Court of Appeals Rejects Second Amendment Challenge to Possession of Firearm by an Ineligible Person

State v. Craig, Minn.Ct.App., 12/5/11, petition for further review, GRANTED, 2/14/12.    Police responded to a domestic abuse call and learned that the alleged abuser had left in a maroon car.  Police eventually stopped a maroon car that Mr. Craig was driving.  Officers conducted an inventory search of the vehicle and found a gun.  Mr. Craig was not authorized to be in possession of a gun because of a prior drug conviction.  Following his conviction of possession of a firearm by an ineligible person, Mr. Craig raised these issues on appeal:

I. Does Minn. Stat. § 624.713, subd. 1(2), as applied to appellant, violate the Second Amendment to the United States Constitution?

II. Did the district court err in denying appellant’s motion to suppress the firearm as the product of an illegal search of the vehicle?

III. Did the district court commit reversible error by accepting appellant’s stipulation to an element of the charged offense without obtaining a proper waiver of appellant’s right to a jury determination of that element?

IV. Did the district court abuse its discretion by admitting evidence of appellant’s prior felony controlled substance conviction for impeachment purposes?

V. Did the district court abuse its discretion by denying appellant’s request to challenge the credibility of hearsay statements that were made to the police by an unavailable witness?

VI. Did the district court err by requiring appellant to make a copayment for the public defender without first determining his ability to pay?

The gun possession by an ineligible person statute establishes a life time prohibition; Mr. Craig argued that this violated the Second Amendment to the U.S. Constitution.  District of Columbia v. Heller, 554 U.S. 570, 595, 128 S. Ct. 2783, 2799 (2008).   Mr. Craig argued that this statute cannot survive strict-scrutiny analysis.  The court of appeals, however, elects for an intermediate level of scrutiny which looks to see if the statute is “substantially related to an an important governmental objective.”  Clark v. Jeter, 686 U.S. 456, 461, 108 S. Ct. 1910, 1914 (1988).  Under this analysis, the court of appeals rejects Mr. Craig’s Second Amendment challenge.

The Minnesota Supreme Court has accepted review of this issue.

Felons Convicted of Crimes of Violence Are Categorically Excluded From Scope of Second Amendment Protection.

State v. Craig, Minn.S.Ct., 2/27/2013.  The is the Second Amendment challenge to ineligible person (felon) in possession of a gun, about which I wrote here.  The court of appeals had rejected Mr. Craig’s Second Amendment challenge under an intermediate level of scrutiny which looks to see if the statute is “substantially related to an important governmental objective.”  The Supreme Court, Justice Dietzen writing for the court, (absent Justice Wright) affirms the court of appeals but on different grounds.  Justice Dietzen said that you get to the level of scrutiny question only when the person has Second Amendment protection.  Because Mr. Craig does not have such protection the level of scrutiny answer awaits another day.

Justice Dietzen reviewed the two U.S. Supreme Court Opinions that matter, District of Columbia v. Heller, 554 U.S. 570 (2008), and McDonald v. City of Chicago, 130 S.Ct. 3020 (2010).  Heller said  that the Second Amendment guaranteed an individual right to keep and bear arms unconditioned on service in a militia.  McDonald, said that that right is applicable to state and local governments.  To get there, the Court had to say that this right was  “fundamental to [the American] scheme of ordered liberty.”  So it did.  Or, at least, the plurality did.

Having said that, however, the Court then carved out some “presumptively lawful regulatory measures” that are not prohibited under the Second Amendment, like keeping guns away from felons.  Mr. Craig said that all this “presumptively lawful regulatory measures” stuff was pure dicta; Justice Dietzen said he didn’t have to rise to that bait because he and the Court liked the idea anyway.

Federal court that have considered facial challenges have rejected them, concluding that a felon has no Second Amendment right to posses a firearm.  Circuits 1, 2, 3, 4, 5, 6, 8, 9, 10 and 11 have reached this conclusion.  These courts said that Heller’s list of presumptively lawful exceptions establishes persons – felons among them – who are categorically outside the scope of the Second Amendment protection.  End of discussion.

Four circuits have considered “as applied” challenges.  Those court have said that a felon must present specific facts that distinguish his or her conviction from the convictions of other felons who are categorically unprotected by the Second Amendment.  Those courts utilized different approaches to determine whether a particular felon has presented such distinguishing facts.  Justice Dietzen throws in with some sort of “the Second Amendment as historically understood” construct, which is as broad as it is wide, which he boils down to felons convicted of a “crime of violence.”  This leaves Mr. Craig out because his disqualifying conviction – Drugs V – is a statutory “crime of violence”.  There is also, says the Court, a “substantial nexus” between drugs and violence.  Also,felons who have been convicted of a crime of violence are also more likely to reoffend and to do so in a way that threatens public safety.  The court’s source for these rather sweeping conclusions is almost exclusively case law.

Having cut Mr. Craig out entirely from those who may claim Second Amendment protections it was unnecessary to decide what level of scrutiny might apply.

Court Declines to Adopt “Automatic-Companion Rule” to Justify Pat Search of Passenger

State v. Lemert, Minn.S.Ct., 3/5/2014.  Mr. Lemert was riding shotgun with his supposed buddy, Mr. Anthony, when the cops stopped Mr. Anthony’s truck, intending to arrest him on a drug offense from a couple of days earlier.  An officer pulled Mr. Lemert out of the truck and performed a pat search, which produced drugs.

Mr. Lemert challenged the search.  The trial court denied the suppression motion, concluding that the officers had a reasonable, articulable suspicion that Mr. Lemert was armed and dangerous.  The court of appeals affirmed the trial court’s ruling.  Read about that here.  The court of appeals said that the search was legal because Mr. Lemert was in a truck that had been stopped on suspicion that its driver had recently engaged in “large-scale drug activity.”  This rationale is a riff on what’s called the “automatic-companion rule,” which permits officers to do a pat search of any person who is in the company of someone whom the officers have arrested.

Writing for a unanimous court, Justice Stras slaps down the court of appeals.  He says it’s still a “totality of the circumstances” world.  For that matter, even the state did not jump on board the “automatic companion” rule.

Here, among other things, the cops knew that Mr. Anthony was not a solo drug dealer, knew that he had used this same truck earlier in the day to complete a drug deal, knew that the two had left Anthony’s apartment together, and that Anthony was a felony-level dealer of narcotics.  Lastly, the court has decided that cops know that there is a “substantial nexus” between drug dealing and violence.  State v. Craig, 826 N.W.2d 789 (Minn. 2013).  The “totality of [those] circumstances made the pat search lawful.