Plaintiff’s Response

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEVADA

Case No. 2:16-cv-00578-JAD-PAL

BARRY MICHAELS on behalf of himself
and all others similarly situated,

Plaintiffs,

vs.

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
____________________________________________/

Plaintiff Barry Michaels on behalf of himself and all others similarly situated (“Plaintiff”), by and through his undersigned attorney(s) of record files this Response to Defendants’ Motion to Dismiss, with Cross-Motion to Amend Complaint pursuant to Federal Rules of Civil Procedure Rule 15(a)(2) and Local Rule 15-1, and respectfully supports the forgoing by the following Memorandum of Points and Authorities.

DATED: October 5, 2016
/s/ Michael E. Zapin
MICHAEL E. ZAPIN, ESQ.
Admitted for this Case, Pro Hac Vice
Florida Bar No. 0037264
michaelezapin@gmail.com
20283 State Rd 7, Suite 400
Boca Raton, FL 33498
Tel. 561.843.5352
HERMAN A. SAITZ, ESQ.
Resident Nevada Counsel
Nevada Bar No. 389
2001 Redbird Drive
Las Vegas, NV 89134
Tel. 702.807.5757

ATTORNEYS FOR PLAINTIFF

DEFENDANT’S MEMORANDUM OF POINTS AND AUTHORITIES

I. INTRODUCTION

No one starts out life as a felon. But everyone starts out with core, fundamental rights.
A wise professor once stood in front of her class and told her students, “you all start out with an ‘A.’ Now let’s see how many of you can keep it.” The criteria for the students were identical. The results, however, were quite varied. As one would expect.
The criteria or analysis to determine whether the core, fundamental Second Amendment right to bear arms can be kept, similarly, ought to be identical for every individual. Even individuals that later go on to become felons.
To suggest that the criteria for retaining an “A-grade” or retaining the core fundamental Second Amendment right is altered as to a particular student or individual because of a subsequent act of misconduct that will redefine his status, seems to pull the constitutional rug out from under his feet, sweeping the Second Amendment along with it.
It makes no sense to state that a felon does not have a core, fundamental Second Amendment right at the very instance that it is being ripped from him, in order to make it easier to do so. The express language of our Constitution would not have it.
Courts should look to the Constitution as the supreme authority and delineator of core fundamental rights; if the right implicated is a core, fundamental right, then strict scrutiny ought to apply, regardless of an individual’s status. Though admittedly this is a minority view, and one not shared at present by our own Ninth Circuit (see e.g., United States v. Chovan, 735 F.3d 1127, 1136 (9th Cir. 2013); Peruta v. Cnty of San Diego, 742 F.3D 1144 (9th Cir. 2014)) it is a view that signals a changing momentum in jurisprudence, and one worthy of this Court’s reconsideration. 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….”).

