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Federal Case Law on Domestic Violence Firearm Offenses

January 1, 2000

Jennifer DeCarli

A. Case Law on 18 USC Section 922(g)(8)

US v. Baker, 197 F. 3d 211 (C.A. 6 (Ky) 1999), cert denied by Baker v. US, 120 S. Ct. 1262, (US 2/28/2000) (No. 99-8027)
US v. Wilson, 159 F. 3d 280, (C.A. 7 (Ill.) 1998), Rehering and Suggestion for Rehearing En Banc denied 11/16/98, cert denied by 119 S.Ct. 2371 (US 6/21/99) (No. 98-8724)
US v. Visnich, 65 F. Supp. 2d 669 (N.D. (Ohio) 1999)
US v. Spruill, 61 F. Supp. 2d 587 (W.D. (Texas) 1999)
US v. Henson, 55 F. Supp. 2d 528 (S.D. (W. Va.) 1999)
US v. Emerson, 46 F. Supp. 2d 598 (N.D. (Texas) 1999)
US v. Reddick, 203 F. 3d 767 (C.A. 10 (Okl) 2000)

Summary of Main Constitutional Arguments Against 18 USC 922(g)(8) and the Majority Response

B. Summary of Case Law on 18 USC 922(g)(9)

Gillespie v. City of Indianapolis, 185 F. 3d 693 (C.A. (Ind.) 1999), cert denied by 120 S.Ct 934, 145 L.Ed. 2d 813 (US 1/8/2000) (No. 99-626)
US v. Beavers, 2000 WL 174861 (6th Cir. (Mich.)), petition for cert filed (4/10/2000) (No. 99-9004)
US v. Boyd III, 52 F. Supp. 2d 1233 (D.C. (Kansas) 1999)
US v. Lewitzke, 176 F. 3d 1022 (7th Cir. (Wisc.) 1999)
US v. Mitchell, 2000 WL 309298 (4th Cir. (Va.) 2000)
US v. Ficke, 58 F. Supp. 2d 1071, (D. Neb. 1998)
US. v. Meade, 175 F. 3d 215 (C.A. 1 (Mass) 1999)

A. Case Law on 18 U.S.C. Section 922(g)(8)

Recent federal cases that have upheld the constitutionality of 18 U.S.C. Section 922 (g)(8) include U.S. v. Baker, U.S. v. Visnich, U.S. v. Henson, U.S. v. Spruill , U.S. v. Wilson and U.S. v. Reddick. Thus far, only one district level court in U.S. v. Emerson struck down 18 U.S.C. Section 922 (g)(8) as unconstitutional. The following provides the brief facts and arguments in each case. Since most of the cases involve the same constitutional arguments by the defendants, these challenges and the responses by the courts to these main challenges are summarized thereafter.

1) U.S. v. Baker, 197 F.3d 211(C.A. 6 (Ky) 1999), cert denied by Baker v. U.S., 120 S.Ct. 1262, (U.S. Feb. 28, 2000) (No. 99-8027)

Defendant was convicted of unlawfully possessing a firearm while subject to a domestic violence protective order. On appeal, the defendant argued that the statute was unconstitutional and that knowledge of the law is a required element of 18 U.S.C. 922(g)(8). Defendant’s conviction was affirmed.

Defendant had a history of committing domestic violence as evidenced by the three separate protection orders that had been issued against him by three different girlfriends. When defendant accidently shot himself, police were alerted to the defendant’s possession of firearms while subject to multiple protection orders.

2) U.S. v. Wilson, 159 F.3d 280, (C.A. 7 (Ill.) 1998), Rehearing and Suggestion for Rehearing En Banc denied Nov. 16, 1998, cert denied by 119 S.Ct. 2371 (U.S. June 21, 1999) (No. 98-8724)

Defendant was convicted by a jury of unlawfully possessing a firearm while subject to an order of protection in violation of 18 U.S.C. 922(g)(8). Defendant appealed. Among other things, defendant challenged the constitutionality of the statute, claiming it violated the Commerce Clause the Tenth Amendment and his due process rights under the 5^th Amendment. Defendant’s conviction was affirmed.

During the running of a routine check on the defendant’s drivers license by a state trooper, the trooper learned of an outstanding arrest warrant on the defendant for failure to appear in court. The defendant was eventually placed under arrest and during an inventory search of the defendant’s truck, the trooper found a shotgun and a rifle in defendant’s vehicle and a loaded hand-gun in the defendant’s fanny pack. At the time of defendant’s arrest, he was subject to an order of protection arising from divorce proceedings initiated by his now ex-wife. The defendant had been informed about the order of protection by the Judge and had agreed to its terms.

