The Potowmack Institute
The National Association of Criminal Defense Lawyers, as amicus curiae
US v. Timothy Joe Emerson
US Court of Appeals, Fifth Circuit
Filed December 20, 1999
The Potowmack Institute's amicus brief and other briefs in this case
are provided at .../emeramic.html
Recent additions: NRA's amicus and Wash. Legal Foundation's amicus
in Perpich v. DOD (1990); G. Washington's "Sentiments on a Peace
Establishment;" Henry Knox, "A Plan for the General Arrangement of the
Militia of the United States;" Houston v. Moore (1820), early
militia case with opinion by Joseph Story; Texas v. White (1869),
Supreme Court rules secession illegal.
The District Court's Opinion Memorandum is at
INTEREST OF AMICUS
The National Association of Criminal Defense Lawyers, known
as NACDL, is a District of Columbia nonprofit corporation
founded over 40 years ago, whose membership now includes more
than 10,000 attorneys, including citizens of every state. The
NACDL has over 70 state and local affiliates which permit it to
speak on behalf of some 28,000 defense lawyers. NACDL is the
only national bar association working on behalf of public and
private criminal defense attorneys and their clients.
Members serve in positions bringing them into daily contact with
the criminal justice system as advocates, law professors, and
law reform activists. Many judges of the state and federal
courts are honorary members. NACDL is widely recognized as the
voice of the criminal defense bar; as such, it is regularly
invited to appoint representatives to serve on liaison
committees with the Justice Department, the Sentencing
Commission, and the Administrative Office of U.S. Courts, as
well as to testify before Congress. The American Bar Association
recognizes NACDL as an affiliate organization and accords it
full representation in its House of Delegates. NACDL often files
amicus briefs in the Supreme Court of the United States and
occasionally files briefs in this Court (and most of the
Circuits) and state Supreme Courts on issues of exceptional
importance to its membership and their clients.
NACDL was founded to promote study and research in the field of
criminal law, to disseminate and advance knowledge of the law in
the area of criminal practice, and to encourage the
integrity, independence, and expertise of defense lawyers in
criminal cases. NACDL seeks to defend individual liberties, as
guaranteed by the original Constitution and the Bill of Rights
and has a keen interest in ensuring the correctness and fairness
of criminal convictions. Among its particular concerns are the
strict construction of criminal statutes, limiting the expansion
of federal criminal jurisdiction, and defense of the principles
that criminal punishment for conduct which is not malum in
se should follow only from a conviction for conscious
wrongdoing, and that prevention of crime and violence is better
social policy than punishment after the fact. Among NACDL's
objectives are to promote the proper administration of justice
and to ensure that fundamental constitutional liberties are
broadly and sympathetically construed and applied.
Pursuant to Fed.R.App.P. 29(a), the undersigned has been
authorized to represent that counsel for both the appellant and
the appellee have consented to the filing of this brief.
STATEMENT OF THE ISSUES DISCUSSED BY AMICUS NACDL
1. Does 18 U.S.C. § 922(g)(8)'s requirement that the
defendant be "subject to a court Order" which "was issued after
a hearing," which "restrains" him from conduct which threatens
an intimate partner or child with injury, and which "explicitly
prohibits the use, attempted use, or threatened use of physical
force" against an intimate partner or child apply to a
boilerplate order routinely entered in connection with pending
divorce proceedings, without any substantial showing and or any
judicial finding that the defendant does pose such a threat?
2. Does a person violate 18 U.S.C. § 922(g)(8)
"knowingly," as required for conviction under id. S 924(a)(2),
if he is aware that he possesses a firearm and also that he is
the subject of an order specifically restraining him from
threatening or harming an "intimate partner," or does the
statute demand also that he know he is now prohibited from
possessing a firearm?
3. If 18 U.S.C. SS 922(g)(8) and 924(a)(2) do not require
proof that the accused knew that his conduct (to wit, possession
of a firearm) was prohibited by law once he had been subjected
to a domestic violence restraining order that did not mention
gun possession, does that felony statute violate the due process
clause for not requiring "scienter," that is, a mens rea which
includes conscious awareness of wrongdoing?
SUMMARY OF ARGUMENT
The Congressional purpose behind adding 18 U.S.C. S 922(g) to
the 1968 Gun Control Act in 1994 was not to punish a large class
of Americans for failing to divest themselves of lawfully owned
personal firearms. It was to protect "intimate partners," most
of them battered women and stalking victims, as well as their
children, from violence and threatened violence at the hands of
their spouses and former spouses, parents and other loved ones.
