Opinion
CRIMINAL ACTION 24-cr-00172-NYW-1
11-27-2024
UNITED STATES OF AMERICA, Plaintiff, v. 1. NICHOLAS ALAN RODISH, Defendant.
ORDER DENYING MOTION TO DISMISS
NINA Y. WANG, UNITED STATES DISTRICT JUDGE
This matter is before the Court on the Motion to Dismiss Count One (the “Motion to Dismiss” or “Motion”) filed on September 20, 2024 by Defendant Nicholas Alan Rodish (“Defendant”). [Doc. 24]. The Government opposes the Motion. See [Doc. 30]. Defendant did not file a reply brief or seek leave to do so, and neither Party has requested a hearing on the Motion to Dismiss. The Court took the Motion under advisement on November 5, 2024. [Doc. 41]. For the reasons set forth herein, the Motion is respectfully DENIED.
BACKGROUND
On May 22, 2024, an Indictment was filed charging Defendant with one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). [Doc. 1]. He was arrested on May 28, 2024, and made his initial appearance the same day. [Doc. 5; Doc. 6]. On September 20, 2024, Defendant filed a Motion to Suppress Evidence, [Doc. 23 (the “Motion to Suppress”)], and the instant Motion to Dismiss, [Doc. 24] (together, the “Motions”). On September 25, 2024, the Court vacated the jury trial set to begin on November 4, 2024, to be reset after the Court's resolution of the Motions. See [Doc. 25]. An evidentiary hearing on the Motion to Suppress was set for November 6, 2024, [Doc. 27], but later vacated upon Defendant's request and withdrawal of the Motion to Suppress, [Doc. 39; Doc. 40]. The Motion to Dismiss is now ripe for consideration. See [Doc. 30; Doc. 41].
ANALYSIS
Defendant argues that § 922(g)(1) is unconstitutional both facially and as applied to him considering two United States Supreme Court decisions: N.Y. State Rifle & Pistol Ass'n, Inc. v. Bruen, 597 U.S. 1 (2022), and United States v. Rahimi, 144 S.Ct. 1889 (2024). [Doc. 24 at 7-10]. Defendant further argues that post-Bruen and post-Rahimi, there is no binding circuit precedent that addresses the constitutionality of § 922(g)(1). [Id.]. The Court respectfully disagrees.
In United States v. McCane, the United States Court of Appeals for the Tenth Circuit (“Tenth Circuit”) rejected the defendant's argument that § 922(g) violates the Second Amendment. 573 F.3d 1037, 1047 (10th Cir. 2009). In upholding the constitutionality of § 922(g)(1), the Tenth Circuit looked to the Supreme Court's 2008 decision in District of Columbia v. Heller, 554 U.S. 570 (2008). Relevant here, the Tenth Circuit noted that the Supreme Court “explicitly stated in Heller that ‘nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons.'” McCane, 573 F.3d at 1047 (quoting Heller, 554 U.S. at 626).
In 2022, the Supreme Court decided Bruen and, in the process, created a new, two-part test for determining the scope of the Second Amendment and the constitutionality of gun regulations. 597 U.S. at 17. The Tenth Circuit again considered the constitutionality of § 922(g)(1) in a post-Bruen challenge brought in Vincent v. Garland, 80 F.4th 1197 (10th Cir. 2023), cert. granted, judgment vacated, 144 S.Ct. 2708 (2024). In Vincent, the Tenth Circuit noted that
the [Supreme] Court didn't appear to question the constitutionality of longstanding prohibitions on possession of firearms by convicted felons. If anything, Bruen contains two potential signs of support for these prohibitions.
First, six of the nine Justices pointed out that Bruen was not casting any doubt on this language in Heller.
Second, Bruen apparently approved the constitutionality of regulations requiring criminal background checks before applicants could get gun permits. In Bruen, the Court struck down state regulations that had required the showing of a special need before someone could get a license to carry a gun. But the Court added that it wasn't questioning the constitutionality of “shall-issue” licensing regimes. These regimes don't require a showing of special need, but they do “often require applicants to undergo a background check” to ensure that the applicant is a “law-abiding, responsible citizen[].” ...
