Government’s Brief

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No. 17-15279

IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

BARRY MICHAELS, Plaintiff-Appellant,

v.

JEFFERSON B. SESSIONS III, Attorney General of the United States, et al.,

Defendants-Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEVADA

BRIEF FOR APPELLEES
CHAD A. READLER

Acting Assistant Attorney General

STEVEN W. MYHRE

Acting United States Attorney

MICHAEL S. RAAB PATRICK G. NEMEROFF

(202) 305-8727
Attorneys, Appellate Staff Civil Division, Room 7217 Department of Justice
950 Pennsylvania Ave., NW Washington DC 20530

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TABLE OF CONTENTS

Page(s)

STATEMENT OF JURISDICTION ………………………………………………………………………..1 STATEMENT OF THE ISSUES………………………………………………………………………………2 PERTINENT STATUTORY PROVISIONS……………………………………………………………2 STATEMENT …………………………………………………………………………………………………………… 2

  1. Statutory Background…………………………………………………………………………….2
  2. Facts and Prior Proceedings…………………………………………………………………..4

SUMMARY OF ARGUMENT………………………………………………………………………………….5 STANDARD OF REVIEW ………………………………………………………………………………………6 ARGUMENT …………………………………………………………………………………………………………….7

PLAINTIFF’S CONSTITUTIONAL CHALLENGE
TO SECTION 922(g)(1) LACKS MERIT. ……………………………………………………..7

  1. Plaintiff’s claim is foreclosed by binding precedent……………………………….7
  2. Plaintiff’s argument cannot be reconciled with the
    historical understanding of the Second Amendment
    or the decisions of other courts of appeals…………………………………………..10

CONCLUSION ……………………………………………………………………………………………………….16 STATEMENT OF RELATED CASES
CERTIFICATE OF COMPLIANCE
CERTIFICATE OF SERVICE

ADDENDUM

Cases:

Page(s)

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TABLE OF AUTHORITIES

Binderup v. Attorney General,
836 F.3d 336 (3d Cir. 2016)……………………………………………………………………………..12, 13

District of Columbia v. Heller,
554 U.S. 570 (2008)…………………………………………………………………………………………..passim

Hubbard v. United States,
514 U.S. 695 (1995)………………………………………………………………………………………………….9

McDonald v. City of Chicago,
561 U.S. 742 (2010)………………………………………………………………………………………………….8

Richardson v. Ramirez,
418 U.S. 24 (1974)………………………………………………………………………………………………….11

Skilstaf, Inc. v. CVS Caremark Corp.,
669 F.3d 1005 (9th Cir. 2012) ………………………………………………………………………………….6

Spencer v. Kemna,
523 U.S. 1 (1998)……………………………………………………………………………………………………11

Tri-Valley CAREs v. U.S. Dep’t of Energy,
671 F.3d 1113 (9th Cir. 2012) ………………………………………………………………………………..15

Tyler v. Hillsdale Cty. Sherriff’s Dep’t,
837 F.3d 678 (6th Cir. 2016)…………………………………………………………………………………..11

In re United States,
578 F.3d 1195 (10th Cir. 2009) ………………………………………………………………………………14

United States v. Booker,
644 F.3d 12 (1st Cir. 2011) …………………………………………………………………………………….14

United States v. Carpio-Leon,
701 F.3d 974 (4th Cir. 2012)……………………………………………………………………………..10-11

ii

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United States v. Chovan,
735 F.3d 1127 (9th Cir. 2013) ………………………………………………………………………9, 10, 15

United States v. Greeno,
679 F.3d 510 (6th Cir. 2012)…………………………………………………………………………………….9

United States v. McCane,
573 F.3d 1037 (10th Cir. 2009) ………………………………………………………………………………12

United States v. Phillips,
827 F.3d 1171 (9th Cir. 2016) …………………………………………………………………………..passim

United States v. Pruess,
703 F.3d 242 (4th Cir. 2012)…………………………………………………………………………………..11

United States v. Rene E.,

583 F.3d 8 (1st Cir. 2009)……………………………………………………………………………………….11

United States v. Rozier,
598 F.3d 768 (11th Cir. 2010) ………………………………………………………………………………..12

United States v. Scroggins,
599 F.3d 433 (5th Cir. 2010)…………………………………………………………………………………..12

United States v. Skoien,
614 F.3d 638 (7th Cir. 2010)…………………………………………………………………………….10, 14

