November 4, 2010
KEVIN A. HERRINGTON, APPELLANT,
UNITED STATES, APPELLEE.
Appeal from the Superior Court of the District of Columbia Criminal Division. (FEL 6549-05) (Hon. Lynn Leibovitz, Trial Judge).
The opinion of the court was delivered by: Glickman, Associate Judge
Argued September 30, 2009
Before GLICKMAN and FISHER, Associate Judges, and WAGNER, Senior Judge.
Concurring opinion by Associate Judge FISHER at page 15.
Appellant Kevin Herrington was convicted in 2006 of unlawful possession of ammunition (UA), in violation of D.C. Code § 7-2506.01 (2001) (now § 7-2506.01 (a) (Supp. 2010)). His conviction was based solely on evidence that he possessed handgun ammunition in his home. Subsequently, in District of Columbia v. Heller,*fn1 the Supreme Court held that the District's general ban on possession of usable handguns in the home violated the Second Amendment. As a corollary of that holding, appellant argues, his conviction under the UA statute for simply possessing handgun ammunition in the home also violates the Second Amendment. We agree, and because the error in applying the UA statute to appellant is plain on the existing record, we reverse his conviction.
Appellant was standing on the sidewalk outside his home on the afternoon of November 1, 2005, when two police officers, mistaking him for someone under a court order to stay away from the neighborhood, drove up and asked to speak to him. Appellant ignored the request and went into his house. A short time later, the officers saw appellant leave his house on a bicycle. They pursued him in their police cruiser. After turning a corner, appellant got off his bike and ran back to his house. As he ran, according to the officers, appellant withdrew a black handgun and pointed it at them. At one point appellant stumbled and dropped something, which the officers initially thought was the gun, but which turned out to be a black baseball cap.
Appellant entered his house, which soon was surrounded by police. After a while, appellant emerged, surrendered, and was placed under arrest. Appellant's mother then permitted the police to search the house. In a heating vent in appellant's bedroom, the police discovered two boxes of ammunition -- one containing .380-caliber rounds and the other containing 9-mm. rounds. Appellant's fingerprints were on the .380-caliber ammunition box.*fn2
The ensuing indictment charged appellant with two counts of assault on a police officer while armed (APOWA), two counts of assault with a dangerous weapon (ADW), one count of possession of a firearm during a crime of violence (PFCV), and one count of unlawful possession of ammunition (UA). The government dismissed the ADW counts before trial.
At the close of the government's case, appellant moved for a judgment of acquittal on the UA count, arguing that the evidence was insufficient to convict him of violating D.C. Code § 7-2506.01 because the prosecution had failed to prove that he lacked a valid registration certificate for a firearm of the same gauge or caliber as the ammunition recovered from his bedroom. The trial court denied the motion, agreeing with the prosecutor that all the government needs to prove to obtain a UA conviction are "that the defendant possessed ammunition, and that he did so knowingly and intentionally." The court so instructed the jury at the close of the trial.
The jury acquitted appellant of the APOWA and PFCV charges. It found him guilty only of UA.
What is now subsection (a) of D.C. Code § 7-2506.01 provides as follows:
No person shall possess ammunition in the District of Columbia unless:
(1) He is a licensed dealer pursuant to subchapter IV of this unit;
(2) He is an officer, agent, or employee of the District of Columbia or the United States of America, on duty and acting within the scope of his duties when possessing such ammunition;
(3) He is the holder of the valid registration certificate for a firearm of the same gauge or caliber as the ammunition he possesses; except, that no such person shall possess restricted pistol bullets; or
(4) He holds an ammunition collector's certificate on September 24, 1976.
In Logan v. United States,*fn3 we rejected the argument that the government bears the burden of proving the absence of an appropriate firearm registration certificate (or the absence of any of the other enumerated exceptions) as "an essential element of the offense" of UA.*fn4 The structure of the statute, we explained, "makes clear that possession of ammunition is presumptively unlawful," and that "the failure to meet one of the conditions defining a lawful possessor is not a descriptive part of the offense."*fn5 Thus, we held, "the government is required to prove only that [the accused] possessed ammunition . . . in order to establish the essential element of the offense."*fn6 The four statutory exceptions, including the registrant exception in paragraph (3), define affirmative defenses; "and when 'a defendant interposes an affirmative defense such as an exception in a statute, it is the burden of the defendant to bring himself within the exception rather than that of the prosecutor to negative it.'"*fn7 In short, we held in Logan that the burden of persuasion with respect to any of the four exceptions is on the defendant, not on the prosecution.*fn8
The trial court properly adhered to Logan in denying appellant's motion for judgment of acquittal. Consequently, the government was able to convict appellant of UA merely by proving that he possessed handgun ammunition in his own home,*fn9 without any evidence that he lacked a valid registration certificate for a corresponding firearm.
