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July 23, 2010

Tenth Circuit dodges Second Amendment issue in gun possession prosecution involving self-defense claim

The Tenth Circuit handed down a notable decision today in US v. Pope, No. 09-4150 (10th Cir. July 23, 2010) (available here), in which the panel dodges a potentially challenging Second Amendment issue on procedural grounds.  Here is how the opinion starts:

This case began when a grand jury indicted Mark Pope for violating 18 U.S.C. § 922(g)(9). That statute makes it a federal felony for a person previously convicted of a misdemeanor crime of domestic violence to possess a gun.  In response to the indictment, Mr. Pope filed a motion to dismiss.  While he admitted to being previously convicted of a domestic violence crime, and to possessing a gun, Mr. Pope pressed an affirmative defense that, he said, precluded his conviction.  Because he possessed the gun in question only on the property where he was living and only to protect himself, others, or his property, he argued that the application of § 922(g)(9) to him would violate the Second Amendment.  While the statute may be constitutional as applied to other situations, it is, he submitted, unconstitutional as applied to the facts of his case.

The district court denied Mr. Pope’s motion to dismiss and today we affirm that decision.  We do so without passing, one way or the other, on Mr. Pope’s Second Amendment defense because an antecedent procedural problem lurks here.  All the material facts on which Mr. Pope’s motion to dismiss relies are outside the indictment, hotly disputed by the government, and intimately bound up in the question of Mr. Pope’s guilt or innocence.  Under these circumstances, Fed. R. Crim. P. 12(b)(2) and our precedent preclude the resolution of Mr. Pope’s asapplied constitutional challenge before trial.

Notably, as the Pope opinion explains, after the district court denied the defendant's motion to dismiss, "Mr. Pope opted to plead guilty and was sentenced. In agreeing to plead guilty, however, he reserved his right to appeal the district court’s denial of his pre-plea motion to dismiss." In light of that plea decision, and now the Tenth Circuit's procedural ruling, it is unclear whether or how Pope's Second Amendment claim will ever be adjudicated on the merits.

A few related Second Amendment posts on related issues:

July 23, 2010 at 03:08 PM | Permalink


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This may be an important opinion in that it advises a 922(g)(9) defendant on how he/she should proceed with their defense.

In order to litigate an as-applied motion to dismiss pre-trial, the Court is going to require a stipulation to facts for the purposes of the motion. Absent such a stipulation, a motion to dismiss is improper. Instead, the defendant must go to trial, request to present evidence that he possessed the gun only for the “protection of self, property and home,” and request that the jury be asked to answer the following question: "did the defendant possess the gun in question only on the property where he was living and only to protect himself, others, or his property?"

If the trial judge does not permit him to introduce such evidence or to submit such an special interrogatory, then he can plead guilty while preserving the right to appeal the trial judge’s denial. In that situation, the Circuit would have to determine if an as-applied challenge could ever be valid.

The better way for the issue to reach the Circuit, however, would be for the trial judge to allow the defendant to present such evidence and the fact-finder answers the question in the affirmative. In that situation, the Circuit will decide whether the affirmative answer has 2nd Amend. significance.

IMO, this opinion demonstrates that if a 922(g)(9) defendant goes to trial, he should be entitled to present evidence that he only possessed the weapon for the “protection of self, property and home.” But, at a minimum, it provides the defendant with guidance on how to validly preserve the issue.

Posted by: DEJ | Jul 23, 2010 5:31:13 PM

If my above analysis is correct, then it's important to distinguish In re US, 578 F.3d 1195 (10th Cir. 2009). There, the Circuit granting mandamus and prevented the district court from instructing a jury in a 922(g)(9) case that the Defendant cannot be convicted "if he can show by a preponderance of the evidence that he does not pose a prospective risk of violence."

Putting aside for the moment the slightly different question being asked of the jury (prospective violence vs. use of the gun only at home for protection), the case can be distinguished because the trial court in the mandamus case basically instructed the jury to acquit if they answer the question in the affirmative. In my analysis above, however, the jury would only be asked the question, leaving it to the Court to determine the significance of an affirmative answer.

Posted by: DEJ | Jul 23, 2010 5:46:56 PM

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