Congress concluded, with good reason, that when "intimate
partners" and children are subjected to threats and violence,
the possession of firearms by the perpetrator multiplies the
likelihood and the severity of the danger.
It was not the purpose of this criminal law, however, to add a
ten-year federal felony punishment as a secret additional clause
in every state-court domestic relations restraining order, to be
randomly sprung at any time during the ensuing five years (see
18 U.S.C. S 3282) on a few hapless and unknowing gunowners who
also happened to have been subject to such restraining orders.
Rather, it was the purpose of this law to enhance the safety of
those sought to be protected by restraining orders, by requiring
their "intimate partners" to put away their guns, at least
temporarily, while the orders are in effect. This purpose is
best served by an interpretation of S 922(g)(8) which focuses
precisely on the class of persons (and type of orders) with
which Congress was concerned, and which maximizes notice to the
perpetrators, so as to encourage them to comply. This Court
should reject any construction of the
statute which reaches pro forma orders which are not
predicated on any finding of a real threat to the partner or
child, or which minimizes the required mens rea, treating
the offense as one of virtually strict liability.
1. Section 922(g)(8) of the federal criminal code, which
prohibits firearm possession by a person who is subject to a
court order specifically restraining him from threatening
domestic violence, should not be construed to apply to an order
routinely entered in a divorce proceeding where there has been
no evidence presented at all, nor any judicial finding, of any
use or threat of violence against the defendant's spouse or
child. Criminal statutes should be construed to effectuate their
purposes, but still in compliance with the rules of lenity and
strict construction, and not to extend federal jurisdiction into
areas which have been traditionally the exclusive domain of
state law, such as divorce. To read 18 U.S.C. S 922(g)(8)(C)(ii)
as the government would in this case as reaching
restraining orders which are wholly cautionary and prospective,
based on no findings of past conduct or threats against the
spouse or child requires an understanding of subsections
922(g)(8)(A) and (B) that renders those other provisions of the
same statute essentially meaningless. Because the evidence taken
on the motion to dismiss showed that the restraining order
referenced in the indictment was not of the sort contemplated by
this criminal statute, the district court's dismissal of Count I
should be affirmed.
2.Section 924(a)(2) of the federal criminal code, as applied to a
prosecution under 18 U.S.C. § 922(g)(8), should be
construed to require proof of the defendant's knowledge that he
is prohibited by law from possessing a firearm. This
construction not only avoids the necessity of confronting a
difficult constitutional question the due process issue
decided in the defendant's favor by the court below but
also better serves the purpose of this statute. If family court
judges would expressly warn persons subjected to domestic
violence restraining orders (whether or not construed to include
the boilerplate, divorce-related restraining order involved in
this case, which was not predicated on any finding of past or
threatened violence against an intimate partner or child), it
cannot be gainsaid that many more persons subject to such orders
would give up or put away their firearms than do now, when the
prohibition is essentially kept secret from them. Since the
presence of a firearm in the home greatly increases the risk and
lethality of domestic violence, the purpose of the statute to
protect intimate partners and children from gun violence would
be better served by requiring notice. The purpose of this
statute is to prevent violence; a construction that serves to
punish the ignorant after the fact does not achieve that purpose
as well as one which would encourage advance warnings.
3. If construed not to require knowledge by the accused that his
conduct in retaining possession of or acquiring a firearm is
prohibited by law, 18 U.S.C. §§ 922(g)(8) and 924(a)(2)
violates the due process clause. Any serious felony,
such as this statute (which carries a ten-year maximum penalty),
which neither governs an inherently highly dangerous activity
nor a class of persons engaged in a highly regulated type of
activity, must require more than knowledge of the facts, it must
require proof of "scienter," that is, a mens rea which
includes a conscious awareness of wrongdoing. Where the conduct
itself is not malum in se, this means that knowledge of
the prohibition must be shown, since it is only the violation of
the known prohibition which is culpable conduct. This is
particularly so where the defendant is placed within the reach
of the criminal statute by virtue of being subject to a court
order prohibiting 22 specified forms of conduct not
including possession of firearms. For this reason as well, the
dismissal of Count I should be affirmed.
