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concluding that Vongxay, which upheld the law criminalizing firearm possession by individuals with felony convictions as constitutional, is not inconsistent with Bruen and remains controlling law, as the Ninth Circuit in Vongxay performed a historical tradition analysis and concluded that history supports gun-possession limits on felons
Summary of this case from Horty v. United StatesOpinion
2:22-cr-00267-JAD-EJY
10-04-2023
United States of America, Plaintiff v. Dajuan Lamar Gamble, Defendant
ORDER OVERRULING OBJECTIONS, ADOPTING REPORTS AND RECOMMENDATIONS, AND DENYING MOTIONS TO DISMISS
[ECF NOS. 27, 28, 34, 35]
JENNIFER A. DORSEY, U.S. DISTRICT JUDGE
Dajuan Gamble is charged with illegally possessing a rifle and a handgun and now moves to dismiss his indictment. He joins a chorus of defendants nationwide challenging the constitutionality of his charging statute, 18 U.S.C. § 992(g)(1), after the Supreme Court's decision in New York State Rifle & Pistol Association v. Bruen established a new test to analyze the constitutionality of firearm regulations. He also moves to dismiss the rifle-related portions of his indictment based on the government's failure to collect DNA from that firearm before sending it out for other testing, which precluded the opportunity for DNA testing. The government opposes both motions, asserting that individuals with felony convictions are not protected under the Second Amendment and the government did not act in bad faith when it failed to DNA test the rifle. The magistrate judge recommends that I deny both motions, and after a de novo review, I do.
I find that these motions are suitable for disposition without oral argument. See L.R. 78-1.
Background
In September 2022, Gamble was outside the Economy Motel in downtown Las Vegas when he exchanged gunfire with an unknown passenger inside a van. The motel's security system recorded video of the incident, and Las Vegas Metropolitan Police Department (Metro) officers recognized Gamble on the recordings. The security video shows Gamble firing a handgun at the van, entering a motel room, and leaving the same motel room carrying a black bag. Officers received an anonymous tip that Gamble hid the handgun in the boiler room of the motel. With the manager's permission, officers searched the boiler room and found the handgun partially hidden underneath a black bag. Officers noted that the black bag appeared similar to the one that Gamble carried in the security video, but there was no video footage of Gamble accessing the boiler room. Officers obtained a warrant to search the bag and discovered a rifle inside it. Gamble, a previously convicted felon, was indicted on one count of being a felon in possession of a firearm under 18 § U.S.C. § 922(g)(1) and 924(a)(2).
ECF No. 1 at 3.
Id. at 4.
Id. at 4-5.
Id. at 4.
Id. at 4-5.
Id. at 5.
Id.
ECF No. 14.
The handgun and its magazine were sent to Metro's laboratory for DNA testing. But the rifle was missing a component part, so it was shipped to a testing facility in Maryland to determine whether it qualified as a firearm under the statute. In accordance with Metro's policy, the rifle could no longer be tested for DNA evidence after it left Metro's laboratory.
ECF No. 1 at 6.
ECF No. 31 at 7.
Id.
The black bag was later submitted for DNA testing in response to Gamble's motion to dismiss, but the results were inconclusive.
ECF No. 31 at 11; ECF No. 48-1 at 2.
Gamble brings two motions to dismiss. In the first one, he contends that his charging statute violates his Second Amendment right because the Supreme Court's recent decision in Bruen abrogated prior Ninth Circuit Court of Appeals' jurisprudence that upheld § 922(g)(1) as constitutional. In his second motion, he argues that his due-process rights were violated when Metro destroyed exculpatory DNA evidence on the rifle. Gamble alternatively requests an adverse-inference instruction at trial because the lost DNA evidence prejudices his defense.The government responds, arguing that individuals with felony convictions are not protected under the Second Amendment and § 922(g)(1) satisfies Bruen's test because the statute is consistent with longstanding tradition. It also avers that it did not act in bad faith when it sent the rifle to Maryland because the exculpatory value of DNA evidence on the rifle is not apparent.
ECF No. 27 at 2.
ECF No. 28 at 4.
Id. at 7.
ECF No. 30 at 9, 14.
ECF No. 31 at 11.