3) U.S. v. Visnich, 65 F. Supp.2d 669 (N.D. Ohio, 1999)

Defendant was charged with knowingly possessing firearms and ammunition in and affecting interstate commerce while subject to a domestic relations restraining order in violation of 18 U.S.C. 922(g)(8). Defendant’s motion to dismiss the charge was denied.

A domestic relations restraining order was issued against the defendant in July of 1998 which prohibited the defendant from abusing his wife and daughters and mandating that he stay away from them. Defendant was also prohibited from possessing, using, carrying or obtaining any deadly weapons. In April of 1999, defendant was arrested for breaking into the home of a friend’s ex-wife to obtain some personal items for the friend. A subsequent search of defendant’s vehicle by the police produced 16 various firearms and other ammunition.

4) U.S. v. Spruill, 61 F. Supp.2d 587 (W.D. Texas, 1999)

Defendant’s motion to dismiss the indictment charging him with violation of 18 U.S.C. 922(g)(8) was denied. Defendant argued that the statute violated his due process rights as well as his constitutional right to bear arms. Defendant’s motion was denied.

Defendant’s wife filed for a divorce and a restraining order. The A.D.A. handling the restraining order application contacted the defendant to notify him of this application. The Defendant agreed to the entry of the order and signed the order in the A.D.A.’s office. Since the defendant could not read, the A.D.A. explained the contents of the restraining order to the defendant. However, he did not inform the defendant that he could not possess firearms because he was unaware of this federal law and he had never heard a party admonished to this effect. Defendant agreed to the order even though the A.D.A. informed him he could hire counsel, object to the order and appear before a judge on the issue. Thus, the defendant never appeared before a judge, no hearing was ever held and the order did not make a finding that family violence ever occurred.

Defendant was arrested by federal agents because his friend had contacted authorities due to the defendant informing him that he was going to shoot his estranged wife. Federal agents had the friend set up a transaction whereby they would exchange guns. After taping the phone conversation between the defendant and the friend and witnessing the exchange, federal agents arrested the defendant.

5) U.S. v. Henson, 55 F.Supp.2d 528 (S.D. W. Va 1999)

Defendant moved to dismiss the indictment charging him with violation of 18 U.S.C. 922(g)(8), alleging that the statute violated the 2^nd Amendment and the 5^th Amendment. The motion was denied.

A final order of protection was issued against defendant prohibiting him from harassing, stalking, and threatening his ex-wife. Soon thereafter, the defendant drove to the residence of his ex-wife’s boyfriend and chased the couple into the boyfriend’s apartment building. Police were called and the defendant was arrested several blocks from the apartment building. He had a loaded .22 caliber revolver in his vehicle upon his arrest.

Importantly, in this case the defendant was also a convicted felon. He had been convicted of 2^nd degree arson in 1990. The court relied on this fact when addressing the defendant’s constitutional due process challenge, claiming that this case is distinguishable from Emerson since the defendant was already a convicted felon, who had prior notice of his loss of the right to bear arms.

6) U.S. v. Emerson, 46 F.Supp.2d 598 (N.D.Texas, 1999)

Defendant moved to dismiss an indictment charging him with a violation of 18 U.S.C. 922(g)(8). The Court granted the motion holding that the statute violated the defendant’s 5^th Amendment due process rights to be subject to prosecution without proof of knowledge that he was violating the statute and his 2^nd Amendment right to bear arms.

Defendant’s wife filed a petition for divorce and an application for a temporary restraining order. The application for the TRO sought to preclude the defendant from making certain financial transactions and from making threatening communications or actual attacks on his wife during the pendency of the divorce proceedings. At the hearing on the TRO, the defendant appeared pro se, and the defendant’s wife testified to the defendant’s threats against a man with whom she had been having an affair and a TRO was issued. However, no findings were made that the defendant had threatened violence against any member of his family. Additionally, the defendant was not informed that in accordance with federal law, he could not possess firearms while subject to the order of protection.

7) U.S. v. Reddick, 203 F.3d 767 (C.A. 10 (Okl.) 2000)

Defendant was found guilty of violating 18 U.S.C. 922(g)(8) and appealed arguing the statute violated his due process rights and the court incorrectly failed to require proof that he intended to harm the person who received the restraining order. The court affirmed the conviction.

After attempting to strangle his estranged wife, defendant’s wife filed for a restraining order. After a hearing on the order, the district court issued the order which mandated that the defendant stay away from his wife as well as stop harassing, threatening and stalking her. However, the court did not advise defendant of the federal law prohibiting him from possessing any firearms or ammunition while the order was in effect and this warning was not contained within the written order. While the order of protection was still effective, the defendant approached his wife at her work and informed her that he had a firearm in his vehicle. He threatened to kill himself in front of her if she called the police. When police were called, defendant fled the scene and was later apprehended with the firearms.

