The Potowmack Institute
The Domestic Violence Network of 27 amici filed this brief with the US Court of Appeals, Fifth Ciruit, as amicus curiae, September 3, 1999, in US v. Emerson in support of the prosecution. Certificate of Interested Parties.
The Potomac 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
Domestic violence is a national crisis. Congress has responded by enacting
numerous statutes designed to address this nefarious problem. Chief among these
is 18 U.S.C. § 922(g)(8), the Domestic Violence Offender Gun Ban, which
addresses the lethal and widespread connection between domestic violence and
access to guns.
increases the threat of injury or death in circumstances where a court order has
been granted prohibiting the "use, attempted use, or threatened use of physical
force against (an] intimate partner." 18 U.S.C. § 922(g)(8). Due process is not
offended when such a restraint is imposed as a result of a court order after a fair
hearing. For these reasons, the statute is plainly constitutional and the opinion of
the District Court should be REVERSED.
I. DOMESTIC VIOLENCE IS A SERIOUS CRIME WITH TRAGIC CONSEQUENCES FOR MILLIONS OF WOMEN AND CHILDREN NATIONWIDE
Violence against women is an enormous problem throughout the United
States. 2 A recent study reports that 5.9 million assaults are perpetrated against
women annually. 3 The United States Department of Justice estimates that three
out of every four women will be the victims of a violent crime at some point
during their lives. 4 Police departments nationwide report that domestic violence
arrests are continuing to rise. 5 Estimates of the number of women severely
injured each year by their partners range from at least two million to four million
and higher. 6
Accurate identification of the prevalence of domestic abuse is difficult
because many women are reluctant to report abuse or seek help because doing so
may expose them to further harm. Frequently women who are abused fail to seek
help because they fear that their attackers will abuse them again or more severely
in retaliation. Still, results of a 1998 survey show that 76 percent of women who
are raped and/or physically assaulted are attacked by a current or former spouse,
cohabitating partner, or date. 7 Other reports in the early 1990s found that ongoing
domestic abuse accounted for 22 to 3 7 percent of emergency room visits for
violence-related injuries by women in the United States. 8
attention of the criminal justice system until after the victim is severely beaten.
Domestic violence is characterized by a pattern of abusive behavior, 9 verbal and
physical, which escalates in frequency and severity over time. l0 Recidivism rates
for domestic violence are high. l1 One study shows that 47 percent of admitted
batterers report three or more assaults per year. l2 The results of a 1998 survey
show that women face far more serious threats of violence from intimate partners
than do men; women are 7 to 14 times as likely to report incidents of serious
violence, including choking, attempted drowning, threats of gun violence, and
actual gun violence. l3 By the time an incident of domestic violence is reported to
the police, numerous other incidents will likely have occurred without intervention
from the justice system.
As disturbing as the high rate of abuse is, the alarmingly high correlation
between domestic violence and the murder of women brings into sharp relief the
need Congress saw to limit access to deadly weapons. A 1996 study based upon
the Federal Bureau of Investigation's Supplemental Homicide Report found that
female murder victims were rnore than 12 times as likely to have been killed by a
man they knew as by a male stranger. l4 In over half of these cases, the victims
were wives or intimate acquaintances of their killers. l5 In l 992, the federal
government reported, nearly 30 percent of all female homicide victims were killed
by husbands, former husbands, or boyfriends. 16 A recent analysis of female
homicides in New Mexico between 1990 and 1993 found that nearly half were
committed by a current or former male intimate partner. 17 Another recently
published study of murder-homicides in North Carolina between 1988 and 1992
reported that in 86 percent of the cases the woman was murdered by her current or
former partner. 18 Of those women who experienced a history of domestic
violence, nearly half had previously sought legal protection from the murderer
through an arrest warrant or restraining order. l9 Moreover, in nearly half those
cases, the injuries extended to the woman's children, or those of the murderer. 20
Because of the manner in which abusive behavior is manifested, and the need to
act before such behavior takes a deadly turn, Congress rationally envisioned the
need to target specific circumstances that heighten a woman's risk of injury as part
of its effort to address this problem.