United States v. Vongxay,
594 F.3d 1111 (9th Cir. 2010) …………………………………………………………………………..passim

United States v. Yancey,
621 F.3d 681 (7th Cir. 2010)…………………………………………………………………………………..11

Williams v. United States,
426 F.2d 253 (9th Cir. 1970)…………………………………………………………………………………..15

iii

15 U.S.C. § 15 U.S.C. § 26 U.S.C. § 28 U.S.C. § 28 U.S.C. § 28 U.S.C. § Rule:

78j(b) ……………………………………………………………………………………………………….. 4 78ff………………………………………………………………………………………………………….. 4 7206(1)……………………………………………………………………………………………………..4 1291 …………………………………………………………………………………………………………1 1331 …………………………………………………………………………………………………………1 1865(b)(5)……………………………………………………………………………………………….11

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Statutes:

Gun Control Act of 1968,
Pub. L. No. 90-618, tit. I, § 101, 82 Stat. 1213 …………………………………………………………3

Omnibus Crime Control and Safe Streets Act of 1968,
Pub. L. No. 90-351, tit. IV, § 901(a), 82 Stat. 225………………………………………………… 2, 3

18 U.S.C. § 921(a)(20)……………………………………………………………………………………. 4, 15 18 U.S.C. § 921(a)(20)(A)……………………………………………………………………………………..4 18 U.S.C. § 921(a)(20)(B) …………………………………………………………………………………. 3-4 18 U.S.C. § 922(g)(1)……………………………………………………………………………………..passim 18 U.S.C. § 922(g)(9)…………………………………………………………………………………………….9 18 U.S.C. § 925(c)……………………………………………………………………………………………….14

Fed. R. App. P. 4(a)(1)(B) …………………………………………………………………………………………..1

Legislative Materials:

S. Rep. No. 88-1340 (1964) ……………………………………………………………………………………..2, 3 S. Rep. No. 89-1866 (1966) ……………………………………………………………………………………..2, 3 S. Rep. No. 90-1097 (1968) …………………………………………………………………………………………3 S. Rep. No. 102-353 (1992) ……………………………………………………………………………………….14

iv

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Other Authorities:

Glenn Harlan Reynolds, A Critical Guide to the Second Amendment,
62 Tenn. L. Rev. 461 (1995) …………………………………………………………………………………..11

2 Bernard Schwartz, The Bill of Rights: A Documentary History (1971)…………………………..10 3 Wharton’s Criminal Law (15th ed.)……………………………………………………………………………..9

v

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No. 17-15279

IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

BARRY MICHAELS, ,

Plaintiff-Appellant, v.

JEFFERSON B. SESSIONS III, Attorney General of the United States, et al.,

Defendants-Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEVADA

BRIEF FOR APPELLEES

STATEMENT OF JURISDICTION

Plaintiff invoked the district court’s jurisdiction under 28 U.S.C. § 1331. ER 3. The district court dismissed plaintiff’s claims on January 25, 2017. ER 93. Plaintiff filed a timely notice of appeal on February 12, 2017. ER 95; see Fed. R. App. P. 4(a)(1)(B). This Court has jurisdiction pursuant to 28 U.S.C. § 1291.

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STATEMENT OF THE ISSUE

Federal law prohibits the possession of firearms by felons. 18 U.S.C. § 922(g)(1). The issue presented is whether the district court correctly dismissed plaintiff’s constitutional challenge to section 922(g)(1) for failure to state a claim.

PERTINENT STATUTORY PROVISIONS

Pertinent statutory provisions are reproduced in the addendum to this brief.

STATEMENT A. Statutory Background

Following a multi-year inquiry that included “field investigation and public hearings,” S. Rep. No. 88-1340, at 1 (1964), Congress found “that the ease with which” handguns could be acquired by “criminals . . . and others whose possession of such weapons is similarly contrary to the public interest[] is a significant factor in the prevalence of lawlessness and violent crime in the United States,” Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. No. 90-351, tit. IV, § 901(a)(2), 82 Stat. 197, 225. Congress found “that there is a widespread traffic in firearms moving in or otherwise affecting interstate or foreign commerce, and that the existing Federal controls over such traffic do not adequately enable the States to control this traffic within their own borders through the exercise of their police power.” Id. § 901(a)(1), 82 Stat. at 225. Congress’s investigations revealed “a serious problem of firearms

misuse in the United States,” S. Rep. No. 89-1866, at 53 (1966), and law enforcement 2

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officials testified to the “tragic results” of firearm misuse by persons with prior criminal convictions. S. Rep. No. 88-1340, at 12, 17-18. Congress determined “that only through adequate Federal control over interstate and foreign commerce in these weapons . . . can this grave problem be properly dealt with, and effective State and local regulation of this traffic be made possible.” Pub. L. No. 90-351, tit. IV,
§ 901(a)(3), 82 Stat. at 225.

