United States v. Silvers

671 F.Supp.3d 755

UNITED STATES of America, Plaintiff v. Victor Everette SILVERS, Defendant

No. 5:18-cr-50-BJB

United States District Court, W.D. Kentucky, Paducah Division

Signed May 3, 2023

Amy M. Sullivan, U.S. Attorney Office, Louisville, KY, Seth A. Hancock, Leigh Ann Dycus, Raymond D. McGee, U.S. Attorney Office, Paducah, KY, for Plaintiff.

OPINION & ORDER

Benjamin Beaton, District Judge

Victor Silvers was federally indicted and convicted for possessing a gun despite a state-court domestic-violence order that told him not to. That order issued after he grabbed his estranged wife by the neck, punched her, and threatened her with his gun. The criminal statute, 18 U.S.C. § 922(g)(8), prohibits gun possession by anyone who, after notice and a hearing, has been found a credible threat to the physical safety of, or ordered not to use or threaten physical force against, an intimate partner or child. This restriction, according to Silvers, violates the U.S. Constitution.

The lawfulness of Silvers's conviction turns on whether the Second Amendment, as publicly understood when ratified, would've barred the government from disarming someone in his position. Silvers offers no real argument or precedent indicating that this constitutional provision (or its state analogues or common-law precursors) ever defeated the criminal prosecution or civil disarmament of someone determined to be a credible threat to the safety of others. Nor has Silvers pointed to any deficiency in the underlying state-court proceeding or order, which cited § 922(g)(8) and expressly commanded him not to possess a gun.

Is Silvers's total (if temporary) disarmament reconcilable with the constitutional right "to keep and bear arms"? The Second Amendment's apparent tension with § 922(g)(8) renders the statutory restriction presumptively unlawful under the Supreme Court's recent decision in New York State Rifle & Pistol Ass'n v. Bruen, 597 U.S. 1, 142 S. Ct. 2111, 2126, 213 L.Ed.2d 387 (2022). Viewed in the light of its historical context and the country's tradition of firearm regulation, however, id. at 2131, the scope of the constitutional right doesn't shield persons found to be dangerous from laws restricting their possession of firearms.

"The historical evidence," then-Judge Barrett explained in a pre-Bruen dissent concerning a different subsection of § 922(g), "support[s]" the "propositio[n] that the legislature may disarm those who have demonstrated a proclivity for violence or whose possession of guns would otherwise threaten the public safety." Kanter v. Barr, 919 F.3d 437, 454 (7th Cir. 2019) (abrogated by Bruen, 142 S. Ct. 2111). Other judges—considering similar statutes and a similar historical record—have reached the same conclusion. "Historically, limitations on the right were tied to dangerousness. In England and colonial America, the Government disarmed people who posed a danger to others. Violence was one ground for fearing danger, as were disloyalty and rebellion." Folajtar v. Att'y Gen. of the United States, 980 F.3d 897, 913 (3d Cir. 2020) (Bibas, J., dissenting) (also abrogated by Bruen). "The most cogent principle that can be drawn from traditional limitations on the right to keep and bear arms," another opinion described at length, "is that dangerous persons likely to use firearms for illicit purposes were not understood to be protected by the Second Amendment." Binderup v. Att'y Gen. of the United States, 836 F.3d 336, 357 (3d Cir. 2016) (Hardiman, J., concurring) (also abrogated by Bruen). This history of laws used to "disarm dangerous and disaffected persons" reaches back to pre-colonial English history. Diarmuid F. O'Scannlain, Glorious Revolution to American Revolution: The English Origin of the Right to Keep and Bear Arms, 95 NOTRE DAME L. REV. 397, 405 (2019).

The Government is wrong to argue that the Second Amendment didn't apply to Silvers at all. He, like other members of our political community protected by the Bill of Rights, enjoyed a right to keep and bear arms. But that right was not unlimited. Bruen, 142 S. Ct. at 2128. As historically understood, it did not dislodge traditional governmental authority to restrict his gun possession based on the dangerous threat he posed to his now-deceased wife. Section 922(g)(8), like other laws familiar at or before the Second Amendment's ratification, restricted Silvers for a limited period of time following due process and individual findings of danger to others. This measure looks nothing like the broad and historically anomalous bans addressed in the Supreme Court's Second Amendment trilogy of Heller, McDonald, and Bruen. Consistent with those precedents, the Amendment's text and history indicate that "legislatures have the power to prohibit dangerous people from possessing guns," and did in fact "disqualif[y] categories of people from the right to bear arms"—though "only when they judged that doing so was necessary to protect the public safety." Kanter, 919 F.3d at 451 (Barrett, J., dissenting).

