Opening Brief

No. 17-15279

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

__________________________________________

 

BARRY MICHAELS on behalf of himself                

and all others similarly situated,

Appeal from:

DC No. 2:16-CV-00578-JAD-PAL

U.S. District Court for the

District of Nevada

 

Plaintiff(s)-Appellant(s),

 

LORETTA LYNCH, as Attorney General of

THE UNITED STATES OF AMERICA and

 

THOMAS E. BRANDON, as DEPUTY DIRECTOR,

HEAD OF THE BUREAU OF ALCOHOL,

TOBACCO, FIREARMS AND EXPLOSIVES,

 

Defendants- Appellees

___________________________________________

 

APPELLANT’S OPENING BRIEF

_________________________

 

 

MICHAEL E. ZAPIN, ESQ.

Attorney for Appellant(s)

20283 State Rd 7, Suite 400

Boca Raton, FL 33498

Tel. 561-367-1444

michaelezapin@gmail.com    

 

 

 

TABLE OF CONTENTS

Page

Introduction   ……………………………………………………………..           1

Jurisdictional Statement …………………………………………………..            4

Statement of Issues ……………………………………………………….           5

Standard of Review ………………………………………………………            6

Statement of Case …………………………………………………………            6

Summary of Argument …………………………………………………..             7

Argument …………………………………………………………….…..            8

 

  1. In determining whether a fundamental Second

Amendment right was implicated, the District Court

erred by looking to the status of the asserted holder

rather than by looking to the status or scope of the

right itself.     ……………………………………………………           8

 

  1. Appellant, as a law-abiding nonviolent felon, is not

estopped from making an “as applied” challenge to

18 U.S.C. §922(g)(1) simply because Heller stated

that such statutes are presumptively lawful. ………………………       17

  1. Presumptively Lawful v. Conclusively Lawful ………….       17
  2. Congress Envisioned a “Statutory As-Applied” Challenge      20
  3. Reasons to Remove Long-Standing, Law-Abiding

Felons from the Clutches of §922(g)(1) ………………….       21

 

III.         Conclusion ………………………………………………………        29

 

 

 

Certificate of Counsel Regarding Related Cases ………………………….       30

 

 

Certificate of Compliance …………………………………………………         31

 

TABLE OF AUTHORITIES

                                                                                                        Pages

Federal Cases

 

Binderup v. Attorney General U.S of America

836 F.3d 336 (2016) ……………………………………                        passim

 

Binderup v. Holder

         No. 13-cv-06750, 2014, WL 4764424 (ED Pa. Sept. 25, 2014)        passim

 

District of Columbia v. Heller

         554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008)   …….      passim

 

Heller II

670 F.3d at 1284 …………………………………………………..     10

 

Keyes v. Lynch

         195 F.Supp.3d 702 (2016) ………………………………………….. 18

 

NRA v. ATF (NRA II)

         714 F.3d 334, 336 (5th Cir.2013) …………………………………     9

 

Poe v. Ullman

         367 U.S. 497, 548, 81 S.Ct. 1752, 6 L.Ed.2d 989 (1961) …………     8

 

Stearns v. Ticketmaster Corp

655 F.3d 1013, 1018 (9th Cir. 2011)………………………………    6

 

Tyler v. Hillsdale County Sheriff’s Department

775 F.3d 308 (2014) ………………………………………………   8, 9

 

U.S. v. Barton

633 F.3d 168, 173 (3d Cir. 2011) …………………………     17, 21, 22

 

 

United States v. Bena

         664 F.3d 1180, 1184 (8th Cir. 2011) ……………………………..    21

 

United States v. Carpio-Leon

701 F.3d 974, 979-80 (4th Cir. 2012) ……………………………… 21

 

U.S. v. Chester

628 F.3d 673 (4th Cir. 2010 ………………………………..        11, 18

 

United States v. Chovan

735 F.3d 1127 (9th Cir. 2013) ………………………………… passim

 

United States v. Cruikshank

         92 U.S. 542, 553, 23 L.Ed. 588 (1876) …………………………..      7

 

United States v. Greeno

679 F.3d 510, 518 (6th Cir.2012) …………………………………    9

 

United States v. Huitron-Guizar

678 F.3d 1164, 1166 (10th Cir. 2012) ……………………………. 10

 

U.S. v. Marzzarella

614 F.3d 85 (3d Cir. 2010) ………………………………………… 11

 

U.S. v. McCane

         573 F.3d 1037, 1049 (10th Cir. 2009) …………………………….. 17

 

United States v. Moore

         666 F.3d 313, 319 (4th Cir. 2012) …………………………………. 18

 

United States v. Phillips

827 F.3d 1171, 1176 (9th Cir. 2016) ……………………… 14, 15, 16

 

United States v. Rene E

         583 F.3d 8, 15 (1st Cir. 2009) ……………………………….          21

 

U.S. v. Skoien

         614 F.3d 638 (7th Cir. 2010), cert. denied, 131 S. Ct. 1674,

179 L. Ed. 2d 645 (2011) …………………………………………  17

 

 

 

U.S. v. Smoot

         690 F.3d 215, 221 (4th Cir. 2012) ……………………………………17

 

United States v. Vongxay

         594 F.3d 1111, 1118 (9th Cir. 2010) …………………………….     21

 

U.S. v. Williams

         616 F.3d 685, 692 (7th Cir. 2010) ………………………………….. 17

 

United States v. Yancey

         621 F.3d 681 …………………………………………………………20

 

Washington v. Glucksberg

         521 U.S. 702, 721, 117 S. Ct. 2258, 138 L.Ed.2d 772 (1997) …….. 8, 9

 

 

Federal Statutes

18 U.S.C. §922(g)   ………………………….………………………. Passim

18 U.S.C. §925(c) ……………………………………………………..   Passim

28 U.S.C. §§ 1331, 1343(a)(1), 1346(a)(2), 2201(a) and 2202 ……….                 4

5 U.S.C. § 702 and §703 ……………………………………………..                  4

28 U.S.C. §1291 ………………………………………………………          4

Fed. R. Civ. P. 12(b)(l) and 12(b)(6) …………………………………                  6

The Federal Firearms Act of 1938 …………………………………….         12

 

INTRODUCTION

 

 

Appellant Barry Michaels is 76 years old. He is an active and successful “out-of-the-box” entrepreneur, methodically developing his dream to revolutionize air travel in the United States by creating the largest “ultra-low-cost” national airline that the United States has ever seen.

