Opinion
Criminal 3:23-cr-106-HEH
12-20-2023
UNITED STATES OF AMERICA v. AZONTAY MALIK PERRY, Defendant.
MEMORANDUM OPINION (DENYING DEFENDANT'S MOTION TO DISMISS)
HENRY E. HUDSON SENIOR UNITED STATES DISTRICT JUDGE
This matter is before the Court on Defendant Azontay Malik Perry's (“Defendant) Motion to Dismiss the Indictment (the “Motion,” ECF No. 16), filed on November 28, 2023. The Indictment (ECF No. 3) charges Defendant with possession of a firearm and ammunition by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). Defendant moves to dismiss the Indictment on the ground that § 922(g)(1) is unconstitutional facially and as applied to him under the Supreme Court's firearm analysis articulated in N.Y. State Rifle & Pistol Ass'n, Inc. v. Bruen, 597 U.S. 1 (2022). For the reasons that follow, the Court will deny Defendant's Motion.
The Indictment was filed under seal on August 15, 2023.
I. BACKGROUND
On November 19, 2022, Officer Glasco of the Hopewell Police Department responded to reports of a driver asleep at the wheel in the intersection of Ashland Street and Oaklawn Boulevard. (Resp. in Opp'n at 1-2, ECF No. 18.) Officer Bailey arrived on the scene to assist Officer Glasco. (Id. at 2.) The officers checked on the driver and ordered him to step out of the vehicle when he woke up. (Id.) The driver ignored the officers' orders and instead fled the scene, nearly hitting the officers and striking the back of Officer Bailey's police cruiser. (Id.) The officers pursued the vehicle, and the driver eventually crashed the vehicle in a nearby apartment complex where he then fled on foot. (Id.) The officers saw a firearm, in plain view, on the floorboard of the driver's side of the vehicle. (Id.) Pursuant to a search warrant, the officers later searched the vehicle and discovered narcotics-approximately eighteen (18) grams of methamphetamine and ten (10) grams of fentanyl. (Id.) Through their investigation, the officers determined that Defendant was the driver of the vehicle and confirmed that he was a convicted felon. (Id.) Defendant's felony convictions include: (1) Possession of Schedule I or II Drug in August 2015; (2) Possession of Schedule I, II Drug in December 2015; (3) Possession of Firearm while in Possession of Schedule I, II Drug in December 2015; (4) Possession of Schedule I, II Drug in April 2019; (5) Probation Violations in November 2022; and (6) Failure to Appear on a Felony Offense in November 2022. (Pretrial Services Report at 4-6, ECF No. 11.)
On August 15, 2023, a grand jury indicted Defendant for possession of a firearm and ammunition by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). (Indictment at 1.) Defendant was arraigned on November 7, 2023, and entered a plea of not guilty. (Minute Entry at 1, ECF No. 15.) He requested trial by jury which is set to begin on January 10, 2024. (Id.)
Defendant now moves to dismiss the Indictment as violating his Second Amendment right to keep and bear arms. (Mot. at 1.) He argues that § 922(g)(1) is unconstitutional under the Bruen firearm analysis. (Id. at 1-2.) The Government filed its Response in Opposition to the Motion on December 6, 2023. The Court, after hearing oral argument on December 12, 2023, denied the Motion for the reasons that follow. (Minute Entry at 1, ECF No. 20.)
II. LEGAL STANDARD
Title 18 U.S.C. § 922(g)(1) makes it unlawful for a convicted felon to possess a firearm or ammunition. It states in full:
It shall be unlawful for any person 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 brings both a facial and an as-applied challenge to the constitutionality of § 922(g)(1) pursuant to Federal Rule of Criminal Procedure 12 which permits parties 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).
Although Defendant frames his argument as an as-applied challenge, he does not provide argument as to why § 922(g)(1) is unconstitutional as applied to his case. Rather, Defendant challenges the constitutionality of § 922(g)(1) generally under the Bruen analysis, and merely repeats his argument that, as a citizen of the United States, he is part of “the people” who are afforded protection under the Second Amendment. (Mot. at 17.) Thus, this Court will treat his motion as a facial challenge to § 922(g)(1). See United States v. Riley, 635 F.Supp.3d 411,419 n.4 (E.D. Va. 2022).