Appellant argues that his conviction must be reversed because "the right of the people to keep and bear Arms" recognized in the Second Amendment*fn10 encompasses the possession of handgun ammunition in the home, and the UA statute unconstitutionally criminalizes all such possession without requiring proof that the accused was disqualified from exercising his Second Amendment rights by his failure to comply with valid registration and licensing requirements or by any other reason. In other words, appellant contends, the UA statute is unconstitutional -- if not in all its applications, then at least as applied to him in this prosecution.
Because appellant did not raise this Second Amendment claim at trial, it is "subject to the strictures of 'plain error' review."*fn11 To survive such scrutiny, appellant must show (1) an "error" (2) that is "plain," and (3) that affected his "substantial rights."*fn12 "If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings."*fn13 We consider these requirements in turn.
A. The "Error" -- Unconstitutionality of the UA Statute as Applied to Appellant
In Heller, the Supreme Court held that the Second Amendment protects an individual right to keep and bear arms for purposes of self-defense. The Court subsequently held this right to be "fundamental" -- necessary to our system of ordered liberty and deeply rooted in the history and traditions of our Nation -- and hence incorporated in the concept of due process (and enforceable against state as well as federal limitations on the possession and use of "arms").*fn14 The right to keep and bear arms is presumptively enjoyed by all American citizens ("the people"*fn15 ), though some individuals may be disqualified from exercising it because they cannot satisfy, or have not complied with, valid regulatory conditions.*fn16 In view of the fundamental nature of the right, however, any restrictions on its exercise are subject to heightened judicial scrutiny.*fn17
The Second Amendment right is "not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose."*fn18 But it does encompass a right to keep ordinary handguns in the home for use in self-defense. Heller specifically held that "the District's ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense."*fn19 The latter prohibition, derived from a District statute requiring lawfully-possessed firearms to be kept "unloaded and disassembled or bound by a trigger lock or similar device,"*fn20 was unconstitutional because it made it "impossible for citizens to use [their handguns] for the core lawful purpose of self-defense."*fn21
In neither Heller nor McDonald did the Supreme Court directly address restrictions on the possession of ammunition per se. (The District's requirement that lawfully-maintained firearms be kept unloaded was not challenged in Heller.) Nonetheless, from the Court's reasoning, it logically follows that the right to keep and bear arms extends to the possession of handgun ammunition in the home; for if such possession could be banned (and not simply regulated), that would make it "impossible for citizens to use [their handguns] for the core lawful purpose of self-defense."*fn22 By the same token, given the obvious connection between handgun ammunition and the right protected by the Second Amendment, we are hard-pressed to see how a flat ban on the possession of such ammunition in the home could survive heightened scrutiny of any kind. We therefore conclude that the Second Amendment guarantees a right to possess ammunition in the home that is coextensive with the right to possess a usable handgun there. The government has not taken issue with that conclusion.
As we discussed, the UA statute makes it a crime to possess ammunition of any kind anywhere, regardless of its use or purpose; and the prosecution may obtain a conviction under the statute without having to prove that the possessor violated any registration, licensing or regulatory requirement or was otherwise disqualified from exercising his Second Amendment right. A UA conviction therefore may be based solely on proof that the defendant possessed handgun ammunition in his home -- solely, that is, on proof of conduct protected by the Second Amendment. In a prosecution such as this one, where nothing more was proved at trial to show that the defendant was disqualified from exercising his Second Amendment rights -- there was no evidence, for example, that he possessed the ammunition for an illegal purpose*fn23 or that he had failed to comply with applicable registration requirements for a firearm corresponding to the ammunition*fn24 -- the UA statute is unconstitutional as applied.*fn25
In light of the constitutionally-protected nature of the conduct addressed by the UA statute, its provision of an affirmative defense if the accused had registered a corresponding firearm only compounds the problem. The Due Process Clause "protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged."*fn26 While legislatures do have leeway to reallocate burdens of proof so as to require the accused to prove some facts as affirmative defenses (rather than requiring the prosecution to negate those facts as an element of the offense), "there are obviously constitutional limits beyond which [a legislature] may not go in this regard."*fn27 Where the Constitution -- in this case, the Second Amendment -- imposes substantive limits on what conduct may be defined as a crime, a legislature may not circumvent those limits by enacting a statute that presumes criminality from constitutionally-protected conduct and puts the burden of persuasion on the accused to prove facts necessary to establish innocence.*fn28 That, however, is precisely what the UA statute (as we construed it in Logan) does with respect to the possession of handgun ammunition in the home, by making the defendant's compliance with the registration condition an affirmative defense.
