___________________________
NO. 99-10331
___________________________
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
___________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.
TIMOTHY JOE EMERSON,
Defendant-Appellee.___________________________
APPEAL FROM CRIMINAL NO. 6:98CR103C IN THE
UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF TEXAS, SAN ANGELO DIVISION___________________________
BRIEF FOR THE STATE OF ALABAMA AS AMICUS CURIAE
IN SUPPORT OF APPELLEE___________________________
Bill Pryor Charles J. Cooper Attorney General of Alabama (Counsel of Record) 11 S. Union Street, Suite 310 Cooper, Carvin & Rosenthal Montgomery, Alabama 36130-0152 1500 K Street, N.W., Suite 200 (334) 242-7300 Washington, D.C. 20005 (202) 220-9660
TABLE OF CONTENTS
STATEMENT OF INTEREST OF AMICUS CURIAE ..1
SUMMARY OF ARGUMENT.......................................2
ARGUMENT ................................................................5
I. The Second Amendment Issue in this Case Is
Novel and Weighty, Requiring this Court to
Carefully Scrutinize the Government's
Interpretation of Section 922(g)(8) Before
Addressing that Issue ....................................................5
II. The Government's Reading of the Statute Violates
Well-Settled Canons of Statutory Construction ..............8
III. Congress Intended Section 922(g)(8) to Apply
Only to Restraining Orders Entered Because of
Some Finding of Past Abuse or Likelihood of Future
Abuse ........................................................................12A. Schroeder Precursor to Section 922(g)(8) ...............13
B. Wellstone Precursor to Section 922(g)(8) ................16
C. Chafee-Hatch Precursor to Section 922(g)(8) ..........19
D. The Three Precursor Provisions are Melded
into Section 922(g)(8)................................................. 211. This Court Should Adopt an Alternative
Construction of Section 922(g)(8) that Conforms to
Congressional Intent and Avoids
Conflicting with the Constitution ................................26CONCLUSION ........................................................30
TABLE OF AUTHORITIES
CasesAlmendarez-Torres v. United States,
523 U.S. 224 (1998) ...........................................................13Bennett v. Spear, 520 U.S. 154 (1997) ............................3, 10
Bland v. United States, 299 F.2d 105 (5th Cir. 1962) ......4, 28
Cheek v. United States, 498 U.S. 192 (1991) ........................8
Dunn v. United States, 442 U.S. 100 (1979) .......................30
Edward J. De Bartolo Corp. v. Florida Gulf Coast Bldg.
& Constr. Trades Council, 485 U.S. 568 (1988) ...............3, 8Goldberg v. Kelly, 397 U.S. 254 (1970) ..............................11
Hooper v. California, 155 U.S. 648 (1895) ...........................8
Lewis v. United States, 445 U.S. 55 (1980)........................... 6
Mobile Oil Corp. v. Kelley, 353 F. Supp. 582
(S.D. Ala. 1973)................................................................... 1Morrissey v. Brewer, 408 U.S. 471 (1972)........................... 11
Mullane v. Central Hanover Bank & Trust Co.,
339 U.S. 306 (1950)............................................................ 11Ohio Bell Tel. Co. v. Public Utilities Comm'n,
301 U.S. 292 (1937)............................................................ 11Rust v. Sullivan, 500 U.S. 173 (1991)....................................8
State of Florida ex rel Shevin v. Exxon Corp.,
526 F.2d 266 (5th Cir. 1976) .................................................1United States v. Boerner, 508 F.2d 1064
(5th Cir. 1975) ..........................................................4, 28, 29United States v. Cisneros, 194 F.3d 626 (5th Cir. 1999) ..5, 30
United States v. Emerson, 46 F. Supp. 2d. 598
(N.D. Tex. 1999) .................................................................6United States v. Johnson, 441 F.2d 1134 (5th Cir. 1971) ......6
United States v. Miller, 307 U.S. 174 (1939).........................6
United States v. Nordic Village, Inc.,
503 U.S. 30 (1992) ............................................................10United States v. Wallington, 889 F.2d 573
(5th Cir. 1989) ..................................................................29United States v. Williams, 446 F.2d 486 (5th Cir. 1971) ......6
Federal Statutes8 U.S.C. § 1324(a)(1).......................................................... 28
18 U.S.C. § 922(g)(8)(A) (1994)................................... passim
Firearm Owner's Protection Act § 1(b), 100 Stat. 449,
(1986) (codified at 18 U.S.C. § 921 note) ...............................7Freedmen's Bureau Act, 14 Stat. 176-77 (1866) ......................7
Gun Control Act of 1968 § 101, 82 Stat. 1213, 1213-14
(1968) (codified at 18 U.S.C. § 921 note) ...............................7Property Requisition Act § 1, 55 Stat. 742, 742 (1941) ............7
Violent Crime Control and Law Enforcement Act of 1994,
103 Pub. L. No. 322, 108 Stat. 1796 (September 13, 1994) ....13
Alabama Constitution and StatutesAla. Const. art. I § 26 ......................1
Ala. Code § 13A-11-72 (1999) .........1
Ala. Code §§ 30-5-1 et seq. (1998) ...2
Ala. Code § 36-15-21 (1999) ............1
Congressional Materials
H.R. Rep. No. 103-694 ................................23H.R. Rep. No. 103-711 ..........................23, 24
139 Cong. Rec. 25,490 (Oct. 20, 1993) ........18
139 Cong. Rec. 28,514 (Nov. 10, 1993) ..18, 19
139 Cong. Rec. 30,578 (Nov. 19, 1993) .......20
139 Cong. Rec. 30,579 (Nov. 19, 1993) .......21
139 Cong. Rec. 30,588 (Nov. 19, 1993) ......21
139 Cong. Rec. 31,290 (Nov. 20, 1993) .....15
139 Cong. Rec. 31,291 (Nov. 20, 1993) .....15
139 Cong. Rec. 31,294 (Nov. 20, 1993) .....15
139 Cong. Rec. 31,337 (Nov. 20, 1993) .....15
140 Cong. Rec. 8141 (Apr. 21, 1994) ........22
140 Cong. Rec. 20,775 (Aug. 10, 1994) .....23
140 Cong. Rec. 23,376 (Aug. 21, 1994) .....23
Other
Black's Law Dictionary 721 (6th ed. 1990) ...11
STATEMENT OF CONSENT
Counsel for the State of Alabama certifies to the Court pursuant to Federal Rule Appellate Procedure 29(a) that he has received the consent of all parties to this action for the filing of this brief amicus curiae in support of appellee.