It will utilize Boeing 747-400 aircraft. It will subsidize most of the average cost to ticketed passengers, by setting up strategic alliances with vendors and advertisers and any other businesses that might benefit from a captive audience of 581 people on any given flight.

Those that know Barry, and those that work beside him, believe that this is coming. They say that it is not a question of “if.”  It is simply a question of “when.” And when it does, according to them, millions of people that might otherwise have limited or no access to air travel, will take to the friendly skies and take to them often, creating a seismic shift in how average Americans utilize domestic air travel.

It will be one of the greatest “comeback” stories the nation has ever known, if in fact Barry Michaels can pull it off. To understand why, we have to turn our attention and our clocks back to a time, circa, 1975, when Barry was just in his mid-thirties.

Barry ran into trouble – several times in fact– during an admittedly turbulent period of his life. Those troubles were serious enough for him to be charged and convicted as a felon.

Around 1973, Barry Michaels pleaded guilty to one count of mail fraud for falsifying information on a credit application for American Express, that involved approximately six thousand five hundred dollars. He pleaded guilty in federal court and was sentenced to three years’ probation.

Later, in the mid-1970’s, Barry ran into trouble again, and pleaded guilty in state court to one count for kiting checks – creating a liability owing to Bank of America in the sum of approximately five to seven thousand dollars.

Although his sentence in the state court proceeding did not require him to serve any time, it violated his federal probation, which triggered an approximate four-month period of incarceration.

Fast-forward to the mid-1990’s, where Barry made his first attempt to bring his airline dream to fruition, only to run into trouble again. This time, more serious trouble.   Barry pleaded guilty to one count of securities fraud, in violation of 15 U.S.C. §§ 78j(b) and 78ff, and 17 U.S.C. § 240.10b-5; and to one count of subscribing to a false tax return, in violation of 26 U.S.C. § 7206(1), and was sentenced to 21 months, serving 15, at the Nellis Federal Prison Camp in North Las Vegas, Nevada.

After serving his sentence, Barry vowed to learn from his mistakes, and has been law-abiding ever since. He went on to earn a Bachelor of Arts Degree in political science in 2005, and a Master of Arts Degree in public administration in 2007, both from the University of Las Vegas.

Barry has been involved in small businesses, has assisted others in developing their own small businesses, and has made five runs for Congress in Nevada’s 3rd Congressional District. The votes that Barry captured each time, were significant, and he made his history as a felon, well known to the public. It was part of his platform to overcome the stigma that afflicts millions of felons that return to free society, only to find great difficulties in obtaining employment and housing.

Barry now seriously considers a run for the U.S. Senate in the 2018 election. If things go well, there is no telling where his political aspirations may take him. Perhaps even to the White House. It is conceivable in our modern age.

The irony: if Barry’s highest political aspirations are met, he could have his finger on the Presidential Gold Codes to launch a nuclear attack, but still be prohibited by 18 U.S.C. §922(g)(1) from having his finger on a Colt 45, in defense of his hearth and home.

It is this latter (and more humble) fundamental Second Amendment right that Barry Michaels sought to enforce by his underlying lawsuit. The District Court dismissed the lawsuit in its pleadings phase, without offering Mr. Michaels any opportunity to lodge a meaningful, lawful constitutional challenge to §922(g)(1) as applied to him and perhaps others similarly situated.

In failing to provide Mr. Michaels with that meaningful opportunity, the District Court committed reversible error.

 

JURISDICTIONAL STATEMENT

 

 

The District Court had subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343(a)(1), 1346(a)(2), 2201(a) and 2202. Appellant sought by means of an amended pleading to also assert that the District Court had jurisdiction pursuant to 5 U.S.C. § 702 and § 703 which would constitute a valid waiver of the government’s sovereign immunity.

The District Court granted appellee’s motion to dismiss by Order docketed 1/26/2017. EF-90.  A judgment was entered and docketed thereon on 1/27/2017. EF-96.

Appellant docketed its Notice of Appeal on 2/12/2017. EF -97.

This Court accordingly has jurisdiction pursuant to 28 U.S.C. § 1291.

 

 

 

 

 

STATEMENT OF ISSUES

 

  1. Did the District Court commit reversible error by refusing to entertain appellant’s “as applied” challenge to 18 U.S.C. §922(g)(1), and refusing to engage in the two-step analysis prescribed by United States v. Chovan, 735 F.3d 1127 (9th Cir. 2013), simply because appellant was a convicted felon?
  2. Does the seminal case of District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008) permit a felon to make an “as applied” challenge to §922(g)(1), notwithstanding its statement that nothing in its opinion should be construed to “cast doubt on longstanding prohibitions on the possession of firearms by felons” and that such measures were “presumptively lawful”?
  3. Assuming such an “as applied” challenge is permissible, what level of scrutiny (if any) should the District Court have employed in examining the statute and scope of the Second Amendment right at issue: intermediate scrutiny or strict scrutiny?
  4. What exactly did Heller mean by its use of the term “law-abiding”?

 

 

STANDARD OF REVIEW

 

A district court’s order granting a motion to dismiss under Rule 12(b)(6) is reviewed de novo. Stearns v. Ticketmaster Corp., 655 F.3d 1013, 1018 (9th Cir. 2011).

 

 

STATEMENT OF CASE

 

Appellant Barry Michaels, a nonviolent, convicted felon, who has been law-abiding for decades, needs a firearm for the sole purpose of self-defense in his home, but fears criminal prosecution if he were to obtain a weapon, due to appellees’ implementation and enforcement of 18 U.S.C. §922(g)(1) against all felons, irrespective of whether the conviction was based on a violent or nonviolent crime.

