10 DECEMBER 2001 - Voice For The Defense Online

lR. "Blcck" Pilaf, 3:
FEDERAL
CORNER
AND THE WINNER OF ROUND
TWO IS.. .DICTA
B
y now; most crinlii~al ilawps who spend my time iu the United States m ~ds
En~efsan and his concerns with the co~~stitutionalitg
are vety familiar nsitl~ DL
of 18 U.S.C. § 922(g) (8). I first wrote about the
good doctor in the May, 1999, issue of the IWce ("And Cimarlton IIeston said, 'I told yo11 so."'). At the
Advanced Crimid hw Co~~rses of the State Ba of k s in 1999, 2000 and 2001, it was nqr position that
United States District Judge Sam R. Cummings' dislnissal of En~crson's indictment would e\re~tuaUy be reviewed
by the U~uted States Supreme Court.
Emerson, you will recall, was the doctor who was prosecuted for "...possessitlg a firearm in or affecting
interstate conmarce.. .when he was subject to a CDIIIT order wl~ich.. .restrained 11in1 from harassing, stalking,
or threatening an intimate pwtner or such person ... or engaging in other contluct that would place an intimnte
partner in rmonable fear of bodily inju~y..." Emerson's lawyer filed a motion to q11ash the indictment
suggesting that 18 U.S.C. $ 922(g) (S), under which the prosecution was brought, was 81 unconstitutional
exercise of congressional power 1111der the Commerce Clause and the Second, Fifth, and Tenth An~endnlcnts
m tl~e United States Constitution. Judge C~mn~nungs found no basis for tlte Colimme Chuse or Tenth
Amendnmt arguments but gwnted relief on the Second and Rfth An~endmcnt arguments.
After holding the me
for almost 30 months, a panel of the Circuit [Gruwoorl, DeMoss, and Parker (specially
ccar~curri~~g)l handed down its opinion reversing the judgmw~t of the trial court. United Stntes u.
i,~erson, - E3d -, 2001 \VL 1230757 (5th Cir. 2001). On WestIaw, the opinion is 57 pages in length
and IS divided into fiw sections:
Section One: Construction of 18 U.S.C. 922 (g)(8)
Section %YO: Doe Process Clause of the E1ft11 Amendment
Section Three: Con~mcrce Clause
Section Poor: Tent11 An~endment
Section Five: Second h~endme~~t.
\Vhen Judge Culnmings dismissed the indictment the media cove~xge focused on Emerso~l a Second
hend~ellt case - md rightly so Judge Cu~nnungs had w~ltten:
It is abs~~rd that a boilerplate state court divorce order can collaterally and automatically extinguish
alaw-abidmg citizen's Second Amendment rights, particulady whenneither the judge issuing
the order, nor tile parties nor their attome)s are awm of the federal critnioal penalties wising
from fiream possession after ently of the restraining ordel: That sucl~ a routine civil order
has such extensive conseqneuces totdy attenuated kon~ divorce proceedings makes the statute
unconstitutiosal. There n~ust be a limit to goverment reg~~lation
lawful fiream possession.
This statute excee& that limit, and therefore it is unconstitutional.
It was, however, his Fifth hendment concl~~sions hat
...
appealed n~osto me; e.g, The conduct tlus statute
criminalim is mdumprol,i~ifrrm, not malum in se.
Section 922(g) (8) is one of the most obscure of crinWl provisions. Here, Emerson owned afircm, and
knew or should haw known that if, for example, he was convicted of a felony, he would have to torelinquish
ownership of his firearm. If by chance he did not !mow this, the sentencing judge or the probation officer
w011ld have inforuled him of the lam. Nevertheless, when Emerson 1% made subject to the restmining order
telling him to not lta~xs his wlfe, Emerson conld not have lu~own of the requirement to relinquish llis gun
r~nless the presiding judge issuing the onler told him. In this case, the state district judge did not tell EII~TOII
about the requxement. Emerson's attorney did not tell h eithel; became Emerson did not have a lawyer. The
fact tl~athe restraining order coataitincd no reference to guns may have led Emerson to believe that since he
comp!ied with tile order, he could cmy on as before.
...
Because $ 922 (g) (8) is an abscure, higl~ly technical statute with no mens rm req~~iliwnent, it violates
En~e~son's FIRII Anlendment due process rights to be subject to prosecution without proof of knowledge th~t
he was ~tolating the Stahlte.
8 VOICE FOR THE DEANSE WWW.lCDlA.COM DECEMBER ZOO1