United States v. Thibodeaux

1

UNITED STATES OF AMERICA Plaintiff, v. CONNOR JOHN THIBODEAUX, Defendant.

No. 1:22 CR 32 SNLJ (ACL)

United States District Court, E.D. Missouri, Southeastern Division

August 25, 2023

REPORT AND RECOMMENDATION

ABBIE CRITES-LEONI UNITED STATES MAGISTRATE JUDGE

Currently before the Court is Defendant Connor John Thibodeaux's Motion to Dismiss Indictment.^[1](Docs. 42, 64, 78.) The Government opposes the Motion. (Docs. 43, 65.)

I. Introduction

Defendant Connor Thibodeaux was indicted on one count of possession of a firearm by an unlawful controlled substance user, in violation of 18 U.S.C. § 922(g)(3). Following a traffic stop of Thibodeaux's vehicle on January 23, 2022, a Missouri State Highway Patrol Trooper immediately smelled the odor of marijuana emanating from the vehicle. A search resulted in the discovery of a loaded nine-millimeter semi-automatic pistol, a plastic cylinder with a partially smoked marijuana cigarette, a metallic grinder containing marijuana, and three vacuum sealed bags containing $155,000. Thibodeaux denied being involved in drug trafficking and repeatedly maintained that he possessed marijuana for personal use. He now moves to dismiss the Indictment. (Doc 42.)

Thibodeaux first raises a facial challenge to the constitutionality of § 922(g)(3), arguing that the Supreme Court's decision in New York Rifle and Pistol Association v Bruen, 142 S.Ct. 2111 (2022), renders that statute incompatible with the Second Amendment right to bear arms. (Doc. 42 at 2.) In the event the statute is constitutional, his second challenge is that the statute is vague as applied to him because 1) there was no nexus between his possession of a small amount of marijuana and the firearm recovered from his vehicle, and 2) there is insufficient proof he was a “regular user” of marijuana at the time he possessed the firearm. Id. at 4-5.

The Government opposes Thibodeaux's first ground for dismissal arguing that 1) § 922(g)(3) does not burden conduct protected by the Second Amendment, and 2) Bruen did not overrule Eighth Circuit precedent finding that § 922(g)(3) is constitutional in light of the Nation's history and tradition in regulating firearms. (Doc. 43 at 2-9.) The Government opposes Thibodeaux's second ground for dismissal arguing that the statute gives ordinary people fair notice of the conduct it punishes and that the evidence is sufficient to show that Thibodeaux violated the clear dictates of the statute. (Doc. 65 at 16-18.)

Based on the analysis below, it is recommended that Thibodeaux's request for dismissal of the Indictment as 1) facially unconstitutional be denied and his 2) vague as-applied challenge be held in abeyance until trial.

II. Legal Analysis

A. Framework for Analyzing Second Amendment Challenges

The Second Amendment states, “[a] well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const. amend. II.

In District of Columbia v. Heller, the Supreme Court decided whether a law of the District of Columbia-which banned all handguns and required long-arms to be kept in an inoperable state within the home-impermissibly infringed on the right to keep and bear arms. 554 U.S. 570, 573 (2008). The Court held that the Second Amendment protects the “individual right to possess a firearm . . . and to use that arm for traditionally lawful purposes ....” Id. at 577. But like most rights in the Constitution, “the right secured by the Second Amendment is not unlimited.” Id. at 626. Heller recognized that this Amendment “conferred an individual right to keep and bear arms.” Id. at 595. After recognizing the individual right at the heart of the Second Amendment, the Court struck down the challenged law of the District of Columbia, finding that it deprived Heller of his individual right to keep a handgun at home for self-defense. Id. at 636.

In McDonald v. City of Chicago, the Court held “that the Due Process clause of the Fourteenth Amendment incorporates the Second Amendment right recognized in Heller.” 561 U.S. 742 at 791 (majority opinion) (2010). The Court emphasized that while Heller struck “down a law that prohibited the possession of handguns in the home,” it “recognized that the right to keep and bear arms is not ‘a right to keep and carry any weapon whatsoever in any manner and for whatever purpose.” Id. at 786 (quoting Heller, 554 U.S. at 626). McDonald reiterated that the holding in Heller “did not cast doubt” on “longstanding regulatory measures as ‘prohibitions on the possession of firearms by felons and the mentally ill,' ‘laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of firearms.'” Id. (quoting Heller, 554 U.S. at 626-27). In so doing, the Court struck down Chicago's municipal code that, much like D.C. in Heller, effectively banned handgun possession by almost all city residents. Id. at 750.