[all emphasis added]
As the Heller Court itself acknowledged in District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008):
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]
The Second Amendment contains no express carve-out for felons from this pre-existing core fundamental right, any more than the Constitution prescribes for a population of second-class citizenry.
The logic in demanding strict scrutiny in any instance of a core, fundamental Second Amendment challenge (the right to bear arms in defense of hearth and home), reveals itself through the observation of real-world and often bizarre results that occur when a lesser standard of scrutiny such as intermediate scrutiny, is utilized.
The Court need not look any further than the case sub judice, for a classic illustration of what such a bizarre result might look like. Plaintiff has political aspirations, having ran several times for Congress in Nevada’s 3rd Congressional District, and has his eye on yet another run. The permanency of the civil ban contained in 18 U.S.C. §922(g)(1) (the “Statute”) is irreconcilable with the fact that plaintiff, as a present law-abiding citizen, can become President of the United States and Commander-in-Chief, have his finger on the trigger of our nuclear arsenal, but still be prohibited by the Statute from having his finger on the trigger of a Colt-45.
That is a foreseeable consequence of the “reasonable fit” test of “intermediate scrutiny.” It will fit some better than others. If only we were talking about clothing.
It is an elephant in the room. Why the courts refuse to resolve this kind of anomaly – while at the same time tacitly nodding in agreement that “it really doesn’t make sense that Martha Stewart cannot have a gun,” (see, e.g., U.S. v. Vongxay, 594 F.3d 1111 (9th Cir. 2010) – remains a mystery. Giving the core fundamental Second Amendment right the strict scrutiny analysis it deserves, irrespective of the status of the individual asserting it, would likely avoid the “Martha Stewart” or “Barry Michaels” syndrome.
There is no other federal fundamental right granted by the Bill of Rights, that alters such right based upon the status of the individual asserting it. District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008) (JJ.. Stevens, Souter, Ginsburg and Breyer dissenting:)
The centerpiece of the Court’s textual argument is its insistence that the words “the people” as used in the Second Amendment must have the same meaning, and protect the same class of individuals, as when they are used in the First and Fourth Amendments. According to the Court, in all three provisions—as well as the Constitution’s preamble, section 2 of Article I, and the Tenth Amendment—“the term unambiguously refers to all members of the political community, not an unspecified subset.” Ante, at 2790 – 2791.

But the Court itself reads the Second Amendment to protect a “subset” significantly narrower than the class of persons protected by the First and Fourth Amendments; when it finally drills down on the substantive meaning of the Second Amendment, the Court limits the protected class to “law-abiding, responsible citizens,” ante, at 2821. But the class of persons protected by the First and Fourth Amendments is not so limited; for even felons (and presumably irresponsible citizens as well) may invoke the protections of those constitutional provisions. The Court offers no way to harmonize its conflicting pronouncements.

[all emph. added]
The above scathing criticism by the Heller dissent presented the majority with a can of worms. However, Heller was not a case grappling with a Second Amendment challenge being brought by a felon. One could only surmise that the majority felt that this was a can best kept tightly-lidded, in view of this fact.
Thus, at least for now, we do not allow laws to curb ex-felons from speaking out where ordinary civilians are free to do so, claiming that felons are somehow “outside of the core fundamental First Amendment right.”
At least for now, we do not relax the laws of search and seizure simply because the subject individual is an ex-felon, claiming that she is “outside the core fundamental Fourth Amendment right.”
At least for now, we do not force ex-felons to testify against themselves any more than we would any other ordinary civilian, claiming that “the felon is outside the core fundamental Fifth Amendment right against self-incrimination.”
At least for now, we do not allow instances to deprive an ex-felon of his right to counsel where ordinary civilians would have such right, claiming that it is permissible because “felons are outside the core fundamental Sixth Amendment right to counsel.”
At least for now, we do not (or should not) impose punishments that amount to cruel and unusual treatment of ex-felons, where no such punishment would lie against an ordinary citizen, claiming that “felons are outside the scope of the core fundamental Eighth Amendment right against cruel and unusual punishment.”
So why is the fundamental Second Amendment right, at its core, treated any differently?
Every court that has locked itself into a “status-based analysis” of the Second Amendment and the asserted infringement upon it by the Statute, engages in the same tenuous exercise. It reaches back in time. It grasps loosely at an antiquated and largely irrelevant notion of a “virtuous citizenry,” in order to come to grips with what Heller meant when it limited the core, fundamental Second Amendment right to “law-abiding citizens.”
If the term “law-abiding” with its present participle, condemns a felon for his historical past from which he can never recover, how is it that we can permit this felon who has served his sentence to return to a free society, run for political office, work in a myriad of other legitimate fields and professions as a productive member of society, but still label such a person as “non-law-abiding” simply because his past conduct may have been “traditionally” or “historically” considered “unvirtuous?”
Where the fundamental Second Amendment right is implicated, the term “law-abiding” ought to be used in 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 of time thereafter, ought to be entitled to the same presumption of being “law-abiding” as any other ordinary civilian.
Yet, if this Court is constrained to agree that “virtuous citizenry” is the Second Amendment test for the core fundamental right and tested in its historical context, then surely this Court ought to define it. At the time the Bill of Rights was created, neither Martha Stewart nor Barry Michaels would have been labelled as “unvirtuous” since their respective crimes would not come into existence until a “hundred plus” years later.
U.S. v. Vongxay, 594 F.3d 1111 (9th Cir. 2010) :