Appellant asserts that the law as applied to him, among other things, encroaches on his fundamental Second Amendment right to bear arms in defense of hearth and home, as articulated in the case of District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008).

Appellant filed suit against appellees. ER-3. Appellees moved to dismiss appellant’s complaint pursuant to Fed. R. Civ. P. 12(b)(l) and 12(b)(6), alleging, among other things, that the Ninth Circuit has held that felons do not fall within the protections of the Second Amendment. ER-24. Appellant opposed the motion and also cross-moved to amend his complaint. ER-40. Appellees replied and responded to the cross-motion. ER-79.

The District Court agreed with appellees, and summarily dismissed appellant’s lawsuit. ER-90.

 

SUMMARY OF ARGUMENT

The District Court focused on appellant Michaels’ status as a felon, rather than on the status or scope of the right at issue, in order to avoid applying a strict scrutiny analysis over appellant’s Second Amendment claim.

Even if the District Court were to determine that intermediate scrutiny was the proper standard under Ninth Circuit precedent, no such analysis took place, the court having summarily dismissed appellant’s claims in the pleadings stage.

While some courts disagree on whether intermediate scrutiny or strict scrutiny should apply, a significant number of courts hold that “as applied” challenges are permissible in view of District of Columbia v. Heller’s use of the term presumptively lawfulwhen describing longstanding prohibitions against the use of firearms by felons. For these reasons, the District Court committed reversible error.

 

 

 

ARGUMENT

 

 

  1. IN DETERMINING WHETHER A FUNDAMENTAL SECOND AMENDMENT RIGHT WAS IMPLICATED, THE DISTRICT COURT ERRED BY LOOKING TO THE STATUS OF THE ASSERTED HOLDER RATHER THAN BY LOOKING TO THE STATUS OR SCOPE OF THE RIGHT ITSELF

 

The Supreme Court, in District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008) had acknowledged:

It has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it “shall not be infringed.” As we said in United States v. Cruikshank, 92 U.S. 542, 553, 23 L.Ed. 588 (1876), “[t]his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The Second amendment declares that it shall not be infringed ….

 

[emph. added]

It requires no leap of faith to recognize that the Second Amendment right, having pre-dated the Constitution and having no dependence on it for its existence, is in fact, a fundamental right.

We start therefore with a strong presumption that the Second Amendment right is exercised individually and belongs to all Americans.[1]                                                                                                  

[emph. added]

 

Appellant in our case sub judice, is one such American.

Appellant pointed out to the District Court (in reliance upon Tyler v. Hillsdale County Sheriff’s Department, 775 F.3d 308 (2014)):

The Supreme Court has suggested that there is a presumption in favor of strict scrutiny when a fundamental right is involved. See, e.g., Washington v. Glucksberg, 521 U.S. 702, 721, 117 S. Ct. 2258, 138 L.Ed.2d 772 (1997) (strict scrutiny applies to “fundamental” liberty interests); id. at 762, 117 S. Ct. 2258 (Souter, J., concurring in the judgment) (discussing “fundamental” rights and “the corresponding standard of `strict scrutiny'”); see also Poe v. Ullman, 367 U.S. 497, 548, 81 S.Ct. 1752, 6 L.Ed.2d 989 (1961) (Harlan, J., dissenting) (“[E]nactment[s] involv[ing]… fundamental aspect[s] of `liberty’ … [are] subjec[t] to `strict scrutiny.'”).

 

[emph. added]

ER-55.

 

 

Washington v. Glucksberg, 521 U.S. 702, 117 S. Ct. 2258, 138 L. Ed. 2d 772 (1997) sets forth, in pertinent part:

 

As we stated recently in Flores, the Fourteenth Amendment “forbids the government to infringe . . . `fundamental’ liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest.” 507 U. S., at 302.

[emph. added]

 

Although a state statute was being challenged in Glucksberg, there is no basis to distinguish a state statute from a federal one, for purposes of the analysis. More importantly, the analysis that took place in the Glucksberg case focused on the status or scope of the right itself (i.e., an asserted right to commit suicide and/or be assisted in committing suicide) and not the status of the asserted holder of the right.

In this regard, in our case sub judice, the District Court erred in its finding that “Michaels does not cite a single case – controlling or persuasive – that supports this view” (i.e., that strict scrutiny ought to apply). ER-93, ¶ B.

Both the Heller and Glucksberg cases cited to the District Court, support the view that it is the status or scope of the right being asserted and not the status of the asserting party, that is dispositive on whether a fundamental right is implicated that would trigger strict scrutiny.   ER-55.

Appellant also provided the District Court with persuasive views:

See, e.g., Tyler v. Hillsdale County Sheriff’s Dept., 775 F.3d 308 (2014):

we prefer strict scrutiny over intermediate scrutiny. In choosing strict scrutiny, we join a significant, increasingly emergent though, as yet, minority view that concludes that as between intermediate scrutiny and strict scrutiny — the choice that [United States v. Greeno, 679 F.3d 510, 518 (6th Cir.2012)] requires —the latter is more appropriate for assessing a challenge to an enumerated constitutional right, especially in light of Heller’s rejection of judicial interest-balancing. See Chovan, 735 F.3d at 1145-46, 1149-52 (Bea, J., concurring) (“Categorical curtailment of constitutional rights based on an individual’s status requires more rigorous analysis than intermediate scrutiny.”); NRA v. ATF (NRA II), 714 F.3d 334, 336 (5th Cir.2013) (Jones, J., dissental,15 joined by Jolly, Smith, Clement, Owen, & Elrod, JJ.) (“[T]he level of scrutiny required [for the case] must be higher than [intermediate scrutiny].”); Heller II, 670 F.3d at 1284 (Kavanaugh, J., dissenting) (“Even if it were appropriate to apply one of the levels of scrutiny after Heller, surely it would be strict scrutiny rather than … intermediate scrutiny….”). [emph. added]

ER-43.