In two separate reports and recommendations, the magistrate judge recommends that I deny both motions because the Ninth Circuit's decision in United States v. Vongxay-the case that deemed § 922(g)(1) constitutionally sound-is still controlling law under Bruen, and the facts of this case do not support a finding that DNA evidence on the rifle is exculpatory. She also recommends that I deny Gamble's request for an adverse-inference instruction at trial because the government's conduct did not prejudice him. Gamble objects to both recommendations, arguing that Vongxay does not pass Bruen's newly minted historical-tradition test, Metro acted in bad faith because it knew the exculpatory value of the lost DNA evidence, and there is no comparable evidence for Gamble to rely on. But if the case continues to trial, he asserts that an adverse-inference instruction is warranted because he was prejudiced by the loss of any DNA evidence on the rifle.
ECF No. 34 at 5.
ECF No. 35 at 6.
Id. at 8.
ECF No. 38 at 2.
ECF No. 39 at 3-4.
Id. at 4.
Discussion
A district court reviews objections to a magistrate judge's proposed findings and recommendations de novo. “The district judge may accept, reject, or modify the recommendation, receive further evidence, or resubmit the matter to the magistrate judge with instructions.” The standard of review applied to the unobjected-to portions of the report and recommendation is left to the district judge's discretion. Local Rule IB 3-2(b) requires de novo consideration only of specific objections.
Fed.R.Civ.P. 72(b); 28 U.S.C. § 636(b)(1)(B); Local Rule IB 3-2(b) (requiring a district judge to review de novo only the portions of a report and recommendation addressing a case-dispositive issue that a party objects to).
United States v. Reyna-Tapia, 328 F.3d 1114, 1121-22 (9th Cir. 2003).
Id.
See Nevada L.R. IB 3-2(b) (requiring de novo consideration of specific objections only).
A. § 992(g)(1) satisfies the new test in Bruen, and Gamble's prosecution under that statute does not violate the Second Amendment.
Gamble is not the first defendant to challenge the constitutionality of § 992(g)(1)-the statute criminalizing firearm possession by individuals with felony convictions-after the Supreme Court's decision in Bruen. Bruen established a new test for courts to apply when analyzing Second Amendment challenges. Many courts are now grappling with the legal questions left in Bruen's wake.
New York State Rifle & Pistol Ass'n, Inc. v. Bruen, 142 S.Ct. 2111 (2022).
The Supreme Court's pre-Bruen decisions established a two-step approach to analyze Second Amendment challenges. Under D.C. v. Heller and McDonald v. City of Chicago, a court asked (1) whether the challenged regulation fell within the scope of the Second Amendment and, if so, (2) what level of scrutiny was required to analyze that regulation. But the Bruen Court found this test to contain “one step too many.” Although a court must now stop after step one, it must consider two distinct analytical questions there: whether “the Second Amendment's plain text covers an individual's conduct” and, if so, whether the regulation “is consistent with the nation's historical tradition of firearm regulation.” The first question requires “a textual analysis focused on the normal and ordinary meaning of the Second Amendment's language.” The second demands a historical assessment in which a court looks to the historical record to determine how the Second Amendment was interpreted around the time of ratification up through the 19th century.
D.C. v. Heller, 554 U.S. 570 (2008); McDonald v. City of Chicago, Ill., 561 U.S. 742 (2010).
Bruen, 142 S.Ct. at 2126.
Id. at 2127.
Id. at 2126 (cleaned up).
Id. at 2127 (quoting Heller, 554 U.S at 576-577, 578).
Id. (citing D.C. v. Heller, 554 U.S. at 605).
1. Bruen did not abrogate Vongxay.
Gamble argues in his motion to dismiss that Bruen's new test abrogated all prior Ninth Circuit Second Amendment decisions-including Vongxay, a decision that upheld the constitutionality of § 922(g)(1). In her report and recommendation, the magistrate judge found that Vongxay was not abrogated by Bruen; rather, Vongxay is consistent with all three Supreme Court holdings in Heller, McDonald, and Bruen. She explained that Vongxay performed the textual and historical-tradition analysis required by the new one-step test, which confirmed § 992(g)(1)'s constitutionality.
United States v. Vongxay, 594 F.3d 1111 (9th Cir. 2010).
ECF No. 27 at 4.
ECF No. 35 at 5-7.
Id. at 6-7.
Gamble objects to the magistrate judge's finding, arguing that Vongxay is not controlling law. He theorizes that the Ninth Circuit's recent decision in Teter v. Lopez demonstrates this circuit's intention to abrogate its earlier Second Amendment jurisprudence. Gamble explains that the Teter court found that two Ninth Circuit cases were abrogated by Bruen-United States v. Chovan, which challenged the constitutionality of a ban on domestic-violence misdemeanants' firearm possession; and Fyock v. Sunnyvale, which challenged city ordinances restricting large-capacity magazines-the court is poised to abrogate other Second Amendment decisions.But the Chovan and Fyock courts could not or did not establish a longstanding historical tradition that would justify the firearm prohibitions they were evaluating. And because Bruen requires a textual and historical-tradition test, it follows that these two cases would be abrogated by Bruen. So Teter at most signals the Ninth Circuit's intention to abrogate Second Amendment precedent that can't pass Bruen's textual and historical-tradition test.
