Opinion
2:22-cr-00212-TL
08-31-2023
UNITED STATES OF AMERICA, Plaintiff, v. ROBBY LEE ROBINSON, Defendant.
ORDER ON MOTION TO DISMISS INDICTMENT
Tana Lin, United States District Judge
This matter comes before the Court on Defendant Robby Lee Robinson's Motion to Dismiss Indictment (Dkt. No. 42) as a violation of his rights under the Second Amendment to the United States Constitution. Having reviewed the Government's response (Dkt. No. 53), Mr. Robinson's reply (Dkt. No. 55), and the relevant record, the Court DENIES the motion.
I. Background
Mr. Robinson is charged by a second superseding indictment with one count of Unlawful Possession of Firearms and Ammunition, in violation of 18 U.S.C. § 922(g)(1). Dkt. No. 60 at 1-2. The indictment alleges that on or about November 8, 2022, Mr. Robinson possessed two revolvers, several rounds of live ammunition, and several fired cartridge casings while knowing that he was convicted of two prior felony crimes, those being: (1) Unlawful Possession of a Firearm, on or about April 8, 2016, in this District; and (2) Assault in the Second Degree, on or about November 8, 2008, in Pierce County Superior Court in Tacoma, Washington. Dkt. No. 60 at 1-2. The firearms and ammunition were recovered after a reported car chase in which shots were allegedly fired by Mr. Robinson. See Dkt. No. 53 at 3-4. The prior firearm conviction arose out of an alleged assault by Mr. Robinson on his girlfriend's mother and 15-year-old son. See Id. at 4-5. The prior assault conviction arose out of an argument between Mr. Robinson and another man that turned physical. See id. at 4.
Mr. Robinson now moves to dismiss the indictment. See Dkt. Nos. 42, 55. The Government opposes. See Dkt. No. 53.
II. Legal Standard
“A party may 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). The Court may resolve a motion to dismiss an indictment before trial “if it involves questions of law rather than fact.” United States v. Shortt Accountancy Corp., 785 F.2d 1448, 1452 (9th Cir. 1986).
III. Discussion
Section 922(g)(1) states:
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). Mr. Robinson argues that § 922(g)(1) “violates his rights under the Second Amendment to the United States Constitution, both facially and as applied here.” Dkt. No. 42 at 1. Specifically, he argues that the statute is unconstitutional under the test set forth in the United States Supreme Court's recent decision in New York State Rifle & Pistol Assn. v. Bruen, 142 S.Ct. 2111 (2022). Dkt. No. 42 at 2-9; see also Dkt. No. 55 at 2-7. In opposition, the Government argues that Mr. Robinson's argument is precluded in this Circuit by precedent, most notably United States v. Vongxay, 594 F.3d 1111 (9th Cir. 2010). Dkt. No. 53 at 7-13. The Government also argues that § 922(g)(1) survives the Bruen test. Id. at 13-29. For the reasons explained below, the Court finds that Vongxay remains good law after Bruen and thus is fatal to Mr. Robinson's motion.
A. Second Amendment Jurisprudence Prior to Bruen
The Second Amendment states: “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.”
In 2008, the Supreme Court held for the first time, “on the basis of both text and history,” that the Second Amendment protects an individual right to keep and bear arms. District of Columbia v. Heller, 554 U.S. 570, 595 (2008). The Supreme Court made clear, however, that “[l]ike most rights, the right secured by the Second Amendment is not unlimited.” Heller, 554 U.S. at 626. Most relevant to the instant motion, the Supreme Court stated:
Although 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 and the mentally ill, or 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.Id. (emphasis added). The Supreme Court further noted that “these presumptively lawful regulatory measures” were only examples and not an exhaustive list. Id. at 626 n.26. “[T]here will be time enough to expound upon the historical justifications for the exceptions we have mentioned if and when those exceptions come before us.” Id. at 635.