[Index of briefs]
II. FIREARMS THREATEN TO EXACERBATE AN ALREADY DEADLY CRISIS
Statistics show that perpetrators of domestic violence use guns in their
attacks with alarming frequency. In 1993, over half of domestic violence attacks
involved firearms. 21 Not only are firearms the ultimate tool of intimidation, 22
they are also the ultimate deadly weapon. More women are killed with handguns
than with all other weapons combined. 23
Experts have stated that the likelihood of death in an attack is related to the
weapon chosen, and the use of firearms is far more likely than other weapons to
end in death. 24 A 1994 study shows that 68 percent of domestic violence
homicides are from firearms. 25 The Journal of the American Medical Association
reported that domestic violence assaults involving guns are 12 times more likely
to result in death than are those without guns. 26 Domestic violence homicides are
7.8 times more likely to occur in homes with guns than homes without. 27 The
occurrence is even higher in homes with histories of domestic violence, as guns in
the home are a key factor in the escalation of nonfatal spousal abuse to
homicide. 28 The statistics reveal a stark reality guns exacerbate the already
pervasive problem of domestic violence. The use of firearms intensifies the
severity of the violence and increases the likelihood that spouses and children will
be killed by their abuser.
III. THE STATUTE PLAINLY SURVIVES CONSTITUTIONAL SCRUTINY
As set forth above, Congress had compelling and wholly sound reasons for
restricting the use and availability of firearms under circumstances such as those
presented herein. For these reasons, the respondent's constitutional challenges to
the statute must fai1.
a court order against him, after a hearing and upon a record adducing evidence of
threatened violence. 29 The District Court's line of reasoning on both the Second
Amendment and Fifth Amendment challenges to the statute are deficient and
incompatible with precedent. Congress has the power to prevent firearm use by
individuals who pose a risk to public safety, and the means it chose to do so are
entirely within the boundaries of due process. For these reasons, the District Court wrongly concluded that 18 U.S.C. § 922(g)(8) is unconstitutional.
[Index of briefs]
A. RESPONDENT'S SECOND AMENDMENT RIGHTS WERE NOT VIOLATED
Congress has determined that persons who are subject to court-ordered
restraining orders that prohibit the use, or threatened use, of physical force against
an intimate partner, a child of the intimate partner, or a child of the person pose
substantial potential harm to the public safety and order, and, in response,
Congress has limited their ability to possess firearms. 30 Such legislative
restrictions do not "trench upon any constitutionally protected liberties." 31
Congress had ample authority to determine that the class of persons subject to
court orders restricting individual liberties and guarding against deadly force
should not be allowed access to firearms. 32 As the District Court for the Western
District of Texas recently held in a case finding Section 922(g)(8) constitutional,
"the Second Amendment does not prohibit the federal government from imposing
some restrictions on private gun ownership . . . ." 33 Thus, Section 922(g)(8) is
valid as a matter of law.
Amendment is an "individual" right, Section 922(g)(8) is deficient for failing to
require "particularized findings" of the likelihood of violence.34/ Regardless of
whether the Second Amendment is or is not such a right, Congress had ample
reason and authority to restrict the possession of firearms under the circumstances
and facts raised herein. The reason for this fact is straightforward: the language
the District Court found constitutionally objectionable goes directly to the nexus .
between domestic violence and firearm use. Congress did not make it unlawful
for a person to possess firearms whenever he or she is the subject of a court order.
Instead, Congress deliberately chose to impose the restriction only when a court
order restrains a person from "harassing, stalking, or threatening an intimate
partner" or "child of [an] intimate partner or person" or engaging in other behavior
that would place an intimate partner or child "in reasonable fear of bodily injury."