Congress accordingly aimed to “regulate more effectively interstate commerce in firearms so as to reduce the likelihood that they fall into the hands of the lawless or those who might misuse them.” S. Rep. No. 89-1866, at 1. To that end, Congress included in both the Omnibus Crime Control Act and the Gun Control Act of 1968, Pub. L. No. 90-618, tit. I, § 101, 82 Stat. 1213, statutory provisions limiting firearms access by persons with “criminal background[s],” S. Rep. No. 90-1097, at 28 (1968). These provisions include 18 U.S.C. § 922(g)(1), which provides that 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 receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.”

“The term ‘crime punishable by imprisonment for a term exceeding one year’ does not include” a “State offense classified by the laws of the State as a misdemeanor and punishable by a term of imprisonment of two years or less,” 18 U.S.C.

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§ 921(a)(20)(B), or “offenses pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices,” id. § 921(a)(20)(A). It also excludes “[a]ny conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored.” Id. § 921(a)(20).

B. Facts and Prior Proceedings

Plaintiff Barry Michaels pled guilty in the mid-1990s to one count of securities fraud, in violation of 15 U.S.C. §§ 78j(b) and 78ff, and one count of subscribing to a false tax return, in violation of 26 U.S.C. § 7206(1). See Appellant’s Br. 2. Plaintiff was sentenced to twenty-one months in federal prison, and he ultimately served fifteenmonths.Id. Plaintiffhadpreviouslypledguiltytofraudontwoseparate occasions in the mid-1970s. Id. Because of his felony convictions, plaintiff is prohibited from possessing firearms by 18 U.S.C. § 922(g)(1).

Plaintiff filed this putative class action lawsuit in the District of Nevada seeking declaratory and injunctive relief barring enforcement of 18 U.S.C. § 922(g)(1) against him and other similarly situated individuals. ER 1-21. Plaintiff asserted that section 922(g)(1) is unconstitutional as-applied to “all non-violent felons who completed their sentences more than five years ago.” ER 8. After the government moved to dismiss, plaintiff opposed and sought leave to file an amended complaint. ER 38-76.

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The district court granted the government’s motion to dismiss and denied as futile plaintiff’s cross-motion to file an amended complaint. ER 88-93. The district court explained that plaintiff’s “claims all rise and fall with his assertion that, as a non- violent felon, he still enjoys full Second Amendment privileges.” ER 91. That position “has been rejected by the Ninth Circuit,” and plaintiff “does not cite a single case—controlling or persuasive—that supports [his] view.” Id. In United States v. Vongxay, 594 F.3d 1111 (9th Cir. 2010), this Court “rejected a Second Amendment challenge to § 922(g)(1), reasoning that ‘felons are categorically different from individuals who have a fundamental right to bear arms.’” ER 92 (quoting Vongxay, 594 F.3d at 1115). And, in United States v. Phillips, 827 F.3d 1171, 1176 (9th Cir. 2016), this Court “rejected an as-applied challenge to § 922(g)(1) by a defendant with a prior conviction for misprision of a felony, which he argued was non-violent and passive.” ER 92. The district court concluded that those decisions “foreclose[] [plaintiff’s] argument that § 922(g)(1) is unconstitutional as applied to him.” ER 92.

SUMMARY OF ARGUMENT

Congress has restricted the possession of firearms by persons convicted of a felony punishable by a term of imprisonment of longer than a year. 18 U.S.C.
§ 922(g)(1). Plaintiff is subject to that restriction because he was convicted of multiple federal felonies, for which he was sentenced to twenty-one months in prison.