ARGUMENT OF AMICUS NACDL IN SUPPORT OF AFFIRMANCE
I. SECTION 922(g) (8) IS NOT APPLICABLE TO RESTRAINING ORDERS
ENTERED WITHOUT ANY SHOWING OR FINDING OF PAST VIOLENCE OR
PRESENT THREATS AGAINST THE "INTIMATE PARTNER" OR CHILD.
Appellee Timothy Emerson, M.D., allegedly purchased a nine
millimeter Beretta handgun in October 1997. This purchase was
entirely legal. In September 1998, in connection with divorce
proceedings, Dr. Emerson came before a family court judge in Tom
Green County, Texas. Principally at issue in that hearing was
the amount of support Dr. Emerson should pay for his wife and
their four-year-old daughter, Logan, pendente lite. Also
to be entered was a visitation schedule. Dr. Emerson had no
lawyer; his wife, however, was represented. Mrs. Emerson's
lawyer had requested, in addition to the support and visitation
orders, that "injunctive relief" be entered under Tex. Fam. Code
§ 6.502. R.E. tab 7; R. 1:106 (9/4/98 hearing transcript).
During the hearing, it became evident that Mrs. Emerson"s
counsel was misinformed as to the factual basis on which she had
requested such relief, if any factual basis existed at all. The
only questions and answers that even touched on the issues that
underlie the present case are found in the direct examination of
the wife by her attorney. In full, the passage is as follows:
Q: You have asked in these restraining orders regarding Mr.
[sic] Emerson that he not communicate with you in an obscene,
vulgar, profane, indecent manner, in a course or offensive
Q: He has previous to today threatened to kill you; is that
A: He hasn't threatened to kill me. He's
R.E. tab 7; R. 1:89 (emphasis added). There is no evidence at
all that Dr. Emerson ever used violence or threatened injury to
his wife or to their child. This was not a Protection From Abuse
proceeding under Tex. Fam. Code S 85.001. Yet on no more
evidence that this, the family court judge ruled (again, in
full), "Now, I'll grant the request that injunctive relief."
R.E. tab 7; R. 1:108 (sic). And on that unelaborated (and
utterly unsupported) basis, the court soon entered a 22-
paragraph injunction, R.E. tab 8, prohibiting Dr. Emerson from
all sorts of conduct, legal and illegal, logical and absurd,
that he had not been accused of engaging in or of threatening,
from encumbering property (11) to opening his own mail (1120).
Among these were the particular prohibitions (¶¶ 2, 4 and 5)
said to trigger the applicability of § 922(g)(8).
That neither the family court judge nor Dr. Emerson's estranged
wife actually feared domestic violence is evident from another
passage in the state court hearing record as well. Under
examination by her own lawyer, Mrs. Emerson testified:
Q: At this time, are you willing for Doctor Emerson to have
visitation with your daughter, Logan?
Q: And are you willing to have the standard visitation?
Q: And your daughter is four now?
R.E. tab 7; R. 1:100. Notwithstanding this testimony, which is
the totality of the evidence on the subject, Dr. Emerson was
enjoined from threatening or causing bodily injury to his own
daughter. R.E. tab 8; Order, ¶¶ 4-5. Dr. Emerson, unrepresented
by counsel and unemployed because he had voluntarily withdrawn
from practicing medicine out of concern for his own mental state
(R.E. tab 7; R. 1:101-02), certainly had neither the knowledge
nor any financial incentive to appeal the baseless and improper
that was entered against him.
As discussed in the appellee's brief (pt. I, pp. 12-32), the
evidence adduced at the hearing on the motion to dismiss showed
that Gov't Exh. 1 (the "Temporary Orders" filed Sept. 14, 1998,
in the divorce case; R.E. tab 8) does not constitute "a court
order" within the contemplation of S 922(g)(8). As the
convoluted legislative history shows, App'ee Br. 22-28, this
provision "is not the product of model legislative deliberation
or draftsmanship." Scarborough v. United States, 431 U.S.
536, 570 (1977). For this reason particularly, the "plain
language" of subsection 922(g)(8)(C)(ii) cannot be read in
isolation from the rest of the provision. See Lindh v.