The limited nature of our holding should be understood. The Second Amendment permits the District to condition the lawful possession of handgun ammunition in the home on the possession of a valid registration certificate for a corresponding handgun (so long as the registration scheme is constitutional).*fn29 While Logan held as a matter of statutory interpretation that proper registration is an affirmative defense to UA, the prosecution may assume the burden of charging and proving beyond a reasonable doubt that the defendant lacked the necessary registration in order to satisfy the Second Amendment.*fn30 By doing so, the prosecution would establish that the defendant indeed was disqualified from exercising his Second Amendment right to possess handgun ammunition in the home.*fn31 The application of the UA statute to the defendant in such a case would not be unconstitutional.
Because the UA statute was applied unconstitutionally to appellant, the first prong of the plain error test -- the presence of error -- is satisfied.
B. "Plainness" of the Error
To satisfy the second prong of the plain error test, the error must be "clear" or "obvious."*fn32
"[I]n a case such as this -- where the law at the time of trial was settled and clearly contrary to the law at the time of appeal -- it is enough that an error be 'plain' at the time of appellate consideration."*fn33 After Heller and McDonald, we are satisfied that a flat ban on the possession of handgun ammunition in the home is not just incompatible with the Second Amendment, but clearly so. And on the existing record, the unconstitutionality of appellant's UA conviction is equally clear, as no evidence showing that appellant was disqualified from exercising his Second Amendment right to possess handgun ammunition at home was presented at his trial. He was convicted solely on proof of constitutionally protected conduct. The second prong of the plain error test is satisfied.
C. The Third and Fourth Prongs of Plain Error Analysis
Convicting appellant solely for possessing handgun ammunition in his home, in violation of the Second Amendment, unquestionably affects his substantial rights. We also conclude that conviction of a criminal offense on constitutionally insufficient evidence, for conduct "indistinguishable from the mere exercise of [a defendant's] Second Amendment right,"*fn34 seriously impugns the fairness, integrity, and public reputation of judicial proceedings, as well. The government resists the latter conclusion. It argues that there was no miscarriage of justice here because there is no dispute that appellant in fact lacked the legally necessary registration certificate for a handgun corresponding to the ammunition he possessed. (Appellant concedes as much in his brief on appeal.) We are unpersuaded by this argument. We do not doubt that the prosecution could have proved appellant's lack of registration at trial had it wished to do so. But the reason there is no dispute that appellant lacked a handgun registration certificate is that the District's law at the time unconstitutionally forbade the registration of handguns and made it impossible for appellant to register. As appellant rejoins, "[t]o uphold [his] conviction under an unconstitutional statute because he was prevented by a different unconstitutional statute from obtaining a registration certificate would be the height of unfairness indeed."*fn35 It is no answer to say that appellant failed to show at trial that he would have been able to obtain a registration certificate but for the unconstitutional restriction,*fn36 for the prosecution never put his lack of a certificate in issue at trial.*fn37
The third and fourth requirements of plain error are met.
Appellant was convicted of unlawful possession of ammunition in violation of the Second Amendment. The error is plain, and it is prejudicial to appellant's substantial rights and to the fairness, integrity, and public reputation of the judicial proceedings. We reverse.
FISHER, Associate Judge, concurring in the judgment: In Logan v. United States, 489 A.2d 485 (D.C. 1985), this court construed a predecessor statute to mean that "possession of ammunition is presumptively unlawful" and that "the government is required to prove only that appellants possessed ammunition . . . in order to establish the essential element of the offense." Id. at 493.
Today the majority in essence holds that the Supreme Court's decision in Heller has altered the elements of the offense in those cases where the evidence shows that the defendant possessed ammunition in his home. In such prosecutions, the government is now required to prove beyond a reasonable doubt that the defendant is not "the holder of [a] valid registration certificate for a firearm of the same gauge or caliber as the ammunition he possesses . . . ." D.C. Code § 7-2506.01 (a)(3). Majority opinion at 12. (Indeed, as a matter of prudence, the government is well-advised to prove the lack of a valid registration certificate in all prosecutions for unlawful possession of ammunition (UA).)
I agree that, in light of Heller, the government failed to prove an essential element of the offense. The evidence being insufficient, appellant's conviction for UA cannot stand.*fn38 On this basis I concur in the judgment.