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noting that “the Eleventh Circuit did not rely on means-end scrutiny to reach its holding in Rozier, nor did it apply the prohibited two-step analysis,” and holding that “Rozier is still good law”
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Case No.: 1:22-cr-84-RDP-NAD-1
2022-12-13
UNITED STATES of America, v. Santini Bryshad HUNTER, Defendant.
U.S. Attorney Prim F. Escalona, M. Blake Milner, U.S. Attorney's Office, Birmingham, AL, U.S. Probation, United States Probation Office, Birmingham, AL, USM, Birmingham, AL, Allison Garnett, DOJ-USAO, Birmingham, AL, for United States of America. Kevin L. Butler, John Francis Cockrell, Katherine Pritchett Bounds, Public Defenders, Federal Public Defender's Office, Birmingham, AL, for Defendant.
U.S. Attorney Prim F. Escalona, M. Blake Milner, U.S. Attorney's Office, Birmingham, AL, U.S. Probation, United States Probation Office, Birmingham, AL, USM, Birmingham, AL, Allison Garnett, DOJ-USAO, Birmingham, AL, for United States of America. Kevin L. Butler, John Francis Cockrell, Katherine Pritchett Bounds, Public Defenders, Federal Public Defender's Office, Birmingham, AL, for Defendant. MEMORANDUM OPINION R. DAVID PROCTOR, UNITED STATES DISTRICT JUDGE
This matter is before the court on Defendant Santini Bryshad Hunter's Motion to Dismiss the Indictment. (Doc. # 19). The Motion is fully briefed (Docs. # 19, 21, 22) and ripe for review. For the reasons discussed below, the Motion is due to be denied.
I. Background
On March 29, 2022, a Northern District of Alabama grand jury returned an indictment charging Defendant Santini Bryshad Hunter with violating Title 18, United States Code, Section 922(g)(1), which prohibits the possession of a firearm by anyone who has been convicted of a crime punishable by imprisonment for more than one year. 18 U.S.C. § 922(g)(1). Defendant has filed a Motion to Dismiss the Indictment asserting that § 922(g)(1) is unconstitutional under the Second Amendment. (Doc. # 19).
On July 28, 2010, Defendant was convicted of Unlawful Distribution of a Controlled Substance in Talladega County Circuit Court, and on May 20, 2010, Defendant was convicted of Unlawful Possession of Marijuana, First Degree, in Talladega County Circuit Court. (Doc. # 1). Both of these are felony offenses, as they involve penalty schemes that subject a defendant to a term of imprisonment exceeding one year. (Id.).
II. Legal Standard
Federal Rule of Criminal Procedure 12 allows a defendant to bring a pretrial motion challenging a criminal indictment. Fed. R. Crim. P. 12(b)(3). A court may dismiss a criminal indictment that is legally insufficient. See Fed. R. Crim. P. 12(b)(3)(B); United States v. Durrett, 524 F. App'x 492, 494 (11th Cir. 2013) (per curiam); United States v. Schmitz, 634 F.3d 1247, 1260 (11th Cir. 2011); United States v. Torkington, 812 F.2d 1347, 1354 (11th Cir. 1987). An indictment is defective if it alleges a violation of an unconstitutional statute. United States v. Brown, 715 F. Supp. 2d 688, 689-90 (E.D. Va. 2010); see The Civil Rights Cases, 109 U.S. 3, 8-9, 3 S.Ct. 18, 27 L.Ed. 835 (1883).
III. Discussion
Defendant moves to dismiss the indictment, arguing that § 922(g)(1) is unconstitutional on its face because it violates the Second Amendment right to keep and bear arms. (Doc. # 19). In United States v. Rozier, the Eleventh Circuit considered this very issue and rejected a Second Amendment challenge to § 922(g)(1). 598 F.3d 768 (11th Cir. 2010) (per curiam). The question facing this court today is whether Rozier is still good law in light of the Supreme Court's recent ruling in New York State Rifle & Pistol Ass'n v. Bruen, — U.S. —, 142 S. Ct. 2111, 213 L.Ed.2d 387 (2022). After careful review, the court concludes that it is. Because Rozier has not been clearly overruled or undermined to the point of abrogation, this court is bound by that decision's holding that § 922(g)(1) does not violate the Second Amendment.
"A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid." United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). The fact that § 922(g)(1) "might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid[.]" Id.
A. In Bruen , the Supreme Court articulated a new standard for analyzing Second Amendment challenges to firearms regulations.
The Second Amendment provides: "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 held that the Second Amendment protects an individual's right to keep and bear arms for the purpose of self-defense. 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008) (per curiam) (striking down a D.C. statute banning handgun possession inside the home). Two years later, in McDonald v. City of Chicago, the Court held that the Fourteenth Amendment's Due Process clause incorporates the Second Amendment right recognized in Heller, making it fully enforceable against the states. 561 U.S. 742, 791, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010).