A. Facial v. As-Applied Challenges
The type of constitutional challenge brought, whether facial or as-applied, controls the showing a defendant must make. “An as-applied challenge requires only that the law is unconstitutional as applied to the challenger's case; a facial challenge requires this showing as well, but it also requires that there be ‘no [other, theoretical] set of circumstances' in which the law could be constitutionally applied.” United States v. Mgmt. Consulting, Inc., 636 F.Supp.3d 610, 619 (E.D. Va. 2022) (quoting United States v. Salerno, 481 U.S. 739, 745 (1987)) (alterations in original). Thus, an as-applied challenge must be “based on a developed factual record and the application of a statute to a specific person.” Richmond Med. Ctr. for Women v. Herring, 570 F.3d 165, 172 (4th Cir. 2009) (en banc).
To succeed on a facial challenge, a party “must establish that no set of circumstances exists under which the Act would be valid.” United States v. Hosford, 843 F.3d 161, 165 (4th Cir. 2016) (quoting Salerno, 481 U.S. at 745) (internal quotations omitted); see also Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442,449 (2008). In other words, a party must show “that the law is unconstitutional in all of its applications.” Wash. State Grange, 552 U.S. at 449 (citing Salerno, 481 U.S. at 745). “Because of this stringent standard, a facial challenge is perhaps ‘the most difficult challenge to mount successfully.'” Hosford, 843 F.3d at 165 (quoting Salerno, 481 U.S. at 745).
B. Yrs-Bruen Framework
Defendant asserts that § 922(g)(1) violates the Second Amendment of the United States Constitution. 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.” U.S. CONST, amend. II.
The Fourth Circuit has adopted the two-step approach set forth in District of Columbia v. Heller, 554 U.S. 570 (2008), to evaluate Second Amendment challenges. Under the Heller analysis, the first question is “whether the challenged law imposes a burden on conduct falling within the scope of the Second Amendment's guarantee.” United States v. Chester, 628 F.3d 673, 680 (4th Cir. 2010) (internal citation and quotations omitted). This inquiry “seeks to determine whether the conduct at issue was understood to be within the scope of the right at the time of ratification.” Id. (citing Heller, 554 U.S. at 625-26). If the challenged law falls within the scope of the Second Amendment, then courts turn to the second step and apply “an appropriate form of means-end scrutiny.” Id. at 680. Courts may apply either intermediate or strict scrutiny depending on “the nature of the conduct being regulated and the degree to which the challenged law burdens the right.” Id. at 682; see Heller, 554 U.S. at 628, n.27 (“If all that was required to overcome the right to keep and bear arms was a rational basis, the Second Amendment would be redundant with the separate constitutional prohibitions on irrational laws, and would have no effect.”). Though courts are not required to provide definitive rulings on the steps in a particular order, a challenged law will be rendered unconstitutional only if it fails both prongs of Heller. See Hosford, 843 F.3d at 167.
Though Bruen modifies the Heller approach, the Court provides a break down of the Heller test as it is helpful to the analysis of the parties' arguments.
The Fourth Circuit applied Heller's two-step approach in determining the constitutionality of § 922(g)(1) in United States v. Moore, 666 F.3d 313 (4th Cir. 2012) and United States v. Pruess, 703 F.3d 242 (4th Cir. 2012), finding both challenges failed under Heller's first-step. In Moore, the defendant brought both facial and as-applied challenges to § 922(g)(1). 666 F.3d at 316. The Fourth Circuit upheld § 922(g)(1) under the first-prong in Heller, finding that the defendant, as a violent felon, “simply does not fall within the category of citizens to which the Heller court ascribed the Second Amendment protection of ‘the right of law-abiding responsible citizens to use arms in defense of hearth and home.'” 666 F.3d at 319 (quoting Heller, 554 U.S. at 635) (emphasis omitted).