STATEMENT OF INTEREST OF AMICUS CURIAE
In Alabama, "[a]ll litigation concerning the interest of the state, or any department of the state, shall be under the direction and control of the Attorney General." Ala. Code § 36-15-21 (1999). Attorneys General have broad powers to protect the interests of the people, see, e.g., State of Florida ex rel Shevin v. Exxon Corp., 526 F.2d 266, 268 (5th Cir. 1976) and Alabama's Attorney General has "wide discretion in determining what actions he should take in protecting what he conceives to be the best interest of the State of Alabama and the citizens thereof." Mobile Oil Corp. v. Kelley, 353 F. Supp. 582, 586 (S.D. Ala. 1973).
The State of Alabama clearly has an interest in protecting the civil rights of its citizens. As with forty-three other States (including Texas), the civil right of the people of Alabama to keep and bear arms is protected by the Alabama Constitution: "That every citizen has a right to bear arms in defense of himself and the state." Ala. Const. art. I § 26 (adopted 1819, art. I, § 23; "defence" changed to "defense" in 1901). The State of Alabama has carefully limited its exceptions to the right to keep and bear arms. See Ala. Code § 13A-11-72 (1999).
In this case, the federal government maintains that a boilerplate restraining order entered in a state court divorce proceeding, supported by no judicial finding of past misconduct or future likelihood of dangerousness, automatically divests a citizen of both his state and federal constitutional right to bear arms. Under the Alabama Protection From Abuse Act, Ala. Code §§ 30-5-1 et seq. (1998), some finding of abuse, as defined in Section 30-5-2(a)(1), is required for entry of a protective order. However, judges in divorce and juvenile proceedings in Alabama retain discretion to issue protective orders without the formal findings required under the Protection From Abuse Act. The State of Alabama has a substantial interest in ensuring that its citizens are not deprived of fundamental rights without some finding of past fault or future dangerousness.
SUMMARY OF ARGUMENT
The statute at issue in this case, 18 U.S.C. § 922(g)(8) (1994), was clearly aimed at disarming those who pose a threat to the safety of their intimate partners or their children. The text and legislative history of the statute make clear that its focus is on persons who are in fact dangerous. Yet, in this case the government contends that the statute applies to a pro forma order entered in a Texas divorce proceeding, where no evidence or finding of dangerousness is required under Texas law. Thus, under the government's view, Section 922(g)(8) is utterly indifferent to the reason for entry of a restraining order; the mere fact of its entry engenders a federal criminal ban on firearm possession. Under this view of the statute, restraining orders entered by routine in divorce proceedings, or by mutual consent, with no evidence of spousal abuse or danger, convert law-abiding firearms owners into felons, subject to penalties of up to ten years in the federal penitentiary.
The government's interpretation of Section 922(g)(8) suffers from serious textual difficulties. First, it renders Subsections (B) and (C)(ii) redundant to each other, a cardinal sin of statutory interpretation. See Bennett v. Spear, 520 U.S. 154, 173 (1997). Second, it renders Subsection (A)'s requirement of "actual notice" and an "opportunity to participate" at a hearing quite meaningless, because nothing need be shown at the hearing and no findings need be made. Third, it renders Subsection (C)(i)'s requirement of "a finding that such person represents a credible threat" to a spouse or child utterly futile, by reading the very next clause to authorize prosecution when there has been no finding of any kind.
The court below correctly concluded that if Section 922(g)(8) is interpreted in this perverse manner, the statute constitutes a sweeping and arbitrary infringement on the Second Amendment right to keep and bear arms. Before addressing the Second Amendment issue, however, this Court must seek an interpretation of Section 922(g)(8) that renders it free from constitutional doubt. Edward J. De Bartolo Corp. v. Florida Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988). Not surprisingly, such an alternative interpretation not only exists, but is very nearly compelled by the statute's structure, purpose, and legislative history. The requirement of a finding is necessarily implied in Congress's clear specification that "a hearing" must be held, at which the person must have an "opportunity to participate." 18 U.S.C. § 922(g)(8)(A) (1994). Subsection (A) therefore should be read to require the opportunity to participate in a legally meaningful hearing -- where the issue of dangerousness is tested against a legal standard and addressed by a judicial finding.
Similarly, subsections (C)(i) and (C)(ii) should be read in harmony, rather than in opposition. Subsection (C)(i) by its terms applies only to those situations in which the court order itself "includes" the requisite finding. Subsection (C)(ii) should be read to complement (C)(i) by addressing that class of cases in which the requisite finding is embodied in a transcript or other document outside of the restraining order itself. This is the only reading of Section 922(g)(8) that gives effect to every portion of the statute and is consistent with its purpose as expressed in the legislative history.