 

Yet, there is no denying, that the right is not unlimited, even if fundamental.

Binderup v. Attorney General U.S of America, 836 F.3d 336 (2016) (concurring-in-part opinion):

Although the Second Amendment is an enumerated fundamental right, it is “not unlimited.” Heller, 554 U.S. at 626, 128 S.Ct. 2783. “No fundamental right — not even the First Amendment — is absolute.” McDonald, 561 U.S. at 802, 130 S.Ct. 3020 (Scalia, J., concurring). A range of “who,” “what,” “where,” “when,” and “how” restrictions relating to firearms are permitted — many based on the scope of the Second Amendment and others based on their satisfaction of some level of heightened scrutiny. See Eugene Volokh, Implementing the Right to Keep and Bear Arms for Self-Defense: An Analytical Framework and A Research Agenda, 56 UCLA L. Rev. 1443, 1443 (2009) (distinguishing between “`what’ restrictions (such as bans on machine guns, so-called `assault weapons,’ or unpersonalized handguns), `who’ restrictions (such as bans on possession by felons, misdemeanants, noncitizens, or 18-to-20-year-olds), `where’ restrictions (such as bans on carrying in public, in places that serve alcohol, or in parks, or bans on possessing [guns] in public housing projects), `how’ restrictions (such as storage regulations), [and] `when’ restrictions (such as waiting periods)”); United States v. Huitron-Guizar, 678 F.3d 1164, 1166 (10th Cir. 2012) (applying the same heuristic).

 

For instance, the right is “not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” Heller, 554 U.S. at 626, 128 S. Ct. 2783. Likewise, the Supreme Court has acknowledged the “historical tradition of prohibiting the carrying of dangerous and unusual weapons.” Id. (internal quotation marks omitted). In addition, Heller catalogued a non-exhaustive list of “presumptively lawful regulatory measures” that have historically constrained the parameters of the right. Id. at 627 n.26, 128 S. Ct. 2783. These include “longstanding 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, [and] laws imposing conditions and qualifications on the commercial sale of arms.”3 Id. at 626-27, 128 S.Ct. 2783. Critically, such “traditional restrictions go to show the scope of the right, not its lack of fundamental character.” McDonald, 561 U.S. at 802, 130 S.Ct. 3020 (Scalia, J., concurring) (emphasis added).

 

To be clear, the right at issue in our case sub judice, is the right of appellant, a law-abiding American citizen living in free society, to protect his home and family by keeping a functional firearm at his residence. “In defense of hearth and home.”

In other words, it is a case that involves a fundamental Second Amendment right, irrespective of the fact that appellant is a felon.

Since the right implicated by 18 U.S.C. §922(g)(1) is a fundamental (Second Amendment) right, strict scrutiny should have been applied with a full analysis of appellant’s “as applied” challenge.

This Court’s rationale set out in United States v. Chovan, 735 F.3d 1127 (9th Cir. 2013), seemingly supports a strict scrutiny analysis for appellant’s situation.

Following a two-step process set out by the Third Circuit in U.S. v. Marzzarella, 614 F.3d 85 (3d Cir. 2010), and the Fourth Circuit in U.S. v. Chester, 628 F.3d 673 (4th Cir. 2010), the Chovan court stated:

The two-step Second Amendment inquiry we adopt (1) asks whether the challenged law burdens conduct protected by the Second Amendment and (2) if so, directs courts to apply an appropriate level of scrutiny. Chester, 628 F.3d at 680;see also Marzzarella, 614 F.3d at 89.

 

Although Chovan was grappling with a §922(g)(9) challenge (prohibition against one convicted for a misdemeanor involving violence), the government had argued (similarly to our case sub judice) that §922(g)(9) was part of a “long line of prohibitions and restrictions on the right to possess firearms.”

The Chovan court strongly disagreed:

First, it is not clear that such prohibitions are so longstanding. The first federal firearm restrictions regarding violent offenders were not

passed until 1938, as part of the Federal Firearms Act. See C. Kevin Marshall, Why Can’t Martha Stewart Have a Gun?, 32 Harv. J.L. & Pub. Pol’y 695, 698, 708 (2009) (noting that “one can with a good degree of confidence say that bans on convicts possessing firearms were unknown before World War I”).

 

Second, and more importantly, the government has not proved that domestic violence misdemeanants in particular have historically been restricted from bearing arms. The Federal Firearms Act of 1938 only restricted firearm possession for those individuals convicted of a “crime of violence,” defined as “murder, manslaughter, rape, mayhem,

kidnapping, burglary, housebreaking, and certain forms of aggravated assault—assault with intent to kill, commit rape, or rob; assault with a dangerous weapon, or assault with intent to commit any offense

punishable by imprisonment for more than one year.”

[emph. added]

 

In this regard, appellant as a nonviolent felon was similarly unrestricted by The Federal Firearms Act of 1938. Chovan, continuing:

Because of “the lack of historical evidence in the record before us, we are certainly not able to say that the Second Amendment, as historically understood, did not apply to persons convicted of domestic violence

misdemeanors. We must assume, therefore, that [Chovan]’s Second Amendment rights are intact and that he is entitled to some measure of Second Amendment protection to keep and possess firearms in his home for self-defense.” Chester, 628 F.3d at 681–82.

[emph. added]

 

Thus, the same rationale that the Chovan court used to conclude that Chovan’s “Second Amendment rights were intact” ought to apply equally to appellant, a nonviolent, law abiding felon, and appellant should be entitled to “some measure of Second Amendment protection to keep and possess firearms in his home for self-defense.”

The Chovan court found that Chovan himself, was outside the core right identified by Heller (“law abiding, responsible citizen to possess a weapon for self-defense”) because Chovan had a criminal history of domestic violence. It is the “violent” aspect that appellant believes resonated with the Chovan court, to put him just outside the class of individuals that would otherwise handle a firearm – an inherently dangerous instrumentality. In fact, the Chovan court made a finding that “domestic abusers use guns.” A toxic mix of sorts.