We recognize, however, that the historical question has not been definitively resolved. See C. Kevin Marshall, Why Can’t Martha Stewart Have a Gun?, 32 Harv. J.L. Pub. Pol’y 695, 714-28 (2009) (maintaining that bans on felon gun possession are neither long-standing nor supported by common law in the founding era).

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. It 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.
II. BACKGROUND
For the sake of expediency, plaintiff agrees with and would reiterate the “Background” information (“18 USC § 922(g)” and “Plaintiff’s Conviction”) set forth in the defendants’ motion to dismiss at pages 3 and 4, as though more fully set forth at length herein.

III. LEGAL STANDARDS
Similarly, plaintiff accepts the legal standards articulated by defendants at pages 4-5 of their motion to dismiss, as though more fully set forth at length herein.

IV. ARGUMENT
A. Defendants’ Redressability Argument Concerning Article III Standing
Plaintiff admits that Nevada law prohibits the possession of firearms by a person who “[h]as been convicted of . . . a felony in violation of the laws of the United States of America.” Nev. Rev. Stat. Ann. § 202.360(1)(b). The Nevada statute violates plaintiff’s fundamental rights in similar fashion to the Statute. For this reason, plaintiff seeks leave of court (as set forth below in the “Cross-Motion” prong of this Response) to amend his complaint to name the appropriate State Officials and to articulate appropriate causes of action against such State Officials, in order to obtain complete legal redress. The Court is respectfully referred to the legal standards set forth in the Cross-Motion prong of this Response for the legal standards in permitting plaintiff leave to amended his pleading. The Court is also respectfully referred to plaintiff’s proposed Amended Complaint, annexed hereto and made a part hereof as EXHIBIT “A.”
In the event that this Court grants leave to plaintiff to amend plaintiff’s complaint, the defendants’ argument concerning the “redressability requirement” of Article III standing would be rendered moot, and plaintiff would thereby request that defendant’s motion to the extent it seeks dismissal of plaintiff’s complaint based on Article III standing, be denied in its entirety.

B. Defendants’ Lack of Subject Matter Jurisdiction Argument re Counts I & II
This Court can take judicial notice of 5 U.S.C. § 702, which sets forth the following:
A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof. An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party. The United States may be named as a defendant in any such action, and a judgment or decree may be entered against the United States: Provided, that any mandatory or injunctive decree shall specify the Federal officer or officers (by name or by title), and their successors in office, personally responsible for compliance. Nothing herein (1) affects other limitations on judicial review or the power or duty of the court to dismiss any action or deny relief on any other appropriate legal or equitable ground; or (2) confers authority to grant relief if any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought.
[emph. added]

5 U.S.C. § 703 describes the form of proceeding:

The form of proceeding for judicial review is the special statutory review proceeding relevant to the subject matter in a court specified by statute or, in the absence or inadequacy thereof, any applicable form of legal action, including actions for declaratory judgments or writs of prohibitory or mandatory injunction or habeas corpus, in a court of competent jurisdiction. Except to the extent that prior, adequate, and exclusive opportunity for judicial review is provided by law, agency action is subject to judicial review in civil or criminal proceedings for judicial enforcement.”

