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U.S. v. COLE

August 15, 2003


The opinion of the court was delivered by: Richard W. Roberts, District Judge


Defendant Kenneth Cole is charged in a one-count indictment with possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1) (2000). Defendant has moved to dismiss the charge, arguing that § 922(g)(1) violates the Second Amendment of the U.S. Constitution, and has moved to suppress all physical evidence recovered as the fruit of what defendant argues was an unlawful warrantless search and arrest of a car passenger. Because there is no binding precedent supporting his Second Amendment challenge, defendant's motion to dismiss will be denied. Further, because defendant cannot vicariously assert a third party's Fourth Amendment right, and thus lacks standing to challenge the legality of a pat down of a passenger that resulted in the recovery of a gun from the passenger, defendant's motion to suppress the passenger's gun will be denied. Finally, because a gun recovered underneath defendant's seat was based on reasonable suspicion that he was armed, defendant's motion to suppress that gun will be denied.


The evidence introduced at an evidentiary hearing revealed the following facts. Late on the night of March 18, 2003, witnesses told Metropolitan Police Officer Fred Knight about a small, dark blue or black four-door car with at least two occupants in it seen leaving the scene of a shooting. Two hours later, while on duty alone in his marked police cruiser just three blocks from the scene of the shooting, Knight saw a car matching that description that was driven by the defendant. The car was traveling roughly 40 to 45 miles per hour, exceeding the 25 mile per hour speed limit. Knight followed the car for eight to ten blocks and saw it run through several stop signs.*fn1 Knight activated his emergency lights, but the defendant did not immediately stop. Knight then activated his siren, and the defendant stopped two or three blocks later.

After the car stopped, Knight saw the defendant lean forward and to his right, near the console. Knight called for back-up and mentioned to the dispatcher that the driver had appeared to be fumbling around under his seat. When back-up arrived, Knight approached the car and obtained from the defendant his license and the car registration. While Knight ran a check on the defendant's license, the eight or nine assisting officers removed the three occupants from the car and conducted protective pat down searches for the officers' safety. A gun fell from the back seat passenger's waist during his pat down, and he was arrested. Officers then searched the car and found a loaded gun under the driver's seat where defendant had been sitting.

Defendant, who has a prior felony conviction for distribution of PCP, was arrested and charged with a violation of 18 U.S.C. § 922(g)(1), which provides in relevant part:

It shall be unlawful for any person who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year . . . to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.
18 U.S.C. § 922(g)(1).


I. Motion to Dismiss

Defendant has moved to dismiss the indictment. He argues that the Second Amendment affords an individual right to all citizens to "keep and bear arms." See United States v. Emerson, 270 F.3d 203, 260 (5th Cir. 2001), cert. denied, 536 U.S. 907 (2002). Accordingly, defendant argues, federal laws limiting this right must be reviewed under the same "strict scrutiny" standard to which laws abridging other fundamental rights protected under the Bill of Rights are subject. (Def.'s Mot. at 10.) Defendant suggests that § 922(g)(1) fails this review, arguing that since the statute encompasses all felonies, violent or non-violent, and conduct not classified as felonies in some states, it is not sufficiently narrowly tailored to achieve the compelling state interest of preventing dangerous individuals from possessing weapons. Id.

Emerson has garnered considerable attention in part because it departs from long-standing interpretations of Supreme Court precedent established in United States v. Miller, 307 U.S. 174 (1939). Miller held that provisions of the National Firearms Act regulating certain types of shotguns did not violate the Second Amendment, as that Amendment extended only to the "preservation or efficiency of a well regulated militia." Id. at 178. The Miller decision was the last time the Supreme Court considered the meaning of the Second Amendment, and for over six decades since, the lower federal courts have uniformly interpreted the decision as holding that the Amendment affords "a collective, rather than individual, right" associated with the maintenance of a regulated militia.*fn2 See Love v. Pepersack, 47 F.3d 120, 124 (4th Cir.), cert. denied, 516 U.S. 813 (1995).

Defendant argues that the Miller decision in fact stands only for the proposition that certain types of weapons not regularly used in a military capacity may be regulated without violating the Second Amendment. (Def.'s Mot. at 6.) This reading finds some support, most recently in the Emerson opinion.*fn3 Emerson, 270 F.3d at 260; see also Printz v. United States, 521 U.S. 898, 938 n. 1 (1997) (Thomas, J., concurring). Other courts have recognized this as a plausible interpretation, but have rejected it as impractical in a society in which a number of highly destructive weapons, unfit for private ownership, are regularly used by the military. See United States v. Warin, 530 F.2d 103, 106 (6th Cir.)("If the logical extension of the defendant's argument for the holding of Miller was inconceivable in 1942, it is completely irrational in this time of nuclear weapons."), cert. denied, 426 U.S. 948 (1976); see also Cases v. United States, 131 F.2d 916, 922 (1st Cir. 1942), cert. denied, Velazquez v. U.S., 319 U.S. 770 (1943). Furthermore, "no federal court has found any individual's possession of a military weapon to be `reasonably related to a well regulated militia.'" United States v. Hale, 978 F.2d 1016, 1020 (8th Cir. 1992), cert. denied, 507 U.S. 997 (1993).

The Emerson opinion does not stand entirely alone, however. It is accompanied by an apparent shift in Department of Justice policy, reflected in the government's briefs in opposition to certiorari in Emerson and Haney v. United States, 264 F.3d 1161 (10th Cir. 2001), cert. denied, 536 U.S. 907 (2002), and an internal Justice Department memorandum from the Attorney General. "The current position of the United States, however, is that the Second Amendment more broadly protects the rights of individuals, including persons who are not members of any militia or engaged in active military service or training, to possess and bear their own firearms, subject to reasonable restrictions designed to prevent possession by unfit persons or to restrict the possession of types of firearms that are particularly suited to criminal misuse." (Br. for the United States in Opp'n to Cert. at 19-20 n. 3, Emerson (emphasis added); Br. for the United States in Opp'n to Cert. at 5 n. 2, Haney (emphasis added).) However striking this shift may be in light of historical precedent, what these briefs illuminate most is not the disagreement over the meaning of the Second Amendment, but rather the agreement over its appropriate limitations. Id. (noting that the circuits are not split over the constitutionality of any of the provisions of 18 U.S.C. § 922).

Regardless of whether defendant's interpretation of Miller or the Second Amendment has merit, there is no authority, including those sources cited by the defendant, that supports the proposition that a statute prohibiting felons from possessing firearms violates the Second Amendment. The Emerson decision itself recognizes that the individualized right advanced by that court would not necessarily extend to felons if it is otherwise proscribed by statute. Emerson, 270 F.3d at 261 ("As we have previously noted, it is clear that felons, infants and those of unsound mind may be prohibited from possessing ...

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