Opinion
2:22-CR-00074-RMP
12-07-2023
UNITED STATES OF AMERICA, Plaintiff, v. JESSE R. STILL, Defendant.
ORDER DENYING DEFENDANT'S MOTION TO DISMISS
Rosanna Malouf Peterson, Senior United States District Judge
BEFORE THE COURT is Defendant Jesse R. Still's Motion to Dismiss, ECF No. 42. The Government opposed in its response, ECF No. 47, and Defendant replied, ECF No. 49. Defendant is charged with Felon in Possession of a Firearm, in violation of 18 U.S.C. § 922(g)(1), 924(a)(2). ECF No. 1. Defendant seeks to dismiss these charges, challenging the constitutionality of 18 U.S.C. § 922(g)(1) both facially and as applied to him.
The Court heard oral argument on the motion on December 5, 2023. Defendant, who is not in custody, was present and represented by Assistant Federal Defender Molly Winston. Assistant United States Attorney David Herzog appeared on behalf of the Government. The Court heard arguments by counsel. Having reviewed the parties' filings and exhibits, heard the argument presented at the hearing, and reviewed the relevant law, the Court is fully informed.
BACKGROUND
In 2014, Defendant was convicted in an Oregon state court of Unlawful Possession of Methamphetamine and Fleeing or Attempting to Elude a Police Officer While in a Motor Vehicle. ECF Nos. 42-1 and 42-4. For each conviction, Defendant was sentenced to Supervised Probation for 18 months and 15 days in jail. Id. In 2018, Defendant was convicted in an Idaho state court of Unlawful Possession by Convicted Felon. ECF No. 42-7. The 2014 Oregon convictions, which were felonies, served as the predicate felony offenses for the 2018 Idaho felony conviction. ECF No. 42 at 3. On June 22, 2022, Defendant was indicted in the present case for being a Felon in Possession of a Firearm, in violation of 18 U.S.C. § 922(g)(1), 924(a)(2). ECF No. 1. On October 28, 2022, Defendant successfully reduced his 2014 Oregon felony convictions to misdemeanors. See ECF Nos. 42-3 and 42-6. Defendant now seeks to dismiss the current charge of Felon in Possession, arguing that 18 U.S.C. § 922(g)(1) is unconstitutional both facially and as applied to Defendant due to his criminal history. ECF No. 42 at 1214.
LEGAL STANDARD
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.” U.S. CONST. amend. II. In 2008, the Supreme Court held that the Second Amendment protects an individual right to keep and bear arms. District of Columbia v. Heller, 554 US. 570 (2008). However, the Supreme Court noted that “[l]ike most rights, the right secured by the Second Amendment is not unlimited.” Id. at 626. Additionally, the Court stated that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons . . .” Id.
In 2010, the Ninth Circuit in United States v. Vongxay held that “922(g)(1) does not violate the Second Amendment as it applies to Vongxay, a convicted felon.” 594 F.3d 1111, 1118 (9th Cir. 2010). The Court stated that “felons are categorically different from the individuals who have a fundamental right to bear arms.” Id. at 1115. In 2022, the Supreme Court articulated a new test for firearm regulations:
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.”N.Y. State Rife & Pistol Ass'n v. Bruen, 142 S.Ct. 2111, 2126 (2022) (quoting Konigsberg v. State Bar of Cal., 336 U.S. 36, 50 n.10 (1961)). Bruen did not explicitly address felon in possession statutes, but it refers to those falling under the protection of the Second Amendment as “law-abiding” people. See, e.g., Bruen, 142 S.Ct. at 2133. The opinion states that “nothing in our analysis should be interpreted to suggest the unconstitutionality” of licensing regimes that “ensure that only those bearing arms in the jurisdiction are, in fact, ‘law abiding, responsible citizens.'” Id. at 2138 n.9 (quoting Heller, 554 U.S. at 635).
To the best of this Court's knowledge, since Bruen no court in the Ninth Circuit has held that § 922(g)(1) violates the Second Amendment, either facially or as applied. The many courts facing similar motions to dismiss have overwhelmingly rejected such challenges, finding that Bruen did not overrule existing precedent, such as Vongxay, and upholding § 922(g)(1). See, e.g., United States v. Hill, 629 F.Supp.3d 1027, 1030 (S.D. Cal. 2022) (finding that Bruen did not “effectively overrule” Vongxay and denying a similar motion to dismiss). Courts that analyze whether prohibiting felons from possessing firearms is “consistent with the Nation's historical tradition of firearm regulation” have found that “there is historical context for treating felons differently when it comes to firearm ownership.” See, e.g., United States v. Villalobos, No. 3:19-CR-00040, 2023 WL 3044770, at *7 (D. Idaho, Apr. 21, 2023) (“In fact, the Court cannot locate a single decision where a court found this Nation's history and traditions would allow felons to possess firearms.”).