Murphy, 521 U.S. 320, 336 (1997) (discussing "silk purses
and pigs' ears" in legislative drafting; acknowledging 1996
habeas act as "not a silk purse"). Subsection (C)(ii)
particularly is akin to a "'last-minute' floor amendment,
'hastily passed, with little discussion, no hearings, and no
report.'" United States v. Batchelder, 442 U.S. 114, 120
(1979), quoting United States v. Bass, 404 U.S. 336, 344
(1971), and Scarborough, 431 U.S. at 569 (all discussing
problems in the drafting and interpretation of firearms
legislation). While legislative history should not be invoked to
find a broader scope for a criminal prohibition than the words
of the statute require, Ratzlaf v. United States, 510
U.S. 135, 147-48 (1994), it can, as here, support a narrower
reading, in accordance with the rule of lenity.
While the Orders were "issued after a hearing," 18 U.S.C. S
922(g)(8)(A), the September 4, 1998, proceeding was not a
"hearing" within the meaning of that subsection, because it was
not a "hearing" on an accusation that the defendant had ever
harassed, stalked, or threatened his wife or their child, nor
any accusation of "engaging in other conduct that would place an
intimate partner in reasonable fear of bodily injury to the
partner or child." Id. § 922(g)(8)(B). The family
court order may have barred him from engaging in such conduct in
the future, but it did not "restrain" him from doing so within
of subsection (8)(B) when that order was not based on a factual
showing or a factual finding of such prior conduct or present
Indeed, unless "restrain," as used in subsection (8)(B) has this
additional (and historically grounded; see United
Transportation Union v. State Bar, 401 U.S. 576, 584 (1971);
Hitchman Coal & Coke Co. v. Mitchell, 245 U.S. 229, 261-
62 (1917)) meaning, it would add nothing to subsection
(8)(C)(ii)'s use of "explicitly prohibits." Federal statutes
must be construed to avoid imputing such redundancy to Congress.
See Ratzlaf v. United States, 510 U.S. at 140-41
(criminal statutes should not be construed so that an element is
rendered superfluous); Moskal v. United States, 498 U.S.
103, 109-10 (1990); Potter v. United States, 155 U.S.
438, 446 (1894). Accordingly, § 922(g)(8) does not cover a
boilerplate order routinely granted in connection with pending
divorce proceedings, that is issued without any substantial
showing or judicial finding that the defendant actually poses a
threat of harassment or injury to his wife or child.
It is not premature for this Court to express itself in the
context of the present pretrial appeal on this question of
statutory construction, for to do so will avoid the necessity of
deciding the difficult and novel constitutional issues decided
by the court below. See Jones v. United States, 526 U.S. ,
143 L.Ed.2d 311, 119 S.Ct. 1215 (1999). For these reasons,
amicus NACDL supports the appellee's position that the order
dismissing the indictment should be affirmed.
II. IN THE CASE OF A PERSON POSSESSING A FIREARM WHILE SUBJECT
TO A DOMESTIC VIOLENCE RESTRAINING ORDER, "KNOWINGLY" UNDER 18
U.S.C. § 924(a) (2) MUST REQUIRE KNOWLEDGE OF THE FIREARMS
PROHIBITION AND NOT MERELY OF THE FIREARM AND OF THE ORDER.
A person does not violate 18 U.S.C. § 922(g)(8)
"knowingly," as required for conviction under id. §
924(a)(2), if he merely knows that he possesses a firearm and
also that he is the subject of an order specifically restraining
him from threatening or harming an intimate partner. Rather,
this particular subsection of the statute demands also that the
defendant know he is prohibited from possessing a firearm. Here,
the government contends that because of the Temporary Orders
entered against him on September 14, 1998, Dr. Emerson was
prohibited from continuing to possess on November 16, 1998, a
firearm he had acquired lawfully in October 1997. The September
14 order, R.E. tab 8, contains 22 specific paragraphs, barring
Dr. Emerson from a wide range of conduct. Possession of a
firearm is not included in any of those 22 paragraphs. It is not
necessary to construe this federal criminal statute so as to
produce such an unfair result.
Section 924(a)(2) provides, in part: "Whoever knowingly violates
subsection ... (g) ... of section 922 shall be fined as provided
in this title, imprisoned not more than 10 years, or both." In
dictum in United States v. Bryan, 524 U.S. 184 (1998),
referencing § 924(a), a majority of the Supreme Court
opined that "unless the text of the statute dictates a different
result, the term 'knowingly' merely requires proof of knowledge
of the facts that constitute the offense." The "facts that
constitute the offense" of violating § 922(g)(8), in this
sense, are the defendant's possession of a firearm, and the
defendant's being subject to a court order of the particular
type described in subsections (A), (B) and (C)(i) or (ii). While
actual knowledge of being in a prohibited category may not be
part of the mens rea for most other subsections of §
922(g), the "text of the statute dictates a different result" in
the case of a person subject to a Protection From Abuse order.
