Zherka v. Garland

593 F.Supp.3d 73

Selim "Sam" ZHERKA, Plaintiff,

v.Merrick B. GARLAND, Attorney General, in his official capacity, Defendant.

20-CV-07469 (PMH)

United States District Court, S.D. New York.

Signed March 23, 2022

Robert William Ray, Zeichner Ellman & Krause LLP, New York, NY, for Plaintiff.

Lucas Estlund Issacharoff, United States Attorney's Office, New York, NY, for Defendant William P. Barr.

MEMORANDUM OPINION AND ORDER

PHILIP M. HALPERN, United States District Judge:

Selim "Sam" Zherka ("Plaintiff") brings this action against Merrick B. Garland ("Defendant"), in his official capacity as the Attorney General,¹ alleging violations of his Second and Fifth Amendment rights. Specifically, Plaintiff claims that: (1) 18 U.S.C. § 922(g)(1), as applied to him—an individual convicted of a non-violent financial felony—violates the Second Amendment; and (2) his inability to seek relief under 18 U.S.C. § 925(c) violates his Fifth Amendment due process rights.²

On September 11, 2020, Plaintiff filed his Complaint. (Doc. 1, "Compl."). The Court held a telephonic pre-motion conference on January 13, 2021 to address Defendant's contemplated motion to dismiss and set a briefing schedule. (Jan. 13, 2021 Min. Entry). All motion papers were filed on April 9, 2021. (Doc. 12; Doc. 13, "Def. Br."; Doc. 14, "Pl. Opp."; Doc. 15, "Reply"). After the motion was fully submitted, both parties filed several letters addressing recent Second Amendment cases that were decided after the briefing had concluded in this case. (Docs. 16-21).

BACKGROUND

On or about December 22, 2015, Plaintiff pled guilty in the United States District Court for the Southern District of New York to one count of criminal conspiracy, 18 U.S.C. § 371, the objects of which were to make a false statement to a bank and to sign and file a false federal income tax return. (Compl. ¶ 4).³ Plaintiff's fraud caused tens of millions of dollars in losses. See United States v. Zherka , No. 14-CR-00545 (S.D.N.Y. 2014) ("Zherka "), Doc. 194 at 10:11-18. On December 22, 2015, Plaintiff was sentenced to 37 months’ imprisonment, along with a fine of $1.5 million, over $1.8 million in restitution, and over $5.2 million in forfeiture. (Compl. ¶ 5); see also Zherka , Doc. 168. Plaintiff was released from prison on or about January 4, 2017 and served the remainder of his sentence in home confinement until on or about May 26, 2017. (Compl. ¶ 5). Plaintiff then commenced a three-year term of supervised release, which concluded on or about May 26, 2020. (Id. ¶ 12). Plaintiff acknowledges that, notwithstanding the non-violent nature of his crime, 18 U.S.C. § 922(g)(1) categorically bars him from acquiring, receiving, or possessing a firearm.⁴ (Id. ¶¶ 6, 13).

At the time Section 922(g)(1) was enacted, in 1968, Congress provided a mechanism through which a convicted felon, like Plaintiff, could seek relief from Section 922(g)(1) ’s prohibition by applying to a program administered by the Bureau of Alcohol Tobacco, Firearms and Explosives ("ATF") (as delegated by the Attorney General) to demonstrate that " ‘the circumstances regarding the disability, and the applicant's record and reputation, are such that the applicant will not be likely to act in a manner dangerous to public safety and that the granting of the relief would not be contrary to the public interest.’ " (Id. ¶ 14) (quoting 18 U.S.C. § 925(c) ). Since 1992, however, Congress has prohibited the federal funds appropriated for the ATF to be used for investigating and reviewing applications made under Section 925(c). (Id. ¶ 16). Congress abandoned this approach after finding that "too many ... felons whose gun ownership rights were restored went on to commit violent crimes with firearms." H.R. Rep. No. 104-183, at 15.

As a result of the lack of process and/or decision-making, any application for relief made under Section 925(c) "would be returned, not acted upon and neither granted nor denied." (Compl. ¶ 16). This inaction would cause any petition for review of such application filed in a United States District Court to be dismissed for lack of statutory subject matter jurisdiction, thereby rendering futile any application made under Section 925(c). (Id. ¶¶ 17-18).

STANDARD OF REVIEW ⁵

A Rule 12(b)(6) motion enables a court to consider dismissing a complaint for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). A claim is plausible on its face "when the ple[d] factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955 ). "The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant acted unlawfully." Id. The factual allegations pled "must be enough to raise a right to relief above the speculative level." Twombly , 550 U.S. at 555, 127 S.Ct. 1955.