[emph. added]
Insofar as plaintiff’s complaint does not seek money damages against the government, 5 U.S.C. § 702 and § 703 are applicable, and constitute a valid waiver of the government’s sovereign immunity. Plaintiff seeks leave of court to amend his complaint, to articulate 5 U.S.C. §§ 702 and 703 as a valid waiver of the government’s sovereign immunity. If the Court is inclined to grant plaintiff leave of court to amend its complaint, then the Court should respectfully deny that prong of defendants’ motion to dismiss seeking to dismiss plaintiff’s Counts I and II for lack of subject matter jurisdiction.

C. (1) Defendants’ Request to Dismiss Plaintiff’s Counts I and II As Brought Under Declaratory Judgment Act, for Failure to State a Claim

Plaintiff’s proposed amended complaint consolidates its present Counts I and II under its proposed modified Count III predicated on a core Second Amendment violation. Plaintiff still requests declaratory relief under its said proposed Count III, but has eliminated independent Counts based on the Declaratory Judgment Act. Thus, if the Court is inclined to grant plaintiff leave to amend its complaint, the issue as to plaintiff’s present Counts I and II would be rendered moot. In such instance, plaintiff requests that the Court deny defendants’ request to dismiss plaintiff’s Counts I and II in its entirety.
C. (2) Defendants’ Request to Dismiss Plaintiff’s Count III for Failure to State a Claim (“Felons Do Not Fall Within Protections of Second Amendment”)