In Pruess, the defendant, a non-violent felon, brought facial and as-applied challenges to the constitutionality of § 922(g)(1). 703 F.3d at 244-47. Echoing Moore, the Fourth Circuit held that “‘longstanding prohibitions on the possession of firearms by felons'” are “presumptively lawful” under Heller. Id. at 245 (quoting Heller, 554 U.S. at 626-27 & n.26). In upholding § 922(g)(1), the Fourth Circuit found that the defendant could not “rebut the presumption of lawfulness of the felon-in-possession prohibition as applied to him.” Id. at 246. The Fourth Circuit in Pruess, like in Moore, found that the defendant “undoubtedly flunks the ‘law-abiding responsible citizen' requirement.” 703 F.3d at 246 (citing Moore, 666 F.3d at 320) (internal quotations omitted). Thus, the court rejected the defendant's challenge under the presumptive lawfulness holding and first-prong of Heller.
C. Post-Br«en Framework
In Bruen, the Supreme Court articulated a new two-step analysis for constitutional challenges to firearm regulations, rejecting Heller's second step: means-end scrutiny review. 597 U.S. at 19. Under Bruen step one, courts are to consider whether “the Second Amendment's plain text covers an individual's conduct.” Id. at 17. If the court finds that the individual's conduct is, in fact, covered by the plain text of the Second Amendment, then the burden shifts to the government to “demonstrate that the regulation is consistent with this Nation's historical tradition of firearm regulation.” Id. To do so, the government need only identify “a well-established and representative historical analogue” of the modern-day challenged law, “not a historical twin.” Id. at 30 (emphasis omitted). “Only if a firearm regulation is consistent with this Nation's historical tradition may a court conclude that the individual's conduct falls outside the Second Amendment's ‘unqualified command.'” Id. at 17 (citing Konigsberg v. State Bar of Cal., 366 U.S. 36,49 n.l0(1961)).
The first step of the Bruen analysis remains the same as that of the Heller analysis. Bruen, 597 U.S. at 22-24.
III. DISCUSSION
Defendant asserts that this Court must dismiss the Indictment because § 922(g)(1) is unconstitutional under the Bruen analysis. However, the Government argues that the Court is bound by the Fourth Circuit's decisions in Heller, Moore, and Pruess which upheld § 922(g)(1) as “presumptively lawful.” (Resp. in Opp'n at 25-28.) While the Government contends that the Court need not conduct the Bruen analysis in deciding this case, it nonetheless asserts that § 922(g)(1) remains constitutional under Bruen. (Id. at 325.) Defendant argues that Heller, Moore, and Pruess do not survive Bruen. (Mot. at 3- 6; Reply at 1-8, ECF No. 19.) Rather, Defendant contends that this Court must engage in the Bruen analysis, and recommends that this Court follow Range v. Att'y Gen., 69 F.4th 96 (3d Cir. 2023), and United States v. Bullock, No. 3:18-cr-165, 2023 WL 4232309 (S.D.Miss. Jun. 28, 2023). (Mot. at 6-17; Reply at 7-8.) Additionally, in oral argument, Defendant urged this Court to adopt the analysis of Bruen's first prong set forth in United States v. Coleman, No. 3:22-cr-87, 2023 WL 6690935, at *5-6 (E.D. Va. Oct. 12,2023), which found that felons are part of “the people.”
A. Prohibitions on Firearms Possession are Presumptively Lawful
First, the Court addresses the presumptive lawfulness of § 922(g)(1) under Heller. Defendant argues that the Supreme Court in Heller only resolved the specific Second Amendment issue raised in that case, and, thus, the Court must apply the analysis articulated in Bruen. (Mot. at 3-6.) Defendant also asserts that the presumptive lawfulness language of Heller is mere dicta and does not bind this Court. (Reply at 1-6.)
The Government contends that Bruen reaffirmed Heller's finding that longstanding prohibitions on firearms possession by felons are presumptively lawful, and, therefore, is controlling. (Resp. in Opp'n at 3-7,26-28.) The Government also notes that seven (7) members of the Bruen Court, and five (5) in the Bruen decision itself, have explicitly approved of Heller's reassurances regarding felon-in-possession statutes. (Id. at 26-27 (citing Bruen, 597 U.S. at 72 (Alito, J., concurring); id. at 80-81 (Kavanaugh, J., joined by Roberts, C.J. concurring); id. at 129 (Breyer, J., joined by Sotomayor and Kagan, J.J., dissenting); New York State Rifle & Pistol Ass'n v. City of New York, 140 S.Ct. 1525, 1540-41 (2020) (Alito, J., joined by Thomas and Gorsuch, J.J., dissenting).)