"When there are well-ple[d] factual allegations [in the complaint], a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Iqbal , 556 U.S. at 679, 129 S.Ct. 1937. Thus, a court must "take all well-ple[d] factual allegations as true, and all reasonable inferences are drawn and viewed in a light most favorable to the plaintiff." Leeds v. Meltz , 85 F.3d 51, 53 (2d Cir. 1996). However, the presumption of truth does not extend to "legal conclusions, and threadbare recitals of the elements of the cause of actions." Harris v. Mills , 572 F.3d 66, 72 (2d Cir. 2009) (quoting Iqbal , 556 U.S. 662, 129 S.Ct. 1937 ). Therefore, a plaintiff must provide "more than labels and conclusions" to show entitlement to relief. Twombly , 550 U.S. at 555, 127 S.Ct. 1955.

ANALYSIS

I. Second Amendment

A. Legal Framework

Plaintiff insists that Section 922(g)(1), as applied to him—an individual convicted of a non-violent financial felony associated with false bank statement and income tax filings—violates his Second Amendment rights. "Over the past decade, the Second Circuit has built a framework for adjudicating asserted violations of individuals’ Second Amendment rights." United States v. Witcher , No. 20-CR-00116, 2021 WL 5868172, at *4 (S.D.N.Y. Dec. 10, 2021). "The Second Amendment provides that ‘[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.’ " Id. (quoting U.S. Const. amend. II.). "The U.S. Supreme Court announced in 2008 that the Second Amendment guarantees ‘the individual right to possess and carry weapons in case of confrontation,’ " id. (quoting District of Columbia v. Heller , 554 U.S. 570, 592, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008) ), "and incorporated that right against the states two years later," id. (quoting McDonald v. City of Chicago , 561 U.S. 742, 791, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010) ). "Like most rights," however, "the Second Amendment right is not unlimited." Heller , 554 U.S. at 626, 128 S.Ct. 2783. Heller identified the right to "use arms in defense of hearth and home" as belonging to "law-abiding, responsible citizens," id. at 635, 128 S.Ct. 2783, and stated that "nothing in [its] opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons," id. at 636, 128 S.Ct. 2783.

Following Heller and McDonald , the Second Circuit has "articulated a two-step inquiry to adjudicate whether a statute violates an individual's Second Amendment rights." Witcher , 2021 WL 5868172, at *4. First, courts " ‘must determine whether the challenged legislation impinges upon conduct protected by the Second Amendment.’ " Id. (quoting United States v. Jimenez , 895 F.3d 228, 232 (2d Cir. 2018) ). Second, if a court finds " ‘that a law implicates the Second Amendment as Heller instructed [courts] to interpret it,’ " then the court must " ‘determine the appropriate level of scrutiny to apply and evaluate the constitutionality of the law using that level of scrutiny.’ " Id. (quoting Jimenez , 895 F.3d at 232 ).

B. Application

Because Section 922(g)(1), as a "prohibition on the possession of firearms by felons," is "presumptively lawful" under Heller , Plaintiff carries the burden of rebutting that presumption in the first instance. Heller , 554 U.S. at 626, 627 n.26, 128 S.Ct. 2783 ; see also Jimenez , 895 F.3d at 235. Plaintiff has not done so here. Drawing all inferences in Plaintiff's favor, he has failed to plausibly allege that he "is among ‘the people’ to whom the Second Amendment right applies," Witcher , 2021 WL 5868172, at *4, namely "law-abiding responsible citizens ," Heller , 554 U.S. at 635, 128 S.Ct. 2783 (emphasis added). Accordingly, Plaintiff's as-applied challenge fails at the first step of the analysis.

Since the Supreme Court's decisions in Heller and McDonald , the constitutionality of Section 922(g)(1) has confronted several facial and as-applied challenges. Every circuit court to have considered a facial challenge—including the Second Circuit—has rejected it. See, e.g. , United States v. Bogle , 717 F.3d 281 (2d Cir. 2013) (per curiam); United States v. Barton , 633 F.3d 168, 175 (3d Cir. 2011), overruled on other grounds by Binderup v. Attorney General , 836 F.3d 336 (3d Cir. 2016) ; United States v. Moore , 666 F.3d 313, 318 (4th Cir. 2012) ; United States v. Joos , 638 F.3d 581, 586 (8th Cir. 2011) ; United States v. Torres-Rosario , 658 F.3d 110, 113 (1st Cir. 2011) ; United States v. Rozier , 598 F.3d 768, 770-71 (11th Cir. 2010) ; United States v. Williams , 616 F.3d 685, 692 (7th Cir. 2010) ; United States v. Vongxay , 594...