applied to him, the Court rejects the Government's argument that this issue is premature and concludes that pretrial determination is appropriate. See United States v. Williams, 24 F.4th 1209, 1211 (8th Cir. 2022); Adams, 914 F.3d at 604; United States v. Hughley, 691 Fed.Appx. 278 (8th Cir. 2017); Fed. R. Crim. P. 12(b)(1). For the reasons set forth above (i.e., that prohibitions on the possession of firearms are presumptively lawful), Defendant's as-applied challenge should also be denied. See Jackson, at 506; United States v. Brown, 436 Fed.Appx. 725, 726 (8th Cir. 2011).
III. CONCLUSION
Based on the above, 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.
Counsel are advised that, pursuant to 28 U.S.C. § 636(b)(1), each has fourteen days from the date of this Report and Recommendation to file and serve specific objections, unless an extension of time for good cause is obtained.