United States v. Hammond

656 F.Supp.3d 857

UNITED STATES of America, Plaintiff, v. Tyler Christian HAMMOND, Defendant.

No. 4:22-cr-00177-SHL-HCA

United States District Court, S.D. Iowa, Central Division

Signed February 15, 2023

MacKenzie Benson Tubbs, United States Attorney's Office, Des Moines, IA, for Plaintiff.

Joseph D. Herrold, Melanie S. Keiper, Nova Danielle Janssen, Public Defenders, Federal Public Defenders Office, Des Moines, IA, for Defendant.

ORDER DENYING MOTION TO DISMISS COUNT 1 AND RELATED NOTICE OF FORFEITURE

STEPHEN H. LOCHER, UNITED STATES DISTRICT JUDGE

In New York State Rifle & Pistol Ass'n, Inc. v. Bruen, the Supreme Court held that firearms restrictions are constitutional only if they are "consistent with this Nation's historical tradition of firearm regulation." — U.S. —, 142 S. Ct. 2111, 2126, 213 L.Ed.2d 387 (2022). Defendant Tyler Christian Hammond argues that 18 U.S.C. § 922(g)(9), which criminalizes the possession of firearms by persons convicted of a misdemeanor crime of domestic violence, does not pass muster under Bruen. The Court disagrees and therefore DENIES Hammond's Motion to Dismiss Count 1 and Related Notice of Forfeiture.

I. Background.

On November 15, 2022, a grand jury in the Southern District of Iowa returned a two-count Indictment charging Hammond with: Count 1: Domestic Violence Misdemeanant in Possession of a Firearm, in violation of 18 U.S.C. § 922(g)(9); and Count 2: Unlawful Possession of an Unregistered Destructive Device, in violation of 26 U.S.C. §§ 5841, 5861(d), and 5871. (ECF 17.) As it pertains to Count 1, Hammond's disqualifying conviction is a misdemeanor conviction in the Iowa District Court for Story County in July 2014 for domestic abuse assault causing bodily injury, in violation of Iowa Code §§ 708.2A(1) and 708.2A(2)(b). (ECF 33-2, p. 2.) Hammond moves to dismiss Count 1, arguing there is no "historical tradition" of prohibiting people with misdemeanor domestic violence convictions from possessing firearms. (ECF 28.) He therefore argues that 18 U.S.C. § 922(g)(9) violates his Second Amendment rights both facially and as applied.

II. Legal Analysis.

A. Bruen's Legal Framework for Analyzing the Constitutionality of Firearm Laws and Regulations.

In District of Columbia v. Heller, the Supreme Court held that the Second Amendment protects the right of "law-abiding, responsible citizens" to possess firearms for self-defense. 554 U.S. 570, 635, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008). In the years that followed, most federal courts of appeal began adopting and applying some form or another of means-end scrutiny to determine whether particular firearm laws were constitutional. See, e.g., United States v. Focia, 869 F.3d 1269, 1285 (11th Cir. 2017); United States v. Greeno, 679 F.3d 510, 518 (6th Cir. 2012). This generally entailed a two-step approach in which the courts would, first, determine whether the regulated conduct fell within the scope of the Second Amendment right from a historical perspective, and, if so, second, whether the challenged regulation satisfied some level of constitutional scrutiny (either intermediate or strict, depending on the circumstances). See, e.g., Focia, 869 F.3d at 1285.

Bruen held that this two-step approach "is one step too many." 142 S. Ct. at 2127. "Step one . . . is broadly consistent with Heller, which demands a test rooted in the Second Amendment's text, as informed by history." Id. "But Heller and McDonald [v. City of Chicago, 561 U.S. 742, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010)] do not support applying means-end scrutiny in the Second Amendment context. Instead, the government must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms." Id.

The Eighth Circuit appears not to have adopted the sort of means-end scrutiny the Supreme Court held to be improper in Bruen. Instead, when the Eighth Circuit considered constitutional challenges to firearms restrictions post-Heller, it sometimes started with the standard set forth in United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987), for evaluating a statute's facial constitutionality. See United States v. Bena, 664 F.3d 1180, 1182 (8th Cir. 2011). Under this standard, the defendant "must establish that no set of circumstances exists under which [the statute] would be valid." Id. (quoting Salerno, 481 U.S. at 745, 107 S.Ct. 2095). If the defendant cannot satisfy this standard, the facial challenge fails and the analysis turns to a two-prong approach for evaluating the as-applied challenge (if one was made): "[the defendant] must establish (1) that the Second Amendment protects his particular conduct, and (2) that his prior [ ] conviction is insufficient to justify the challenged regulation of Second Amendment rights." United States v. Adams, 914 F.3d 602, 605 (8th Cir. 2019).