The ambiguity inherent in the phrase "knowingly violates" has
led the Supreme Court more than once to give close scrutiny to
federal criminal statutes, with varying results. In these cases,
the Court has ruled repeatedly that when Congress imposes a
scienter element for crimes in the nature of malum
prohibitum, at least where a severe penalty is authorized,
knowledge of the nature of the prohibition is required unless
the case falls into one of two exceptional categories. First,
knowledge of the facts alone may be enough if the activity is
inherently dangerous, so that it can properly be thought that
Congress intended to impose a high level of self-restraint by
making participants act at their peril. See United States v.
Freed, 401 U.S. 601 (1971) (possession of unregistered hand
grenade), discussed in United States v. Anderson, 885
F.2d 1248, 1250-53 (5th Cir. 1989) (in banc); United States
v. Balint, 258 U.S. 250 (1922) (sale of narcotics without
required order form). Possession of a firearm, in general, does
not fall into that category. Staples v. United States,
511 U.S. 600, 609-12 (1994).
The second exception exists where the offense is applicable only
to a class of persons who are knowingly engaged in a highly
regulated business (whether or not dangerous). See United
States V. International Minerals & Chemical Corp., 402 U.S.
558 (1971); Boyce Motor Lines, Inc. v. United States, 342
U.S. 337 (1952) (knowledge of the facts all that is required for
environmental safety infractions); see also United States v.
Park, 421 U.S. 658 (1975); United States v.
Dotterweich, 320 U.S. 277 (1943) (strict liability for Pure
Food and Drug violations upheld, subject to impossibility
defense). Being the owner of a nine millimeter handgun does not
put one into such a class of persons, Staples, 511 U.S.
at 613-16, nor does being the subject of an in limine
order in a divorce case. To the contrary, any reasonable person
who is handed a 22-paragraph injunctive order would draw the
inference that those prohibitions constituted an exhaustive
list, and that the existence of the order did not trigger other,
unstated disabilities, such as an obligation to divest oneself
of lawfully acquired firearms.
In malum prohibitum cases not falling into either of
these exceptional categories, however, including but not limited
criminal tax cases, the federal courts have consistently
resolved any ambiguities in Congress's specification of the
mens rea in favor of the highest level of
scienter intentional violation of a known legal
duty. The reason is clear: without that knowledge, there is no
blameworthy consciousness of wrongdoing. This standard was
authoritatively established for tax cases in United States v.
Pomponio, 429 U.S. 10, 12 (1976) (per curiam). In Cheek
v. United States, 498 U.S. 192 (1991), the Court applied
that ruling to reverse a conviction arising out of a prosecution
for tax evasion and failure to file a return, where the
defendant claimed he did not know that his wages were taxable as
"income" under the Internal Revenue Code and the jury
instructions had required any such belief to be found
"reasonable" before it could establish a defense.
To be sure, the Court in Cheek acknowledged that, in
general, "ignorance of the law or a mistake of law is no defense
to criminal prosecution ...." 498 U.S. at 199. But Cheek
itself involved "an exception to the traditional rule,"
id. at 200, and that exception is not sui generis.
See United States v. Freed, 401 U.S. 601, 615 n.6 (1971)
(Brennan, J., concurring); 1 ALI, Model Penal Code and
Commentaries, pt. I, § 2.02, at 250-51 (1985); 1 Wayne R.
LaFave & Austin W. Scott, Substantive Criminal Law §
5.1(d), at 585 (1986) (discussing when knowledge of law is
Certainly the Court in Cheek did not mean to hold that
knowledge of a legal provision is never an element of a crime
outside the tax code and similar contexts. The wide variety of
statutes in which courts have found such an element to exist
-either by construing a "willfulness" element or even,
sometimes, a "knowledge" requirement belies the lower
courtsí attempt to read Cheek so narrowly.
In Liparota v. United States, 471 U.S. 419 (1985), the
Court held that a statute making it an offense knowingly to
acquire food stamps in a manner unauthorized by law made
knowledge of whether one's manner of acquisition was authorized
a required element of proof. As the Court said, "This
construction is particularly appropriate where, as here, to
interpret the statute otherwise would be to criminalize a broad
range of apparently innocent conduct." Id. at 426. The
same test of "knowing violations" applies to other malum
prohibitum offenses where felony penalties apply, whether or
not the proscribed conduct is facially "innocent," including the
failure to divest oneself of a lawfully-acquired firearm.