In February 2010, the Ninth Circuit in Vongxay considered a Second Amendment challenge to a conviction under § 922(g)(1). The court declared that “[n]othing in Heller can be read legitimately to cast doubt on the constitutionality of § 922(g)(1).” Vongxay, 594 F.3d at 1114. Quoting the language above from Heller, the court concluded that “felons are categorically different from the individuals who have a fundamental right to bear arms.” Id. at 1115. The court also squarely rejected Mr. Vongxay's argument that Heller's language about firearm-possession bans for persons convicted of a felony crime were non-binding dicta: “We disagree. Courts often limit the scope of their holdings and such limitations are integral to those holdings.” Id. (emphasis added); accord United States v. Montero-Camargo, 208 F.3d 1122, 1132 n.17 (9th Cir. 2000) (en banc) (“We do not treat considered dicta from the Supreme Court lightly. Rather, we accord it appropriate deference.”). The court leaned on prior precedent, as well as the Second Amendment's text and history, to confirm its holding. Id. at 1116-18.
The court summarized its holding as the following: “§ 922(g)(1) does not violate the Second Amendment as it applies to Vongxay, a convicted felon.” Vongxay, 594 F.3d at 1118 (emphasis added). But despite the court's use of as-applied language, the court's reasoning does not rest on any facts unique to Mr. Vongxay's case, such as the nonviolent nature of his predicate convictions.
In June 2010, the Supreme Court held that the Second Amendment right, elucidated in Heller, is incorporated against the States. See McDonald v. City of Chicago, 561 U.S. 742, 750 (2010). In doing so, the Supreme Court recited its comments in Heller, 554 U.S. at 626, and stated plainly: “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.” McDonald, 561 U.S. at 786 (quoting Heller, 544 U.S. at 626-627). “[I]ncorporation does not imperil every law regulating firearms.” Id.
Following McDonald, the Ninth Circuit addressed the constitutionality of § 922(g)(1) on two more occasions. In Van Der Hule v. Holder, a person convicted of a felony challenged federal and state laws depriving him of his right to purchase a firearm as a violation of his Second Amendment right. 759 F.3d 1043, 1045 (9th Cir. 2014). In reviewing its holding in Vongxay, the court concluded that “[w]e see no reason to change our view now.” Id. at 1051. Then in United States v. Phillips, the court analyzed whether a prior non-violent felony could constitutionally serve as a predicate for a § 922(g)(1) conviction. 827 F.3d 1161 (9th Cir. 2016).It undertook a longer review of Vongxay but still refused to change course. Id. at 1173-76. The court concluded that Vongxay “forecloses” the constitutional challenge presented there and “presumed the propriety of felon firearm bans-as we must under Supreme Court precedent and our own.” Id. at 1174-75. Notably, the court squarely rejected Mr. Phillips's argument that Vongxay was bad law because it relied in part on a pre-Heller precedent that did not recognize an individual Second Amendment right. Id. at 1174 n.1. It observed that Vongxay “acknowledged Heller's holding” notwithstanding the older precedent and undertook its own analysis of the Second Amendment question. Id. “If Phillips believes that Vongxay is inconsistent with Heller,” the court instructed, “his remedy in this court is to seek rehearing en banc.” Id.
The Court is unaware of any binding authority that makes any distinction between non-violent and violent felony offenses, as Mr. Robinson seeks to do. See Dkt. No. 42 at 8-9. On the contrary, the Ninth Circuit has held that “‘felons are categorically different from the individuals who have a fundamental right to bear arms,' and we accordingly upheld 18 U.S.C. § 922(g)(1) against a Second Amendment challenge.” Phillips, 827 F.3d at 1174 (quoting Vongxay, 594 F.3d at 1115). The Court also notes that in Phillips, the Ninth Circuit questioned “the constitutional correctness of categorical, lifetime bans on firearm possession by all ‘felons.'” Id. (emphasis added). Here, too, Mr. Robinson questions the “forever” nature of the prohibition. See Dkt. No. 42 at 6-7. But as the Court is bound by Vongxay, the Court need not address these distinctions.