ECF No. 38 at 2.
Teter v. Lopez, 76 F.4th 938 (9th Cir. 2023).
ECF No. 38 at 2-3.
United States v. Chovan, 735 F.3d 1127, 1137 (9th Cir. 2013), abrogated by Bruen, 142 S.Ct. 2111.
Fyock v. Sunnyvale, 779 F.3d 991, 997 (9th Cir. 2015), abrogated by Bruen, 142 S.Ct. 2111.
ECF No. 38 at 2-3 (citing Teter, 76 F.4th at 947).
Teter, 76 F.4th at 947, 950.
The magistrate judge found that Vongxay does pass that test. She reasoned that “the plain text of the Second Amendment does not reach protection of a felon's firearm possession,” and prohibiting gun possession by felons “is consistent with the Nation's historical regulations of firearms.” Gamble objects to that finding. He argues that the Vongxay court “vacillated on the underlying historical question,” which signifies its indecision on the matter. He also contends that Vongxay's historical analysis is too thin to satisfy the new Bruen test, for Bruen requires a “firm historical tradition of distinctly similar gun regulations.”
ECF No. 34 at 6.
ECF No. 38 at 5.
Id.
Gamble overstates the similarity that Bruen demands. The Court in Bruen recognized that, although a court should not uphold every modern law that has a remote historical counterpart, it is also not necessary that the government find a “historical twin” to a modern-day law. “So even if a modern-day regulation is not a dead ringer for historical precursors, it still may be analogous enough to pass constitutional muster.”
Bruen, 142 S.Ct. at 2133 (original emphasis).
Id.
The Vongxay court did examine the text of the Second Amendment and the historical tradition of restricting felons' gun rights. The court found that “denying felons the right to bear arms is consistent with the explicit purpose of the Second Amendment.” It also identified analogous historical regulations that excluded felons from militias and the right to bear arms.Because the Vongxay court performed a historical-tradition analysis and concluded that history supports gun-possession limits on felons, I find that Vongxay is consistent with Bruen and remains controlling law.
Vongxay, 594 F.3d at 1117-18 (cleaned up).
Id. at 1117.
Id. at 1117-18.
2. § 992(g)(1) satisfies Bruen's new test and remains constitutional.
Even if Vongxay's analysis is too thin to render it controlling law post Bruen, its conclusion that § 992(g)(1) passes constitutional muster remains sound under the new test. Gamble objects to the magistrate judge's finding that the statute satisfies the first part of the Bruen test. He contends that the Second Amendment protects “the right of the people to keep and bear [a]rms,” and individuals with felony convictions are still included in “the people” the founders intended to protect. The magistrate judge emphasized the Supreme Court's use of the phrase “law-abiding citizen” in Heller, McDonald, and Bruen and opined that it signified a limitation on Bruen's holding and the Second Amendment more broadly. Gamble objects that “law-abiding citizen” is just dicta in Heller.
ECF No 38 at 4-5.
ECF No. 27 at 6.
ECF No. 35 at 4.
ECF No. 38 at 4-5.
The High Court's statement in Heller that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons” was more than mere dicta as it was incorporated into the Court's analysis of “the historical understanding of the scope of the right” and its “limitations.” Justice Kavanaugh's concurrence in Bruen also emphasized that the “Second Amendment allows a variety of gun regulations,” quoting this very same sentence from Heller as support. So Bruen does not contradict Heller on the issue of felon-gun possession; rather it reinforces Heller's conclusion that individuals with felony convictions fall outside the scope of the Second Amendment's protections.
Heller, 554 U.S. at 625-26.
Bruen, 142 S.Ct. at 2162 (Kavanaugh, J., concurring) (citing Heller, 554 U.S. at 636).
The majority in Bruen concluded that its holding was “in keeping with Heller.” Bruen, 142 S.Ct. at 2126.
Gamble then objects to the magistrate judge's conclusion that § 992(g)(1) passes the second part of the Bruen test because there is a longstanding history and tradition of limiting gun possession by felons, arguing that the first such restriction was only imposed in the 20th century, so it is not a longstanding tradition. He also contends that the magistrate judge erroneously relied on historical evidence of gun-restriction proposals that never became law.
