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August 14, 2009

Split Tenth Circuit panel overturns Second Amendment ruling for misdemeanant via mandamus

Back in June, a federal district judge issued this brief opinion in US v. Engstrum, No. 2:08-CR-430 (D. Utah June 15, 2009), that ruled that the Second Amendment should allow someone being prosecuted for possessing a gun after having been convicted of a domestic violence misdemeanor to present an affirmative defense "that he posed no prospective risk of violence."  As I noted in this post on the rulingEngstrum was the first and so far only victory for a federal criminal defendant arguing that the Second Amendment should impact his federal criminal prosecution for a gun possession crime.  But, as detailed in this order issued by the Tenth Circuit late yesterday, this victory for gun rights did not last even two months.

Here is the start of the order in In re United States issued by a Tenth Circuit panel upon the government's petition for mandamus seeking to preclude the defendant in Engstrum from getting a Second Amendment jury instruction:

Petitioner United States of America has filed a petition for a writ of mandamus seeking an order from this court preventing the district court from instructing the jury that defendant, Rick Engstrum, may not be deprived of his Second Amendment right to bear arms under 18 U.S.C. § 922(g)(9), if he can show by a preponderance of the evidence that he does not pose a prospective risk of violence.  For the following reasons, we grant the writ, and direct the district court not to instruct the jury on this Second Amendment defense, including not giving the proposed jury instruction.

Significantly, Judge Murphy dissents and is able in this paragraph to summarize why this issue should be subject to a lot more debate and consideration in the wake of Heller:

The right to mandamus relief must be “clear and indisputable,” and the burden of proof is on the petitioner.  In re Cooper Tire & Rubber Co., 568 F.3d 1180, 1187 (10th Cir. 2009) (quotation omitted). In my view, the government has failed to meet this burden.  This court has not yet passed on the constitutionality of 18 U.S.C. § 922(g)(9) in light of District of Columbia v. Heller, 128 S. Ct. 2783 (2008). That opinion’s recognition of an individual right to bear arms for the defense of self, family, and property, id. at 2817-18, raises substantial questions about how 18 U.S.C. § 922(g)(9) may be constitutionally applied.  Heller’s dictum regarding the validity of “longstanding prohibitions on the possession of firearms by felons or the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions on the commercial sale of arms, ” 128 S. Ct. at 2816-17, does not address the question.  The defendant is not a felon, there is no suggestion he is mentally ill, he did not possess the firearm in a school or government building, and the sale of the firearm is not at issue.  Notably, the charge is not under a longstanding statute prohibiting possession of a firearm.  The statute interdicting the possession of a firearm by a person previously convicted of a domestic violence misdemeanor, 18 U.S.C. § 922(g)(9), was enacted in 1996.  Our recent opinion in United States v. McCane, No. 08-6235, 2009 WL 2231658 (10th Cir, Jul. 28, 2009), is not on point because the McCane court was applying the statute prohibiting felons from possessing firearms, 18 U.S.C. § 922(g)(1), and that court relied entirely upon the dictum from Heller regarding possession of firearms by felons.  McCane, 2009 WL 2231658 at *8.  There is simply no authority for the government’s assertion that § 922(g)(9) is constitutional in light of Heller.

As I have said before and will say again, anyone seriously committed to the Second Amendment and gun rights getting serious constitutional respect should be seriously disturbed by how willing and eager lower courts have been to accept federal prosecutors' arguments that Heller is of no consequence for an array of broad and severe federal gun possession crimes.  But, disappointingly, frequent Second Amendment advocate David Kopel has a pretty tepid reaction here at The Volokh Conspiracy to the Tenth Circuit's seemingly remarkable ruling that, from my reading, shows significant antipathy toward serious consideration of Second Amendment rights.

I sincerely hope that the defendant in Engstrum seeks en banc review of the panel's order.  Not only does Judge Murphy's dissent effectively highlight why mandamus relief here seems inappropriate, but Judge Tymkovich terrific concurrence (discussed here) about Heller and the 922(g)(1) felon-in-possession law in US v. McCane, No. 08-6325 (10th Cir. July 28, 2009) (available here), highlights that at least one other member of the Tenth Circuit is troubled by the important constitutional issues getting summary treatment in the rush to ensure federal defendants get no benefits from Heller.  I wonder if the NRA or  any other persons so eager to assail Justice Sotomayor for her precedent-respecting Second Amendment work as a circuit judge might back the defendant in this case when other circuit judges have gone far beyond precedent to reject a seemingly reasonable Second Amendment claim.

Some related Heller and Second Amendment posts:

August 14, 2009 at 11:48 AM | Permalink


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"should be seriously disturbed by how willing and eager lower courts have been to accept federal prosecutors arguments"

Disturbed, perhaps; Surprised, no. How can anyone be surprised when 1/2 of federal judges are ex-prosecutors themselves. Rather than attacking the bees perhaps it's better to not ignore the elephant in the room for once.

Posted by: Daniel | Aug 14, 2009 3:00:49 PM

A prohibition applicable to domestic violence misdemeanor convicts is much more closely tailored to the risk than a general prohibition against possession by felons, who may can committed completely non-violent crimes that do not pose any risk relevant to gun use like forgery or insider trading.

The examples in Heller are illustrative only of the kinds of restrictions that are reasonable.

Posted by: ohwilleke | Aug 14, 2009 4:24:08 PM

The main problem with the gun prohibition as a result of DV is the ease that a woman can get a restraining order against any man. Without one shred of evidence the courts will automatically grant a restraining order and leave it in place for years. Fighting one can be expensive, time consuming, and has little chance of success. So a person is deprived of one of their fundamental rights without the least bit of due process.

Posted by: Ogre | Aug 16, 2009 5:55:32 AM

To put things into perspective, a Constitutional right is being denied, not on the basis of a felony conviction... or even a misdemeanor conviction... but on the bare possibility that a crime of unspecified nature might at some future time be committed.

And the Tenth Circuit is okay with that.

Posted by: DaveP. | Aug 16, 2009 8:38:18 AM

At target and cashier asked me if I was still a wrestling ring announcer.

Posted by: charms thomas sabo | Dec 16, 2010 3:13:09 AM

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