B. Bruen and the Ninth Circuit's Application of the Decision
In 2022, the Supreme Court revisited the Second Amendment right for the third time in 14 years. The Bruen Court squarely rejected the kinds of tests developed by the courts of appeal to adjudicate conflicts over Second Amendment rights, in which historical analysis was combined with “means-end” scrutiny. 142 S.Ct. at 2126-27. See also, e.g., Young v. Hawaii, 992 F.3d 765, 783-84 (9th Cir. 2021) (en banc), vacated and remanded, 142 S.Ct. 2895 (2022). In their place, the Supreme Court articulated a new test:
In keeping with Heller, we hold that when the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct. To justify its regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation's historical tradition of firearm regulation. 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.'Bruen, 142 S.Ct. at 2126 (quoting Konigsberg v. State Bar of Cal., 366 U.S. 36, 50 n.10 (1961)).
Bruen does not explicitly address the propriety of firearm-possession bans for persons previously convicted of a felony crime; however, it refers to those falling under the protection of the Second Amendment as “law abiding” people (or the equivalent) twenty-four times, with over half of those references appearing in the main opinion. See, e.g., Id. at 2125 (describing petitioners as “law-abiding, adult citizens”); Id. at 2133 (describing relevant historical metrics as “how and why the regulations burden a law-abiding citizen's right to armed self-defense”); Id. at 2159 (Alito, J., concurring) (“All that we decide in this case is that the Second Amendment protects the right of law-abiding people to carry a gun outside the home for self-defense ....”); see also United States v. Ramos, No. CR21-395, 2022 WL 17491967, at *3 (C.D. Cal. Aug. 5, 2022) (“[Bruen] describe[es] those who fall under the [Second] Amendment's aegis as ‘lawabiding' citizens no fewer than twenty-one times.”). The opinion also states that “nothing in our analysis should be interpreted to suggest the unconstitutionality” of licensing regimes that “ensure only that those bearing arms in the jurisdiction are, in fact, ‘law-abiding, responsible citizens'” Bruen, 142 S.Ct. at 2138 n.9 (quoting Heller, 554 U.S. at 635).
In addition, at least six Justices (five of whom still sit on the Supreme Court) did specifically comment as authors or signatories of separate writings on the issue of firearmpossession bans for persons previously convicted of a felony crime. See Bruen, 142 S.Ct. at 2157 (Alito, J., concurring) (“Our holding decides nothing about who may lawfully possess a firearm or the requirements that must be met to buy a gun....Nor have we disturbed anything that we said in Heller or McDonald about restrictions that may be imposed on the possession or carrying of guns.” (citation omitted)); Id. at 2162 (Kavanaugh, J., concurring, joined by Roberts, C.J.) (“[A]s Heller and McDonald established and the Court today again explains, the Second Amendment is ‘neither a regulatory straightjacket nor a regulatory blank check.' . . . ‘Nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons ....” (quoting Heller, 554 U.S. at 626)); Id. at 2189 (Breyer, J., dissenting, joined by Sotomayor and Kagan, J.J.) (“Like Justice Kavanaugh, I understand the Court's opinion today to cast no doubt” on Heller's comments on felon-in-possession bans).
Since then, the Ninth Circuit has directly applied Bruen in two decisions. In United States v. Alaniz, the court rejected a Bruen challenge to a sentencing enhancement for possession of a dangerous weapon at the time of a felony drug offense. 69 F.4th 1124 (9th Cir. 2023). Assuming without deciding that the defendant's conduct was covered by the Second Amendment, the court held that the enhancement “clearly comports with a history and tradition of regulating the possession of firearms during the commission of felonies involving a risk of violence.” Alaniz, 69 F.4th at 1129. “The historical record assures us that the two-level enhancement here is of a kind that the Founders would have tolerated.” Id. at 1130. More recently, in Teter v. Lopez, the court applied both steps of the Bruen test to strike down Hawaii's ban on the possession of so-called “butterfly knives.” No. 20-15948, 2023 WL 5008203 (9th Cir. Aug. 7, 2023).
The court did not address “the question whether criminals are included among ‘the people' referenced [in] the Second Amendment's text.” Teter, 2023 WL 5008203, at *9 n.9.