ECF No. 38 at 6; ECF No. 27 at 11.
ECF No. 38 at 6-7.
While it is true that restrictions on felons' gun rights that most closely resemble § 992(g)(1) didn't emerge until the early 20th century, it is not necessary that § 992(g)(1) have a historical twin, just that there is an analogous precursor. And here, there is evidence of limitations on the gun rights of suspect or dangerous individuals that pre-dates our nation's founding. Although historical records from that period can be vague or sparse, a majority of courts have found a history and tradition of limiting the gun rights of individuals who stray from the law or legal norms. Because individuals with felony convictions fall into this category, § 992(g)(1) is consistent with that longstanding historical tradition.
The Federal Firearms Act of 1938 restricted those convicted of a crime from possessing firearms. It was amended in 1961 to specifically restrict the gun rights of individuals with felony convictions. See Pub. L. No. 87-342, 75 Stat. 757 (repealed) (The “Act is amended by deleting the words ‘crime of violence' . . . and inserting . . . ‘crime punishable by imprisonment for a term exceeding one year.'”).
Robert J. Spitzer, Gun Law History in the United States and Second Amendment Rights, Law & Contemp. Probs. 55, 72 (2017) (recounting that 1637 Massachusetts Colony law required named individuals who “seduced & led [others] into dangerous errors” to turn in their weapons and firearms, and a Pennsylvania law enacted in the 1770's forbid individuals from possessing guns if they “refused to swear loyalty to the new American government”); Michael A. Bellesiles, Gun Laws in Early America: The Regulation of Firearms Ownership, 1607-1794, 16 Law & Hist. Rev. 567, 578 (1998) (noting that firearm restrictions were often predicated on racist ideologies that viewed people of color as suspect, like colonial-Virgina's prohibition on indigenous-firearm ownership).
United States v. Jackson, 69 F.4th 495 (8th Cir. 2023) (finding under a Bruen analysis that § 922(g)(1) is consistent with this nation's historical tradition of firearm regulation); United States v. Charles, 633 F.Supp.3d 874 (W.D. Tex. 2022); United States v. Ingram, 623 F.Supp.3d 660 (D.S.C. 2022); United States v. Young, 639 F.Supp.3d 515 (W.D. Pa. 2022); United States v. Butts, 637 F.Supp.3d 1134 (D. Mont. 2022); contra Range v. Att'y Gen. United States of Am., 69 F.4th 96, 104 (3d Cir. 2023) (holding that § 992(g)(1) was unconstitutional as narrowly applied to a defendant convicted of a misdemeanor punishable by up to five years in prison).
In sum, I find that Vongxay remains controlling law and binds me to conclude that § 992(g)(1) and Gamble's prosecution under that statute are constitutional. But even if Bruen abrogated that Ninth Circuit authority, Gamble's challenge fails because § 992(g)(1) passes both prongs of Bruen's test. So I overrule Gamble's objections, adopt the magistrate judge's recommendation, and deny Gamble's motion to dismiss his indictment based on an alleged Second Amendment violation.
B. Gamble's spoliation argument does not merit dismissal because the exculpatory value of DNA evidence on the rifle was not apparent.
Gamble brings a second motion to dismiss in which he argues that the portion of his firearm charge related to the rifle should be dismissed based on spoliation of evidence.Gamble theorizes that Metro knew that there was potential exculpatory DNA evidence on the black bag and rifle because it only sent the pistol and its magazine for testing, even though police found the rifle and handgun at the same time and in the same place. He argues that there is no comparable evidence because Metro sent the rifle out to a testing facility in Maryland to determine whether it could be classified as a firearm, so the rifle can no longer be submitted for DNA testing in accordance with Metro's protocol. The magistrate judge recommends that I reject Gamble's spoliation argument, reasoning that Metro had no affirmative duty to conduct DNA testing because the facts do not support the finding that the rifle and black bag contained exculpatory evidence. Gamble objects that the government knew the exculpatory value of the DNA evidence on the rifle because an officer applying for a warrant to retrieve Gamble's DNA hoped to compare it against “any and all firearms,” and this admission establishes Metro's bad faith.
ECF No. 28.
ECF No. 39 at 3-4.
Id. at 4; see also ECF No. 28 at 4, 7. The government contends that the rifle was missing its dust cover-a piece of the rifle that protects the inside mechanisms from debris-and missing this component could raise issues of whether the rifle is considered a firearm within the meaning of 18 U.S.C. § 921(a)(3).