In the wake of these decisions, almost all the Courts of Appeals, including the Eleventh Circuit, employed a "two-step" framework for analyzing Second Amendment challenges to firearm regulations. See, e.g., United States v. Focia, 869 F.3d 1269, 1285 (11th Cir. 2017). Under this framework, a court first considers whether a challenged regulation burdens "conduct within the scope of the Second Amendment as historically understood[.]" Id. If the answer is yes, the second step is to "apply an appropriate form of means-end scrutiny[,]" which involves weighing the burden on the Second Amendment right against the government's interest in regulating the conduct. Id.
See also Gould v. Morgan, 907 F.3d 659, 668 (1st Cir. 2018); N.Y. State Rifle & Pistol Ass'n v. Cuomo, 804 F.3d 242, 253 (2d Cir. 2015); United States v. Boyd, 999 F.3d 171, 185 (3d Cir. 2021); Kolbe v. Hogan, 849 F.3d 114, 132 (4th Cir. 2017) (en banc); Nat'l Rifle Ass'n of America, Inc. v. Bureau of Alcohol, Tobacco, Firearms, & Explosives, 700 F.3d 185, 194 (5th Cir. 2012); United States v. Greeno, 679 F.3d 510, 518 (6th Cir. 2012); Kanter v. Barr, 919 F.3d 437, 441 (7th Cir. 2019); United States v. Chovan, 735 F.3d 1127, 1136 (9th Cir. 2013); United States v. Reese, 627 F.3d 792, 801 (10th Cir. 2010); Heller v. District of Columbia, 670 F.3d 1244, 1252 (D.C. Cir. 2011) ("Heller II").
In Bruen, however, the Court rejected this approach, finding that the two-step framework is "one step too many." 142 S. Ct. at 2127. The court held that:
Step one of the predominant framework is broadly consistent with Heller, which demands a test rooted in the Second Amendment's text, as informed by history. But Heller and McDonald 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. In light of Bruen, when analyzing Second Amendment challenges to firearm regulations, courts must now first determine whether "the Second Amendment's plain text covers an individual's conduct[.]" Id. at 2129-30. If so, "the Constitution presumptively protects that conduct[,]" and "[t]he government must then justify its regulation by demonstrating that it is consistent with the Nation's historical tradition of firearm regulation." Id.
Importantly, although the Supreme Court rejected the predominant framework for analyzing Second Amendment cases, it did not overrule Heller or McDonald. See id. at 2127, 2129-30. Rather, it found that the lower courts had misinterpreted those precedents when they applied means-end scrutiny in the Second Amendment context. Id. Indeed, in the Court's view, Bruen did not impose a new standard but rather clarified the standard already announced. Id. So, in its Bruen decision the Court emphasized that "Heller and McDonald expressly rejected the application of any 'judge-empowering interest-balancing inquiry that asks whether the statute burdens a protected interest in a way or to an extent that is out of proportion to the statute's salutary effects upon other governmental interests.' " Id. at 2129 (quoting Heller, 554 U.S. at 634, 128 S.Ct. 2783) (cleaned up). This analysis leads inexorably to the conclusion that, to the extent a pre-Bruen decision limits its holding to step one's historical analysis and avoids any prohibited means-end scrutiny, such a decision's validity is unaltered by Bruen.
B. The Rozier decision upholding the constitutionality of § 922(g)(1) remains good law after Bruen.
Under the prior panel precedent rule, an Eleventh Circuit holding is binding "unless and until it is overruled or undermined to the point of abrogation by the Supreme Court or by [the Eleventh Circuit] sitting en banc." United States v. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008). In order to operate to overrule Eleventh Circuit precedent, a Supreme Court ruling must be "clearly on point." Garrett v. Univ. of Ala. at Birmingham Bd. of Trs., 344 F.3d 1288, 1292 (11th Cir. 2003) (per curiam); NLRB v. Datapoint Corp., 642 F.2d 123, 129 (5th Cir. Unit A 1981) ("Without a clearly contrary opinion of the Supreme Court or of this court sitting en banc, we cannot overrule a decision of a prior panel of this court"). Courts "are not at liberty to disregard binding case law that is so closely on point and has been only weakened, rather than directly overruled, by the Supreme Court." Fla. League of Pro. Lobbyists, Inc. v. Meggs, 87 F.3d 457, 462 (11th Cir. 1996).
See Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc) (holding that all Fifth Circuit decisions handed down prior to the close of business on September 30, 1981 constitute binding precedent in the Eleventh Circuit).