I. Victor and Brittney Silvers

Before her death in 2018, Brittney Silvers served as a sergeant in the U.S. Army and lived on post at Fort Campbell, Kentucky. After seven years of marriage, she and her husband, Victor Silvers, had recently separated. That summer, Brittney drove to Clarksville, Tennessee—where Victor had been living since leaving their apartment—to find Victor. Around 1:00 a.m. on July 22, a Clarksville law-enforcement officer responded after Brittney and Victor "got into a verbal argument" and Victor "grabbed her by her neck with one hand and struck her in the face twice with his other hand." Incident Report (DN 255-1) at 3. The officer "observed blood on Britt[ney] Silvers' lips and her face appeared to be swollen," id., as shown in a photo found in the police report, DN 255-2 at 4.

An officer secured an arrest warrant against Victor Silvers for domestic assault later that morning. Incident Report at 3. And the next day Brittney sent a text message asking Victor to "[t]hink about all the times you put your hands on me." Id. "I'm just fed up," she wrote. Id.

Officers arrested and jailed Victor in Montgomery County, Tennessee for domestic assault on September 22. DN 255-2 at 2. He was released on bail the same day. See Order Granting Bail (DN 255-4). As a condition of his release, the state court prohibited Victor from "harassing, annoying, telephoning, contacting or otherwise communicating" with Brittney, and ordered him to "vacate" and "stay away" from her home. Id.

Victor and Brittney nevertheless exchanged several text messages that night and the following day. Victor asked her whereabouts and demanded that she answer his calls. DN 255-6 at 2-3. "Please don't come near me," Brittney answered. "I don't feel safe." Id. at 1. Victor asked if she was at the house of a man Victor suspected she was seeing, and then wrote "Never mind found you!" Id. Once more Brittney responded: "Please don't come near me[.] I don't feel safe." Id.¹

Three days later Brittney petitioned the Christian County (Ky.) Circuit Court for an order of protection. DN 255-7 at 1. The petition stated that "my spouse Victor Silvers assaulted me and threatened me with his gun." Id. (cleaned up). The state court issued an emergency protective order. DN 255-8. Victor received service on October 1 of a protective-order summons, later found at his house in Clarksville, notifying him of an October 9 hearing date at Christian County Circuit Court. See DN 255-10. Silvers "didn't go" to the hearing "on purpose," as he told Brittney in a subsequent text message. DN 255-13 at 2-3.

After the hearing, the state court issued a domestic-violence order against Silvers. See DVO (DN 255-11) at 1. The judge found "by a preponderance of the evidence that an act or threat of domestic violence occurred and may occur again," that a "weapon" had been "involved," and that Silvers was "Armed and Dangerous." Id. at 1, 3. The court ordered that Silvers "be restrained from committing further acts of abuse or threats of abuse, stalking, or sexual assault," and from any "unauthorized contact" with Brittney. Id. at 1. "In order to assist in eliminating future acts of domestic violence and abuse," moreover, the judge ordered Silvers "not to possess, purchase or attempt to possess, purchase or obtain a firearm or ammunition during the duration of this order," specifically citing 18 U.S.C. § 922(g)(8). Id. at 2. The order didn't expire until October 2021—though Kentucky law allows for reconsideration, see Castle v. Castle, 567 S.W.3d 908, 914 (Ky. Ct. App. 2019) (citing KY. R. CIV. P. 52.02 & 59.05), and permits either party to move to amend an order of protection, see KRS § 403.745(5); Abdur-Rahman v. Peterson, 338 S.W.3d 823, 825 (Ky. Ct. App. 2011) (discussing KRS § 403.750).

Silvers received notice of this order, too. See DN 255-13 at 4-6. Officers later discovered pictures of the order on his phone; Brittney had sent the images via text message. DN 255-14 at 4-6.

Five days after the state court issued the DVO, Brittney died. She was shot in her head, neck, and chest. Off-duty soldiers who lived nearby heard the gunshots and ran to her apartment. They found Brittney stretched out in the yard, a male friend bleeding nearby, and Victor locked inside his car screaming.

II. This Prosecution

Because these crimes occurred at Fort Campbell, part of the United States' "special maritime and territorial jurisdiction," 18 U.S.C. § 7; see DN 316, the federal government investigated and prosecuted them. A federal grand jury sitting in Paducah, Kentucky, charged Victor Silvers with committing seven offenses, including first-degree murder, attempted murder, and—relevant here—carrying a firearm while subject to a DVO in violation of § 922(g)(8). The Government initially sought the death penalty, DNs 75, 116, but later withdrew the request, DN 113.

On the eve of trial, the Government issued a second superseding indictment, though it added no...