United States v. Okello

688 F.Supp.3d 905

UNITED STATES of America, Plaintiff, v. New Sudan Omot OKELLO, Defendants.

4:22-CR-40096-KES

United States District Court, D. South Dakota, Southern Division

Signed August 25, 2023

Paige Petersen, Assistant U.S. Attorney, U.S. Attorney's Office, Sioux Falls, SD, for Plaintiff.

Brett J. Waltner, Myers Billion, LLP, Sioux Falls, SD, for Defendants.

ORDER DENYING MOTION TO DISMISS

KAREN E. SCHREIER, UNITED STATES DISTRICT JUDGE

Defendant, New Sudan Omot Okello, moves the court to dismiss the Indictment in the above-entitled matter, charging him with possession of a firearm by a prohibited person in violation of 18 U.S.C. § 922(g)(3). Docket 27. The government opposes the motion. Docket 31.

BACKGROUND

I. Allegations

For the purposes of this motion to dismiss, the court considers the following allegations, which were summarized by the parties in their briefs. See Docket 28 at 2-3; Docket 31 at 1-2. But the court reaffirms that Okello remains innocent of the charges against him, and the court takes no position on the question of his guilt, or the veracity of any factual allegation presented by the government. See Taylor v. Kentucky, 436 U.S. 478, 483, 98 S.Ct. 1930, 56 L.Ed.2d 468 (1978) ("The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary[.]") (quoting Coffin v. United States, 156 U.S. 432, 453, 15 S.Ct. 394, 39 L.Ed. 481 (1895)).

On or about August 27, 2022, two Sioux Falls Police Department (SFPD) officers conducted a traffic stop of a red Toyota Venza. Docket 28 at 2; Docket 31 at 1. Another SFPD officer had observed Okello earlier in the day and reported that he was a passenger in the vehicle. Docket 28 at 2; Docket 31 at 1. At the time, Okello had a nationwide extradition warrant out of Iowa for a probation violation. Docket 28 at 2; Docket 31 at 2. Okello also had two bench warrants out of Minnehaha County, South Dakota for failure to appear regarding traffic violations. Docket 28 at 2; Docket 31 at 2. During the traffic stop, the officers confirmed the outstanding warrants for Okello. Docket 28 at 2; Docket 31 at 2.

As part of the stop, the investigating officers conducted a search of the Toyota Venza and discovered a firearm under the seat where Okello had been sitting. Docket 28 at 3; Docket 31 at 2. Okello was read his Miranda rights and waived them. Docket 28 at 3; Docket 31 at 2. SFPD officers reported that they could smell the odor of marijuana coming from Okello's person. Docket 28 at 3 (describing officers' report, but not conceding existence of odor); Docket 31 at 2. Okello admitted that he smokes marijuana frequently and that he had smoked marijuana that day. Docket 28 at 3 (describing officers' report, but not conceding marijuana usage); Docket 31 at 2. Okello was taken into custody. Docket 28 at 3.

The government alleges that Okello provided a urine sample on September 25, 2022 that was analyzed and confirmed that Okello had THC in his system. Docket 31 at 2.

II. Procedural background

On September 13, 2022, Okello was indicted on the sole count in the Indictment, which charges him with possession of a firearm by a prohibited person in violation of 18 U.S.C. § 922(g)(3). Docket 1. Section 922(g)(3) prohibits the possession of firearms or ammunition by anyone "who is an unlawful user of or addicted to any controlled substance . . .". Okello moves to dismiss the Indictment, arguing that 18 U.S.C. § 922(g)(3) is unconstitutional under the standard articulated by the Supreme Court in its opinion 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). Docket 28 at 9-15. Okello also argues that § 922(g)(3) is unconstitutionally vague in violation of the Fifth Amendment. Id. at 4-8. The government opposes the motion on both grounds. Docket 31.

BRUEN CHALLENGE

I. Legal Developments Regarding Firearms

The Second Amendment of the United States Constitution was construed during the twentieth-century as a right held by individuals in the militia and not an everday individual. See United States v. Miller, 307 U.S. 174, 178-79, 59 S.Ct. 816, 83 L.Ed. 1206 (1939). In District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), however, the Supreme Court held that the Second Amendment of the United States Constitution "conferred an individual right to keep and bear arms." Heller, 554 U.S. at 595, 128 S.Ct. 2783 (emphasis added). McDonald v. City of Chicago, Ill. then incorporated that holding to the states via the Fourteenth Amendment. See 561 U.S. 742, 750, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010).