To the best of the Court's knowledge, no court in the Ninth Circuit has ruled that § 922(g)(1) violates the Second Amendment. On the contrary, numerous district courts have held that Vongxay remains good law and forecloses that argument. At least one court has gone further to hold that § 922(g)(1) survives a Bruen challenge as applied to persons with non-violent felony convictions, and other courts have suggested they would uphold the statute even under a fresh historical analysis.
See, e.g., United States v. Saba, No. CR22-248, 2023 WL 5333255 (D. Idaho Aug. 17, 2023); United States v. Pineda, No. CR21-482, 2023 WL 4053583 (D. Or. Jun. 16, 2023); United States v. Buffalo Bulltail, No. CR22-86, 2023 WL 3947823 (D. Mont. Jun. 12, 2023); United States v. Sais, No. CR-22-2456, 2023 WL 3510406 (S.D. Cal. May 17, 2023); United States v. Chatman, No. CR22-453, 2023 WL 3509699 (N.D. Cal. May 16, 2023); United States v. Villalobos, No. CR19-40, 2023 WL 3044770 (D. Idaho Apr. 21, 2023); Walker v. Bonta, No. C20-31, 2023 WL 2815356 (S.D. Cal. Apr. 6, 2023); United States v. Guthery, No. CR22-173, 2023 WL 2696824 (E.D. Cal. Mar. 29, 2023); United States v. Kilgore, No. CR21-277, 2023 WL 2505012 (E.D. Cal. Mar. 14, 2023); United States v. Davis, No. CR21-206, 2023 WL 2505039 (E.D. Cal. Mar. 14, 2023); United States v. Jackson, No. CR22-37, 2023 WL 1967199 (W.D. Wash. Feb. 13, 2023); United States v. Serrano, No. CR21-1590, 2023 WL 2297447 (S.D. Cal. Jan. 17, 2023); United States v. Moore, No. CR20-474, 2023 WL 154588 (D. Or. Jan. 11, 2023); United States v. Butts, 637 F.Supp.3d 1134 (D. Mont. 2022); United States v. Delpriore, 634 F.Supp.3d 654 (D. Alaska 2022); United States v. Siddoway, No. CR21-205, 2022 WL 4482739 (D. Idaho Sept. 27, 2022); United States v. Perez, No. CR21-508, 2022 WL 17484969 (S.D. Cal. Sep. 26, 2022); United States v. Hill, 629 F.Supp.3d 1027 (S.D. Cal. 2022); United States v. Nevens, No. CR19-774, 2022 WL 17492196 (C.D. Cal. Aug. 15, 2022).
See Ramos, 2022 WL 17491967, at *5; see also, e.g., Villalobos, 2023 WL 3044770, at *11; Kilgore, 2023 WL 2505012, at *3; Hill, 629 F.Supp. at 1031; Nevens, 2022 WL 17492196, at *3.
C. Reconciling Vongxay and Bruen
As a general rule, this Court is bound by the prior decisions of this Circuit. See Hart v. Massanari, 266 F.3d 1155, 1171 (9th Cir. 2001). But where an “intervening higher authority”- like a Supreme Court decision-has “undercut the theory or reasoning underlying [a] prior circuit precedent in such a way that the cases are clearly irreconcilable,” the Court “should consider [itself] bound” by that authority and the prior precedent “effectively overruled.” Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc); see also In re Gilman, 887 F.3d 956, 962 (9th Cir. 2018) (requiring the intervening authority to be “fundamentally inconsistent” with prior precedent). “[T]he clearly irreconcilable requirement is a high standard.” Avilez v. Garland, 69 F.4th 525, 533 (9th Cir. 2023) (internal quotation marks omitted) (quoting FTC v. Consumer Def., LLC, 926 F.3d 1208, 1213 (9th Cir. 2019)). “It is not enough for there to be ‘some tension' between the cases or for the intervening authority to ‘cast doubt' on this Court's prior authority.” Tingley v. Ferguson, 47 F.4th 1055, 1075 (9th Cir. 2022) (quoting Lair v. Bullock, 697 F.3d 1200, 1207 (9th Cir. 2012)). “[I]f we can apply our precedent consistently with that of the higher authority, we must do so.” Avilez, 69 F.4th at 533 (quoting FTC, 926 F.3d at 1213).