For this reason, it appears the Chovan court likely chose intermediate scrutiny rather than strict scrutiny as the proper standard to apply.

Appellant had argued to the District Court below that a person that was predisposed to commit violent acts (even violent misdemeanors) was far more dangerous than a person that was not. ER- 54.

Query, if Chovan had been a law-abiding nonviolent felon, would the Chovan court have applied strict scrutiny? Appellant believes so, since there would be no element of “violence” to remove such a nonviolent felon from the core right.

Although the District Court below felt remarkably swayed by this Court’s opinion in United States v. Phillips, 827 F.3d 1171, 1176 (9th Cir. 2016), appellant was quick to point out that the defendant in Phillips was anything but law abiding and nonviolent. He violently resisted arrest and fled from police officers requiring the police to “subdue him” before they could search his vehicle to find drugs, a scale and money.   A few months later the revolving door of justice took another spin for Phillips. He again fled police officers, dropping a .45 caliber handgun, a high capacity magazine, and his wallet, complete with several forms of identification and his recent bail receipt. ER-54.

Phillips was simply not the kind of person – in any practical sense- that anyone would be comfortable handing a gun over to.

And yet, the Chovan court found that the burden the statute placed on domestic violence misdemeanants’ rights, was quite substantial. Chovan court:

It did not merely regulate the manner in which persons could exercise their Second Amendment rights, it amounted to a “total prohibition” on firearm possession for a class of individuals—

in fact, a “lifetime ban.”

[emph. added]

This was exactly what appellant had argued to the District Court below with respect to §922(g)(1). ER-58, lines 18-21.

At the end of the day, the Chovan court found that the government’s evidence concerning the rate of domestic violence recidivism was in fact high, and that Chovan was unable to show that – just because a domestic abuser had not committed domestic violence for fifteen years – that the abuser was highly unlikely to do so again. On that basis, the Chovan court found §922(g)(9) substantially related to the government’s important interest, as applied to Chovan.

Although appellant asserts that the Supreme Court precedent set forth above mandates strict scrutiny on appellant’s “as applied” challenge, the very “blueprint” that Chovan laid out, would also logically apply strict scrutiny to appellant, notwithstanding its application of intermediate scrutiny to Chovan himself, and its ultimate upholding of §922(g)(9) as applied to Chovan.

It bears mention that the District Court below in our case sub judice, did not engage in any scrutiny at all on appellant’s “as applied” challenge. [2]  Its failure to apply the two-step analysis as mandated by Chovan, is itself reversible error. [3]

For the above reasons the District Court committed reversible error.

II

APPELLANT, AS A LAW-ABIDING NONVIOLENT FELON, IS NOT ESTOPPED FROM MAKING AN “AS APPLIED” CHALLENGE TO 18 U.S.C. §922(g)(1) SIMPLY BECAUSE HELLER STATED THAT SUCH STATUTES ARE PRESUMPTIVELY LAWFUL

 

  1. Presumptively Lawful v. Conclusively Lawful

As this Court noted in United States v. Phillips, 827 F.3d 1171, 1176 (9th Cir. 2016):

The Supreme Court’s landmark decision in District of Columbia v. Heller, 554 U.S. 570 (2008), held that this right encompasses an individual right to possess a functioning firearm in the home for the lawful purpose of self-defense. Id. at 595, 635. But the Court was careful to add a caveat, instructing the lower courts that its holding did not “cast doubt on longstanding prohibitions on the possession of firearms by felons . . .[,]” id. at 626-27, adding that such measures were “presumptively lawful,” id. at 627 n.26.

[emph. added]

Many courts take the position that Heller’s “presumptively lawful” language as to longstanding prohibitions on firearm possession by felons, is rebuttable, since Heller used the term “presumptively lawful” rather than “conclusively lawful.”

In other words, presumptively lawful until proven otherwise in a case of justiciable controversy.

The context of Heller should not be overlooked. It was not a felon-dispossess case. Thus, it would not have been appropriate for Heller to examine the propriety of every felon-dispossess statute where such statute was not at issue before the Heller court.

Based in part on the above rationale, courts have soundly permitted meaningful “as applied” challenges to go forward.

U.S. v. Smoot, 690 F.3d 215, 221 (4th Cir. 2012), cert. denied, 133 S. Ct. 962, 184 L. Ed. 2d 747 (2013) (dispossession would be improper if a litigant could demonstrate that he fell within “the scope of Second Amendment protections for ‘law-abiding responsible citizens to use arms in defense of hearth and home’”); U.S. v. Barton, 633 F.3d 168, 173 (3d Cir. 2011)(“As the Government concedes, Heller’s statement regarding the presumptive validity of felon gun dispossession statutes does not foreclose Barton’s as-applied challenge.”); U.S. v. Williams, 616 F.3d 685, 692 (7th Cir. 2010) (“[T]here must exist the possibility that [a firearm] ban could be unconstitutional in the face of an as-applied challenge.”); see also U.S. v. McCane, 573 F.3d 1037, 1049 (10th Cir. 2009) (Tymkovich, J., concurring) (“Non-violent felons, for example, certainly have the same right to self-defense in their homes as non-felons.”) U.S. v. Skoien, 614 F.3d 638 (7th Cir. 2010), cert. denied, 131 S. Ct. 1674, 179 L. Ed. 2d 645 (2011) (en banc) (explaining why §922(g) may constitutionally be applied to an individual repeatedly convicted of misdemeanor domestic violence); [4] United States v. Moore, 666 F.3d 313, 319 (4th Cir. 2012); United States v. Chester, 628 F.3d 673, 679 (4th Cir. 2010); Keyes v. Lynch, 195 F.Supp.3d 702 (2016) (“We see no reason that the same logic would not apply to the ability of a person who had previously been committed for mental health reasons to assert an as-applied challenge to § 922(g)(4) — a law prohibiting his or her ability to possess a firearm based on that commitment”); and more recently, Binderup v. Atty. Gen. U.S. of America, 836 F.3d 336 (2016) (“upon close examination of the Challengers’ apparently disqualifying convictions, we conclude that their offenses were not serious enough to strip them of their Second Amendment rights,” holding in the context of a 922(g)(1) challenge.)