Summary of Main Constitutional Arguments Against 18 U.S.C. 922 (g)(8) and The Majority Response

1) Argument that the Statute Violates Defendant’s 5th Amendment Due Process Rights

In the majority of the cases summarized above, the defendants argued that convictions under 18 U.S.C. 922(g)(8) violate their due process rights since they did not have notice that federal law prohibits the possession of firearms while subject to an order of protection. All of the circuit courts have rejected this argument. Only two district court decisions, Emerson and Ficke, have held that the defendant’s due process rights were violated. These two decisions cite the lengthy dissent from Judge Posner in Wilson whereby he wrote that "922(g)(8) is "a trap that sprang on the defendant as he engaged in conduct he never would have suspected was criminal." Judge Posner recommends placing printed warnings on all protective orders in order to ameliorate this due process issue.

However, the majority of courts have adhered to the old legal maxim - "ignorance of the law is no excuse." and have refused to find that 18 U.S.C. 922(g)(8) should be an exception to this rule. When rejecting this due process argument, the court in Baker specifically found that even if orders of protection do not carry legal warnings regarding 18 U.S.C. 922 (g)(8), the defendant’s due process rights are still not violated. The Baker court stated, "The fact that Baker had been made subject to a domestic violence protection order provided him with notice that his conduct was subject to increased government scrutiny. Because it is not reasonable for someone in his position to expect to possess dangerous weapons free from extensive regulation. "

2) Argument that the Statute Violates the Second Amendment Right To Bear Arms

There is considerable debate about whether or not the 2^nd Amendment guarantees an individual or collective right to bear arms. As mentioned above, most of the courts have relied upon decisions made by circuit Courts of Appeal that have found only a collective right to bear arms exists. For example, the courts cite the Sixth Circuit’s decision in U.S. v. Warin when addressing this argument. The Warin court specifically stated, "It is clear that the Second Amendment guarantees a collective rather than an individual right." The Warin court found it inconceivable that the 2^nd Amendment conferred an individual right to bear arms.

The Court in Spruill discusses this issue in detail summarizing the only Supreme Court decision on this issue this century - the 1939 case of U.S. v. Miller. In Miller, the Supreme Court unanimously reversed the District Court’s decision that the 1934 Firearms Act violated the 2^nd Amendment. However, the Miller decision did not specifically hold that the 2^nd Amendment permits the federal government to ban individual possession of all weapons. In light of the debate, most courts have held that until there is a clear opinion from the Supreme Court on this issue, they will follow the majority’s opinion that the 2^nd Amendment does not prohibit the federal government from imposing some restrictions on private gun ownership.

However, one must note that the decision in Emerson involved a lengthy discussion on this issue and it held that 18 U.S.C. 922(g)(8) did violate the 2^nd Amendment right to bear arms.

3) Argument That The Statute Violates The Commerce Clause

Courts have found that Congress did not violate the Commerce Clause when enacting 922(g)(8) because the statute does contain a jurisdictional element connecting the statute to interstate commerce. ("individuals subject to domestic violence protection orders can not ship or transport in interstate or foreign commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce") The Courts have unanimously found that the inclusion of this jurisdictional element in the statute satisfies the minimal nexus to interstate commerce needed to pass constitutional muster under the Commerce Clause.

4) Argument that the Statute Violates the Equal Protection Clause

The Baker court held the statute does not violate equal protection since it does not infringe upon the exercise of a fundamental right or disadvantage a suspect class. Defendants have no personal right to possess a weapon (2^nd Amendment guarantees a collective right - See U.S. v. Warin, 530 F.2d 103 (6^th Cir. 1976)) and individuals subject to protective orders are not a suspect class. Thus, the statute only warrants a rational basis review whereby as long as it is rationally related to a legitimate state interest - it will pass constitutional muster. The Baker court specifically stated, "We believe 922(g)(8) is rationally related to the government’s legitimate interest in curtailing the incidence of domestic violence. The statute reflects Congress’s determination that persons subject to domestic violence protection orders pose an increased threat to the safety of their intimate partners and children."

B. Summary of Case Law on 18 U.S.C. 922(g)(9)

Recent federal cases that have upheld the constitutionality of 18 U.S.C. Section 922 (g)(9) include U.S. v. Lewitzke, Gillespie v. City of Indianapolis, U.S. v. Boyd and U.S. v. Beavers. Only one federal district court, in U.S. v .Ficke, has struck down 18 U.S.C. Section 922 (g)(9) as unconstitutional. Since the constitutional arguments are similar to the above arguments against 18 U.S.C. 922(g)(8), the following provides only the case cites and a brief synopsis of the case.