Moreover, there is the problem of simple fairness. "The criminal
sanction would be used [for a purpose other than] to punish
conscious and calculated wrongdoing at odds with
statutory proscriptions ...." United States v. United States
Gypsum Co., 438 U.S. 422, 442 (1978); accord, United
States v. Aversa, 984 F.2d 493, 502 (1st Cir. 1993) (Breyer,
J., concurring: discussing "the unfair result of criminally
prosecuting individuals who subjectively and honestly belief
they have not acted criminally"). We do not mean to suggest that
the defendant must know his conduct is criminal, or what the
penalty is, or that the ban in question is imposed by
federal law. But the defendant does not "knowingly
violate" such a law unless he knows his conduct is unlawful.
A key flaw in the government's argument in this case and
even more so in the arguments of some of the government's amici
is that it misconceives what steps actually further
Congress's goal. To ensure that the danger to women (usually)
and their children from stalkers and abusive intimate partners
is not exacerbated by the possession of firearms in or affecting
the essential step is to encourage abusers subject to
restraining orders to give up or put away their guns. Surely,
the more persons subject to abuse restraining orders who know
they must dispose of their firearms, the more who will do so.
Citizens cannot be discouraged from possessing firearms while
subject to protection from abuse orders unless they know that
continued possession is prohibited. Thus, the very step helpful
for proving knowledge of prohibition giving a warning, or
including the (g)(8) bar in the domestic relations order itself
is also the action necessary to reduce the incidence of
violations of this little-known prohibition.
Informing the affected population about the ban on continued
possession of firearms would decrease the level of firearms
possession by such persons, and thus reduce both the frequency
and the lethality of domestic violence. See sources referenced
in note 5 ante. But imprisoning people who possess
firearms when they think it is permissible to do so, and when
they have no good reason to think otherwise, does not further
Congress's goal at all. The general deterrent effect
others' learning of the ban from the fact that some have been
imprisoned is surely the least efficient way to notify the
affected population about the federal prohibition.
For these reasons, in addition to those argued by the appellee,
the term "knowingly violates" in 18 U.S.C. § 924(a)(2), as
applied to violations of id. § 922(g)(8), should
be construed to required knowledge not only of the facts, but
also of the prohibition.
III. IF NOT CONSTRUED TO REQUIRE A MENS REA OF KNOWLEDGE THAT
THE DEFENDANT'S CONDUCT IS LEGALLY PROHIBITED, THE STATUTE WOULD
VIOLATE THE FIFTH AMENDMENT'S DUE PROCESS CLAUSE.
As already noted, the Court should also adopt the construction
of 18 U.S.C. ss 922(g)(8) and 924(a)(2) advocated by the
appellee and in this brief because it would avoid the necessity
of deciding a difficult constitutional question. See Jones v.
United Statesscienter," that is, a
mens rea which includes a conscious awareness of
The Supreme Court more than once has avoided deciding this
question over the last half-century. See United States v.
Freed, 401 U.S. 601, 608 (1971), discussing Lambert V.
California, 355 U.S. 225 (1957); Smith v. California,
361 U.S. 147, 150, 152 (1959); Morissette v. United
States, 342 U.S. 246 (1952). Distinguished academic opinion
supports the appellees view, and that of the district court in
this case, as well. See generally Richard Singer, The
Resurgence of Mens Rea: III The Rise and Fall of Strict
Criminal Liability, 30 B.C.L.Rev. 337, 398-403 (1989); C.
Peter Erlinder, Mens Rea, Due Process, and
the Supreme Court: Toward a Constitutional Doctrine of
Substantive Criminal Law, 9 Am.J.Crim.L. 163 (1981); Herbert
Packer, Mens Rea and the Supreme Court, 1962 S.Ct.Rev.
107 (advancing the constitutional argument).
It is a principle of fairness, deeply rooted in our system and
thus in the notion of Due Process, that aē serious crime must
involve scienter, that is, an element of morally wrongful
conduct, intentionally and knowingly performed. This principle
has been recognized by distinguished and diverse judges and
scholars from Oliver Wendell Holmes to William 0. Douglas to
Richard Posner. United States v. Wilson, 159 F.3d 280,
283 (7th Cir. 1998) (Posner, Ch.J., dissenting),
quoted in United States v. Emerson, 46 F.Supp.2d 398,
611-12 (N.D.Tex. 1999); O.W. Holmes, The Common Law 50
(1881) ("A law which punished conduct which would not be
blameworthy in the average member of the community would be too
severe for that community to bear."), quoted in Lambert v.
