238 F. Supp.2d 297 (2002) | Cited 0 times | D. Maine | December 2, 2002


Now before the Court is Defendant's Motion to Dismiss the Indictment(Docket Item No. 11) charging him with two counts of making a falsestatement in connection with his attempts to purchase firearms, inviolation of 18 U.S.C. § 922(a)(6). In his Motion to Dismiss,Defendant argues that 18 U.S.C. § 922(g)(8), the provision that putshis acts within the purview of section 922(a)(6), is unconstitutionalfacially and as applied to him. For the reasons discussed below, theCourt finds that Defendant's motion should be DENIED.

I. Facts

The following facts are undisputed. On March 8, 1999, Lisa Ann Miles,the wife of Defendant Terrance Wesley Miles, filed an application for aprotective order in the District Court in Milam County, Texas, on thegrounds that Defendant had committed family violence. See Stipulations,Exhibit A (Docket Item No. 12). A hearing for this protective order wasset for March 19, 1999, at 9:00 a.m. On March 16, 1999, Defendant wasserved in hand at his apartment in Lewiston, Maine, with notice ofthe hearing and of the application for the protective order. SeeStipulations ¶ 6; see also Stipulations, Exhibits D & E. Defendantdid not respond in any way to the notice of hearing and application forprotective order, and he did not attend the hearing on March 19, 1999. Atthe hearing, Defendant was adjudged to have wholly made default, and thejudge issued a Protective Order against him that day. See Stipulations,Exhibit G. In the Protective Order, the judge made a finding that familyviolence had occurred and was likely to occur again in the future, and heprohibited Defendant from committing family violence as defined by section71.004 of the Texas Family Code.1 Id. at 2. The Protective Orderfurther mandated that Defendant be prohibited from communicating directlywith his wife and children "in a threatening or harassing manner" orengaging in any conduct directed specifically toward these familymembers, including following them, that was "reasonably likely toharass, annoy, alarm, abuse, torment, or embarrass" his wife andchildren. Id at 2-3. The Protective Order was to continue in full forceand effect until March 19, 2000. Id. at 5. That same day, the ProtectiveOrder was mailed to Defendant at his Lewiston, Maine address, andDefendant received it. See Stipulation ¶ 9.

On October 22, 1999, Defendant attempted to purchase a long gun from aK-Mart in Lewiston. As is required by all federally licensed firearmsdealers, K-Mart had Defendant fill out the standard Bureau of Alcohol,Tobacco, and Firearms (ATF) Form 4473 before allowing him to complete hispurchase. The ATF form requests information from the potential purchaserin an effort to ascertain whether or not that individual is prohibitedunder federal law from acquiring firearms. Question 9(j) asks thepurchaser: "Are you subject to a court order restraining you fromharassing, stalking, or threatening an intimate partner or child of suchpartner?". Defendant answered "no" to this question. See Stipulations,Exhibit I. When K-Mart ran a criminal background check on Defendantthrough the National Instant Criminal Background Check System (NICS) asrequired under federal law, the initial response was "delayed," meaningthat the firearms dealer must delay the transaction until three businessdays have elapsed or he is contacted further by NICS. On October 25,1999, NICS came back with a "denied" response and K-Mart did not proceedwith the sale. See Stipulations, Exhibits I & J.

On February 2, 2000, Defendant once again attempted to purchase afirearm, this time a Remington 742 30/06 rifle from a pawn shop inLewiston. Again, upon completing the ATF form, Defendant answered "no"when asked if he was subject to any protective court orders. Just asbefore, upon running his information through the NICS, the sale toDefendant was ultimately denied. See id.

II. Discussion

Defendant is charged with making a false statement in connection withhis two attempts to purchase firearms, in violationof 18 U.S.C. § 922(a)(6). Section 922(a)(6) holds that

it shall be unlawful . . . for any person in connection with the acquisition or attempted acquisition of any firearm or ammunition from a . . . licensed dealer . . . to knowingly make any false or fictitious oral or written statement intended or likely to deceive such . . . dealer . . . with respect to any fact material to the lawfulness of the sale or other disposition of such firearm or ammunition under the provisions of this chapter.