Not only is this the best overall interpretation of the text and history of the statute, it is also required by two fundamental rules of statutory construction. First, it allows the Court to avoid adjudication of an extremely serious constitutional issue. See Bland v. United States, 299 F.2d 105 (5th Cir. 1962) (implying element into federal criminal statute to avoid constitutional difficulties); United States v. Boerner, 508 F.2d 1064 (1975) (same). Second, it is consonant with the rule of lenity, which teaches that where a criminal statute is ambiguous, the more narrow approach must be chosen. United States v. Cisneros, 194 F.3d 626 (5th Cir. 1999). Whether because the statute as interpreted by the government violates the Second Amendment, or because this Court refuses to adopt a construction of the statute that applies to restraining orders unsupported by any judicial findings, the judgment below should be affirmed.
ARGUMENT
I. The Second Amendment Issue in this Case Is Novel and Weighty, Requiring this Court to Carefully Scrutinize the Government's Interpretation of Section 922(g)(8) Before Addressing that Issue.
Under the view of the statute advocated by the government and assumed by the court below, a person can be deprived of the right to receive or possess any firearm based merely upon the fact that he or she is involved in the normal incidents of a divorce proceeding. Thus, for purposes of the legal issues presented by this appeal, any citizen may lose the right to possess a firearm simply by reason of being party to a divorce proceeding, no matter how ample his or her firearms training (a police officer) or how impeccable his or her character (a minister). As District Judge Cummings pointedly noted below: "Under this statute, a person can lose his Second Amendment rights not because he has committed some wrong in the past, or because a judge finds he might commit some crime in the future, but merely because he is in a divorce proceeding." United States v. Emerson, 46 F. Supp. 2d. 598, 611 (N.D. Tex. 1999).
As appellee's brief amply demonstrates, no Supreme Court or Fifth Circuit precedent supports such a sweeping and unjustified prohibition of firearm possession by law-abiding citizens. See also Brief of the National Rifle Association as Amicus Curiae. This arbitrary firearms disability cannot be justified as a restriction on certain types of weapons that are particularly unsuited to legitimate civilian use. See, e.g., United States v. Miller, 307 U.S. 174 (1939); United States v. Johnson, 441 F.2d 1134 (5th Cir. 1971); United States v. Williams, 446 F.2d 486 (5th Cir. 1971). (1) Nor can it be defended by reference to statutes that deprive convicted felons -- persons found guilty beyond a reasonable doubt of serious violations of law -- of the ability to possess firearms. Cf. Lewis v. United States, 445 U.S. 55 (1980).
As the court below correctly recognized, the statute as construed by the government requires an examination of first principles -- the origins and meaning of the Second Amendment, the scope of the individual right it creates, and the justifications necessary before that right may be infringed. That court correctly concluded that if the Second Amendment is to have any meaning at all, this statute, as interpreted by the government, cannot pass constitutional muster. In response, the government urges the radical proposition that the Second Amendment creates no individual right, or that if it does create such a right, it may be infringed wherever a "rational basis" exists for the restriction. Gov't Br. at 36. The government would have this Court literally denude one provision of the Bill of Rights of all legal significance.
Before this Court ventures into this largely uncharted constitutional territory, it has a judicial duty to consider the possibility that the prosecution has overreached in this case and that Congress never intended Section 922(g)(8) to cover restraining orders unsupported by any finding of past or future dangerousness. In the past, Congress has explicitly acknowledged and shown respect for Second Amendment principles in its regulation of firearm ownership. See, e.g., Freedmen's Bureau Act, 14 Stat. 176-77 (1866); Property Requisition Act § 1, 55 Stat. 742, 742 (1941); Gun Control Act of 1968 § 101, 82 Stat. 1213, 1213-14 (1968) (codified at 18 U.S.C. § 921 note); Firearm Owner's Protection Act § 1(b), 100 Stat. 449, 449 (1986) (codified at 18 U.S.C. § 921 note). This Court should not lightly assume that Congress suddenly intended to jump off the constitutional precipice by enacting a provision that is massively overbroad in its prohibition of firearms ownership.
The Supreme Court has repeatedly insisted that courts must, "where possible, interpret[] congressional enactments so as to avoid raising serious constitutional questions." Cheek v. United States, 498 U.S. 192, 203 (1991) (citations omitted). "[T]he elementary rule is that every reasonable construction must be resorted to, in order to save a statute from unconstitutionality." Edward J. De Bartolo Corp., 485 U.S. at 575 (quoting Hooper v. California, 155 U.S. 648, 657 (1895)). This rule arises "out of respect for Congress, which we assume legislates in the light of constitutional limitations." Rust v. Sullivan, 500 U.S. 173, 191 (1991).
As we demonstrate below, that principle is applicable in this case. The government's wooden interpretation of the statute violates well-settled canons of statutory construction. Once the court looks to the text and structure of the entire statute, as well as its legislative history and purpose, a reasonable alternative construction emerges -- one that gives meaning to the entire text and avoids conflicting with the Second Amendment.
II. The Government's Reading of the Statute Violates Well-Settled Canons of Statutory Construction.The statute at issue in this case makes the receipt or possession of any firearm unlawful for any person:
(8) who is subject to a court order that -
(A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate;
(B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and
(C)(i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or
(ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury.
18 U.S.C. § 922(g)(8) (1994). As the government reads this statutory provision, Subsection (c)(ii) does not require a judicial finding, or even the submission of any evidence, that the party to be restrained may be dangerous. All that need be shown under Subsection (C)(ii), according to the government, is the existence of a restraining order that prohibits certain conduct; upon such a showing a complete federal criminal prohibition on all firearm possession automatically and immediately ensues. This reading of the statute creates three insuperable textual problems.
