FIFTH CIRCUIT FACING ANOTHER TOUGH DECISION:
EMERSON IMPACT LIKELY! ! !
Update: Spruill's Conviction was vacated and remanded on a unseen issue that was NOT even part of Spruill's appeal. Apparently, the restraining order was not issued following a hearing with an opportunity by Mr. Spruill to participate. As with the Henry case, the Fifth Circuit Waited until after Emerson was released, thus any impact was eliminated. Click here to read the decision.
Memo From Legal Affairs Director Dave LaCourse:
As if there wasn't enough issues surrounding the U.S. v. Emerson Case and the potential to either enshrine or eliminate the Second Amendment right to keep and bear arms, enter the U.S. v. Spruill case (link at bottom of this page). At the heart of the new case is whether the government can ban all gun ownership for any reason at all, or whether the burden of proof requires a criminal conviction, or at a minimum, a credible finding of dangerousness to allow for a complete ban on all gun ownership. Emerson, Spruill, or both cases may soon answer this compelling question.
The Spruill case is also out of Texas, but this time in the West District.
Here are the other main similarities between the two cases.
1. Like Dr. Emerson, Mr. Spruill was going through a divorce and had a restraining order issued against him.
2. Like Dr. Emerson, Mr. Spruill was not informed that such an order automatically bars the ownership of any firearms and provides federal felony penalties for mere possession. Ironically, even the assistant district attorney was unaware of this obscure law, even though he was involved in "over one hundred protective orders."
3. Like Dr. Emerson, Mr. Spruill was found in possession of a firearm that had traveled across interstate lines and was charged under federal law.
4. Like Dr. Emerson, Mr. Spruill attempted to invalidate 18 U.S.C. § 922(g)(8) as unconstitutional under Second & Fifth Amendment grounds.
But this is where the similarities end. The two cases are very different, but the Spruill case could still cloud the ultimate issues of Second & Fifth Amendment rights in the Emerson case.
Here are the main differences between Emerson and Spruill cases:
1. While Dr. Emerson was prosecuted under 18 U.S.C. § 922(g)(8)(C)(ii) under a boilerplate restraining order without any finding of credible threat, Mr. Spruill was prosecuted under 18 U.S.C. § 922(g)(8)(C)(i) with an a finding of "credible threat" or dangerousness against him.
The key portions of these laws are as follows:
(g) It shall be 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) [Spruill Case] includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or
(ii) [Emerson Case] 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; or
. . . . to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce. [emphasis added]
Put another way:
Emerson Case (C)(ii): Any boilerplate restraining order telling an individual to not violate the laws regarding assault, etc. against certain individuals bars all gun ownership.
Spruill Case (C)(i): A specific finding of credible threat followed by the issuance of a restraining order telling an individual to not violate the laws regarding assault, etc. against certain individuals bars all gun ownership.
Very different circumstances. While many people, including some attorneys, feel that all restraining orders by themselves should not bar gun ownership since they are more "he said, she said" than any finding beyond a reasonable doubt as required for an actual criminal conviction, Mr. Spruill has more troubles than just this one issue. And that is the next difference.
2. While Dr. Emerson has been found not guilty of all state charges, Mr. Spruill's case came about after Spruill allegedly told a friend that he was going to kill his wife, and that friend went to the police. Law enforcement taped a phone conversation between the two and set up a meeting where a gun was transferred from the friend to Spruill. Mr. Spruill was arrested immediately following the transfer.
3. While Dr. Emerson prevailed on both Second and Fifth Amendment grounds, Spruill failed on both at the district level. This could have something to do with differences (1) and (2), but it also involves the fact that it is the politically safe course. On the Second Amendment challenge, the Spruill decision found that:
Someday there will undoubtedly be a clear cut opinion from the Supreme Court on the Second Amendment. Without more at this time, however, the Court chooses to follow the majority path and here holds that the Second Amendment does not prohibit the federal government from imposing some restrictions on private gun ownership. The statute in question in this case is aimed at preventing the family violence that seems epidemic in this country. Although critics may argue that there are probably more effective ways to deal with family violence than the statute at hand, it is not for this Court to reverse the will of Congress simply because a better statute could possibly be crafted. Our system does not work like that. The elected representatives of the people are to be given wide latitude in addressing societal needs. The Court therefore rejects the Defendant's challenge on the basis of the Second Amendment. [emphasis added]
Please note that the Spruill court did not grant unlimited authority to the federal government for controlling gun ownership, only allow "some restrictions" on gun ownership. This parallels the Emerson decision where Judge Cummings in striking down 18 U.S.C. § 922(g)(8)(C)(ii) ruled:
It is absurd that a boilerplate state court divorce order can collaterally and automatically extinguish a law-abiding citizen’s Second Amendment rights, particularly when neither the judge issuing the order, nor the parties nor their attorneys are aware of the federal criminal penalties arising from firearm possession after entry of the restraining order. That such a routine civil order has such extensive consequences totally attenuated from divorce proceedings makes the statute unconstitutional. There must be a limit to government regulation on lawful firearm possession. This statute exceeds that limit, and therefore it is unconstitutional. [emphasis added]
So what does all this mean for the Emerson case? Well, I honestly just don't know. But here are a few theories to consider.