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Plaintiff’s constitutional challenge to section 922(g)(1) is foreclosed by this Court’s precedent. In United States v. Vongxay, 594 F.3d 1111 (9th Cir. 2010), this Court rejected an as-applied Second Amendment challenge to section 922(g)(1), concluding that “felons are categorically different from the individuals who have a fundamental right to bear arms.” Id. at 1115. The Court again rejected an as-applied challenge to section 922(g)(1) in United States v. Phillips, 827 F.3d 1171 (9th Cir. 2016), explaining that the claim was “foreclosed by [this Court’s] precedent.” Id. at 1173. Those decisions are consistent with the traditional understanding of the Second Amendment, and they accord with the Supreme Court’s statement in District of Columbia v. Heller, 554 U.S. 570, 626 (2008) that “nothing in [its] opinion should be taken to cast doubt” on several well-established firearms regulations, including “longstanding prohibitions on the possession of firearms by felons.”

The Supreme Court’s decision in Heller and this Court’s precedent do not allow for the possibility of a successful as-applied challenge to section 922(g)(1), like the one plaintiff attempts to bring here. Plaintiff cannot distinguish his claim from those rejected in Vongxay and Phillips, and the district court was correct to dismiss his challenge for failure to state a claim.

STANDARD OF REVIEW

This Court “review[s] de novo the district court’s grant of a motion to dismiss.”

Skilstaf, Inc. v. CVS Caremark Corp., 669 F.3d 1005, 1014 (9th Cir. 2012). 6

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ARGUMENT

PLAINTIFF’S CONSTITUTIONAL CHALLENGE TO SECTION 922(g)(1) LACKS MERIT.

A. Plaintiff’s claim is foreclosed by binding precedent.

In United States v. Vongxay, 594 F.3d 1111 (9th Cir. 2010), this Court rejected an as-applied Second Amendment challenge to section 922(g)(1), concluding that “felons are categorically different from the individuals who have a fundamental right to bear arms.” Id. at 1115 (citing District of Columbia v. Heller, 554 U.S. 570, 625-27 & n.26 (2008)). This Court again upheld section 922(g)(1) in United States v. Phillips, 827 F.3d 1171 (9th Cir. 2016). The Court explained that the as-applied Second Amendment challenge in that case was “foreclosed by [this Court’s] precedent.” Id. at 1173; see id. at 1174 (“Our decision in Vongxay forecloses Phillips’s argument, and we accordingly affirm the district court’s denial of Phillips’s motion to dismiss the indictment.”).

This Court’s decisions were premised on the Supreme Court’s discussion in Heller. There, the Supreme Court recognized that, “[l]ike most rights, the right secured by the Second Amendment is not unlimited.” Heller, 554 U.S. at 626. The Court restricted its holding to “the right of law-abiding, responsible citizens.” Id. at 635. Consistent with that understanding, the Court stated that “nothing in [its] opinion should be taken to cast doubt” on several well-established firearms regulations, including “longstanding prohibitions on the possession of firearms by

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felons.” Id. at 626.1 The Court described those “permissible” measures as falling within “exceptions” to the protected right to bear arms. Id. at 635. Two years later, a plurality of the Court “repeat[ed]” its “assurances” that Heller’s holding “did not cast doubt on such longstanding regulatory measures as ‘prohibitions on the possession of firearms by felons.’” McDonald v. City of Chicago, 561 U.S. 742, 786 (2010) (quoting Heller, 554 U.S. at 626).

This Court’s precedent and the Supreme Court’s decision in Heller foreclose plaintiff’s challenge to section 922(g)(1), and plaintiff cannot distinguish his claim from those rejected in Vongxay and Phillips. While plaintiff argues that his felony convictions do not disqualify him from exercising a Second Amendment right because they were for non-violent crimes, Br. 13-14, the underlying convictions in Vongxay and Phillips were also non-violent. Vongxay “had three previous, non-violent felony convictions: two for car burglary and one for drug possession,” Vonxcay, 596 F.3d at 1114-15, and Phillips had a “prior conviction for ‘misprision of felony,’” Phillips, 827 F.3d at 1173. This Court expressly rejected Phillip’s argument that “permitting [his conviction] to serve as a predicate for his § 922(g)(1) conviction violates the Second

1 In a footnote, the Court stated that it identified “these presumptively lawful regulatory measures only as examples,” not as an “exhaustive” list of permissible firearms regulations.” Heller, 554 U.S. at 627 n.26.