One of the provisions of this chapter is section 922(g)(8). It is towardthis provision that Defendant directs his unconstitutionality challenge,and upon this challenge that he bases his argument for dismissal of theIndictment.

Defendant asserts that the Second Amendment confers a fundamental rightupon individuals to keep and bear arms and that strict scrutiny must beapplied in evaluating section 922(g)(8)'s effect on this fundamentalright. See Motion to Dismiss (Docket Item No. 11) at 8. Section 922(g)(8)provides that it shall be unlawful for any person who is subject to acourt order that

(A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate;

(B) restrains such person from harassing, stalking or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and

(C)(i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or

(ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury; . . . to . . . 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."

Defendant argues that he falls under 922(g)(8)(C)(ii) as a prohibitedperson, and it is this particular provision that is unconstitutional, as aviolation of the Equal Protection Clause and substantive and proceduraldue process.2 The Court finds each of these arguments unavailing.

Defendant urges this Court to accept a recently articulated view of theFifth Circuit that the Second Amendment confers an individual, as opposedto collective, fundamental right to bear arms. See United States v.Emerson, 270 F.3d 203 (5th Cir. 2001).3 Defendant argues that18 U.S.C. § 922(g)(8) unconstitutionally infringes upon this right,and asks this Court to strike it down as facially unconstitutional and asapplied to him. At the outset, the Court must note that to decide thisMotion to Dismiss, it is not necessary to reach the issue of whether ornot the Second Amendment confers an individual right to bear arms. "Asfederal judges it is our special charge to avoid constitutional questionswhen the outcome of the case does not turn on how we answer." Emerson,270 F.3d at 272 (Parker, J., specially concurring) (citing Spector MotorService, Inc. v. McLaughlin, 323 U.S. 101, 105, 65 S.Ct. 152, 89 L.Ed.101 (1944)). Therefore, in keeping with "the one doctrine more deeplyrooted than any other in the process of constitutional adjudication. . . that we ought not to pass on questions of constitutionality . . .unless such adjudication is unavoidable," Spector, 323 U.S. at 105, 65S.Ct. 152, this Court will not discuss this broader, Second Amendmentissue.

A. Section 922(g)(8) is a reasonable restriction on the right to bear arms.

Regardless of whether there is such a fundamental individual right, therestriction imposed by section 922(g)(8) is a narrow and reasonable one,and it passes constitutional muster even under a strict scrutiny test.The Emerson court, while finding the Second Amendment to protect anindividual's right to bear arms, also found that the restriction at issuein section 922(g)(8) did not unconstitutionally infringe upon thisright. The fundamental nature of the right "does not mean that thoserights may never be made subject to any limited, narrowly tailoredspecific exceptions or restrictions for particular cases. . . ." Emerson,270 F.3d at 261. The court noted that the Supreme Court in Robertson v.Baldwin, 165 U.S. 275, 17 S.Ct. 326, 41 L.Ed. 715 (1897), remarked that"the right to keep and bear arms is, like other rights protected by theBill of Rights, `subject to certain well-recognized exceptions, arisingfrom the necessities of the case' and hence `is not infringed by lawsprohibiting the carrying of concealed weapons,'" Id. at 261, n. 62(quoting Robertson, 165 U.S. at 281-82, 17 S.Ct. 326).4

Defendant specifically takes issue with the language of section922(g)(8)(C)(ii) which places those who are subject to a court order that"by its terms explicitly prohibits the use, attempted use, or threateneduse of physical force" against a family member "that would reasonably beexpected to cause bodily injury," into the category of those prohibitedfrom possessing guns. Defendant contends that this provision results in a"blanket prohibition on firearm possession irrespective of theindividual's propensity for actual violence or need to restrict any otherlegitimate uses of a firearm." Motion to Dismiss at 9. He argues that tobecome a prohibited person under this provision, a protective order needonly contain "operative language that tracks the standard in the federalstatute." Id. Defendant argues that he himself was "deprived of hisconstitutional right because the judge had authority to issue aprotective order that tracked the language of 18 U.S.C. § 922(g)(8)and not because his conduct had been shown to cause bodily harm or thathe was likely to commit an act of violence in the future." Id. at 11. Hefurther argues that "it is not really possible to argue that there was afinding of credible threat to the physical safety of Ms. Miles."Defendant's Response to the Government's Objection to Defendant's Motionto Dismiss (Docket Item No. 17) at 6.