Following the Supreme Court's decisions in Heller and McDonald, the Courts of Appeals developed a two-step test to evaluate Second Amendment claims. Bruen, 142 S.Ct. at 2125-26 (2022). "At the first step, the government may justify its regulation by establishing that the challenged law regulates activity falling outside the scope of the right as originally understood[.]" Id. at 2126 (citations omitted). Activity that falls beyond the original scope of the amendment was "categorically unprotected[,]" and the analysis could thus end. Id. If the activity was protected, the court proceeded to the second step, where "courts often analyze[d] how close the law comes to the core of the Second Amendment right and the severity of the law's burden on that right." Id. (citations omitted). Most courts considered the right to possess arms for self-protection in the home to be the core of the right. See Gould v. Morgan, 907 F.3d 659, 671 (1st Cir. 2018).

In Bruen, the Supreme Court examined the test developed after Heller and found that it had "one step too many." 142 S.Ct. at 2127. According to the test articulated in Bruen,

[w]hen the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation's historical tradition of firearm regulation. Only then may a court conclude that the individual's conduct falls outside the Second Amendments 'unqualified command.'

Id. at 2129-30 (quoting Konigsberg v. State Bar of Cal., 366 U.S. 36, 49, n. 10, 81 S.Ct. 997, 6 L.Ed.2d 105 (1961)).

The decision in Bruen has prompted significant litigation concerning existing gun laws, including numerous challenges to 18 U.S.C. § 922(g). See, e.g., United States v. Jackson, 69 F.4th 495, 501 (8th Cir. 2023) (upholding constitutionality of 18 U.S.C. § 922(g)(1)); United States v. Rahimi, 61 F.4th 443, 448 (5th Cir. 2023) (finding 18 U.S.C. § 922(g)(8) unconstitutional); United States v. Ryno, 675 F.Supp. 3d 993, 1002-03 (D. Alaska May 31, 2023) (upholding constitutionality of 18 U.S.C. § 922(g)(9)). The Eighth Circuit has yet to consider 18 U.S.C. § 922(g)(3) in the aftermath of the Bruen decision.

II. Discussion

Okello argues that 18 U.S.C. § 922(g)(3) is unconstitutional under the test articulated by Bruen because the conduct at issue is covered by the plain text of the Second Amendment and the historical tradition of firearm regulation does not support the restriction on his right to possess firearms. Docket 28 at 9-15.

The government objects and asserts that the statute is constitutional. See Docket 31 at 3. The government argues that possession of firearms by unlawful users of controlled substances is not protected by the plain text of the Second Amendment and that, even if it was, the historical tradition of firearm regulation supports restricting unlawful users of controlled substances from possessing firearms. Id. at 5-23.

A. Whether the Plain Text of the Second Amendment Covers Okello's Conduct

The plain text of the Second Amendment states that "the right of the people to keep and bear Arms, shall not be infringed." U.S. Const. amend II. In explaining the scope of the Second Amendment, the Supreme Court stated that the people "unambiguously refers to all members of the political community, not an unspecified subset." Heller, 554 U.S. at 580, 128 S.Ct. 2783. Though Okello is not an American citizen, the Supreme Court has found that the term "the people" does not refer exclusively to citizens but encompasses "a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community." Id. (quoting United States v. Verdugo-Urquidez, 494 U.S. 259, 265, 110 S.Ct. 1056, 108 L.Ed.2d 222 (1990)); see Docket 7 at 1-2. Okello immigrated to the United States from Sudan as a political refugee when he was approximately four years old, and he has lived in Sioux Falls, South Dakota since approximately 2020. Docket 7 at 1-2. As such, he has formed sufficiently strong ties with the United States to be a member of "the people."

The Supreme Court also explained that "the natural meaning" of the phrase "bear arms . . . indicates: wear, bear, or carry upon the person or in the clothing or in a pocket, for the purpose of being armed and ready for offensive or defensive action in a case of conflict with another person." Heller, 554 U.S. at 584, 128 S.Ct. 2783 (cleaned up). And "the most natural reading of 'keep Arms' in the Second Amendment is to 'have weapons.' " Id. at 582, 128 S.Ct. 2783. Okello contends, and the government does not contest, that the evidence indicates he had the firearm at issue on his person leading up to the traffic stop. See Docket 28 at 10; see generally Docket 31. Thus, Okello's conduct clearly falls under the definition of "keep and bear Arms" articulated by the Supreme Court.

Though the government argues that the plain text of the Second Amendment only extends to "law-abiding, responsible citizens[,]" this narrow reading of Heller and Bruen is unpersuasive. See Docket 31 at 6; see also United States v. Bernard, 2022 WL 17416681, at *7 (N.D. Iowa, Dec. 5, 2022) ("The Court rejects the government's argument that the Second Amendment applies...