In at least one respect, Bruen may have abrogated Eighth Circuit precedent. United States v. Adams placed the burden on the defendant to prove the Second Amendment protected his conduct, whereas Bruen places the burden of proof on the Government to show historical evidence supporting the regulation in question. 142 S. Ct. at 2127. Beyond the placement of the burden of proof, however, it is not clear whether or to what extent Bruen abrogated cases like Adams and United States v. Bena. For example, although Bruen eschewed "two-step" tests insofar as the second step engages in means-end scrutiny of a firearm regulation, there are nonetheless still two parts to the Bruen analysis: first, courts must determine whether "the Second Amendment's plain text covers an individual's conduct," and, if so, second, the Government must provide historical evidence to show the regulation is sufficiently analogous to Founding-era restrictions. Bruen, 142 S. Ct. at 2129-30. Apart from who bears the burden of proof, this is not necessarily different than the two-part test in Adams, 914 F.3d at 605 (although it might be), nor does it necessarily mean the no-set-of-circumstances standard set forth in Salerno, 481 U.S. at 745, 107 S.Ct. 2095, for facial constitutional challenges never applies to firearms regulations. The Court will address these issues, among others, in the next sections.

B. Pre-Bruen Precedent from the Eighth Circuit Remains Good Law in Relevant Respects, and Thus Hammond's Facial Challenge to § 922(g)(9) Fails.

1. Bruen Did Not Undermine or Repudiate the Core Holding of Bena.

In Bena, the Eighth Circuit evaluated a constitutional challenge to 18 U.S.C. § 922(g)(8), which criminalizes the possession of firearms by persons subject to a domestic violence restraining order. 664 F.3d at 1183-84. Bena carefully analyzed the "pre-existing right to bear arms" as it would have been understood in the Founding era and concluded there was "a common-law tradition that permits restrictions directed at citizens who are not law-abiding and responsible." Id. at 1183; see also United States v. Skoien, 614 F.3d 638, 640 (7th Cir. 2010) (en banc) ("That some categorical limits [on firearm possession] are proper is part of the original meaning [of the Second Amendment], leaving to the people's elected representatives the filling in of details."). Bena therefore upheld § 922(g)(8) against a facial constitutional challenge. 664 F.3d at 1184. In the process, importantly, Bena did not engage in the means-end scrutiny that the Supreme Court later held in Bruen to be improper.

If it remains good law, Bena clearly requires denial of Hammond's facial constitutional challenge. The only difference between the two cases is that Bena dealt with a challenge to § 922(g)(8), whereas Hammond is charged with violating § 922(g)(9). This difference is not material. If Congress can lawfully prohibit persons who are subject to a domestic violence restraining order from possessing firearms, surely it can do the same for persons who have been convicted of a crime of domestic violence. See Skoien, 614 F.3d at 645 (denying facial and as applied challenges to § 922(g)(9)). If anything, the constitutionality of § 922(g)(9) is easier to defend given the additional due process protections that exist in criminal proceedings vis-à-vis the civil proceedings that give rise to protective orders.

The question turns, then, to whether Bena was "repudiated or undermined by later authority, such as a statute, an intervening Supreme Court decision, or en banc decision." Dean v. Searcey, 893 F.3d 504, 511 (8th Cir. 2018) (quoting Bryan A. Garner et al., The Law of Judicial Precedent 38 (West 2016)). In all material ways, the Court concludes Bena was not undermined or repudiated by Bruen. In fact, in the main, Bena essentially foreshadowed Bruen by focusing on text and history and declining to engage in means-end scrutiny. The Court therefore concludes Bena remains good law and must be followed. Accordingly, Hammond's facial constitutional challenge fails. See also United States v. Bernard, No. 22-CR-03 CJW-MAR, 2022 WL 17416681, at *8 (N.D. Iowa Dec. 5, 2022) (upholding constitutionality of § 922(g)(9)); United States v. Nutter, 624 F.Supp.3d 636, 644-45 (S.D. W. Va. Aug. 29, 2022) (same); United States v. Jackson, 622 F.Supp.3d 1063, 1066-68 (W.D. Okla. Aug. 19, 2022) (same).

Although Bena's text- and history-based approach is reason enough to conclude it remains good law, the Court also notes that Bena's outcome is consistent with the apparent views of Justice Barrett as reflected in a dissenting opinion from shortly before her elevation to the Supreme Court. In Kanter v. Barr, then-Judge Barrett dissented from an as-applied challenge to § 922(g)(1), which criminalizes the possession of firearms by convicted felons. 919 F.3d 437, 451 (7th Cir. 2019), abrogated by Bruen, 142 S. Ct. 2111 (2022) (Barrett, J., dissenting). Her dissent concluded § 922(g)(1) is overbroad because "its application is not limited to those who have committed violent crimes." Id. at 466 (Barrett,...