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Amendment” because misprision of felony “is a non-violent, ‘passive crime of inaction.’” Id. at 1173-74.2

Plaintiff finds no support in United States v. Chovan, 735 F.3d 1127 (9th Cir. 2013), which addressed 18 U.S.C. § 922(g)(9)’s prohibition on the possession of firearms by domestic violence misdemeanants. In that case, this Court rejected an as- applied challenge to section 922(g)(9) after finding that the statute satisfies means-end scrutiny. Chovan, 735 F.3d at 1139-42. While the Court concluded that section 922(g)(9) implicates the Second Amendment, it reasoned that “the government has not proved that domestic violence misdemeanants in particular have historically been

2 While the Court noted in Phillips that misprision of felony was a crime at the time of the founding, 827 F.3d at 1175-76 & n.5, that observation was unnecessary to its holding, id. at 1174 (concluding that “Vongxay forecloses Phillips’s argument”); id. at 1175 (Christen, J., concurring) (“agree[ing] that [the Court’s] prior precedent and Supreme Court precedent foreclose Phillips’s argument”). This Court did not inquire in Vongxay whether car burglary and drug possession were felonies at the founding before holding that those convictions resulted in the loss of Second Amendment protection. See 594 F.3d at 1114-15. And, in determining the scope of the Second Amendment, other courts have similarly rejected the need for a precise founding-era analogue. See, e.g., United States v. Greeno, 679 F.3d 510, 517-21 (6th Cir. 2012) (sentencing enhancement for firearm possession during drug offense does not implicate Second Amendment, even though “laws prohibiting the possession, use, and distribution of narcotics are of relatively recent vintage”). Regardless, plaintiff was convicted of fraud and false statements to the government, Appellant’s Br. 2, which both have long been criminal, see 3 Wharton’s Criminal Law, pt. V, ch. 24, § 410 (15th ed.) (a 1757 English statute established the crime of false pretense, subject to “imprison[ment] . . . for the term of seven years,” and “[m]ost American States enacted a statute similar to the original English statute”); Hubbard v. United States, 514 U.S. 695, 704-05 (1995) (describing history of federal statutes criminalizing false statements to the government).

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restricted from bearing arms.” Id. at 1137. By contrast, traditionally “felonies resulted in forfeiture of property and rights,” and “felon disqualification from the scope of the Second Amendment makes sense from an historical perspective.” Id. at 1144-45
(Bea, J., concurring).

This case thus is controlled by this Court’s decisions in Vonxgay and Phillips, consistent with the Supreme Court’s discussion in Heller.

B. Plaintiff’s argument cannot be reconciled with the historical understanding of the Second Amendment or the decisions of other courts of appeals.

The historical record supports the conclusion that felons are not entitled to Second Amendment protection. “Heller identified . . . as a ‘highly influential’ ‘precursor’ to the Second Amendment the Address and Reasons of Dissent of the Minority of the Convention of the State of Pennsylvania to Their Constituents.” United States v. Skoien, 614 F.3d 638, 640 (7th Cir. 2010) (en banc) (quoting 554 U.S. at 604). That report expressly recognized the permissibility of imposing a firearms disability on convicted criminals, stating that “citizens have a personal right to bear arms ‘unless for crimes committed, or real danger of public injury.’” Id. (emphasis added) (quoting 2 Bernard Schwartz, The Bill of Rights: A Documentary History 662, 665 (1971)). Indeed, “[m]ost scholars of the Second Amendment agree that the right to bear arms was tied to the concept of a virtuous citizenry and that, accordingly, the government

could disarm ‘unvirtuous citizens.’” United States v. Carpio-Leon, 701 F.3d 974, 979-80 10

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(4th Cir. 2012) (quoting United States v. Yancey, 621 F.3d 681, 684-85 (7th Cir. 2010) (quoting Vongxay, 594 F.3d at 1118) (citing Glenn Harlan Reynolds, A Critical Guide to the Second Amendment, 62 Tenn. L. Rev. 461, 480 (1995))); see United States v. Rene E., 583 F.3d 8, 15-16 (1st Cir. 2009) (“In the parlance of the republican politics of the time, these limitations were sometimes expressed as efforts to disarm the ‘unvirtuous.’”).

