Posted by Eugene Volokh:
Rare (Partial) Victory in Second Amendment Case:
http://volokh.com/archives/archive_2009_06_14-2009_06_20.shtml#1245366067
A federal court holds that someone being prosecuted for possessing a
gun after having been convicted of a domestic violence misdemeanor is
constitutionally entitled to present an affirmative defense "that he
posed no prospective risk of violence" (which I take it must mean no
prospective risk of violence beyond that posed by the average person).
The jury would thus be instructed that, if it agrees with the
defendant that he posed no prospective risk of violence, it should
acquit despite the flat prohibition imposed by the statute.
Here is the meat of the opinion, [1]U.S. v. Engstrom (Stewart, D.J.)
(June 15, 2009):
This matter is before the Court on Defendant's Motion for Jury
Instruction regarding his possession of a firearm. The Court
previously denied Defendant's Motion to Dismiss Indictment, in
which Defendant argued that the Second Amendment to the U.S.
Constitution protected his right to have a firearm in his house for
home and self defense. In its April 17, 2009 Order, the Court found
that strict scrutiny was required to justify a deprivation of an
individual's Second Amendment right to keep and bear arms. The
Court also found that 18 U.S.C. § 922(g)(9), which prohibits the
possession of firearms by those previously convicted of a domestic
violence misdemeanor, passed strict scrutiny. Finally, the Court
found that § 922(g)(9) was, therefore, presumptively lawful, but
that the presumption could be rebutted by a showing that the
individual charged under § 922(g)(9) posed no prospective risk of
violence. With regard to the Defendant, the Court found that it
could not say, as a matter of law, that the Defendant posed no
prospective risk of violence.
Defendant concedes that he is a restricted person, otherwise
covered by § 922(g)(9). In May 2008, Defendant and his girlfriend
(the "Girlfriend") were residing at a home in West Valley City,
Utah (the "Residence"). On May 9, 2008, Defendant and the
Girlfriend got into an argument and the Girlfriend left the
Residence. On May 10, 2008, the Girlfriend returned with the police
to retrieve her personal belongings, accompanied by a friend, who
waited outside the Residence while the Girlfriend entered to
retrieve her belongings. Defendant refused to return her things,
and an argument ensued. During that argument, Defendant grabbed the
Girlfriend's arm, and the Girlfriend claims she feared for her
safety. The Girlfriend attempted to use pepper spray on the
Defendant, but the canister did not work. Defendant took the pepper
spray away from the Girlfriend and was successful in using it on
her. The Girlfriend then left the Residence and called the police.
When police arrived at the Residence, the Girlfriend informed them
that Defendant kept a gun in his bedroom, although the gun was
never used or displayed in any way by the Defendant prior to the
police arriving. Defendant allowed the police to enter the
Residence, where one officer noticed an unspent round on the floor
of the Residence. When officers inquired about the gun, Defendant
advised them that it was in his bedroom dresser drawer, and that he
had unloaded it when he learned that law enforcement would be
arriving at the Residence. The officers found the unloaded gun from
the bedroom dresser drawer. The gun was not taken from the
Residence at that time.
On May 22, 2008, West Valley Police contacted Defendant and
inquired about the gun. Defendant indicated that he owned the gun
and that it was a gift from his father. There is no evidence to
indicate that Defendant had ever used the firearm. However,
Defendant was advised that he could not have a gun due to a prior
misdemeanor domestic violence conviction. Defendant indicated to
police that he would surrender the gun and ammunition. Police
arrived at the Residence later that day and Defendant signed a
consent to search form and surrendered the gun and ammunition....
The Court finds that Defendant may raise, as an affirmative
defense, that the charged offense may not be applied to him because
he posed no prospective risk of violence. Such a defense is in
keeping with the law stated in the Court's April 17, 2009 Order.
The Court also finds that the affirmative defense raised by
Defendant does not negate any element of the offense charged.
Therefore, while the government must prove every element of the
charged offense beyond a reasonable doubt, if Defendant chooses to
argue that he posed no prospective risk of violence, Defendant will
bear the burden of proving his defense to the jury by a
preponderance of the evidence. However, the defense must be
supported by sufficient evidence. Therefore, the Court will only
instruct the jury on Defendant's defense if the Court finds that,
during the course of trial, Defendant has presented sufficient
evidence to convince a reasonable jury that he does not pose a
prospective risk of violence. In the event that Defendant meets
that burden, the Court will instruct the jury regarding Defendant's
proposed Second Amendment defense in the following terms:
The Second Amendment to the United States Constitution guarantees
the fundamental right of individuals to keep and bear arms. That
right may only be infringed when the restriction is narrowly
tailored to meet a compelling government interest. You are
instructed that 18 U.S.C. § 922(g)(9), the crime for which
Defendant is charged, is, as a matter of law, a lawful and
constitutional restriction of the Second Amendment rights of those
who pose a prospective, or future, risk of violence.
If you find that the government has proved beyond a reasonable
doubt the elements of the charge against him, as set forth in Jury
Instruction Number ____, regarding Count I, you are instructed that
Defendant is presumed to pose a prospective risk of violence.
However, Defendant is entitled to offer evidence to rebut that
presumption and show that he did not pose a prospective risk of
violence. It is the burden of the Defendant to prove to you, by a
preponderance of the evidence, that he did not pose a prospective
risk of violence.
Therefore, if you find that the Defendant did not pose a
prospective risk of violence, he may not be deprived of his Second
Amendment rights, and you must find him not guilty. However, if you
find that the government has proved beyond a reasonable doubt the
elements of the charge against him, and that the Defendant has not
proved, by a preponderance of the evidence, that he posed no
prospective risk of violence, you must find the Defendant guilty.
By the way, all I could find from Pacer about Engstrum's past domestic
violence misdemeanor conviction was that it was a "domestic violence
assault" that had happened in "Midvale Justice Court in 2007." (The
statement of facts above describes only the conduct that led to the
discovery of the gun, but it was the 2007 conviction that caused
Engstrum to be prosecuted for "possession of firearms by those
previously convicted of a domestic violence misdemeanor.") Presumably
the jury would be told about the circumstances of this past
conviction, as well as about other things, in determining whether
Engstrum indeed "pose[d] a prospective risk of violence" at the time
of possessing the gun.
References
1. https://ecf.utd.uscourts.gov/cgi-bin/show_public_doc?2008cr0430-37
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