First, it renders Subsection (B) a nullity. Subsection (B) already requires proof of the existence of a court order that "restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child." 18 U.S.C. § 922(g)(8)(B) (1994). If Subsection (C)(ii) requires only proof of the existence of a restraining order prohibiting a narrower class of conduct -- involving "the use, attempted use, or threatened use of physical force against such intimate partner or child" -- then it is completely redundant to Subsection (B) and serves no independent purpose in the statutory scheme.(2)
Interpreting Subsection (C)(ii) to require proof of the same type of restraining order addressed by Subsection (B), with nothing more, violates "the cardinal principle of statutory construction" that the court must "give effect, if possible to every clause and word of a statute . . . rather than to emasculate an entire section." Bennett, 520 U.S. at 173 (citations omitted). Accord United States v. Nordic Village, Inc., 503 U.S. 30, 36 (1992) (rejecting statutory interpretation that "violates the settled rule that a statute must, if possible, be construed in such fashion that every word has some operative effect").
Second, the government's reading of the statute renders the requirement of Subsection (A) that there be "a hearing of which such person received actual notice, and at which such person had an opportunity to participate," a virtual nullity. It is elemental that a "hearing" requires some issue to be decided, some legal standard to be met. See Black's Law Dictionary 721 (6th ed. 1990) (defining "hearing" as "[a] proceeding of relative formality (though generally less formal than a trial), generally public, with definite issues of fact or law to be tried, in which witnesses are heard and evidence presented") (emphasis added). Indeed, the concepts of "actual notice" and an "opportunity to participate" have meaning in the context of a proceeding only if something must be shown - if some legal standard must be met. As the Supreme Court has made clear, the due process requirements of notice and an opportunity to be heard include awareness of the legal standards or criteria to be applied and findings based upon those standards. See, e.g., Goldberg v. Kelly, 397 U.S. 254, 268 (1970) (due process notice must include legal and factual bases for proposed action); Morrissey v. Brewer, 408 U.S. 471, 489 (1972) (due process in parole hearing must include "a written statement by the factfinders as to the evidence relied upon and reasons for revoking parole"). Accord Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950); Ohio Bell Tel. Co. v. Public Utilities Comm'n, 301 U.S. 292, 300-02 (1937). If Subsection (C)(ii) is interpreted to reach restraining orders entered for any reason or no reason at all, Subsection (A)'s requirements of notice and opportunity to participate in a hearing are rendered an empty formality.
Finally, the government's reading of the statute renders it capricious with respect to the need for a judicial finding. Subsection (C)(i) by its terms requires a finding, but Subsection (C)(ii), according to the government, completely eliminates that requirement. As interpreted by the government, the statute literally requires the government either to prove the existence of a restraining order supported by a finding (under Subsection (C)(i)) or, in the alternative, to prove the existence of a restraining order without any finding (under Subsection (C)(ii)). We know of no other federal criminal statute that defines an element of the offense in one subsection and then defines it away in the next.
III. Congress Intended Section 922(g)(8) to Apply Only to Restraining Orders Entered Because of Some Finding of Past Abuse or Likelihood of Future Abuse.Contrary to the government's textually problematic interpretation of Section 922(g)(8), the legislative history makes clear that Congress intended the statute to apply only to restraining orders entered on the basis of some clear showing that the party to be restrained represents a danger of domestic abuse. The three key legislative proposals that were precursors to Section 922(g)(8) all focused directly on a past history of domestic violence or a likelihood of domestic violence in the future. Furthermore, the statements of the sponsors of these proposals leave no doubt that restraining orders entered without reference to proof of domestic abuse were not within the ambit of the legislation.(3)
Section 922(g)(8) was enacted as Section 110401 of the Violent Crime Control and Law Enforcement Act of 1994, 103 Pub. L. No. 322, 108 Stat. 1796 (September 13, 1994), commonly referred to as the "1994 Crime Bill." As signed by the President, the section of the public law containing Section 922(g)(8) was entitled: "Prohibition Against Disposal of Firearms to, or Receipt of Firearms By, Persons Who Have Committed Domestic Abuse." 108 Stat. at 1797 (emphasis added). Thus, the title of the legislation itself makes clear that it was not intended to apply to citizens with no past history of domestic abuse. Cf. Almendarez-Torres v. United States, 523 U.S. 224, 233 (1998) ("We also note that the title of a statute and the heading of a section are tools available for the resolution of a doubt about the meaning of a statute.") (internal quotations and citations omitted). And the legislative history abundantly confirms what the title of the statutory text makes clear.
A. Schroeder Precursor to Section 922(g)(8).
On February 24, 1993, Representative Patricia Schroeder introduced her version of the Violence Against Women Act, H.R. 1133. As introduced, the bill did not contain any provision addressing firearm possession. In the Subcommittee on Crime and Criminal Justice the following provisions were added:
Sec. 232. FINDINGS.
The Congress finds that
(1) domestic violence is the leading cause of injury to women in the United States between the ages of 15 and 44;
(2) firearms are used by the abuser in 7 percent of domestic violence incidents and produces [sic] an adverse effect on interstate commerce; and
(3) individuals with a history of domestic abuse should not have easy access to firearms.
Sec. 233. PROHIBITION AGAINST DISPOSAL OF FIREARMS TO, OR RECEIPT OF FIREARMS BY, PERSONS WHO HAVE COMMITTED DOMESTIC ABUSE.(c) PROHIBITION AGAINST RECEIPT OF FIREARMS- Section 922(g) of such title is amended--
(3) by inserting after paragraph (7) the following:
(8) who is subject to a court order that--
(A) was issued after a hearing of which such person received actual or constructive notice, and at which such person had an opportunity to participate;
(B) restrains such person from harassing, stalking, or threatening an intimate partner of such person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury; and
(C) includes a finding that such person represents a credible threat to the physical safety of such intimate partner.