As the Fifth Circuit noted in Emerson, when Congress created section922(g)(8)(C)(ii)'s requirement that the order explicitly prohibit theattempted, threatened, or actual use of physical force that wouldreasonably be expected to cause bodily injury,

it was legislating against the background of the almost universal rule of American law that for a temporary injunction to issue: "There must be a likelihood that irreparable harm will occur. Speculative injury is not sufficient; there must be more than an unfounded fear on the part of the applicant. Thus, a preliminary injunction will not be issued simply to prevent the possibility of some remote future injury. A presently existing actual threat must be shown. However, the injury need not have been inflicted when application is made or be certain to occur; a strong threat of irreparable injury before trial is an adequate basis."

Emerson, 270 F.3d at 262 (quoting 11A Charles Alan Wright, et al.,FEDERAL PRACTICE AND PROCEDURE: Civil 2d § 2948.1 at 153-56).Following these standards, a court will not issue a protective order ifthere is no basis to do so. It will only do so after making explicitfindings with respect to the defendant and the likelihood of injury thatsuch defendant poses. Restricting the firearm access of those who arethen deemed to necessitate such protective orders is certainlyreasonable. Defendant's argument for the unconstitutionality of (C)(ii)fails.

As applied to Defendant, his argument also fails for the simple reasonthat in his case, the court did make a specific finding of violence inissuing the protective order.

The order said:

The Court finds that family violence has occurred and that family violence is likely to occur again in the future. The Court finds that the . . . protective orders are for the safety and welfare and in the best interest of Applicant and other members of the family and are necessary for the prevention of family violence.

Stipulations, Exhibit G at 2. With this finding, Defendant actually fallsunder both section 922(g)(8)(C)(i) and (c)(ii) as a prohibited person.Section 922(g)(8)(C)(i) prohibits gun possession by those who are"subject to a court order that . . . includes a finding that such personrepresents a credible threat to the physical safety of such intimatepartner or child." The words used in the protective order leave no roomfor argument about whether the Texas judge found Defendant to pose acredible threat to the safety of his wife, as Defendant claims. There isno question that the judge did make such a finding, and the Court findsDefendant's argument that the order simply "tracked the language of thestatute" without any findingof credible threat to the physical safety of his wife to be baseless.

B. Section 922(g)(8) is narrowly tailored to support a compelling government interest.

The Court finds to be wholly without merit Defendant's contention that"the truly necessary relationship does not exist between preventingphysical harm against family members by firearms and the language of18 U.S.C. § 922(g)(8)(C)(ii)." Defendant's Response to Government'sObjection at 7. In 1994 Congress enacted the Violence Against Women Act("VAWA") as part of the Violent Crime Control Law and Enforcement Act of1994, Pub.L. No. 103-322 § 110401(c), 108 Stat. 1796. Section922(g)(8) was a provision within VAWA that was originally known as theDomestic Violence Firearm Prevention Act. The House Report on theDomestic Violence Firearm Prevention Act made several legislativefindings:

(1) domestic violence is the leading cause of injury to women in the United States between the ages of 15 and 44; (2) firearms are used by the abuser in 7 percent of domestic violence incidents . . . and (3) individuals with a history of domestic abuse should not have easy access to firearms.

H.R. Rep. No. 103-395 (1993). These determinations of legislative factthat individuals who have been found to present a threat of violence totheir family members should not be allowed to own guns, and the choice ofwords that Congress chose to implement this legislative determination,easily survive strict scrutiny. As discussed above, section 922(g)(8)ensures that only those individuals who have been determined by a courtto pose such a threat of violence are subject to its prohibitions. Thisprovision is narrowly tailored to support the compelling governmentinterest of preventing family violence.

C. Section 922(g)(8) meets the constitutional requirements for the "knowing" standard, and Defendant possessed the requisite knowledge to meet this standard.

Next, Defendant makes much of his lack of "knowledge of the attendantcircumstances." Defendant's Response to the Government's Objection at 2.He argues that "[t]he knowing standard requires knowledge of theattendant circumstances that make you a prohibited person not just thatthe statement turned out to be false." Id. The Court understandsDefendant to be arguing that just because he knew there was a protectiveorder against him, this was not enough to give him knowledge that hecould not purchase a firearm. Once again, Defendant's argument fails.