[emph. added]

The Heller court must have been obviously mindful of the sheer magnitude of its precedent-setting decision, and could just have easily “plugged in” its cautionary words of “presumptive lawfulness” to avoid “opening the floodgates” to millions of potential lawsuits that might seek to construe Heller as flatly invalidating all felon-dispossess statutes.   That certainly would have been a disaster for the Heller court and all those below it.

 


 

  1. Congress Envisioned a “Statutory As-Applied” Challenge

Congress itself had provided a procedure for those ensnared by 922(g) to petition to have their rights restored, 18 U.S.C. § 925(c), in pertinent part, setting forth:

(c) A person who is prohibited from possessing, shipping, transporting, or receiving firearms or ammunition may make application to the Attorney General for relief from the disabilities imposed by Federal laws with respect to the acquisition, receipt, transfer, shipment, transportation, or possession of firearms, and the Attorney General may grant such relief if it is established to his satisfaction that the circumstances regarding the disability, and the applicant’s record and reputation, are such that the applicant will not be likely to act in a manner dangerous to public safety and that the granting of the relief would not be contrary to the public interest. Any person whose application for relief from disabilities is denied by the Attorney General may file a petition with the United States district court for the district in which he resides for a judicial review of such denial. The court may in its discretion admit additional evidence where failure to do so would result in a miscarriage of justice.

[emph. added]

However, since 1993, Congress has refused to fund the Bureau of Alcohol, Tobacco, and Firearms from providing such relief. [5]

 

  1. Reasons to Remove Long-Standing, Law-Abiding Nonviolent Felons from the Clutches of §922(g)(1)

The significance of §925(c) and Congress’s hindsight decision not to fund the procedure prescribed thereby, cannot be overstated. § 925(c) provided a form of “as applied” challenge that encompassed felons, and provided judicial review if such application were to be denied.

Though Congress’s motivation to “defund” §925(c) was driven by economic factors of time and expense, far more telling is Congress’s stated intent that the millions of dollars and numerous “man-years” investigating and acting upon such applications be “better utilized by the ATF in fighting violent crime” [emph. added].

That is an interesting statement by Congress. Why wouldn’t Congress want to use those dollars and “man-years” to go after the nonviolent criminals? Or compromise: apportion those dollars so that ninety percent, or seventy-five percent, or fifty percent or twenty-five percent, or ten percent – be used to combat nonviolent crime, with the balance being used to combat violent crime. After all, §922(g) is not just about combating violent crime, right?

We can certainly engage in a scholarly discussion about “traditional justifications” for denying all felons (including non-violent ones) the right to protect themselves, all but stripped away by §922(g)(1). Binderup v. Attorney General U.S of America, 836 F.3d 336 (2016) (majority opinion):

“[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. Yancey, 621 F.3d 681, 684-85 (7th Cir. 2010); see, e.g., Saul Cornell & Nathan DeDino, A Well Regulated Right: The Early American Origins of Gun Control, 73 Fordham L. Rev. 487, 491-92 (2004); Saul Cornell, “Don’t Know Much about History”: The Current Crisis in Second Amendment Scholarship, 29 N. Ky. L Rev. 657, 679 (2002); David Yassky, The Second Amendment: Structure, History, and Constitutional Change, 99 Mich. L. Rev. 588, 626-27 (2000); Glenn Harlan Reynolds, A Critical Guide to the Second Amendment, 62 Tenn. L. Rev. 461, 480 (1995); Don B. Kates, Jr., The Second Amendment: A Dialogue, Law & Contemp. Probs., Winter 1986, at 143, 146; Don B. Kates, Jr., Handgun Prohibition and the Original Meaning of the Second Amendment, 82 Mich. L. Rev. 204, 266 (1983). Several of our sister circuits endorse the “virtuous citizen” justification for excluding felons and felon-equivalents from the Second Amendment’s ambit. See, e.g., United States v. Carpio-Leon, 701 F.3d 974, 979-80 (4th Cir. 2012) (“[F]elons were excluded from the right to arms because they were deemed unvirtuous.” (internal quotation marks omitted)); Yancey, 621 F.3d at 684-85; United States v. Vongxay, 594 F.3d 1111, 1118 (9th Cir. 2010) (“[T]he right to bear arms does not preclude laws disarming … unvirtuous citizens (i.e., criminals).” (quoting Kates, Jr., 49 Law & Contemp Probs. at 146)); United States v. Rene E., 583 F.3d 8, 15 (1st Cir. 2009) (“In the parlance of the republican politics of the time, these limitations were sometimes expressed as efforts to disarm the `unvirtuous.'”).

People who have committed or are likely to commit “violent offenses” — crimes “in which violence (actual or attempted) is an element of the offense,” Skoien, 614 F.3d at 642; see Voisine, 136 S.Ct. at 2280 — undoubtedly qualify as “unvirtuous citizens” who lack Second Amendment rights. Barton, 633 F.3d at 173-74; see United States v. Bena, 664 F.3d 1180, 1184 (8th Cir. 2011) (recognizing “a common-law tradition that the right to bear arms is limited to peaceable or virtuous citizens”); C. Kevin Marshall, Why Can’t Martha Stewart Have A Gun?, 32 Harv. J.L. & Pub. Pol’y 695, 727-28 (2009).

 

Appellant had argued to the District Court below, that such an analysis of traditional “unvirtuousness” which harkened back to the early days of American origins, seemed out of place and out of touch, in a modern, evolving society. ER -46, lines 15-19.

While many words have been had in the discussion of “traditional justifications,” it is the actions of Congress (and the ATF) that ought to dominate the conversation. There is little doubt that for every year that Congress continues to defund §925(c), the ATF is doing just what Congress instructed and intended it to do: combat violent crime.