1) Gillespie v. City of Indianapolis, 185 F.3d 693 (C.A. 7 (Ind.) 1999), cert denied by 120 S.Ct. 934, 145 L.Ed.2d 813 (U.S. Jan 8, 2000) (No.99 - 626)

A city police officer sued the city and sought injunctive relief to protect his continued employment. Defendant was a police officer who was convicted of a qualifying misdemeanor crime of domestic violence in 1995. Because of this conviction, the Indianapolis Police Department terminated the defendant. Additionally, he challenged the constitutionality of 18 U.S.C. 922(g)(9) by arguing that the statute violated the Tenth Amendment, the equal protection rights guaranteed by the 5^th Amendment, the Second Amendment and that Congress exceed its authority under the Commerce Clause when enacting this state.

The Court rejected all of defendant’s arguments and affirmed the lower court’s decision to dismiss the action.

2) U.S. v. Beavers, 2000 WL 174861 (6th Cir. (Mich.)), petition for cert filed (Apr 10, 2000) (No.99-9004)

Defendant plead guilty to possession of firearms after a conviction for a misdemeanor crime of domestic violence. Subsequently, the court denied defendant’s motion to withdraw his guilty plea and dismiss the indictment. Defendant appealed claiming that 18 U.S.C. 922(g)(9) violated his due process rights.

The Court affirmed the lower court’s decision. When addressing the due process argument, the court held that the defendant’s conviction on a domestic violence offense sufficiently placed him on notice that the government might regulate his ability to own or possess a firearm.

3) U.S. v. Boyd III, 52 F. Supp.2d 1233 (D.C. Kansas, 1999)

Defendant motioned to dismiss the indictment charging him with 18 U.S.C. 922 (g)(9). The motion was denied. The Court held that 18 U.S.C. 922 (g)(9) did not violate the Commerce Clause, the Tenth Amendment, the Ex Post Facto Clause or the Second Amendment.

4) U.S. v. Lewitzke, 176 F.3d 1022 (7th Cir., (Wisc.) 1999)

Defendant was convicted by a jury of 18 U.S.C. 922 (g) (9). The Court affirmed the conviction holding that 18 U.S.C 922 (g)(9) did not violate equal protection.

5) U.S. v. Mitchell, 2000 WL 309298 (4th Cir.(Va.) 2000)

Defendant challenged his conviction under 18 U.S.C. 922 (g) (9) claiming that the government must prove he knew that possession of a firearm was illegal, the statute violated the Ex Post Facto Clause and the due process clause of the 5^th Amendment. The court rejected all of defendant’s arguments and affirmed the conviction.

6) U.S. v. Ficke, 58 F.Supp.2d 1071, (D. Neb. 1998)

The defendant moved to dismiss the indictment charging his with violating 18 U.S.C. 922 (g)(9). The district court granted the motion and held that the statute violated the defendant’s right to notice and fair warnings under the due process clause.

In 1994, defendant entered a pro se plea of no contest to a charge of misdemeanor assault in a domestic violence incident. Defendant was sentenced to six months probation and ordered to complete anger control classes. In 1998, defendant was arrested for an alleged assault against his wife and the police confiscated three firearms at the scene.

Based on the rationale in Emerson and Judge Posner’s dissent in Wilson and the fact that the defendant was convicted of his domestic violence offense before the passage of this specific gun control amendment, the court held that defendant had no notice of this "obscure, hard to find provision, nor would he have had a reasonable opportunity to discover it" and thus his due process rights were violated. (Compare Beavers holding the fact that defendant was convicted of a domestic violence offense should put him/her on notice that the government might restrict their firearms possession)

7) U.S. v. Meade, 175 F.3d 215 (C.A. 1 (Mass), 1999)

Defendant was convicted of both 18 U.S.C. 922 (g)(8) and 922(g)(9). Defendant appealed claiming that statute violated the 10^th Amendment and the due process clause. Additionally, the defendant argued that under 18 U.S.C. 922 (g)(9), the statute requires as an element of the underlying misdemeanor crime of domestic violence that there be a domestic relationship between the misdemeanant and the victim.

The court affirmed both convictions. Importantly the court held that the defendant’s state misdemeanor conviction for assaulting his wife was a misdemeanor crime of domestic violence within the meaning of the statute. Just because the state statute for assault does not have a relationship element in the statute does not preclude the misdemeanor assault conviction from being the predicate offense under 18 U.S.C. 922 (g)(9).