1. It could mean that the Fifth Circuit will invalidate both 18 U.S.C. § 922(g)(8)(C)(i) (Spruill) and 18 U.S.C. § 922(g)(8)(C)(ii) (Emerson). This would clear Dr. Emerson of all charges. For Mr. Spruill, it could mean freedom or the possible prosecution for a more serious charge such as conspiracy to commit murder as opposed to mere possession of a firearm. But if the evidence was there for a more serious charge, then why didn't they prosecute for such serious crimes from the beginning?
Bottom line is that if both Dr. Emerson and Mr. Spruill prevail in their Second Amendment challenges, they would be a huge decisions.
While many would cheer these decisions, it does seem tough to believe such a possibility will occur since the Spruill trial court cited the "epidemic" of "family violence." Emotion may prevail, and therefore two wins sounds difficult to achieve, especially since a key finding in Emerson does not necessarily preclude a ruling against Spruill:
If the statute only criminalized gun possession based upon court orders with particularized findings of the likelihood of violence, then the statute would not be so offensive, because there would be a reasonable nexus between gun possession and the threat of violence. However, the statute is infirm because it allows one to be subject to federal felony prosecution if the order merely "prohibits the use, attempted use, or threatened use of physical force against [an] intimate partner." 18 U.S.C. § 922(g)(8)(C)(ii).
2. The Fifth Circuit could "split the baby" and uphold Emerson and invalidate 18 U.S.C. § 922(g)(8)(C)(ii) while still allowing 18 U.S.C. § 922(g)(8)(C)(i) and the original Spruill decision to stand. This is a distinct possibility, but nobody is giving odds on it.
3. Emerson could be reversed and Spruill could be upheld. This is the worst outcome for gun owners, especially if the court rules that the Second Amendment is not an individual right! But it is possible to lose both of these cases, while still having good language in dicta for upholding the Second Amendment as an individual right, but just not for Dr. Emerson and Mr. Spruill because of the restraining orders against them.
4. The Spruill case could be irrelevant to the Emerson decision, with the judges viewing the two cases as separate and distinct. The update listed below indicates that the Emerson decision will come before the Spruill decision, although the Court is undoubtedly aware of the Spruill case.
Only time will tell...
A final outcome on Emerson is still expected shortly. The Spruill case may or may not have a key impact, but it definitely muddies the waters for making a clear choice.
Part of the confusion is that the Spruill case miscited several earlier cases, claiming that they involved 18 U.S.C. § 922(g)(8), when other issues were involved:
U.S. v. Boyd. Court claimed this case involved a violation of 18 U.S.C. § 922(g)(8), when Boyd had a misdemeanor domestic violence conviction and was charged in violation of 922(g)(9)! ! !
U.S. v. Meade. Court mentioned that Mr. Meade was also caught violating a restraining order, but failed to mention the misdemeanor domestic violence conviction and how Mr. Meade was charged in violation of BOTH 18 U.S.C. § 922(g)(8) & (g)(9)! ! !
U.S. v. Bostic. Court mentioned that Mr. Bostic was also caught violating a restraining order, but failed to mention the allegations of attempted rape and armed threats.
U.S. v. Wilson. Court failed to mention that Mr. Wilson had an outstanding arrest warrant for failure to appear and therefore was being arrested at the time the firearm was discovered.
U.S. v. Henson. This was a huge oversight, since Mr. Henson was a convicted felon in addition to being caught violating a domestic violence restraining order! ! !
UPDATE 12/18/00: The Fifth Circuit is delaying any Spruill oral argument and decision pending the outcome of U.S. v. Emerson!
This is good news! This means that the court is handling one issue at a time!
UPDATE 08/15/01: The Fifth Circuit is also delaying any oral argument and decision in U.S. v. Henry pending the outcome of U.S. v. Emerson!
Keep visiting for more updates.
SEE U.S. v. SPRUILL DISTRICT COURT DECISION HERE! ! !SEE U.S. v. SPRUILL FIFTH CIRCUIT DECISION HERE! ! !
SEE U.S. v. HENRY SUMMARY HERE! ! !
SEE U.S. v. HENRY REPORT AND RECOMMENDATION HERE! ! !
SEE U.S. v. HENRY MOTION DENIED HERE! ! !
SEE U.S. v. HENRY FIFTH CIRCUIT DECISION HERE! ! !
SEE U.S. v. FICKE DECISION HERE! ! !