The Potowmack Institute
The Potowmack Institute's amicus brief and other briefs in this case are provided at .../emeramic.html
The District Court's Opinion Memorandum is at http://www.txnd.uscourts.gov/PDFs/emerson.pdf
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).
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).
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.
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.
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.
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.
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.
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.
Weighty, Requiring this Court to Carefully Scrutinize
the Government's Interpretation of Section 922(g)(8) Before
Addressing that Issue.
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).
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).
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
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.
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).
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.
unlawful for any person:
(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.
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.
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").
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.
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.
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
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
A. Schroeder Precursor to Section 922(g)(8).
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:
The Congress finds that
(1)domestic violence is the leading cause of injury to women in the
States between the ages of 15 and 44;
(2) firearms are used by the abuser in 7 percent of domestic violence
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,
(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
(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;
(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).
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
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.
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).
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).
The Congress finds that
(1) domestic violence is the leading cause of injury to women in the United
RECEIPT OF FIREARMS BY, PERSONS WHO HAVE COMMITTED
(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
(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).
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.
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:
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.
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.
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:
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
S. 1607, 103d Cong. § 301 (1993) (emphases added).
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.
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.").
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.
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.
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.
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).
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:
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
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.
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.
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.
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
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
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).
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.
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
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.
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
indictment against Dr. Emerson should be affirmed.
Attorney General of Alabama
11 S. Union Street, Suite 310
Montgomery, Alabama 36130
Charles J. Cooper
Cooper, Carvin & Rosenthal, PLLC
ATTORNEYS FOR STATE OF ALABAMA, Amicus Curiae
*Counsel of Record.
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. text@note1
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. text@note2
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. text@note3
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