H.R. 1133, 103d Cong. §§ 232-233 (1993) (emphasis added).Representative Schroeder's proposal enjoyed bipartisan support in the House, with 223 named cosponsors. 139 Cong. Rec. 31,294 (Nov. 20, 1993) (remarks of Rep. Schroeder). Floor statements during the House debate on H.R. 1133 focused on statistical and anecdotal evidence regarding clear cases of domestic violence or abuse. See, e.g., 139 Cong. Rec. 31,290 (Nov. 20, 1993) (remarks of Rep. Brooks) ("This bill is a comprehensive, multifaceted, and long-overdue response to crimes of violence and abuse suffered by women across the country."); id. (remarks of Rep. Sensenbrenner) ("Every hour, 10 women are raped, 240 women are beaten by their husbands or boyfriends."); id. at 31,291 (remarks of Rep. Olver) (discussing case where abused spouse obtained 13 separate restraining orders against a known abuser); id. at 31,294 (remarks of Rep. Schroeder) ("It's the extent to which families, especially our children are experiencing violence in their everyday lives, however, which is prompting women's activism against violent crime and gun violence.").
H.R. 1133 passed in the House by a unanimous vote of 421-0. Id. at 31,337. It was sent to the Senate on November 20, 1993, where it was referred to the Senate Judiciary Committee. No further legislative action was taken on H.R. 1133 itself, but language identical to §§ 232-233 was included in the final House version of the Crime Bill, H.R. 3355, and was one of three similar provisions that went into the House-Senate Conference on the 1994 Crime Bill.
Three important points emerge from Representative Schroeder's bill. First, its prefatory legislative findings clearly focus on "individuals with a history of domestic abuse. . ." H.R. 1133, Sec. 232(3). This point is emphasized by the bipartisan statements throughout the floor debate focusing on domestic abuse and on the failure of the legal system to stop known abusers. Second, H.R. 1133 clearly requires that, in order to qualify under federal law, a domestic restraining order must be supported by a judicial finding. Third, the Schroeder bill's allowance for "constructive notice" was rejected in the final version of § 922(g)(8), which requires "actual notice" of the hearing on the restraining order. Each of these facts lends strong support to the proposition that Congress intended to address restraining orders entered because of some finding relating to domestic abuse. That is certainly what the House of Representatives unanimously voted for in H.R. 1133.
B. Wellstone Precursor to Section 922(g)(8).
Two Senate precursors to Section 922(g)(8) arose in the context of floor debate over the omnibus crime bill, S. 1607, which was introduced by Senator Biden on November 1, 1993. As introduced in the Senate, Senator Biden's bill did not have any provisions analogous to Section 922(g)(8).
Senator Paul Wellstone proposed amendment No. 1123, to S. 1607, which provided in relevant part:
SEC. 2. FINDINGS--
The Congress finds that--(1) domestic violence is the leading cause of injury to women in the United States between the ages of 15 and 44;
(2) firearms are used by the abuser in 7 percent of domestic violence incidents . . . ; and(3) individuals with a history of domestic abuse should not have easy access to firearms.
SEC 3. PROHIBITION AGAINST DISPOSAL OF FIREARMS TO, OR RECEIPT OF FIREARMS BY, PERSONS WHO HAVE COMMITTED DOMESTIC ABUSE.
(b) Prohibition Against Receipt of Firearms.--Section 922(g) of title 18, United States Code, is amended--
(3) by inserting after paragraph (7) the following new paragraph:
(8)(A) has been convicted in any court of the United States of an offense that--
(i) involves the use, attempted use, or threatened use of physical force against a person who is a spouse, former spouse, domestic partner, child, or former child of the person; or
(ii) by its nature, involves a substantial risk that physical force against a person who is a spouse, former spouse, domestic partner, child, or former child of the person may be used in the course of committing the offense . . . .
139 Cong. Rec. 28,514 (Nov. 10, 1993) (emphasis added).
On November 10, 1993, Senator Biden presented this amendment on behalf of Senator Wellstone as Amendment No. 1179 en bloc with nine other amendments to the 1994 Crime Bill. The Wellstone amendment passed in the Senate on that date by voice vote, without debate, and thus became the first domestic abuse firearms provision contained in the 1994 Crime Bill.
Senator Wellstone had earlier characterized his legislation as "a bill to take guns out of the hands of people who are violent toward their spouse or children." 139 Cong. Rec. 25,490 (Oct. 20, 1993) (statement of Sen. Wellstone) (emphasis added). He described the effect of his proposal as follows:
Currently, under Federal law, there is a list of circumstances, including conviction of a felony and mental incompetence, that prevent individuals from legally owning a gun. This legislation would add to that list those who have been convicted of domestic violence. Under this bill, anyone who has been convicted of abusing their spouse or child, or who has a restraining order issued against them because of threatened abuse, would be prohibited from obtaining a firearm.
Id. (emphasis added).Thus, both the text of the Wellstone amendment and its sponsor's statement indicate that it was aimed either at persons convicted of domestic abuse or, at an absolute minimum, persons formally accused of domestic abuse. The text requires an order issued in a case involving "the use, attempted use, or threatened use of physical force" or "a substantial risk that physical force" would be used. 139 Cong. Rec. 28,514 (Nov. 10, 1993). Senator Wellstone's statement indicates that the restraining order must be entered "because of threatened abuse." Even under Senator Wellstone's approach, which was not the approach ultimately adopted by Congress, the case must involve domestic abuse. Thus, under the Wellstone proposal, a routine order entered in a divorce proceeding would not have qualified under federal law to disable its subject from firearms possession.
C. Chafee-Hatch Precursor to Section 922(g)(8).The other amendment to the Senate version of the crime bill that addressed firearms and domestic violence was offered by Majority Leader Dole on behalf of Senators John Chafee and Orrin Hatch. This amendment, No. 1169, like the Wellstone amendment, was proposed en bloc with other amendments, was not debated on the floor, and passed by a voice vote. It was added to S. 1607 as Section 301 under Title III ("Firearms") and prohibited the receipt or possession of firearms by any person:
(8)(A) who is subject to an order, issued by a Federal or State court after a hearing about which that person received actual notice and at which that person had the opportunity to participate, restraining that person from harassing, stalking, threatening, or engaging in other such conduct that would place another person in fear of bodily injury or the effect of which conduct would be to place a reasonable person in fear of bodily injury; and
(B) whom the court issuing the order finds under this subsection to represent a credible threat to the physical safety of that other person;'S. 1607, 103d Cong. § 301 (1993) (emphases added).