In this respect, the right to bear arms is analogous to other civic rights that have historically been subject to forfeiture by individuals convicted of crimes, including the right to vote, see Richardson v. Ramirez, 418 U.S. 24, 56 (1974), the right to serve on a jury, 28 U.S.C. § 1865(b)(5), and the right to hold public office, Spencer v. Kemna, 523 U.S. 1, 8-9 (1998). Cf. Glenn Harlan Reynolds, A Critical Guide to the Second Amendment, 62 Tenn. L. Rev. 461, 480-481 (1995) (“[T]he franchise and the right to arms were ‘intimately linked’ in the minds of the Framers.”). Just as Congress and the States have required persons convicted of felonies to forfeit other civic rights, section 922(g)(1) permissibly imposes a firearms disability “as a legitimate consequence of a felony conviction.” Tyler v. Hillsdale Cty. Sherriff’s Dep’t, 837 F.3d 678, 708 (6th Cir. 2016) (en banc) (Sutton, J., concurring in judgment).

Plaintiff’s reliance on the decisions of other courts of appeals is misplaced.

Courts of appeals “have consistently upheld applications of § 922(g)(1) even to non-

violent felons” like plaintiff. United States v. Pruess, 703 F.3d 242, 247 (4th Cir. 2012) 11

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(collecting cases). And several courts of appeals have recognized that “statutes disqualifying felons from possessing a firearm under any and all circumstances do not offend the Second Amendment.” United States v. Rozier, 598 F.3d 768, 771 (11th Cir. 2010); see United States v. McCane, 573 F.3d 1037, 1047 (10th Cir. 2009); United States v. Scroggins, 599 F.3d 433, 451 (5th Cir. 2010) (“reaffirm[ing] [the Fifth Circuit’s] prior jurisprudence” that “criminal prohibitions on felons (violent or nonviolent) possessing firearms did not violate [the] right” to bear arms).

Only one court of appeals has ever held that section 922(g)(1) violates the Second Amendment in any of its applications, and even that decision does not support plaintiff’s claim here. In Binderup v. Attorney General, 836 F.3d 336 (3d Cir. 2016) (en banc), the Third Circuit held section 922(g)(1) unconstitutional as applied to two plaintiffs who had been convicted of non-violent misdemeanors for which they served no prison time. Ten of the fifteen judges on the en banc court recognized that individuals convicted of “serious” crimes permanently forfeit their Second Amendment rights. Id. at 348-49 (opinion of Ambro, J.); id. at 396 (Fuentes, J., concurring in part and dissenting in part). But, in the controlling opinion authored by Judge Ambro, three of those ten judges concluded that the crimes at issue in Binderup were insufficiently serious to warrant a firearm disability, because they were labeled misdemeanors, resulted in no jail time, were non-violent, and were not treated

seriously by a “cross-jurisdictional consensus” of states. Id. at 351-53 (Ambro, J.). 12

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The Third Circuit erred in concluding that some convictions that trigger section 922(g)(1) are nonetheless insufficiently serious to result in the loss of Second Amendment rights. See Binderup, 836 F.3d at 387 (Fuentes, J., concurring in part and dissenting in part) (observing that the Third Circuit “stand[s] entirely alone” in finding section 922(g)(1) unconstitutional in any of its applications). Regardless, plaintiff’s crimes in this case would be disqualifying even under the Binderup analysis, because he was convicted of federal felonies for which he was sentenced to twenty-one months in prison. Under Judge Ambro’s reasoning, where the predicate offense “is considered a felony by the authority that created the crime,” an individual seeking to bring an as-applied challenge to section 922(g)(1) faces an “extraordinarily high” burden that is “perhaps even insurmountable.” Binderup, 836 F.3d at 353 n.6 (opinion of Ambro, J.). Also, plaintiff’s substantial prison sentence reflects a determination of the offense’s seriousness made by a judge with “firsthand knowledge of the facts and circumstances” of plaintiff’s crimes. Id. at 352. Finally, because plaintiff was convicted of a federal crime, his conduct was punishable as a felony throughout the Nation. Id. at 352-353 (describing absence of “cross-jurisdictional consensus” on seriousness of state offenses at issue in Binderup).