Contrary to Defendant's assertion, this Court finds that Heller's presumptively lawful language is not mere dicta, but rather controls this Court's analysis. Bruen repeatedly relied on and reaffirmed Heller's presumptive lawfulness of longstanding prohibitions on firearms possession. See 597 U.S. at 30; see also id. at 72 (Alito, J., concurring) (“Nor have we disturbed anything that we said in Heller... about restrictions that may be imposed on the possession or carrying of guns.”); id. at 80-81 (Kavanaugh, J., joined by Roberts, C.J., concurring) (“Properly interpreted, the Second Amendment allows a ‘variety' of gun regulations” including “longstanding prohibitions on the possession of firearms by felons ...." (quoting Heller, 554 U.S. at 636)); id. at 129 (Breyer, J., joined by Sotomayor and Kagan, J.J., dissenting) (“Like Justice Kavanaugh, I understand the Court's opinion today to cast no doubt on that aspect of Heller's holding [on those firearm regulations deemed ‘presumptively lawful'].”); Vincent v. Garland, 80 F.4th 1197, 1201 (10th Cir. 2023) (“[S]ix of the nine Justices pointed out that Bruen was not casting any doubt on [the presumptive lawfulness of longstanding prohibitions on possession of firearms by convicted felons] language in Heller.'') (internal citations omitted). Because Bruen serves to clarify and reiterate Heller, it did not invalidate or overrule Heller's holding that “longstanding prohibitions on the possession of firearms by felons” are “presumptively lawful.” Heller, 554 U.S. at 626-27 & n.26.
Further, while the Fourth Circuit has not yet opined on the constitutionality of § 922(g)(1), numerous courts in this Circuit have found that, because Bruen did not displace Heller, they are bound by Heller's admonition regarding longstanding prohibitions on the possession of firearms by felons. See, e.g., United States v. Bynum, No. 5:23-cr-141,2023 WL 7003690, at *4 (E.D. N.C. Oct. 24, 2023); United States v. Williams, No. 3:22-cr-158, 2023 WL 6368971, at *4 (E.D. Va. Sept. 28, 2023); Nicks v. United States, No. 5:23-cv-2 (5:20-cr-97), 2023 WL 4356065, at *10 (W.D. N.C. July 5, 2023); United States v. Kearney, No. 4:23-cr-29,2023 WL 3940106, at *2 (E.D. Va. June 9, 2023); United States v. Finney, No. 2:23-cr-13, 2023 WL 2696203, at *2 (E.D. Va. Mar. 29,2023); United States v. Wilkerson, No. 2:22-cr-152,2023 WL 3220186, at *3 (E.D. Va. May 2, 2023). Accordingly, the Court declines to grant Defendant's Motion on these grounds.
As cited by Defendant, the Court recognizes that in Maryland Shall Issue, Inc. v. Moore, 86 F. 4th 1038 (4th Cir. 2023), the Fourth Circuit noted that “Bruen was not shy about telling lower courts how to handle Second Amendment challenges: We turn to the Amendment's ‘text,' ‘informed by history,' and by ‘the historical tradition that delimits the outer bounds of the right.'” Id. at 1045 n.9 (internal citations omitted). However, Maryland Shall Issue did not involve a challenge to § 922(g)(1), and therefore, did not address presumptive lawfulness of felon-in-possession prohibitions under Heller nor the Fourth Circuit precedent involving 8 922(eVl Y See id. at 1040-41.
B. Prz-Bruen Fourth Circuit Precedent is Controlling
The Court now turns to the Fourth Circuit's pre-Bruen precedent supporting the constitutionality of § 922(g)(1)-Moore and Pruess. The Government contends that this Court is bound by Moore and Pruess, which upheld the constitutionality of § 922(g)(1) without applying means-end scrutiny. (Resp. in Opp'n at 25-28.) The Government argues that, because Bruen reaffirmed Heller, the Supreme Court “effectively reaffirmed Moore and Pruess.” (Id. at 28.)