This was the very thrust of appellant’s arguments since inception of his complaint: §922(g) was intended by Congress to combat violent crimes by means of gun control.   ER –6, ¶9.  Anyone suggesting that Congress genuinely sought by §922(g) to combat non-violent crimes as well as violent crimes, ignores the sobering reality of Congress putting its money where its mouth is, when it voted to defund §925(c) and use the savings to combat violent crime.

It also ignores the sobering historical pedigree of the felon-dispossess statute. Binderup v. Attorney General U.S of America, 836 F.3d 336 (2016) (concurring-in-part opinion led by J. Hardiman), recapped its analysis of the historical pedigree of §922(g)(1) in the context of its case, U.S. v. Barton, 633 F.3d 168 (3d Cir. 2011). Binderup (concurring-in-part opinion):

… we explained what was required to mount a successful as-applied Second Amendment challenge to § 922(g)(1). We looked to the “historical pedigree” of the statute to ascertain “whether the traditional justifications underlying the statute support a finding of permanent disability in this case.” Id.; see also id. at 175 (noting that the constitutionality of the felon dispossession statute under the Second Amendment right depends “upon whom the right was intended to protect”) (emphasis in original).

 

Our analysis revealed that although persons convicted of violent crimes have been barred from firearm possession since 1931, it wasn’t until thirty years later that Congress dispossessed nonviolent felons. Id. at 173. The historical record demonstrated that “the common law right to keep and bear arms did not extend to those who were likely to commit violent offenses.” Id.

 

Accordingly, we determined that the exclusion of felons and other criminals from the scope of the Second Amendment’s protections was tethered to the time-honored practice of keeping firearms out of the hands of those likely to commit violent crimes. Id.

 

For the reasons discussed, we concluded that “[t]o raise a successful as-applied challenge, [one] must present facts about himself and his background that distinguish his circumstances from those of persons historically barred from Second Amendment protections.” Id. at 174.

 

We explained further:

For instance, a felon convicted of a minor, nonviolent crime might show that he is no more dangerous than a typical law-abiding citizen. Similarly, a court might find that a felon whose crime of conviction is decades-old poses no continuing threat to society.

 

[all emphasis added]

Under a strict scrutiny standard, there is no doubt that combating violent crime is unquestionably a compelling government interest. But strict scrutiny requires more than just a showing of a compelling government interest. The law must also be narrowly tailored to achieve that interest, using the least intrusive means.

Although the District Court, in its summary dismissal of appellant’s case required no showing by the government, there is a strong indication that the government lacks any empirical evidence that permanently banning guns from the hands of non-violent felons living in free society with a reasonable track-record of being law-abiding [6]takes any meaningful bite out of violent crime. For those insistent that §922(g) genuinely sought to combat nonviolent crime as well, there is no empirical evidence that permanently banning guns from the hands of such nonviolent felons takes a meaningful bite out of nonviolent crime either.

Although appellant was foreclosed of his opportunity to present empirical data to the District Court (given that the case was dismissed in its pleadings stage), the District Court in the case of Binderup v. Holder, No. 13-cv-06750, 2014, WL 4764424 (ED Pa. Sept. 25, 2014) provides this Court with a modest “keyhole” into what those kinds of empirical studies look like.   The Binderup District Court:

In support of Defendants’ Motion and in opposition to Plaintiff’s Motion, defendants provide a number of exhibits pertaining to recidivism risk and the efficacy of denial of handgun purchases for certain persons as a method of reducing the risk of firearm violence.70 [foot note 70 setting forth: Exhibit 3 to Defendants’ Motion, D.O.J., B.J.S. Fact Sheet; Exhibit 4 to Defendants’ Motion, Wright, et al., Effectiveness of Denial; Exhibit 1 to Defendants’ Combined Opposition and Reply Brief, Pa.D.O.C. Recidivism Report 2013]

 

Defendants rely on these exhibits as empirical support for their argument that application of § 922(g)(1) to plaintiff survives intermediate means-end scrutiny under the Marzzarella framework. Nevertheless, the contentions which defendants contend these studies support are also pertinent to the analysis of plaintiff’s as-applied challenge under the Barton framework.

 

Defendants further contend that violent and non-violent convicted offenders as a group (a group which includes plaintiff) “present a significant risk of recidivism for violent crime.” 72 [footnote 72 setting forth: Id. at pages 13-14 (citing, generally, the D.O.J., B.J.S. Fact Sheet) (emphasis added).] Specifically, relying on the Department of Justice’s Bureau of Justice Statistics Fact Sheet (Exhibit 3 to Defendants’ Motion), defendants contend that the danger posed by plaintiff is demonstrated by the fact that “approximately 1 in 5 [nonviolent] offenders was rearrested for violent offenses within three years of his or her release.” [footnote omitted].

[emph. added]

 

Beyond the implicit fact that four in five (or, 80% of) nonviolent offenders are not rearrested for violent offenses within three years of their release, plaintiff is demographically distinguishable from the population addressed by Exhibit 3 to Defendants’ Motion.

[emph. added]

With reference to Pennsylvania’s own criminal statute and Pennsylvania’s own empirical studies, the Binderup District court further observed:

the Recidivism Report 2013 suggests that plaintiff would pose a reduced recidivism risk. Specifically, the report found that the overall recidivism rate (rate of rearrest or reincarceration) is 62.7% three years after release, and 71.1% five years after release.

 

Furthermore, the report states that “[t]he first year [after release] is by far the most risky period” and that the recidivism-rate data for the five years following release demonstrate a “slow-down of recidivism rates as the time since release grows longer.

 

In other words, the risk of recidivism is greatest in the first three years after release from prison and, although the overall recidivism rate tends to increase between years three and five, the rate of increase drops significantly between year three and year five.

[all emphasis added].

 

The government in Binderup did not submit any empirical data beyond the fifth year, either because no such data exists, or any data that does exist, would show that such a felon was no more likely to commit a crime beyond those five years than any ordinary civilian.

Whether our government has any newly-revised statistics that it would offer up, is of course unknown. Appellant certainly does not suggest that this Court of Appeals hold an evidentiary hearing to find out. It is obviously not the proper forum. But the District Court certainly would have been.