Here, then, the Court is presented with a supposed conflict: Does Bruen's text-and-history test abrogate Vongxay to such a degree that Vongxay is “clearly irreconcilable” with Bruen and no longer good law? The Court finds that it does not.
There is undoubtedly “some tension” between Vongxay and Bruen: The Ninth Circuit did not engage in the core historical analysis that Bruen requires. See Bruen, 142 S.Ct. at 2131-34 (describing how to conduct the historical inquiry). Vongxay itself acknowledged that “the historical question has not been definitively resolved.” 594 F.3d at 1118; accord Phillips, 827 F.3d at 1174 (observing “good reasons to be skeptical of the constitutional correctness of categorical, lifetime bans on firearm possession by all ‘felons.'” (emphasis in original)). The outcome of such an analysis is not preordained. Compare Range v. Att'y Gen. U.S. of Am., 69 F.4th 96, 103-06 (3d Cir. 2023) (en banc) (finding no historical basis for § 922(g)(1) as applied) with United States v. Jackson, 69 F.4th 495, 502-05 (8th Cir. 2023) (reaching the opposite conclusion), reh'g denied, No. 22-2870 (Aug. 30, 2023); see also Kanter v. Barr, 919 F.3d 437, 453 (7th Cir. 2019) (Barrett, J., dissenting) (“The constitutionality of felon dispossession was not before the Court in Heller, and because it explicitly deferred analysis of this issue, the scope of its assertion is unclear.”); Range, 69 F.4th at 112-13 (Ambro, J., concurring) (“[T]he Supreme Court will have to square its history-driven test with its concurrent view that felon gun restrictions are presumptively lawful.”).
But “that limited tension between Vongxay and Bruen is not enough to find that Bruen effectively overruled Vongxay.” Jackson, 2023 WL 1967199, at *4 (internal quotation marks omitted) (quoting Siddoway, 2022 WL 4482739, at *2). Vongxay did not apply the kind of means-end scrutiny that Bruen explicitly rejected. Instead, it began with Heller's finding of an individual Second Amendment right and took its cues from that decision. Vongxay, 594 F.3d at 1114-15. It looked at the text of the Second Amendment. Id. at 1117. It considered historical understanding. Id. at 1118. In other words, it previewed Bruen's text-and-history test, albeit not with the same depth of treatment. Thus, its methods of reasoning demonstrate a compatibility with Bruen, not a fundamental inconsistency. Its conclusion is bolstered by the Supreme Court's own repeated assurances that firearm-possession bans for persons convicted of a felony crime are constitutional. See Heller, 554 U.S. at 626; McDonald, 561 U.S. at 786. Its conclusion is further bolstered by the Supreme Court's two-dozen reminders in Bruen that the Second Amendment applies to law-abiding citizens, reminders that include this statement in the conclusion of the opinion: New York's law “violates the Fourteenth Amendment in that it prevents law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms.” 142 S.Ct. at 2156 (emphasis added). Finally, the Ninth Circuit's initial foray into applying Bruen in the firearm context suggests the Circuit's likely agreement. See Alaniz, 69 F.4th at 1129. Therefore, Vongxay remains good law, this Court is bound by it, and the motion must be denied.
Mr. Robinson argues that “Bruen's treatment of concealed carry confirms that - contrary to the Ninth Circuit's approachHeller's preliminary conclusions are subject to testing and revision.” Dkt. No. 55 at 5. But as Jackson elucidates, concealed carry was not part of the list of “presumptively lawful regulatory measures” identified by Heller. 2023 WL 1967199, at *4. And Bruen discussed approvingly “sensitive places” regulations, which were part of that list. Id. (citing Bruen, 142 S.Ct. at 2133-34).
The Court thus need not reach the Parties' arguments regarding application of the Bruen test.
IV. Conclusion
Accordingly, the Court DENIES Mr. Robinson's Motion to Dismiss Indictment (Dkt. No. 42).