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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

The District Court's Opinion Memorandum is at http://www.txnd.uscourts.gov/PDFs/emerson.pdf


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

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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

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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.

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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,

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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.

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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:

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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:

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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 order [2] 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

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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 the meaning

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of subsection (8)(B) when that order was not based on a factual showing or a factual finding of such prior conduct or present threat.

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.

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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

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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).

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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. [3]

In malum prohibitum cases not falling into either of these exceptional categories, however, including but not limited to

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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 required).

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

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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. [4] 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

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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 commerce, [5] 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

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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 [6] — 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

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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 wrongdoing.

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

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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), [7] 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

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knowledge. Accordingly, the order dismissing the indictment must be affirmed.

CONCLUSION

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 indictment.

Respectfully submitted,
December 20, 1999
Attorney for Amicus NACDL


NOTES

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. text@note1

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 danger. text@note2

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 instant case. text@note3

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. text@note4

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. text@note5

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."). text@note6

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." text@note7


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