Plaintiff’s proposed amended complaint withdraws his Fifth Amendment claim on the basis asserted by defendants, under Albright v. Oliver, 510 U.S. 266,273 (1994) (“Where a particular Amendment provides an explicit textual source of constitutional protection against a particular sort of government behavior, that Amendment, not the more generalized notion of substantive due process, must be the guide for analyzing these claims.”).
Plaintiff’s core, fundamental Second Amendment challenge, is not so easily dispensed with, as defendants would have it (“felons do not fall within the protections of the Second Amendment”).
As more fully detailed in plaintiff’s Introduction (“No one starts out life as a felon”) to which plaintiff would again refer this Court, there are practical reasons to reconsider the two-step inquiry adopted by our Ninth Circuit in United States v. Chovan, 735 F.3d 1127 (9th Cir. 2013), particularly as applied to non-violent law-abiding felons. There are no legitimate reasons to single out the Second Amendment from other fundamental rights, subjecting the Second Amendment to a status-based test of the holder.
The intermediate scrutiny routinely applied to a non-violent law-abiding felon that is subjected to a status-based analysis under the Statute, would deny such individual the right to bear arms in defense of hearth and home, regardless of whether such individual was a productive member of society, no matter how much he contributed to society, no matter how much he elevated himself in the process. Maybe he even designs a missile-defense system for the U.S. military.
The Statute not only sentences the non-violent felon to a life-time ban on owning a firearm- perhaps endangering his life in the unfortunate instance of a life threatening situation – but it sentences his loved ones, as well. Where in the analysis of intermediate scrutiny for the “status-based” non-violent felon holder, is the rationale to distinguish between protecting the children of a nonviolent law-abiding felon from the neighboring children of an ordinary civilian? Plaintiff does not believe that that discussion has ever been held, although the real-world consequences of such failure is certainly reasonably foreseeable.
In the instance of an armed attack in their home, it will offer the children of the non-violent law-abiding felon little solace to know that the reason their formerly felonious father or mother could not protect them was because a “hundred years or so ago,” the felons that existed back then were considered “unvirtuous” and that’s why Daddy or Mommy aren’t able to save our lives today. There ought to be a remedy short of moving the kids in with the neighbors. But that is, in essence, the real-world remedy that intermediate scrutiny prescribes for the nonviolent law-abiding felons in this country – and there are many of them. Which is why class action certification in this lawsuit is being sought.
Yet, plaintiff is constrained to not only address the real-world consequences of applying intermediate scrutiny to the Statute in the event of a non-violent law-abiding felon who challenges it, but to address the methodology by which our Ninth Circuit and those around it, have been led to it.
In United States v. Younger, 398 F.3d 1179, 1192 (9th Cir. 2005), the Court held that § 922(g)(1) did not violate the Second Amendment rights of a convicted felon. However, in United States v. Vongxay, 594 F.3d I I I I (9th Cir. 2010), the Court emphasized that in Younger, it only performed a minimal analysis of the claim because, at the time, it was bound by Silveira v. Lockyer, 312 F.3d 1052 (9th Cir. 2002), which held that the Second Amendment did not confer an individual right to possess arms. Younger was a “minimal analysis” case. Younger was also a case that was not dealing with a law-abiding non-violent felon. Younger was convicted for possession with intent to distribute cocaine, and for being a felon in possession of a firearm in violation of the Statute.
However, the analysis for refusing to distinguish between non-violent, law-abiding felons and violent felons, was extremely “light” in Younger. It amounted to a single citation to a Fifth Circuit case, United States v. Everist, 368 F.3d 517, 519 (5th Cir. 2004) which rejected a Second Amendment challenge to the felon-firearm possession statute, holding that § 922(g)(1) “represents a limited and narrowly tailored exception to the freedom to possess firearms, reasonable in its purposes and consistent with the right to bear arms protected under the Second Amendment.” Everist was a case, that dealt with a violent felon, and had little reason before it, to make a distinction between violent and non-violent law-abiding felons. There was no reason for the Everist court to question whether or not it needed to paint with such a broad brush.
The Vongxay court felt it was bound by Younger, and even revisited the Fifth Circuit Everist case. Reiterating the Everist sentiment, the Vongxay court stated, “a felon has shown manifest disregard for the rights of others. He may not justly complain of the limitation on his liberty when his possession of firearms would otherwise threaten the security of his fellow citizens.”
Though it may be true that even a non-violent felon has “shown manifest disregard for the rights of others,” presumably, that is exactly the reason why the non-violent felon was convicted and sentenced. But now, the non-violent felon has served his sentence. He is released from prison and allowed to mingle with society in an unlimited host of ways and continues to do so for many years – with the exception of purchasing a gun.
How exactly, does the nonviolent, law-abiding felon “threaten the security of his fellow citizens?” – the very rationale deployed by the Everist and Vongxay courts.
An intermediate scrutiny would not look too closely at this proposition. A strict scrutiny, however, would demand a closer look and would find that there was no such threat. A strict scrutiny would ask: is the purpose of applying the Statute to non-violent, law-abiding felons really to protect the “security” of the non-violent felon’s fellow citizens? Or is it simply exacting an additional punishment for such felons, on a “guilt by association” basis – a form of overbreadth.
The defendant in United States v. Chovan, 735 F.3d 1127 (9th Cir. 2013), may have been a misdemeanant, but if given a choice, most reasonable people would cross on over to Martha Stewart’s side of the street from Daniel Chovan’s, given his propensity to exact corporal punishment on his female counterpart. The “violent” nature of the charge did not go unnoticed by the Chovan court. It relied upon United States v. Skoien, 614 F.3d 638, 641 (7th Cir.2010), which observed:
… firearms cause injury or death in domestic situations, and that [d]omestic assaults with firearms are approximately twelve times more likely to end in the victim’s death than are assaults by knives or fists.” (citing Linda E. Saltzman, James A. Mercy, Patrick W. O’Carroll, Mark L. Rosenberg & Philip H. Rhodes, Weapon Involvement and Injury Outcomes in Family and Intimate Assaults, 267 J. Am. Med. Ass’n 3043 (1992)).