18 U.S.C. § 922(g)(8). As set forth above, there is ample basis for such a
narrowly-tailored and prudential rule.
kill, in the context of domestic violence. It was therefore wholly justifiable for
Congress to restrict firearm use and possession so as to minimize death or injury
under circumstances when domestic violence may be threatened, including
circumstances like those in this case. 35 Thus, when a court has made a
determination based on the record evidence before it to restrict an individual's
liberty and the "use, attempted use, or threatened use of physical force against [an]
intimate partner or child," there is no constitutionally required need for
particularlized findings to support a limitation on the possession or use of a
firearm. 36 Congress made the determination that access to firearms substantially
increased the likelihood of fatal violence and rationally chose to restrict access to
firearms when individuals are subject to court orders prohibiting them from using
force on their intimate partners or children.
B. RESPONDENT' S FIFTH AMENDMENT RIGHTS WERE NOT VIOLATED
The District Court held that it would be wrong to "convict a person of a
crime if he had no reason to believe that the act for which he was convicted was a
crime." 37 But this reasoning is wholly inapposite here. As the court explained in
United States v. Meade, "the statute satisfies the standards embedded in
precedent" for due process. 38 The statute "clearly specifies that individuals
subject to certain types of protective orders" may not possess firearms. 39 The
class of individuals affected is "explicitly defined, as is the conduct sought to be
regulated, and the statute is not unconstitutionally vague." 40 Recognizing this, the
United States District Court for the Western District of Texas recently rejected a
similar Fifth Amendment challenge to Section 922(g)(8). 41
fundamentally restrained his liberties, he "removed himself from the class of
ordinary citizens" 42 who could be heard to complain about adequate notice.
Emerson could not "reasonably expect to be free from regulation," 43 including
regulation affecting his ability to possess a firearm. Like the petitioner in Bostic,
Emerson was aware of all the circumstances surrounding his indictment under
Section 922(g)(8). He was aware that he possessed a firearm, and he was aware
that he was subject to a protective order that prohibited him from abusing or
threatening his former wife. 44 Due process did not require that he receive specific
notice that his conduct was illegal. 45
motions to dismiss under the Second and Fifth Amendments and the opinion of
the District Court should be REVERSED.
The Amici Curiae,
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, PC
September 2, 1999
[note 1 absent in original]
2. This section focuses on violence against women because the victims of domestic violence and sexual assault are nearly always women. The United States Department of Justice estimates that 95% of reported assaults on spouses or ex-spouses are committed by men against women. See H. Douglas, Assessing Violent Couples, 72(9) Families in Society 525-53 5 ( 1991 ). Children also suffer significant injuries at the hands of abusers, however. See, e.g., D. Brookoff, et. al., Characteristics of participants in domestic violence: assessment at the scene of domestic assault, 277 J. Am. Med. Assoc. 1369 (1997) (describing the prevalence of domestic violence assaults on children). text@note2
3. P1atricia Tjaden and Nancy Thoermes, Prevalence, Incidence, and Consequences of Violence Against Women, National Institute of Justice, at 5 ( 1998). text@note3
4. Staff of Senate Comm. on the Judiciary, 102d Cong., Violence Against Women 3 ( 1992). text@note4
5. Cheryl Hanna, The Paradox of Hope: The Crime and Punishment of Dornestic Violence, 39 Wm. & Mary L. Rev. 1505, 1517 ( 1998) (citation omitted). text@note5