In Rozier, which was decided after Heller but before Bruen, the Eleventh Circuit rejected a Second Amendment Challenge to § 922(g)(1). 598 F.3d at 769-71. Defendant argues that Rozier was overruled by Bruen, and therefore he claims the Indictment must be dismissed because the government did not "demonstrate that [§ 922(g)(1)] is consistent with this Nation's historical tradition of firearm regulation." Bruen, 142 S. Ct. at 2126; (Doc. # 19). The court disagrees. For the reasons explained below, the court determines that Rozier was not "overruled or undermined to the point of abrogation" by Bruen, and therefore it is binding on this court. See Archer, 531 F.3d at 1352.
First, the Eleventh Circuit did not rely on means-end scrutiny to reach its holding in Rozier, nor did it apply the prohibited two-step analysis. See Rozier, 598 F.3d at 769-71. Nowhere in the opinion is the two-part test even mentioned. See id. In fact, the Eleventh Circuit did not formally adopt that now-rejected framework until two years later, in GeorgiaCarry.Org, Inc. v. Georgia. 687 F.3d 1244, 1260 n.34 (11th Cir. 2012) ("GeorgiaCarry.Org I") ("Like our sister circuits, we believe a two-step inquiry is appropriate."); see GeorgiaCarry.Org, Inc. v. U.S. Army Corps of Eng'rs, 788 F.3d 1318, 1324 (11th Cir. 2015) ("GeorgiaCarry.Org II") (noting that the Eleventh Circuit used the two-step inquiry for the first time in GeorgiaCarry.Org I).
Rather than applying means-end scrutiny, the Rozier panel relied on language in Heller limiting the Second Amendment right to "law-abiding citizens." See Rozier, 598 F.3d at 770. In Rozier, the court first pointed to Heller's warning that, "[l]ike most rights, the right secured by the Second Amendment is not unlimited." Id. (quoting Heller, 554 U.S. at 626, 128 S.Ct. 2783). It next observed that the Supreme Court qualified its holding in Heller by stating, "[a]ssuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home." Id. (quoting Heller, 554 U.S. at 635, 128 S.Ct. 2783) (emphasis added in Rozier). From this, the court readily concluded:
This indicates that the first question to be asked is not whether the handgun is possessed for self-defense or whether it is contained within one's home, rather the initial question is whether one is qualified to possess a firearm. In Rozier's case, the most relevant modifier, as to the question of qualification, is "felon."Id. (emphasis in original).
Finally, the Rozier panel cited Heller's clear admonition that "nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons . . .". Id. at 771 (quoting Heller, 554 U.S. at 626, 128 S.Ct. 2783). As the Eleventh Circuit reasoned, "[t]his language suggests that statutes disqualifying felons from possessing a firearm under any and all circumstances do not offend the Second Amendment" and concluded that § 922(g)(1) is constitutional. Id. ("Thus, statutory restrictions of firearm possession, such as § 922(g)(1), are a constitutional avenue to restrict the Second Amendment right of certain classes of people.").
Turning next to Defendant's arguments in this case, he contends that the Rozier decision "was grounded in the interest-balancing, means-ends analysis that has now been abrogated by Bruen." (Doc. # 22 at 12). Defendant hinges this argument on two sentences of the Rozier decision:
Rozier's Second Amendment right to bear arms is not weighed in the same manner as that of a law-abiding citizen, such as the appellant in Heller. While felons do not forfeit their constitutional rights upon being convicted, their status as felons substantially affects the level of protection those rights are accorded.Rozier, 598 F.3d at 771; (Doc. # 22 at 12). The court is not persuaded that these two sentences constitute means-end balancing, especially when they are viewed in proper context. Indeed, Defendant himself concedes that "the Rozier decision did not explicitly engage in interest-balancing." (Doc. # 22 at 12). If the Rozier decision did not explicitly engage in interest-balancing, then it was not clearly overruled by Bruen, and thus it remains binding on this court. See Archer, 531 F.3d at 1352.
Alternatively, Defendant argues that, even if the Rozier decision was not based on means-end scrutiny, it is nonetheless invalid because it relied exclusively on dicta from Heller. (Doc. # 22 at 2-8). Although the Court described prohibitions on the possession of firearms by felons as "presumptively lawful" in Heller, it acknowledged that it did "not undertake an exhaustive historical analysis . . . of the full scope of the Second Amendment[.]" Heller, 554 U.S. at 626, 627 n.26, 128 S.Ct. 2783. According to Defendant, reliance on Heller's dicta is no longer appropriate in light of Bruen's command that "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." Bruen, 142 S. Ct. at 2127; (Doc. # 19 at 4-5). Thus, Defendant contends that Bruen "demands a fresh look at 18 U.S.C. § 922(g)(1) through the lens of the Second Amendment's text, history, and tradition." (Doc. # 19 at 4-5). But this argument is unpersuasive for several reasons.