Since Chovan was a violent offender, albeit a misdemeanant, the Chovan court had little reason to triumph the cause of the non-violent, law-abiding felon.
In a more recent case cited by defendants, United States v. Phillips,_ F.3d _, 2016 WL 3675450, at *3 (9th Cir. July 6, 2016), the defendant Phillips is also easily distinguishable from plaintiff at our case subjudice. Phillips was not law-abiding. He violently resisted arrest and fled from police officers requiring the police to “subdue him” before they were able to 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. These are simply not the kinds of facts that make a court warm and fuzzy enough to want to parse the Statute in order to distinguish between violent and non-violent, law-abiding felons. And of course the Phillips court declined to do so, finding itself “foreclosed” by “binding precedent.”
Plaintiff submits that these are all very good reasons to distinguish plaintiff from the defendants in the cases cited by the government. These are compelling reasons to distinguish violent felons from the non-violent, law-abiding felons that the Statute snares without distinction.
Whether this learned Court revisits the issue of applying strict scrutiny in this case because the Constitution ought to require it, or because of the real world consequences of applying a lesser standard, or because the plaintiff in our case at bar is easily distinguishable from the defendants that have come before the Ninth Circuit, this is an opportunity for this Court to see that equity, in its grandest and most historical sense, ought to be done, and would demand no less.
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.'”).

Plaintiff submits that it has a core, fundamental Second Amendment right that is unfairly infringed upon by the Statute, and that this Court should find as such, by denying that branch of defendants’ motion that seeks to dismiss plaintiff’s Count III predicated on the Second Amendment.

C. (3) Defendants’ Request to Dismiss Plaintiff’s Count IV for Failure to Identify a Protected Liberty

As set forth above, plaintiff maintains that it does in fact have a constitutionally protected liberty or property interest (i.e., a core, fundamental Second Amendment right to bear arms in defense of hearth and home), meeting the test of Brewster v. Bd. of Education of Lynwood, 149 F.3d 971,982 (9th Cir. 1998) cited to by defendants.
The cases cited to by defendants for its proposition that hearings on dangerousness are “a bootless exercise,” (e.g., Connecticut Department of Public Safety v. Doe, 538 U.S. 1, 7 (2003)) underscore the fact that plaintiff’s conviction was by its very terms, a non-violent or “non-dangerous” conviction.
Despite defendants’ belief to the contrary, Congress does not save itself from the Constitution by attempting to “legislate away” fundamental constitutional rights (defendants’ reliance upon Black v. Snow, 272 F. Supp. 2d21,34 (D.D.C. 2003), aff’d,ll0 F. App’x 130 (D.C. Cir.2004) at page 12 of defendants’ motion to dismiss). The Second Amendment is a right that precedes the Constitution, District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008). Not even Congress should be able to infringe upon it, without a compelling reason to do so and a means that is narrowly tailored. Under a strict scrutiny analysis, the Court should find the Statute overbroad and unconstitutional as applied to plaintiff. The Court should recognize plaintiff’s Second Amendment right as a protected liberty, and deny that branch of defendants’ motion that seeks dismissal of plaintiff’s Count IV.
C. (4) Defendants’ Request to Dismiss Plaintiff’s Count V Bill of Attainder Claim

None of the cases cited to by defendants that stand for the proposition that the Statute is not an unlawful bill of attainder, have actually observed or introduced any empirical proof that a law-abiding, non-violent felon may “have a somewhat greater likelihood than other citizens to misuse firearms.” United States v. Munsterman, 177 F.3d I 139, 1142 (9th Cir. 1999); see also Williams v. United States,426 F.2d 253,255 (9th Cir. 1970). The proposition paints all felons –violent and law-abiding nonviolent alike – with the same broad brush.
Thus, lack of empirical data notwithstanding, the Statute legislatively determines plaintiff’s guilt that plaintiff has a “somewhat greater likelihood to misuse a firearm.” It is the very essence of an unlawful bill of attainder – a legislative determination of plaintiff’s guilt without the benefit of a trial. The fact that plaintiff had “a trial” ought not satisfy the safeguards of due process, since the subject matter of whether or not plaintiff had a “somewhat greater likelihood to misuse a firearm” was never in play. Plaintiff’s trial was about a completely different subject matter. The implementation of the Statute has a certain “bait and switch” feel to it. Be tried for one matter; be convicted of another.
A strict scrutiny analysis of the Statute as applied to plaintiff, would result in the Statute being deemed an unlawful bill of attainder. It is for these reasons that the branch of defendants’ motion that seeks to dismiss plaintiff’s Count V, be dismissed in its entirety.
C. (5) Defendants’ Request to Dismiss Plaintiff’s Count VI for Cruel and Unusual Punishment

