Chew v. U.S.

314 A.3d 80

Roderick CHEW, Appellant,

v.UNITED STATES, Appellee.

No. 22-CF-0163

District of Columbia Court of Appeals.

Submitted February 28, 2023

Decided May 2, 2024

West Codenotes

Recognized as Unconstitutional

D.C. Code § 22-4506(a)

Appeal from the Superior Court of the District of Columbia (2020-CF2-008233), (Hon. Michael Ryan, Trial Judge)

Keith B. Lofland was on the brief for appellant.

Matthew M. Graves, United States Attorney, and Chrisellen R. Kolb, Meredith Mayer-Dempsey, Robert Platt, and John P. Mannarino, Assistant United States Attorneys, were on the brief for appellee.

Before Easterly, McLeese, and Shanker, Associate Judges.

Concurring opinion by Associate Judge Easterly at page 89.

Easterly, Associate Judge:

Roderick Chew appeals from his convictions for multiple gun-related offenses. Mr. Chew argues that his convictions for possession of an unregistered firearm ("UF") and carrying a pistol without a license ("CPWL") should be vacated because both the District’s firearm registration statute, D.C. Code § 7-2502.01(a), and firearm licensing statute, D.C. Code § 22-4506(a), violate the Second Amendment as interpreted by the Supreme Court in New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1, 142 S.Ct. 2111, 213 L.Ed.2d 387 (2022). Additionally, he challenges his conviction for unlawful possession of a firearm by a person convicted of a crime punishable by imprisonment for a term exceeding one year ("UP"), D.C. Code § 22-4503(a)(1), (b)(1), on the ground that the evidence against him was legally insuffi- cient. Finally, and in the alternative, Mr. Chew argues that his convictions for CPWL and UF should merge with his conviction for UP.

Although Mr. Chew did not raise his constitutional claims in Superior Court, we assume they are reviewable for plain error. We conclude that Mr. Chew cannot prevail under the test for plain error because he has failed to show any "clear and obvious" constitutional defect in these statutes that could affect his rights. We thus reject his constitutional claims. His sufficiency and merger claims likewise fail. Accordingly, we affirm.

I. Second Amendment Challenges

Mr. Chew argues that, following the Supreme Court’s decision in Bruen, the District’s firearm registration and license to carry statutes, D.C. Code §§ 7-2502.01(a) and 22-4506(a), facially violate the Second Amendment, and this court should, therefore, vacate his convictions for UP and CPWL. He claims that these statutes vest the Metropolitan Police Department ("MPD") with impermissible discretion to restrict individuals’ Second Amendment rights and, as a result, the trial court erred by failing to dismiss the charges against him.

As an initial matter, the government argues that Mr. Chew "waived" his constitutional challenges by failing to raise them before the Superior Court in compliance with Super. Ct. Crim. R. 12(b)(3)(B)(v). The government claims that, as a result of this waiver, Mr, Chew cannot raise his constitutional claims for the first time on appeal absent a showing of good cause. See Super. Ct. Crim. R. 12(c)(3) ("If a party does not meet the deadline for making a Rule 12(b)(3) motion, the motion is untimely. But a court may consider the defense, objection or request if the party shows good cause.").

[1] We need not decide whether, by failing to preserve his constitutional claims in the trial court, Mr. Chew waived and rendered these claims unreviewable on appeal absent a showing of good cause or, as is generally the case for unpreserved arguments, he merely "forfeited his right to have this court consider on direct appeal the ‘merits’ of [these] claim[s] under the court’s regular standard of review" and they remain reviewable by this court subject to the strictures of plain error review. Allen v. United States, 495 A.2d 1145, 1151 & n.11 (D.C. 1985) (en banc) (footnote omitted); accord Watts v. United States, 362 A.2d 706, 709 (D.C. 1976) (en banc); see also United States v. Olano, 507 U.S. 725, 733-34, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Even if we assume without deciding that Mr. Chew’s claims are reviewable for plain error,¹ but see post (Easterly, J., concurring), Mr. Chew fails to make such a showing.

A. Facial Constitutionality of the District’s Firearm Registration Statute, D.C. Code § 7-2502.01(a)

[2] Mr. Chew argues that a portion of the District’s firearm registration statute, D.C. Code § 7-2502.01(a), is facially unconstitutional because it gives the MPD impermissible discretion to decide whether to issue a firearm registration certificate to otherwise qualified individuals. Section 7-2502.01(a) provides that the District "may … issue[ ]" a registration certificate to individuals who meet the requirements of the act. Mr. Chew contends that by using the word "may" instead of "must" or "shall," D.C. Code § 7-2502.01(a) gives the District authority to deny firearm registration certificates to otherwise qualified individuals, thereby violating the Second Amendment.