As the Emerson court stated in its discussion of why section 922(g)(8)did not violate the Due Process Clause of the Fifth Amendment,"[k]nowingly — in contrast to at least some uses of "willfully"— does not require that the defendant know that his actions areunlawful, but only that he know he is engaging in the activity that thelegislature has proscribed." Emerson, 270 F.3d at 216 (citing Bryan v.United States, 524 U.S. 184, 118 S.Ct. 1939, 1945-47, 141 L.Ed.2d 197(1998)). The Emerson court points to Staples v. United States,511 U.S. 600, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994), as exemplifyingthis distinction: "In Staples, the Supreme Court held that conviction forunlawful possession of a machine gun did not require knowledge thatmachine gun possession was unlawful, but only knowledge that the weaponpossessed was a machine gun." Id. (citing Bryan, 118 S.Ct. at 1946).

These decisions are directly applicable to Defendant's situation, andthey easily lay to rest his arguments. Defendant knew that he was subjectto a courtprotective order when he filled out the ATF form uponattempting to purchase a gun; when questioned by an ATF agent, Defendantadmitted that he received the Protective Order. See Stipulations ¶ 9.According to Staples, all that is required is that Defendant haveknowledge that he was attempting to purchase a gun, not that such apurchase would be illegal. Defendant has met this standard. In fact,Defendant's knowledge goes well beyond even the constitutional minimum.Unlike the defendant in Staples, Defendant had direct notice, at the timehe attempted to purchase a gun, that his right to possess a gun wascurtailed as a result of the protective order. Immediately after the formasks whether the potential purchaser is subject to any protective courtorders restraining him from harassing, stalking, or threatening anintimate partner or child of such partner, it specifically directs him to"Important Notice 6 and Definition 4." See Stipulations, Exhibit I.Important Notice 6 advises potential firearms purchasers of18 U.S.C. § 922 and specifically sets out the provisions prohibitingthose who are subject to a court protective order from purchasing afirearm. See Stipulations, Exhibit J. Definition 4 then defines "intimatepartner," a definition which includes one's spouse. See id. Not only canDefendant not credibly claim that he did not have knowledge that he wassubject to a protective court order, or that he was attempting topurchase a gun, but he cannot now claim that he did not know that such apurchase was illegal in his case. Defendant twice answered Question 9(j),which inquired about protective court orders that the purchaser mightthen be under, in the negative and with that knowledge.

D. Defendant received adequate notice of the restriction on his right to bear arms.

Lastly, Defendant asserts that he was not given notice that his SecondAmendment rights would be curtailed as a result of a protective orderbeing entered against him and that, as a result of this, he was not givenan adequate opportunity to be heard. See Motion to Dismiss at 12 andDefendant's Response to the Government's Objection at 4. Defendantanalogizes his situation to that of the individuals in the case of Doev. Rowe, 156 F. Supp.2d 35 (D.Me. 2001). In Doe, the court found to beunconstitutional the fact that mentally ill patients in guardianshipproceedings were not advised in those proceedings that their right to votecould be extinguished. Id. at 49-50.

The court found that this lack of notice led to an inadequateopportunity to be heard and that, therefore, these individuals faced ahigh risk of being deprived of their fundamental right to vote withoutdue process. Id. at 48.

However, the Court of Appeals for the First Circuit has previouslydecided that 922(g)(8) provides constitutionally sound notice, and thatthe fact that "state court restraining orders [do not] inform those whomthey enjoin of the federal law consequences that may attach" to suchorders is not fatal. United States v. Meade, 175 F.3d 215, 225 (1st Cir.1999). The court in Meade explicitly found that 922(g)(8) "satisfies thestandards embedded in precedent; both the proscribed conduct and affectedclass of persons are explicitly set forth." The court rejected the notionthat a defendant under a court protective order could not be expected toknow that his mere possession of a gun would violate the law. Unlike thedefendant in Lambert v. California, 355 U.S. 225, 78 S.Ct. 240, 2 L.Ed.2d228 (1957), whom the Court found could not be expected to know that hismere presence in a municipality was a federal law violation, thedefendant who is subject to a judicial protective order presents adifferent situation:

[P]ossession of firearms by persons laboring under the yoke of anti-harassment or anti-stalking restraining orders is a horse of a different hue. The dangerous propensities of persons with a history of domestic abuse are no secret, and the possibility of tragic encounters has been too often realized. We think it follows that a person who is subject to such an order would not be sanguine about the legal consequences of possessing a firearm, let alone of being apprehended with a handgun in the immediate vicinity of his spouse.