Two key points are readily apparent from the text of the Chafee-Hatch proposal. First, it contains the due process language requiring "actual notice" as opposed to the "constructive notice" contained in the Schroeder proposal. Second, it clearly requires a finding, but unlike the Schroeder bill, it does not require that the finding be included in the restraining order itself.
Senator Chafee's remarks in support of his approach are very specific in discussing the fact that only restraining orders backed by a judicial finding of dangerousness should result in a federal prohibition of firearm possession: "My amendment adds to this category [of persons prohibited under 922(g)] those individuals who are subject to a court restraining order for harassing, stalking, threatening, or engaging in other such conduct; and whom the court has deemed a credible threat to another person's safety." 139 Cong. Rec. 30,578 (Nov. 19, 1993) (emphasis added). Senator Chafee noted that "it is not easy for women to receive a restraining order," and that his amendment was intended to "ensure that a person whom the court says is a threat may not have a gun during the time that he or she is subject to the restraining order." Id. at 30,579 (emphasis added). See also id. ("It is that situation - where there is a restraining order in force against someone who poses a clear threat - that my amendment is intended to address.").
D. The Three Precursor Provisions are Melded into Section 922(g)(8).On November, 19, 1993, the Senate struck all after the enacting clause of H.R. 3355 and inserted the text of S. 1607. 139 Cong. Rec. 30,588 (Nov. 19, 1993). As amended, H.R. 3355 passed the Senate on a recorded vote of 95-4. Thus, as it left the Senate, H.R. 3355 contained two provisions dealing with restraining orders and firearms - the Wellstone Amendment as Sections 4201-4203 in Title XIII "Domestic Violence" and the Chafee-Hatch Amendment as Section 301 in Title III "Firearms." The recess ensued and no further action was taken on the 1994 Crime Bill until the Spring.
On March 18, 1994, Representative Brooks introduced H.R. 4092, an omnibus crime bill similar to H.R. 3355. As introduced, this bill contained a Violence Against Women Act (Title XVI). Sections 1624-1625 of H.R. 4092 were identical to the Schroeder provisions on firearm possession and domestic violence contained in §§ 232-233 of H.R. 1133. After debate and numerous floor amendments relating to other issues, H.R. 4092 was passed by the House on April 21, 1994 by a record vote of 285-141. 140 Cong. Rec. 8141 (Apr. 21, 1994). Its text was then inserted into H.R. 3355, thus becoming the House version of the crime bill.
As of April of 1994, the House and Senate had passed two different versions of an omnibus crime bill labeled H.R. 3355. The House version contained the Schroeder provisions as Sections 1624-1625, which required a restraining order that "includes a finding that such person represents a credible threat to the physical safety of such intimate partner." H.R. 3355, 103d Cong. § 1625 (1993). The Senate version contained the Chafee-Hatch Amendment as Section 301, which required that "the court issuing the order find[] under this subsection [the person restrained] to represent a credible threat to the physical safety of that other person." The Senate version also contained the Wellstone Amendment as Sections 4201-4203, which required that the order be issued in a case involving the use, attempted use or threatened use of physical force against a person or a substantial risk thereof. H.R. 3355, 103d Cong. § 4202 (1993). Thus, all three of the provisions that entered the House-Senate Conference on the Crime Bill in the Summer of 1994 required a restraining order supported by sufficient evidence of past or future dangerousness before a person was disabled from possessing a firearm.
The House and Senate conferees debated and held hearings intermittently during June and July of 1994 until they agreed to file a Conference Report on July 28, 1994. H.R. Rep. No. 103-694 was filed on August 10, 1994. 140 Cong. Rec. 20,775 (Aug. 10, 1994). The three provisions dealing with firearm possession and domestic violence discussed above were consolidated by the conferees into Section 110401 of H.R 3355, under Subtitle D - "Domestic Violence" contained in Title XI "Firearms." Section 110401, which became law in the same form as it emerged from the House-Senate Conference, contained for the first time Subsection (C)(ii), couched as an alternative to Subjection (C)(i).
The only explanation of the resulting provision in the first conference report, H.R. Rep. No. 103-694, consists of a repetition of the three congressional "Findings," contained in the Schroeder and Wellstone provisions. The first Conference Report was recommitted to the Committee of Conference, and a new report, H.R. Rep. No. 103-711, was filed in the House. 140 Cong. Rec. 23,376 (Aug. 21, 1994). No changes were made to Section 110401 between the two Conference Reports, although, the second conference report, H.R. Rep. No. 103-711, elaborates slightly on the amalgamation of the three provisions at issue. H.R. Rep. No. 103-711 states:
Senate Sections 301, Persons Subject to Restraining Orders [Chafee-Hatch], and 4201-03, Prohibition Against Disposal of Firearms to, or Receipt of Firearms by, Persons Who Have Committed Domestic Violence [Wellstone], recede to House Sections 1624-25 [Schroeder], with modifications.
H.R. Rep. No. 103-711, available in LEXIS, Legis library, CMTRPT file (1994). This statement in the Conference Report strongly suggests that the House-Senate conferees did not intend to abandon the requirement of some judicial finding in their final product, since the House version (Schroeder) contained a clear finding requirement.