First, the Eleventh Circuit has explicitly sanctioned reliance on this portion of Heller. In Rozier, the court rejected the defendant's argument that it should disregard Heller's "presumptively lawful" language as mere dicta, stating:
First, to the extent that this portion of Heller limits the Court's opinion to the possession of firearms by law-abiding and qualified individuals, it is not dicta. Second, to the extent that this statement is superfluous to the central holding of Heller, we shall still give it considerable weight.Rozier, 598 F.3d at 771 n.6 (citations omitted).
Second, subsequent Supreme Court opinions, including Bruen, have indicated approval of the Heller dicta. For example, in McDonald, which was decided after Rozier, the Court reaffirmed Heller, stating: "We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as 'prohibitions on the possession of firearms by felons . . .' We repeat those assurances here." McDonald, 561 U.S. at 786, 130 S.Ct. 3020 (quoting Heller, 554 U.S. at 626, 128 S.Ct. 2783).
This limiting language is echoed in Bruen as well. In the opening line of the Bruen opinion, the Court describes Heller and McDonald as recognizing "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." Bruen, 142 S. Ct. at 2122 (emphasis added). Throughout its decision in Bruen, the Court confines its holding to law-abiding citizens. See id. Indeed, the Court mentions "law-abiding" citizens no less than eleven times in the majority opinion. See, e.g., id. at 2131 ("The Second Amendment . . . 'surely elevates above all other interests the right of law-abiding, responsible citizens to use arms' for self-defense.") (emphasis added) (quoting Heller, 554 U.S. at 635, 128 S.Ct. 2783); id. at 2134 ("It is undisputed that petitioners Koch and Nash—two ordinary, law-abiding, adult citizens—are part of 'the people' whom the Second Amendment protects.") (emphasis added); id. at 2156 ("New York's proper-cause requirement violates the Fourteenth Amendment in that it prevents law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms.") (emphasis added).
Both of the Bruen concurrences also explicitly cite Heller's limiting language. Id. at 2157 (Alito, J., concurring) ("Nor have we disturbed anything that we said in Heller or [McDonald] about restrictions that may be imposed on the possession or carrying of guns."); id. at 2161 (Alito, J., concurring) ("Heller correctly recognized that the Second Amendment codifies the right of ordinary, law-abiding Americans to protect themselves from lethal violence by possessing and, if necessary, using a gun.") (emphasis added); id. (Kavanaugh, J., concurring) (stating that "the Second Amendment allows a 'variety' of gun regulations" and quoting Heller's statement that "nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons").
Finally, as the Eleventh Circuit acknowledged in Rozier, to the extent the limiting statements in Heller, McDonald, and Bruen are dicta, they are Supreme Court dicta and are entitled to substantial deference from this court. See Rozier, 598 F.3d at 771 n.6 (citing Peterson v. BMI Refractories, 124 F.3d 1386, 1392 n.4 (11th Cir. 1997) ("[D]icta from the Supreme Court is not something to be lightly cast aside.")); see also United States v. City of Hialeah, 140 F.3d 968, 974 (11th Cir. 1998) ("Even though that statement by the Supreme Court . . . was dictum, it is of considerable persuasive value, especially because it interprets the Court's own precedent."); United States v. Becton, 632 F.2d 1294, 1296 n.3 (5th Cir. 1980) ("We are not bound by dicta, even of our own court . . . Dicta of the Supreme Court are, of course, another matter."). But see Reynolds v. Behrman Cap. IV L.P., 988 F.3d 1314, 1322 (11th Cir. 2021) ("Giving the Supreme Court's dicta the respect and consideration it is due, . . . we choose to go in a different direction.").
See supra note 4.
Here, Defendant asks this court to disregard Heller's assurance that "longstanding prohibitions on the possession of firearms by felons" are "presumptively lawful," even though the Eleventh Circuit has given it "considerable weight," and the Supreme Court has cited it approvingly. Heller, 554 U.S. at 626, 128 S.Ct. 2783; see Rozier, 598 F.3d at 771 n.6; McDonald, 561 U.S. at 786, 130 S.Ct. 3020; Bruen, 142 S. Ct. at 2161 (Kavanaugh, J., concurring). Defendant invites the court to interpret Bruen as condemning any reliance on Heller's alleged dicta, in spite of ample language in that decision limiting the scope of the Second Amendment right to "law abiding" citizens. See Bruen, 142 S. Ct. at 2131-56. That invitation clearly misses the mark. For the reasons discussed above, the Bruen decision did not overrule Rozier, nor did it undermine that decision to the point of abrogation. Thus, because the Eleventh Circuit decided that the Heller dictum is persuasive, it is for the Eleventh Circuit to decide whether to depart from that holding. Rozier is still good law, and this court must apply it. Section § 922(g)(1) is constitutional.
IV. Conclusion
For the foregoing reasons, the Motion to Dismiss (Doc. # 19) is due to be denied. A corresponding Order will be entered.
DONE and ORDERED this December 13, 2022.