DISCUSSION
Defendant challenges his charge on both facial and as applied grounds. ECF No. 42 at 7. The Court will address both in turn.
Facial Challenge
Defendant relies on Bruen to argue that the government must justify its regulations of firearms by demonstrating that the regulation is consistent with the “Nation's historical tradition of firearm regulation.” ECF No. 42 at 8-9. Defendant further relies on Range v. Attorney General United States of America, 69 F.4th 96 (3d Cir. 2023), in which the Third Circuit upheld an as applied challenge to § 922(g)(1) in the face of Bruen. ECF No. 42 at 9. Defendant argues that the Third Circuit correctly held that the defendant was among “the people” protected by the Second Amendment, despite having a state felony conviction of an offense punishable by up to five years of imprisonment. Id. at 10. The Third Circuit found that § 922(g)(1) regulated Second Amendment conduct, and that the burden therefore shifted to the Government to justify the regulation. Id. The court then found that the Government failed to adequately justify the regulation by showing that it is consistent with the “Nation's historical tradition of firearm regulation,” and held that § 922(g)(1) was unconstitutional as applied to the defendant. Id.. Defendant cites four unreported, district court decisions from outside this circuit that have followed Range to argue that this Court similarly should follow Range. Id.
Defendant further points to Teter v. Lopez, 76 F.4th 938 (9th Cir. 2023), in which the Ninth Circuit stated that “Bruen abrogated the two-step approach” previously adopted to analyze Second Amendment challenges. ECF No. 42 at 12. Defendant relies on Teter to argue that Vongxay has been “invalidated” by Bruen. Id.
In response, the Government argues that Section 922(g)(1) remains good law, and that, rather than overruling precedent, Bruen supports the existing precedent upholding Section 922(g)(1). ECF No. 47 at 11-12. The Government points to United States v. Robinson, No. 2:22-CR-212-TL, 2023 WL 5634712 *at 5 (W.D. Wash. Aug. 31, 2023), where the Western District of Washington concluded that Vonxgay is still good law and not irreconcilable with Bruen. Id. at 15-16. The Government further argues that many courts have addressed challenges to this statute due to the recent Bruen decision by the Supreme Court, and none has found § 922(g)(1) is facially unconstitutional based on Bruen. Id. at 19. Even if Bruen did overrule Ninth Circuit precedent, the Government argues that historical evidence supports the constitutionality of this statute. Id. at 24.
The Court finds that overwhelming Ninth Circuit caselaw supports upholding facial challenges to Section 922(g)(1). The single Ninth Circuit case cited by Defendant in support of overruling existing Ninth Circuit precedent is Teter, which addressed not § 922(g)(1), but “butterfly knives.” See 76 F.4th at 942. All other cases cited by Defendant are outside of this circuit and inconsistent with existing Ninth Circuit caselaw. Therefore, the Court denies Defendant's Motion to Dismiss based on Defendant's facial challenge.
As Applied Challenge
Defendant further argues that, even if § 922(g)(1) is not facially unconstitutional, it is unconstitutional as applied to him, because (1) he is one of “the people” protected by the Second Amendment; (2) the Second Amendment applies to possession of firearms; (3) and the Government is unable to justify applying § 922(g)(1) to Defendant by demonstrating that it is consistent with the “Nation's historical tradition of firearm regulation.” ECF No. 42 at 12-14. Defendant contends that, for § 922(g)(1) to be valid, the Government must show that there is “a historical tradition of individuals with [Defendant]'s history receiving a lifetime ban of firearm possession.” Id. at 13. Defendant argues that his underlying convictions from Oregon, which were originally felonies but have been reduced to misdemeanors, “are arguably the weakest and least offensive” type of felony, and that the Government has failed to show a historical analogue of “disarming those convicted of minor felonies that were eligible to be reduced to misdemeanors.” ECF No. 49 at 5.
The Government responds that the vast weight of authority, particularly in the Ninth Circuit, has rejected as applied challenges. ECF No. 47 at 23. The Government further notes that although Defendant could have reduced his prior convictions to misdemeanors, he did not, and he was therefore a convicted felon at the time that he was charged with being a Felon in Possession of a Firearm. Id. at 4. The Court agrees with the Government that § 922(g)(1) is applicable and constitutional as applied to Defendant, who was a convicted felon at the time that he was charged with the instant offense regardless of whether his predicate convictions were later to converted to misdemeanor convictions.
Ninth Circuit caselaw continues to uphold Ninth Circuit precedent finding § 922(g)(1) constitutional as applied. See, e.g., Hill, 629 F.Supp.3d 1027. Therefore, this Court is bound by existing Ninth Circuit precedent to uphold the constitutionality of § 922(g)(1) as applied to Defendant.
Accordingly, IT IS HEREBY ORDERED that Defendant's Motion to Dismiss, ECF No. 42, is DENIED.
IT IS SO ORDERED.