6. Statistical evidence documenting the number and frequency of women who are abused annually varies. In 1995 Congress found that four million women are battered by their partners each year. See H.R. Rep. No. 103- 71 l, 103rd Cong., at 4, reprinted in 1995 U.S.C.C.A.N. 1839, 1851-52. But see Mary C. Carty, Comment, Doe v. Doe and the Violence Against Women Act: A Post-Lopez Commerce Clause Analysis, 71 St. John's L. Rev. 465 ( 1997) (indicating that 15% of murders with known relationship involved "intimates" and that 50% of American couples have had violent incident, with female victim in 90% of incidents) (citation omitted). text@note6
7. Tjaden and Thoennes, supra note 3, at 8. text@note7
8. See T. Randall, Domestic Violence Intervention Calls for More Than Treating Injuries, 264 J. Amer. Med. Assoc. 93 9 ( 1990). text@note8
9. C.F. Klein and L.E. Orloff, Providing, Legal Protection for Battered women an Analysis of State Statutes and Case Law, 21 Hofstra L. Rev. 801, 900, n. 599 ( 1993 ). text@note9
10. Violence Against women: Relevance for Medical Practitioners, 267 J. Amer. Med. Assoc. 3184 (1992). text@note10
11. P.A. Langan and C.A. Innes, Preventing Domestic Violence Against Women, Bureau of Justice Statistics Special Report NCJ-10293 7 ( 1986). text@note11
12. U.S. Dep't of Justice, Uniform Crime Reports, Crime in the United States, at n. 601, 603 ( 1994). text@note12
13. Tjaden and Thoennes, supra note 3. text@note13
14. When Men Murder Women: An Analysis of 1996 Homicide Data, Violence Policy Center at 3 ( 1998) ("1996 Homicide Study"). text@note14
15. Id. text@note15
16. See National Domestic Violence Awareness Month, Proclamation No. 6829, 60 Fed. Reg. 51,879 (1995) (citing Department of Justice statistics). text@note16
17. J. Arbuckle, et. al., Safe at home? Dornestic violence and other homicides among women in New Mexico, 27 Ann. Emerg. Med., 210-5 (Abstract) ( 1996). text@note17
18. E. Morton, et al., Partner Homicide-Suicide Involving Female Homicide Victims: a Population-based Study in North Carolina, 1988-1992, 13 Violence Vict. (2): 91-106 (Abstract) (Summer 1998). text@note18
19. Id. text@note19
20. Id. text@note20
2l. Id. text@note21
22. Melanie L. Mecka, Note, Seizing the Ammunition from Domestic Violence: Prohibiting the Ownership of Firearms by Abusers, 29 Rutgers L. J. 607, 608. ( 1998) ("A gun is a great intimidator - the ultimate power tool in the arsenal of a batterer."). text@note22
23. 1996 Homicide Study, supra n.14, at 4. text@note23
24. Carolyn Rebecca Block and Antigone Christakos, Intimate Partner Homicide in Chicago Over 29 Years, 41 Crime & Delinquency 496, 504-505 ( 1995) (citations omitted). text@note24
25. Judith Bonderman, Firearms and Domestic Violence in The Impact of Domestic Violence on Your Legal Practice, Presentation to the American Bar Association Commission on Domestic Violence, at 9-12 ( 1996) (data for 1994). text@note25
26. L.E. Saltzman, et al., Weapon Involvement and Injury Outcomes in Family and . . Intimate Assaults, 267 J. Amer. Med. Assoc. 22 ( 1992). This report also found that "firearms were three times more likely to result in deaths than assaults involving knives or other cutting instruments and 23.4 times more likely to result in death than family and intimate assaults involving other weapons or bodily force." text@note26
27. Arthur L. Kellerman, et. al., Gun Ownership as a Risk Factor for Homicide in the Home, 329 New Eng. J. Med. 1084, 1087 (1993). A 1997 study that examined the risk factors of violent death for women in the home found that when there were one or more guns in the house the risk of homicide increased more than three times. See 1996 Homicide Study at 12 (citing James E. Bailey, "Risk Factors for Violent Death of Women in the Home," 157 Arch. Internal Med. 777-782 (1997)). text@note27
28. 1996 Homicide Study, supra n.13, at 12. text@note28
29. United States v. Emerson, 1999 U.S. Dist. Ct. LEXIS 4700, * 1-2 (N.D.Tex.1999). text@note29
30. See supra. text@note30
31. Lewis v. United States, 445 U.S. 55, 65 n.8 (1980) (citations omitted). text@note31