The cases defendant cites in support of its motion to dismiss plaintiff’s Count VI are not very pursuasive. Defendants’ reliance upon United States v. Watkins, 12 F.3d 1110 (9th Cir. 1993) is irrelevant to the issue before this Court. Watkins’ Eighth Amendment challenge related to his sentence of life without parole for a serious drug crime; it had nothing to do with the Statute and its lifetime civil ban.
Defendants also rely upon United States v. Jester, 139 F.3d I 168, 1 170 (7th Cir. 1998), which it is submitted, had a flawed rationale. The Jester court:
the statute does not empower federal law enforcement officials to arrest a person merely because that person was once convicted of a felony. Rather, the statute is triggered only when the felon commits the volitional act of possessing a firearm that has traveled in interstate commerce.

Thus, the Jester court took the position that the Statute could not constitute cruel and unusual punishment, since it was only triggered by a volitional act of possessing a firearm. The problem with this rationale is that it fails to consider that the Statute permanently deprives a law-abiding non-violent felon such as plaintiff from ever exercising his core, fundamental Second Amendment right, irrespective of how long he has been law-abiding, irrespective of the fact that he lives among and commingles in a civilized society, perhaps even enhancing it. It is not the volitional act of possessing the firearm that is dispositive on the cruel and unusual punishment issue; it is the permanent deprivation of the core, fundamental right – something the Jester court overlooked.
Equally unpersuasive is United States v. Lewis, 236 F.3d 948, 950 (8th Cir. 2001), which dealt with a violent misdemeanant. Plaintiff does not question that Congress has a compelling reason to restrict access to guns by individuals with violent propensities. On the other hand, Plaintiff, non-violent by nature and non-violent by charge, has little to protect the world from, by a permanent deprivation of his Second Amendment right. For these reasons, the Court should sustain plaintiff’s Count VI and deny defendant’s motion to dismiss same.

V. CROSS-MOTION TO AMEND COMPLAINT
Federal Rules of Civil Procedure Rule 15(a)(2), provides in pertinent part, that a party may amend its pleading upon leave of court, and that such leave should be freely given when the interests of justice so require it. Plaintiff has articulated cognizable claims based on fundamental constitutional rights, and its proposed amended complaint would resolve many of the issues raised by defendants’ motion. There is enough as stake here for our individual plaintiff, to warrant the requested relief in this Cross-Motion; the Court can also consider that the issues facing plaintiff have a commonality with a very large class, for which class certification will be sought. In the interests of justice for plaintiff and those additional prospective plaintiffs, it is respectfully requested that the cross-motion to amend plaintiff’s complaint in the form annexed hereto as EXHIBIT “A” be granted in its entirety.
WHEREFORE, for all of the forgoing reasons, it is requested that defendants’ motion to dismiss be denied in its entirety, and that plaintiff’s cross-motion to amend its complaint be granted in its entirety along with such other and further relief as the Court deems just and proper.
DATED: October 5, 2016 /s/ Michael E. Zapin
MICHAEL E. ZAPIN, ESQ.
Admitted for this Case, Pro Hac Vice
Florida Bar No. 0037264
michaelezapin@gmail.com
20283 State Rd 7, Suite 400
Boca Raton, FL 33498
Tel. 561.843.5352

HERMAN A. SAITZ, ESQ.
Resident Nevada Counsel
Nevada Bar No. 389
2001 Redbird Drive
Las Vegas, NV 89134
Tel. 702.807.5757
ATTORNEYS FOR PLAINTIFF