Since appellant was effectively deprived of his lawful right to make an “as applied” challenge, the District Court has committed reversible error.

Appellant had argued to the District Court that where the fundamental Second Amendment right is implicated, the term “law-abiding” as used by Heller, ought to heed to its ordinary and practical “present-participle” sense, requiring observations to be made in the reasonable present, not in the historical past.

Someone that breaks the law, serves his sentence, rejoins society, and does not break the law again within a reasonable period thereafter, ought to be entitled to the same presumption of being “law-abiding” as any other ordinary civilian. It is a logical premise, that would soundly remove a proven law-abiding nonviolent felon from the clutches of §922(g) (1.)

Yet, if the term “law-abiding” (present participle notwithstanding), condemns a felon for his historical past from which he can never recover, rendering him non-law-abiding no matter what and for how long, this Court should brace itself for what will surely be (and is already starting to become) an emerging “second class citizenship” in America, notwithstanding that fact that there is no prescription for it in our Constitution.

Consider that we permit such a non-law-abiding felon who has served his sentence to return to a free society. We permit the non-law-abiding felon to run for political office. We permit the non-law-abiding felon to work in myriad of other legitimate fields as a productive member of society (all of which appellant has done). But we nonetheless require him to wear his “felon badge” simply because his past conduct may have been traditionally or historically considered “unvirtuous.”

Appellant had argued to the District Court that if “virtuous citizenry” is the term and the test, then what about a husband who cheats on his wife? A woman who cheats on her taxes? A neighborhood gossiper that creates community discord? A person that finds a wallet full of money in the street, and chooses not to return it? Shouldn’t they also forfeit their Second Amendment rights because they are not law-abiding if they are not virtuous? ER-47, lines 18-23.

This Court can easily open such a Pandora’s box.

As appellant had argued to the District Court, “unvirtuous” is a sketchy term at best, and best left to the halls of academia for historical study. Catalogue it next to the term “horsepower.” Neither has any real place in a modern, evolving society.

 

III. CONCLUSION

For all of the forgoing reasons, it is respectfully requested that this Court reverse the District Court’s order and judgement dismissing the within action, remand for proceedings consistent with appellant’s right to assert an “as applied” challenge, and grant such other and further relief that the Court deems just and proper.

DATED: July 26, 2017                                                 Respectfully Submitted

/s/ Michael E. Zapin

                                                    MICHAEL E. ZAPIN, ESQ.

Attorney for Appellant Barry Michaels

michaelezapin@gmail.com

20283 State Rd 7, Suite 400

Boca Raton, FL 33498

Tel. 561.367.1444

 

 

CERTIFICATE OF COUNSEL REGARDING RELATED CASES

Under Circuit Rule 28-2.6, Defendants Office appellant Barry Michaels, by and through his counsel of record, hereby certifies that he is not aware of any related cases pending in this Court.

 

DATED: July 26, 2017

Respectfully Submitted

/s/ Michael E. Zapin

                                                    MICHAEL E. ZAPIN, ESQ.

Attorney for Appellant Barry Michaels

michaelezapin@gmail.com

20283 State Rd 7, Suite 400

Boca Raton, FL 33498

Tel. 561.367.1444

 

 

CERTIFICATE OF COMPLIANCE

This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 8,026 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type-style requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in a proportionally-spaced typeface—14 point Times New Roman—using Microsoft Word 2016.

 

DATED: July 26, 2017

Respectfully Submitted

/s/ Michael E. Zapin

                                                    MICHAEL E. ZAPIN, ESQ.

Attorney for Appellant Barry Michaels

michaelezapin@gmail.com

20283 State Rd 7, Suite 400

Boca Raton, FL 33498

Tel. 561.367.1444

 

[1] District of Columbia v. Heller, 554 U.S. at 582

[2] The parties were in the early pleadings phase of the litigation. Short of the draconian dismissal that took place, the District Court could have held an evidentiary hearing to obtain more details about the nature of appellant’s felony convictions, appellant’s record of being a law-abiding, productive member of society since serving his sentence, appellant’s political aspirations that might very well land him in office, etc., government statistics or other empirical data, all to determine whether or not 922(g)(1) “as applied” to appellant, was in fact a “reasonable fit” or “narrowly tailored using the least restrictive means.”

[3] The District Court simply opined that “[it was] not persuaded by [appellant’s] attempts to distinguish [Ninth Circuit] cases” and that “This precedent – most directly [United States v. Phillips, 827 F.3d 1171, 1176 (9th Cir. 2016)] – forecloses Michaels’ argument that 922(g)(1) is unconstitutional as applied to him.” ER-94, lines 12-14.

[4] Citations and case summaries supra credited to www.ccresourcecenter.org , Dec. 13, 2014 article, “Second Amendment Challenges to Felon-In-Possession Laws”

[5] See Congressional Research Service, Gun Control: FY2017 Appropriations for ATF and Other Initiatives, Pgs. 21-22: For FY1993 and every year thereafter, Congress included a proviso in the ATF S&E appropriations language that prevents that agency from using appropriations to consider applications for disabilities relief (i.e., reinstatement of an applicant’s right to gun ownership) from individuals who are otherwise ineligible to be transferred a firearm.61 In the 102nd Congress, House report language (H.R. 5488; H.Rept. 102-618) included the following justification: “the Committee believes that the $3.75 million and the 40 man-years annually spent investigating and acting upon these applications for relief would be better utilized by ATF in fighting violent crime.” Senate and Conference report language were silent on this issue. The language of this proviso is as follows:

 

Provided further, That none of the funds appropriated herein shall be available to investigate or act upon applications for relief from Federal firearms disabilities under 18 U.S.C. 925(c). [emph. added]

[6] Appellant suggested by definition of its proposed class for class certification in its complaint, that for a nonviolent felon, a track record of being a law-abiding citizen after five years of completion of his sentence, was reasonable. This was based on the fact that there is/was no empirical data to support that after five years, such a nonviolent felon was any more likely to commit any crime than any other civilian living in free society.