32. In United States v. Miller, 307 U. S. 174 (1939), the Court noted that Congress could prohibit gun ownership in a way that does not impair the state's ability to have a militia. 307 U.S. at 178. Accord Lewis, 445 U.S. at 65 n.8. The statute at issue here does not impair that ability. text@note32
33. United States v. Spruill, 1999 WL 635697, *4 (W.D. Texas, Aug. 13, 1999). text@note33
34. Emerson at *40. text@note34
35. As the District Court for Western District of Texas held in Spruill, Section 922(g)(8) "is aimed at preventing the family violence that seems epidemic in this country." Spruill, 1999 WL 635697, *4. text@note35
36. Whether such a requirement would be prudential is not at issue in this appeal, nor sufficient basis to strike down the statute. See Spruill, 1999 WL 635697 at *4 ("Although critics may argue that these 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."). text@note37
37. Emerson at * 42 (citation omitted). text@note37
38. U.S. v. Meade, 1999 U.S. App. LEXIS 9032, *26 ( 1 st Cir. 1999). text@note38
39. United States v. Wilson, 159 F.3d 280, 288 (7th Cir. 1998). text@note39
40. Id. text@note40
41. United States v. Spruill, 1999 WL 635697 at *2. text@note41
42. United States v. Bostic, 168 F.3d 718, 722 (4th Cir.). text@note42
43. Id. text@note43
44. Cf. Bostic at 722. text@note44
45. To the extent Emerson argues that he was unaware of the law and therefore his indictment had to be dismissed, "[t]he traditional rule in American jurisprudence is that ignorance of the law is no defense to a criminal prosecution." Wilson, 159 F.3d at 288 (citing Cheek v. United States, 498 U.S. 192, 199 ( 1991 )). The District Court's efforts to distinguish the facts here from controlling case law is unavailing. The unique facts of Lambert v. California, 355 U.S. 225 (1957), for example, caution against overly broad application of its holding. Indeed, possession of firearms "by persons laboring under the yoke of anti- stalking restraining orders is a horse of a different hue." Meade, 1999 U.S. App. LEXIS at *29. Furthermore, it is wholly implausible that Congress intended Section 922(g)(8) to carry a mens rea requirement of actual knowledge of the law. See id. at *28 n.5. text@note45
UNITED STATES of AMERICA, Plaintiff Appellant,
TIMOTHY JOE EMERSON, Defendant-Appellee.
Case No. 99-10331
The undersigned counsel of record certifies that the following Iisted parties have an interest in the outcome of this case. These representations are made in order that the judges of this Court may evaluate possible disqualification or recusal.
1. National Network to End Domestic Violence.
2. National Network to End Domestic Violence Fund.
3. Texas Council on Family Violence.
4. Arizona Coalition Against Domestic Violence.
5. Colorado Coalition Against Domestic Violence.
6. YWCA of the U.S.A.
7. My Sister's Place.
8. National Coalition Against Domestic Violence.
9. One Voice/The American Coalition for Abuse Awareness.
10. Florida Coalition Against Domestic Violence.
11. Hawaii State Coalition Against Domestic Violence.
12. Indiana Coalition Against Domestic Violence.
13. Iowa Coalition Against Domestic Violence.
14. Kentucky Domestic Violence Association.
15. Maine Coalition to End Domestic Violence.
16. Michigan Coalition Against Domestic & Sexual Violence.
17. Missouri Coalition Against Domestic Violence.
18. New Hampshire Coalition Against Domestic & Sexual Violence.
19. New York State Coalition Against Domestic Violence.
20. Oklahoma Coalition Against Domestic Violence and Sexual Assault.
21. North Carolina Coalition Against Domestic Violence.
22. Rhode Island Coalition Against Domestic Violence.
23. South Carolina Coalition Against Domestic Violence and Sexual Assault.
24. South Dakota Coalition Against Domestic Violence and Sexual Assault.
25. Vermont Network Against Domestic Violence and Sexual Assault.
26. Wyoming Coalition Against Domestic Violence and Sexual Assault.
27. Mintz Levin Cohn Ferris Glovsky and Popeo, P.C., Fernando R. Laguarda and Valerie E. Hurt.
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