There is very little publicly available information to ascertain how and why the House-Senate Conferees arrived at the extremely awkward melding of portions of the Chafee-Hatch, Wellstone, and Schroeder provisions into the final legislation. On June 28, 1994, Senator Wellstone urged the House and Senate conferees to "accept the much stronger Senate language that would actually get guns out of the hands of known abusers, instead of the weak House language." Press Release by Sen. Paul Wellstone, "Adopt Crime Bill Domestic Violence Provisions," June 28, 1994, p. 1, available in LEXIS, News Library, ARCNWS File (emphasis added). Most of Wellstone's statement focused on the provision of his amendment that would have disabled those convicted of misdemeanor domestic abuse from owning firearms. It is largely in this context that he referred to the House bill as "weaker." In the same statement, Wellstone criticized the Chafee-Hatch amendment because the prohibition only takes effect after actual notice and an opportunity to be heard.
Senator Wellstone also wrote a letter to all House-Senate Conferees on June 21, 1994. The letter argues for the "stronger" Senate version, but in the context of doing so, states: "We must keep firearms out of homes where domestic violence has already occurred and is apt to occur again." Letter of Sen. Paul Wellstone to Crime Bill Conference Committee Members, dated June 21, 1994, p.1. (emphasis added). Senator Wellstone made an identical statement in a June 24, 1994 letter to Attorney General Janet Reno. Letter of Sen. Paul Wellstone to the Honorable Janet Reno, dated June 14, 1994, p. 1.
Thus, the major issues before the Conference Committee were: (1) whether to adopt the Wellstone provision disabling persons convicted of domestic abuse misdemeanors; and (2) whether to retain the requirement of actual notice and an opportunity to be heard, over Senator Wellstone's objections. On both of these issues, Senator Wellstone lost and either the House approach or the Chafee-Hatch approach prevailed. The Conference Committee's retention of the requirements of actual notice and an opportunity to participate are strong legislative evidence that they did not intend to abandon the requirement of some finding of past or future dangerousness. Even Senator Wellstone's own public comments lend support to the notion that the final legislation required some finding that domestic violence either had already occurred or was apt to occur again.
In sum, the legislative history establishes that all three proposals that went into the House-Senate Conference Committee were focused on persons who, in fact, posed a danger to the safety of their intimate partners or children. None of the proposals would have allowed a routine restraining order in a divorce proceeding to result in a blanket prohibition of firearms ownership. The statements of the key legislators who can be considered sponsors of what became Section 922(g)(8), all support the necessity of a showing of dangerousness prior to loss of the right to possess a firearm. Nothing in the Conference Committee's actions or report suggests any desire to suddenly jettison the requirement of a finding. In fact, the Conference Committee's reference to the House version as its primary source, coupled with its insistence on "actual notice" of and an "opportunity to participate" in a hearing, inexorably implies that some finding must be made at the hearing.
IV. This Court Should Adopt an Alternative Construction of Section 922(g)(8) that Conforms to Congressional Intent and Avoids Conflicting with the Constitution.This Court is confronted with a criminal statute for which there is no ideal interpretation. The approach advocated by the government, and accepted by the court below, renders large portions of the statute superfluous. Under that view, Subsection (C)(ii) becomes the only truly operative portion of the statute. This approach renders meaningless Congress's clear insistence upon the due process concepts of actual notice and a right to participate in a hearing. This approach also violates congressional intent by reaching restraining orders in cases with no hint of domestic dangerousness. Most importantly, this approach raises a serious Second Amendment issue.
There is an alternative interpretation of Section 922(g)(8) that conforms to the purpose of the statute and the intent of Congress. This alternative reading also avoids the serious constitutional difficulties created by the government's sweeping view of the statute. This Court should read the statute's requirement of a "hearing" with an "opportunity to participate" in Subsection (A) to entail the concomitant requirement of a judicial finding of dangerousness - whether Subsection (C)(i) or (C)(ii) is invoked. This reading is consistent with the statute's legislative history and purpose and with the due process requirement that a factfinder issue some written rationale for its decision that can be understood, scrutinized, and even appealed. Because this restraining order was, in the state judge's own words "boilerplate," entered with no judicial finding of domestic dangerousness, it cannot operate to disable appellee from firearm possession under Section 922(g)(8).
Under this interpretation, Subsections (C)(i) and (C)(ii) address two different situations. Subsection (C)(i) applies by its terms only to cases in which the court order itself "includes a finding" of future dangerousness. Subsection (C)(ii) should be read to address those situations where the finding is not embodied in the order itself -- but is instead contained in a hearing transcript or has been entered in a previous criminal or civil proceeding. Under this reading, both Subsections (C)(i) and (C)(ii) have independent operation, and the severe textual problems inherent in the government's reading are avoided.
This alternative approach to Section 922(g)(8) has another signal virtue - it is consistent with this Court's duty to avoid the unnecessary litigation of a serious constitutional issue. In Bland v. United States, 299 F.2d 105 (5th Cir. 1962), and United States v. Boerner, 508 F.2d 1064 (5th Cir. 1975), this Court employed the doctrine of constitutional doubt to read a knowledge element into 8 U.S.C. § 1324(a)(1), a statute which criminalizes the importation of aliens into the United States. This court noted that "the literal text of subsection (1) of section 1324(a) does not specify as a requisite for the offense that a person act knowingly, whereas the remaining subsections of the statute, (2), (3) and (4), expressly make such a requirement." Boerner, 508 F.2d at 1067. This Court implied the missing knowledge element into Subsection (1) of that statute in words directly applicable to this case:
As we said in Bland, [299 F.2d 105], a reasonable construction of section 1324(a)(1) requires guilty knowledge in order to sustain the constitutional validity of the statute. Absurd results would follow if we were to construe the statute as requiring knowledge as a prerequisite for conviction in subsections 2, 3 and 4 of section 1324(a) and eliminating that requirement in subsection 1. It would be unreasonable to believe that Congress so intended.