Given the six Justices' reaffirmation of the Heller language and the Court's apparent approval of “shall-issue” regimes and related background checks, we conclude that Bruen did not indisputably and pellucidly abrogate our precedential opinion in McCane.80 F.4th at 1201-02 (footnote and citations omitted). Accordingly, the Tenth Circuit again upheld the constitutionality of § 922(g)(1) pursuant to McCane. Id. at 1202.
Next, the Supreme Court decided Rahimi, which involved a constitutional challenge to a different provision of § 922 than the one under which Defendant is charged in this case. See Rahimi, 144 S.Ct. at 1898-1902. In that case, the Court applied the two-part test articulated in Bruen to determine the constitutionality of § 922(g)(8). Id. The Supreme Court concluded “only this: An individual found by a court to pose a credible threat to the physical safety of another may be temporarily disarmed consistent with the Second Amendment.” Id. at 1903 (emphasis added). The Rahimi decision did not address § 922(g)(1) at all, except to reiterate that “prohibitions, like those on the possession of firearms by ‘felons and the mentally ill,' are ‘presumptively lawful.'” Id. at 1902 (quoting Heller, 554 U.S. at 626, 627 n.26).
While it granted certiorari to review Vincent,vacated the judgment in Vincent, and remanded the case “for further consideration” in light of Rahimi, Vincent v. Garland, 144 S.Ct. 2708 (2024), in so doing, the Supreme Court “did not question the merits of McCane or express any doubt about the Tenth Circuit's reasoning in Vincent,” United States v. Watkins, No. 24-cr-00058-SKC, 2024 WL 4381340, at *2 (D. Colo. Oct. 3, 2024) (quotation omitted).Indeed, one week after the Supreme Court's decision in Rahimi, the Tenth Circuit addressed the argument that Rahimi abrogated McCane. See United States v. Curry, No. 23-1047, 2024 WL 3219693, at *4 n.7 (10th Cir. June 28, 2024) (observing that Bruen neither overruled nor expressly abrogated McCane and finding that Rahimi also “does not indisputably and pellucidly abrogate” McCane (quotation omitted)). District courts within the Tenth Circuit that have considered post-Rahimi challenges have also upheld the constitutionality of § 922(g)(1) on the same basis. See, e.g., Watkins, 2024 WL 4381340, at *2; United States v. Hawkins, No. 6:23-cr-10041-EFM, 2024 WL 4751401, at *1 (D. Kan. Nov. 12, 2024) (denying motion to dismiss based on a facial and as-applied challenges to the constitutionality of § 922(g)(1) on Second Amendment grounds); United States v. Sutton, No. 4:24-cr-00168-SEH, 2024 WL 3932841, at *4 (N.D. Okla. Aug. 23, 2024) (“Because neither Bruen nor Rahimi indisputably and pellucidly abrogated McCane, McCane remains binding authority upon this Court.”)
Similarly, the Supreme Court has granted certiorari, vacated the judgment, and remanded the case to the Tenth Circuit in United States v. Mayfieldanother challenge to the constitutionality of § 922(g)(1) after Bruen and Rahimi. United States v. Mayfield, No. 24-5488, 2024 WL 4654943, at *1 (U.S. Nov. 4, 2024).
This is often referred to as “GVR order”-i.e., a “grant, vacatur, and remand” order. The Government argues that Vincent remains persuasive authority after Rahimi because a GVR order is “not a final determination on the merits.” [Doc. 30 at ¶ 9 (quotation omitted)]. The Court respectfully agrees.
Neither Bruen nor Rahimi overruled or abrogated the Tenth Circuit's decision in McCane, which remains binding precedent. Accordingly, Defendant's constitutional challenges to § 922(g)(1) are respectfully DENIED.
CONCLUSION
For the foregoing reasons, it is ORDERED that:
(1) Defendant's Motion to Dismiss Count One is DENIED; and
(2) On or before December 4, 2024, the Parties shall meet and confer with respect to the requirements of the Speedy Trial Act and shall file a joint status report setting forth their position(s) as to the applicable Speedy Trial Act date, for purposes of resetting the trial.