In Bruen, the Court considered whether New York's state licensing law, which allowed an applicant to obtain a license to carry a firearm outside the home only by proving that “proper cause exists,” 142 S.Ct. at 2123, deprived two “law-abiding, adult citizens,” id. at 2125, of their right to carry a handgun for self-defense outside the home. New York courts interpreted “proper cause” to mean that an applicant must show a “special need for self-protection distinguishable from that of the general community.” Id. (quoting In re Klenosky, 428 N.Y.S.2d 256, 257 (N.Y.App.Div. 1980)). This was a “demanding” standard that gave licensing officers great discretion in deciding who could exercise constitutional rights, in contrast to “shall issue” jurisdictions “where authorities must issue concealed-carry licenses whenever applicants satisfy certain threshold requirements, without granting licensing officials discretion to deny licenses based on a perceived lack of need or suitability.” Id. Bruen explained that “[w]hen the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct. The government must justify its regulation by demonstrating that it is consistent with this Nation's historical tradition of firearm regulation.” Id. at 2129-30. “Only if a firearm regulation is consistent with this Nation's historical tradition may a court conclude that the individual's conduct falls outside the Second Amendment's ‘unqualified command.'” Id. at 2126 (quoting Konigsberg v. State Bar of Cal., 366 U.S. 36, 50, n.10 (1961)). Bruen “decided[d] nothing about who may lawfully possess a firearm.” Id. at 2157 (Alito, J., concurring) (emphasis added).

The Supreme Court's holdings in Bruen, did not overturn Heller wherein the Court recognized the importance of “the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.'” Heller, 554 U.S. at 627 (citations omitted). Bruen, Heller, and McDonald dealt with “how and why the regulations [at issue] burden a law-abiding citizen's right to armed self-defense.” Bruen, 142 S.Ct. at 2133. Notably, the petitioners and respondents in Bruen agreed that just as Heller and McDonald recognized “that the Second and Fourteenth Amendments protect the right of an ordinary, law-abiding citizen to possess a handgun in the home for self-defense[,]” such individuals “have a similar right to carry handguns publicly for their self-defense.” Id. at 2122 (emphasis added.)

The Eighth Circuit engaged in a thorough discussion of how Bruen should be applied when there is a facial challenge to a regulation under the Second Amendment in United States v. Sitladeen, 64 F.4th 978 (8th Cir. 2023). The Sitladeen panel observed that “Bruen does not address the meaning of ‘the people,' much less the constitutionality of criminal firearm statutes like § 922(g)(5),” id. at 984, which prohibits any alien who is unlawfully present in the United States from possessing a firearm. Sitladeen noted that Bruen “clarified how a court must assess a Second Amendment challenge in general,” id., as follows:

[W]hen the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct. To justify its regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with the Nation's historical tradition of firearm regulation. Only if a firearm regulation is consistent with this Nation's historical tradition may a court conclude that the individual's conduct falls outside the Second Amendment's unqualified command.

Bruen, 142 S.Ct. at 2126 (internal quotation marks omitted). Sitladeen then commented that Bruen repudiates means-end scrutiny employed by our sister circuits. 64 F.4th at 984 (referencing United States v. Perez, 6 F.4th 448, 453 (2d Cir. 2021), cert. denied, 142 S.Ct. 1133 (2022); United States v. Torres, 911 F.3rd 1253, 1257 (9th 2019); United States v. Huirton-Guizar, 678 F.3d 1164, 1169 (10th Cir. 2012).

“Following Bruen, instead of analyzing ‘how close the law comes to the core of the Second Amendment right and the severity of the law's burden on that right,' a court must begin by asking whether the firearm regulation at issue governs conduct that falls within the plain text of the Second Amendment.” Id. at 985 (quoting Bruen, 142 S.Ct. at 2126) (emphasis added). Sitladeen examined this question:

If the regulation does govern such conduct, the court will uphold it so long as the government can “identify an American tradition justifying” the regulation. Id. at 2138. For the government to make this showing, it need not point to a “historical twin,” but only

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