Id. at 226.

Moreover, as discussed above, it remains a fact that Defendant knewthat he was subject to a court protective order when he filled out theATF form upon attempting to purchase a gun; it is also a fact that he wasprovided notice by the ATF form when he attempted to make this purchasethat so long as he was under such an order, federal law prohibited himfrom possessing a gun. Nevertheless, in spite of the clear warning onthis form about the applicable restrictions on purchasing firearms, Milesanswered "no" to Section 9(j)'s question and continued his attempt toacquire a gun.5 The express notice on the ATF form filled out byDefendant, in light of the First Circuit holding in Meade, dispatchesDefendant's argument that he was denied due process in this instance.

III. Conclusion

For the foregoing reasons, Defendant has failed to show any violationsof his constitutional rights; the Court hereby DENIES the Defendant'sMotion to Dismiss the Indictment.


1. Section 71.004 of the Texas Family Code defines "family violence" as:

(1) an act by a member of a family or household against another member of the family or household that is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the member in fear of imminent physical harm, bodily injury, assault, or sexual assault, but does not include defensive measures to protect oneself;

(2) abuse, as that term is defined by Sections 261.001(1)(C), (E), and (G), by a member of a family or household toward a child of the family or household; or

(3) dating violence, as that term is defined by Section 71.0021.

Tex. Family Code Ann. § 71.004 (West 2002).

2. Although Defendant purports to be asserting these three separateconstitutional violations, many of his arguments overlap and run togetherwith regard to each of these separate assertions, and therefore, theCourt will address them as a whole. The Court notes that it ischaracterizing Defendant's arguments to the extent that it can understandand distinguish them. After careful and repeated review of Defendant'swritten submissions, the Court has set forth what it believes to be thethrust of his arguments.

3. The Court notes, however, that this view was put forth only indicta, albeit 70 pages of dicta. In a special concurrence by JudgeParker, he pointed this out in no uncertain terms: "The determinationwhether the rights bestowed by the Second Amendment are collective orindividual is entirely unnecessary to resolve this case and has nobearing on the judgment we dictate by this opinion." Emerson, 270 F.3d at272 (Parker, J., concurring). Judge Parker called the analysis"interesting" and "scholarly," but nonetheless dicta that "amount[s] toat best an advisory treatise on this long-running debate." Id.

4. The Robertson court gave examples of other restrictions on theamendments within the Bill of Rights: the First Amendment's freedom ofspeech and press forbade the publication of "libels, blasphemous orindecent articles, or other publications injurious to public morals orprivate reputation;" the Fifth Amendment's protection from double jeopardy"does not prevent a second trial, if upon the first trial the jury failedto agree, or if the verdict was set aside upon the defendant's motion;"the Sixth Amendment's provision that an accused person shall beconfronted with the witnesses against him does not "prevent the admissionof dying declarations, or the depositions of witnesses who have diedsince the former trial." Robertson, 165 U.S. at 281-82, 17 S.Ct. 326. TheCourt remarked that "[i]n incorporating these principles [in the Bill ofRights] into the fundamental law, there was no intention of disregardingthe exceptions, which continued to be recognized as if they had beenformally expressed." Id. at 281.

5. It is noteworthy that even after being denied a gun once, Defendantlater made a second attempt to purchase a gun, in spite of his knowledgethat he was subject to a court restraining order. Defendant's contentionthat he was never advised as to why his first attempted purchase wasdenied, see Defendant's Response to the Government's Objection at 3, canhardly be sustained given his admitted receipt of the protective order inthe first place, and the subsequent explicit warnings on the form hefilled out on both occasions that he attempted to make his firearmspurchase.

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