The discretionary language Mr. Chew attacks, however, did not impact his ability to receive a firearm registration certificate or his conviction for UF. While the statute provides that the District "may … issue[ ]" a registration certificate to individuals who meet the requirements of the act, D.C. Code § 7-2502.01(a)(5), it also mandates that "[n]o registration certificate shall be issued to any person" who has "been convicted of a weapons offense .. or a felony," D.C. Code § 7-2502.03(a)(2). At trial, Mr. Chew stipulated that, prior to the alleged offense, he had been convicted of a felony. As a result, Mr. Chew was not eligible for a firearm registration certificate and the District had no discretion under D.C. Code § 7-2502.01(a) to issue him one.

Because Mr. Chew was not eligible for a firearm registration certificate under D.C. Code § 7-2502.01(a), it is not clear that he can bring a facial challenge to the statute and thus the trial court’s failure to sua sponte consider his Second Amendment claim cannot constitute plain error. Mr. Chew asserts that his prior felony conviction "does not affect the analysis of the overall constitutionality of the District’s firearms licensing law[ ]." But, as we have previously explained, "except in limited circumstances .. , an appellant may not challenge a statute by arguing that it could not be constitutionally applied to other defendants, differently situated." Gamble v. United States, 30 A.3d 161, 166 (D.C. 2011); see also Sims v. United States, 963 A.2d 147, 150 n.2 (D.C. 2008) ("Embedded in the traditional rules governing constitutional adjudication is the principle that a person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the Court.") (quoting Broadrick v. Oklahoma, 413 U.S. 601, 610, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973)); Sabri v. United States, 541 U.S. 600, 609-10, 124 S.Ct. 1941, 158 L.Ed.2d 891 (2004) (explaining that, outside of specific contexts, such as the First Amendment, the Supreme Court has "discouraged" facial overbreadth challenges that assert a "law would be unconstitutionally applied to different parties and different circumstances from those at hand" because such challenges conflict with requirements for standing). Mr. Chew is not otherwise eligible for a firearm registration certificate. His claim that D.C. Code § 7-2502.01(a)’s discretionary language violates the Second Amendment therefore constitutes a challenge to the law based only on the application of the statute to "other defendants, differently situated"—i.e., those who are eligible and meet all other requirements of the act. See Gamble, 30 A.3d at 166. Given that it is not clear Mr. Chew can bring this facial challenge to begin with, the trial court’s failure to consider sua sponte the constitutionality of the discretionary language in D.C. Code § 7-2502.01(a) did not constitute plain error.

B. Facial Constitutionality of the District’s Firearms Licensing statute, D.C. Code § 224506(a)

Mr. Chew also argues that the District’s licensing scheme for the public carry of firearms in D.C. Code § 224506(a) facially violates the Second Amendment. Section 224504(a) prohibits a person from "carrying] within the District of Columbia either openly or concealed on or about their person, a pistol, without a license issued pursuant to District of, Columbia law." A separate provision, D.C. Code § 22-4506(a), sets out when a person is eligible for a license. Under D.C. Code § 22-4506(a), as written, "[t]he Chief of the Metropolitan Police Department (‘Chief') may … issue a license to such person to carry a pistol concealed upon his or her person within the District of Columbia .. if it appears [(1)] that the applicant has good reason to fear injury to his or her person or property or has any other proper reason for carrying a pistol, and [(2)] that he or she is a suitable person to be so licensed." Mr. Chew, citing Bruen, 597 U.S. at 11, 71, 142 S.Ct. 2111 (holding New York’s licensing regime for the public carrying of handguns, which required an individual to prove that they had "proper cause" to cany a firearm by demonstrating "a special need for self-protection," violated the Second and Fourteenth Amendments), challenges both the "proper reason" requirement and the "may issue" provision. Mr. Chew argues that because these aspects of the licensing statute render it unconstitutional, this court must vacate his conviction for CPWL under D.C. Code § 22-4504(a).² We conclude that the trial court did not plainly err in failing to sua sponte consider Mr. Chew’s Second Amendment challenge to this conviction.

[3] Mr. Chew argues, first, that his conviction for CPWL should be vacated because the "proper reason" provision of D.C. Code § 22-4506(a) violates the Second Amendment. But this statutory licensing requirement has been permanently enjoined since...