California, 355 U.S. 225, 229 (1957), and United States
v. Anderson, 885 F.2d at 1354.
Unless construed as discussed under Points I and II above, and
as proposed by the appellee and his other amici, § 922(g)
would, as held by the court below, violate the due process
clause. This prosecution, however, is essentially predicated on
the opposite construction; Count 1 of the indictment (R.E. tab
1; R. 1:004-05) does not allege the required element of
knowledge. Accordingly, the order dismissing the indictment must
Section 922(g)(8) of title 18, properly construed, does not
apply to the kind of order issued in appellee Timothy Emersonís
divorce case. Moreover, the statute incorporates no element of
scienter, that is, conscious wrongdoing, unless construed to
require knowledge by a person under a domestic violence
restraining order that his status requires him to divest
himself, at least temporarily, of any firearms he may possess.
Unless construed to require a culpable mens rea, the
statute violates the Due Process Clause imposing guilt of a
serious felony without fault. The National Association of
Criminal Defense Lawyers therefore urges this Court to affirm
the order of the court below dismissing Count One of this
December 20, 1999
Attorney for Amicus NACDL
1. The lower court found that the "friend" Mrs. Emerson referred
to here is the man with whom she was carrying on an adulterous
affair during the marriage. A threat to such a person, who is
not an "intimate partner" of the defendant, even if it occurred,
cannot be the basis for an order which triggers a (g)(8)
firearms disqualification. And even as to this alleged "threat,"
no details were offered; not even an approximate date.
2. The order was baseless and improper because § 6.502(9)
only allows entry of such orders when they are "necessary and
equitable." No reasonable jurist could have thought that
issuance of most of the paragraphs of the September 14 order was
"necessary," nor that it was "equitable" to issue an injunction
in the absence of some showing of past wrongdoing or present
3. In this respect, being the subject of a domestic violence
restraining order may be seen as quite different from being a
felon or an undocumented alien. See § 922(g)(1),
(g)(5). It might, however, in the view of this amicus, properly
be compared with being a drug user, being previously committed
to a mental hospital or having been dishonorably discharged from
the military, id. § 922(g)(3), (g)(4), (g)(6). Of
course, it is not necessary to engage in a complete analysis of
other subsections of § 922(g) in order to decide the
4. Although the claim also has been made in a number of cases
that the "violation of a known legal duty" definition of
willfulness is somehow "unique" to "complex" tax cases, this
view is simply unsupportable. A wide variety of non-tax malum
prohibitum crimes involving an intent to violate the
requirements of a different body of law employ the same
definition. In any event, it is ludicrous to suggest that the
particular law involved here, 18 U.S.C. § 922(g)(8), with
its nearlyomprehensible, three-part description of the kinds
of orders it covers, is any less "complex" than the specific law
involved in Cheek, which merely requires that a tax
return be filed when a person earns more than a certain amount
of gross income, or that the whole body of firearms regulations
is not as difficult to understand and obey as the tax code.
5. The amicus brief for the National Network to End Domestic
Violence, et al., persuasively demonstrates the
connection between firearms and an increased danger from
domestic abuse (pp. 2-8). See also Violence Policy Center,
"Facts on Firearms and Domestic Violence,"
http://www.vpc.org/ fact_sht/domvjofs.htm (1998)
(accessed Dec. 17, 1999). The National Network draws an
erroneous and illogical conclusion, however, in suggesting that
the interests of domestic violence victims are served by a law
which operates by surprise, after the fact, rather than one
which by requiring actual knowledge of the prohibition for
conviction encourages domestic relations judges to include
an express (g)(8) warning in their Protection From Abuse orders.
6. See United States v. Baker, 1999 WL 1054777, 1999
Fed.App. 0392P (6th Cir., filed Nov. 23, 1999) (affirming
conviction under § 922(g)(8), where "Each of the domestic
violence protection orders entered against [the
defendant-appellant] featured a bold print warning that he could
not lawfully possess firearms.").
7. "It is 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, or even that it was wrongful. This is one of the bedrock
principles of American law."
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