Because plaintiff’s felony convictions properly resulted in the forfeiture of his Second Amendment rights, it is irrelevant whether he has avoided subsequent additional convictions. As a convicted felon, plaintiff is “categorically different from

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the individuals who have a fundamental right to bear arms,” Vongxay, 594 F.3d at 1115 (citing Heller, 554 U.S. at 625-27 & n.26), and he is not entitled to an individualized determination of dangerousness as a prerequisite for the application of section 922(g)(1) against him. See Skoien, 614 F.3d at 641 (“Congress is not limited to case-by-case exclusions of persons who have been shown to be untrustworthy with weapons, nor need these limits be established by evidence presented in court.”); United States v. Booker, 644 F.3d 12, 22 (1st Cir. 2011) (holding that “the Second Amendment permits categorical regulation of gun possession by classes of persons . . . rather than requiring that restrictions on the right be imposed only on an individualized, case-by- case basis”); In re United States, 578 F.3d 1195, 1200 (10th Cir. 2009) (reprinting nonprecedential order) (explaining that “[w]e have already rejected the notion that Heller mandates an individualized inquiry concerning felons pursuant to § 922(g)(1)”).

Plaintiff finds no support in 18 U.S.C. § 925(c), which previously allowed individuals to apply for relief from firearm disabilities resulting from conviction. See Appellant’s Br. 19-20. Congress imposed an appropriations bar on that provision after concluding that “whether or not [an] applicant is still a danger to public
safety . . . . is a very difficult and subjective task which could have devastating consequences for innocent citizens if the wrong decision is made.” S. Rep. No. 102- 353, at 19 (1992). Congress has provided that a convicted felon may regain his

firearms rights if he is pardoned, has his conviction expunged or set aside, or has his 14

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civil rights fully restored by the jurisdiction in which he was convicted. See 18 U.S.C. § 921(a)(20). Congress thus allows for the restoration of federal firearms rights to individuals who are no longer classified as felons. The Second Amendment requires no more. See Chovan, 735 F.3d at 1142 (holding that Congress may “permissibly create[] a broad statute that only excepts those individuals with expunged, pardoned, or set aside convictions and those individuals who have had their civil rights restored.”).3

3 The district court also rejected plaintiff’s claims that section 922(g)(1) “is an unlawful bill of attainder and violates the Eighth Amendment’s prohibition against cruel and unusual punishment because it unconstitutionally infringes on his Second Amendment rights.” ER 92-93 (citing Williams v. United States, 426 F.2d 253, 244 (9th Cir. 1970). Plaintiff did not raise those claims in his opening brief, and they are therefore waived. See Tri-Valley CAREs v. U.S. Dep’t of Energy, 671 F.3d 1113, 1130 (9th Cir. 2012) (“Claims not made in an opening brief in a sufficient manner to put the opposing party on notice are deemed waived.”).

15

AUGUST 2017

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CONCLUSION

For the foregoing reasons, the judgment of the district court should be affirmed.

16

Respectfully submitted, CHAD A. READLER

Acting Assistant Attorney General

STEVEN W. MYHRE

Acting United States Attorney

MICHAEL S. RAAB PATRICK G. NEMEROFF

(202) 305-8727
Attorneys, Appellate Staff Civil Division, Room 7217 Department of Justice
950 Pennsylvania Ave., NW Washington DC 20530

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STATEMENT OF RELATED CASES

Counsel for the United States are aware of no related cases in this Court as defined in Circuit Rule 28-2.6.

/s/ Patrick G. Nemeroff PATRICK G. NEMEROFF

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CERTIFICATE OF COMPLIANCE

Pursuant to Federal Rule of Appellate Procedure 32(a)(7), I hereby certify that the foregoing Brief for Appellees contains 3,491 words, according to the count of this office’s word processing system.

/s/ Patrick G. Nemeroff PATRICK G. NEMEROFF

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CERTIFICATE OF SERVICE

I hereby certify that I filed the foregoing Brief for Appellees with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the Appellate CM/ECF system on August 25, 2017. Participants in the case are registered CM/ECF users and service will be accomplished through that system.

/s/ Patrick G. Nemeroff PATRICK G. NEMEROFF

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ADDENDUM

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TABLE OF CONTENTS

Page

18 U.S.C. § 922(g)(1) ……………………………………………………………………………………………… A-1 18 U.S.C. § 921(a)(20) ……………………………………………………………………………………………. A-2

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18 U.S.C. § 922(g)(1)

(g) It shall be unlawful for any person—

(1) 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.

A-1

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(a) As used in this chapter– ***

18 U.S.C. § 921(a)(20)

(20) The term “crime punishable by imprisonment for a term exceeding one year” does not include–

(A) any Federal or State offenses pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices, or

(B) any State offense classified by the laws of the State as a misdemeanor and punishable by a term of imprisonment of two years or less.

What constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.

A-2