Id. at 1068. Accord United States v. Wallington, 889 F.2d 573, 576-78 (5th Cir. 1989) (adopting narrow interpretation of 18 U.S.C. § 1905 to avoid constitutional difficulties). The reasoning employed by this Court's decisions in Bland, Boerner, and Wallington is directly applicable to Section 922(g)(8), and thus requires this Court to read Subsection (C)(ii) to contain an implied element of a judicial finding of domestic dangerousness.
Requiring some judicial finding in prosecutions under Subsection (C)(ii) is also consistent with the rule of lenity. At a minimum, Section 922(g)(8) is ambiguous as to whether it applies to a pro forma restraining order entered without any supporting evidence or finding of domestic threat or danger. It certainly does not provide a reasonable person with notice that an order unsupported by any finding may result in criminal liability for firearms possession -- indeed Subsection (C)(i) would suggest the opposite to a reasonable lay person. Accordingly, the rule of lenity requires that Section 922(g)(8) be interpreted to require proof of a restraining order backed by a judicial finding that the person subject to the order posed an actual threat of domestic abuse. See Cisneros, 194 F.3d at ____, 1999 U.S. App. LEXIS 28404, at * 19 (" 'This practice [of resolving questions of the ambit of criminal statutes in favor of lenity] reflects not merely a convenient maxim of statutory construction. Rather, it is rooted in fundamental principles of due process which mandate that no individual be forced to speculate, at peril of indictment, whether his conduct is prohibited.' ") (quoting Dunn v. United States, 442 U.S. 100, 112 (1979)). Whether pursuant to the doctrine of constitutional avoidance or the rule of lenity, this Court should reject the government's interpretation of Section 922(g)(8) and hold that the statute addresses only those state court restraining orders entered based upon some finding of past misconduct or future dangerousness.
CONCLUSION
For the foregoing reasons, the judgment of the district court dismissing the indictment against Dr. Emerson should be affirmed.
December 20, 1999 Respectfully submitted,
___________________________
ATTORNEYS FOR
Bill Pryor * Charles J. Cooper Attorney General of Alabama (Counsel of Record) 11 S. Union Street, Suite 310 Cooper, Carvin & Rosenthal Montgomery, Alabama 36130-0152 1500 K Street, N.W., Suite 200 (334) 242-7300 Washington, D.C. 20005 (202) 220-9660
(202) 220-9601 (fax)
STATE OF ALABAMA, Amicus Curiae
* Counsel of RecordCERTIFICATE OF COMPLIANCE
Pursuant to 5th Cir. R. 32.2.7(c), the undersigned certifies this brief complies with the type-volume limitations of the 5th Cir. R. 32.2.7(b).
1. Exclusive of the exempted portions in 5th Cir. R. 32.2.7(b), the brief contains 6,929 words in proportionally spaced typeface.2. The brief has been prepared in proportionally spaced typeface using Microsoft Windows 97, Times New Roman, 14 pt. Footnotes are in Times New Roman, 12 pt.
3. The undersigned understands a material misrepresentation in completing this certificate, or circumvention of the type-volume limits in 5th Cir. R. 32.2.7, may result in the Court's striking the brief and imposing sanctions against the person signing the brief.
_______________________Charles J. Cooper
CERTIFICATE OF SERVICE
I hereby certify that on 20th day of December, 1999 two copies and one copy on electronic disk of the amicus curiae brief of the State of Alabama were served by mail, postage prepaid, and addressed to the following counsel of record:
William Bryan Mateja
U.S. Attorney's Office
1205 Texas Avenue
7th Floor
Lubbock, Texas 79401
Counsel for Appellant
Timothy Crooks
David Michael Guinn, Jr.
Federal Public Defender
600 Texas Street
Suite 100
Fort Worth, Texas 76102-4612
Counsel for Appellee
Ralph H. Brock
916 Main Street
Suite 445
Lubbock, TX 79408-0959
Counsel for Amicus Curiae Ralph H. Brock
Laura Ann Heymann
Eric Jon Mogilnicki
Wilmer, Cutler & Pickering
2445 M Street, NW
Washington, D.C. 20037-1420
Counsel for Amicus Curiae Center to Prevent
Handgun Violence, et al.
Stuart Jay Land
Arnold & Porter
555 12th Street, NW
Washington, D.C. 20004Marc Andrew Silverman
Arnold & Porter
399 Park Avenue
New York, NY 10022
Counsel for Amicus Curiae Educational Fund
to End Handgun Violence, et al.David Yassky
Brooklyn Law School
250 Joralemon Street
Brooklyn, NY 11201
Counsel for Amicus Curiae Bruce Ackerman, et al.Richard Brudzynski
4129 Cedar Ridge
Dayton, OH 45414
Counsel for Amicus Curiae Potomac InstituteFernando R. Laguarda
Valerie E. Hunt
Mintz, Levin, Cohn, Ferris, Glovsky & Popeo
701 Pennsylvania Avenue, N.W.
Washington, D.C. 20004
Counsel for Amicus Curiae National Network
to End Domestic Violence, et al._______________________
Charles J. Cooper
1. The district court did not, as the government would have it, "overlook[] Fifth Circuit case law," Brief for the Appellant ("Gov't Br.") at 20. Rather, the court below recognized that these precedents provide little or no guidance in evaluating the constitutionality of a ban on the possession of all firearms based upon no adjudication of past wrongs or future dangerousness.2. The only other difference between subsection (B) and subsection (C)(ii) is the word "explicitly" in (C)(ii). However, the government cannot plausibly maintain that Congress meant the definition of a federal felony to hinge on insubstantial linguistic differences among state court domestic decrees, or that subsection (B) covers restraining orders that "implicitly" prohibit domestic abuse.
3. The government provides this Court with only an extremely truncated exposition of the legislative history of the statute and discusses the statements of only one of the three sponsors of crime bill amendments that were melded into the present Section 922(g)(8). Gov't Br. at 33-35.