Defendant argues that Moore and Pruess do not survive Bruen as both cases rely on the presumptive lawfulness language in Heller. (Reply at 6-8.) He alleges that, because neither case analyzed whether felons are part of “the people,” they do not comport with the analysis required by Bruen. (Id. at 8.)
Turning to the question of whether Bruen “specifically rejected” or “clearly undermined” Fourth Circuit precedent, the Court concludes that Bruen did no such thing. QingyunLiv. Holder, 666 F.3d 147, 150 (4th Cir. 2011); United States v. Williams, 155 F.3d 418, 421 (4th Cir. 1998). Bruen neither specifically rejected nor clearly undermined Moore and Pruess. Instead, Bruen expressly rejected the application of means-end scrutiny in constitutional challenges to the Second Amendment. 597 U.S. at 19. However, neither Moore nor Pruess applied means-end scrutiny when upholding the constitutionality of § 922(g)(1). See Moore, 666 F.3d at 316-20; Pruess, 703 F.3d at 245-47. Therefore, Bruen did not specifically reject Moore or Pruess.
Nor did Bruen clearly undermine the reasoning of Moore and Pruess. Both cases relied on Heller's holding that longstanding felon-in-possession laws are presumptively lawful, which this Court has determined remains binding. See Moore, 666 F.3d at 31720; Pruess, 703 F.3d at 245-47. Further, Moore and Pruess rest on step one of the then-Heller and now-Brwew analysis. In both cases, the Fourth Circuit held that the Second Amendment only protects “law-abiding responsible citizens,” and the defendants, as convicted felons, fall outside of this scope of protection. Moore, 666 F.3d at 319 (emphasis omitted) (internal citations omitted); Pruess, 703 F.3d at 245-46 (internal quotations omitted).
Accordingly, this Court rejects Defendant's argument, and adheres to Moore and Pruess as controlling Fourth Circuit precedent. Notably, the vast majority, if not all, of the district courts that have addressed this argument in the Fourth Circuit have similarly found that Moore and Pruess remain good law and bind this Court. See, e.g., Riley, 635 F.Supp.3d at 424 (“Armed with this well-healed reading of Bruen, this Court concludes that the Fourth Circuit's decisions in Moore and Pruess remain good law and control the disposition of [the d]efendant's motion to dismiss.”); Kearney, 2023 WL 3940106, at *2; Finney, 2023 WL 2696203, at *3-4; Wilkerson, 2023 WL 3220186, at *3; United States v. Spencer, No. 2:22-cr-106, 2022 WL 17585782, at *4 (E.D. Va. Dec. 12, 2022); United States v. Robinson-Davis, No. 7:22-cr-45, 2023 WL 2495805, at *3 (W.D. Va. Mar. 14, 2023); United States v. Bever, Crim. No. 2:22-164, 2023 WL 2991870, at *5 (S.D. W.Va. Apr. 18,2023); United States v. Lane, No. 3:23-cr-62, 2023 WL 5663084, at *13 (E.D. Va. Aug. 31,2023); United States v. Hill, No. 3:23-cr-l 14, 2023 WL 8238164, at *7 (E.D. Va. Nov. 28, 2023).
Bound by the presumptive lawfulness of longstanding prohibitions on the possession of firearms by felons under Heller, and the Fourth Circuit's reasoning in Moore and Pruess, Defendant's Motion to Dismiss the Indictment will be denied.
C. Defendant's Claim Fails under the Bruen Analysis
Because this Court disposes of Defendant's § 922(g)(1) challenge pursuant to Heller, Moore, and Pruess, the Court need not analyze Defendant's claim under Bruen. However, in the interest of completeness, this Court hereby adopts the well-reasoned explanation articulated in Lane, which engaged in the Bruen analysis and found that “felons are not among ‘the people' whose conduct the Second Amendment protects. 2023 WL 5663084, at *8-14. This Court similarly finds that Defendant, as a convicted felon, is not a “law-abiding responsible citizen” who is afforded the protections of the Second Amendment.
IV. CONCLUSION
As reasoned above, the Court will deny Defendant's Motion to Dismiss. An appropriate Order will accompany this Memorandum Opinion.