ECF No. 35 at 6.
ECF No. 39 at 3 (original emphasis).
1. A spoliation dismissal requires knowledge of the exculpatory value of lost evidence.
The due-process clause requires the government to preserve evidence “that might be expected to play a significant role in the suspect's defense.” “The government violates a defendant's due process rights when it destroys potentially exculpatory evidence in bad faith.”The “presence or absence of bad faith turns on the government's knowledge of the apparent exculpatory value of the evidence at the time it was lost or destroyed.” And “[b]ad faith requires more than mere negligence or recklessness.” When deciding whether to dismiss a defendant's indictment based on lost or destroyed evidence, the court must view the evidence in the light most favorable to the government.
California v. Trombetta, 467 U.S. 479, 488 (1984).
United States v. Ubaldo, 859 F.3d 690, 703 (9th Cir. 2017).
Id. (quoting United States v. Cooper, 983 F.2d 928, 931 (9th Cir.1993)).
United States v. Flyer, 633 F.3d 911, 916 (9th Cir. 2011) (citing Arizona v. Youngblood, 488 U.S. 51, 58 (1988)).
Ubaldo, 859 F.3d at 703.
2. The exculpatory value of rifle DNA is not apparent.
That a DNA test on the rifle would have been exculpatory for Gamble was-and remains-not apparent. Evidence is exculpatory when it tends “to establish a criminal defendant's innocence,” and “[f]or evidence to be materially exculpatory, its exculpatory nature must be apparent.” But the exculpatory value of evidence “is not ‘apparent' when the evidence merely ‘could have' exculpated the defendant.” And here, DNA evidence from the rifle merely could have exculpated Gamble.
Black's Law Dictionary (11th ed. 2019).
Sivilla, 714 F.3d at 1172.
United States v. Drake, 543 F.3d 1080, 1090 (9th Cir. 2008) (quoting Youngblood, 488 U.S. at 56).
There are four likely outcomes of a DNA swab of a firearm: (1) the defendant's DNA is found on the gun; (2) only someone else's DNA is found; (3) no DNA is found; or (4) there's a mix of DNA, and just who it belongs to can't be determined. Because any one of these results could be expected from a DNA test of the rifle, at best, Gamble could get lucky with scenario 2 or 3. But even that would merely mean that Gamble didn't leave DNA on the rifle, not that he never possessed it. So, at best, that favorable result only “could have” exculpated Gamble. Also possible is scenario 1, which would have further incriminated him. Similar considerations caused the Ninth Circuit to find in U.S. v. Drake that a lost digital-surveillance video did not violate a robbery defendant's due-process rights because “it [wa]s possible that [the video] would have further incriminated” the defendant.
Id. at 1090.
DNA testing of the black bag in which the rifle was found portends the more likely result. It found a mixture of DNA from five individuals, at least two of whom were male. Since the profiles were so mixed, “no additional conclusions [could] be made.” Because the exculpatory value of any DNA testing of the rifle is not apparent, the government did not act in bad faith when it sent the rifle to Maryland for other testing, thus foreclosing Gamble's chance to have the rifle DNA tested. So I overrule Gamble's objection and deny his motion to dismiss based on spoliation.
ECF No. 31 at 11; ECF No. 48-1.
ECF No. 48-1.
C. An adverse jury instruction is not warranted.
Gamble alternatively moves for an adverse-inference instruction at trial, arguing that whether his DNA was on the rifle goes to an essential issue of the case. The magistrate judge recommends that I deny that request, too, because the factors required for a remedial jury instruction balance in favor of the government. Gamble objects that the factors balance in his favor because there is no substitute for DNA evidence on the rifle.
ECF No. 39 at 4.
ECF No. 35 at 8.
ECF No. 39 at 4.
A court must weigh “the quality of the Government's conduct against the degree of prejudice to the accused” to determine whether to provide a remedial jury instruction. When evaluating the government's conduct, a court must ask if (1) the evidence was lost or destroyed while in the government's custody, (2) the government disregarded the defendant's interests, (3) the government was negligent in failing to adhere to established and reasonable standards of care for police and prosecutorial functions, (4) the acts were deliberate, whether they were taken in good faith or with reasonable justification, and (5) the government attorneys prosecuting the case participated in the loss or destruction of the evidence. When evaluating prejudice to the defendant, a court must consider (1) the centrality and importance of the evidence in establishing motive, intent, or elements of the crime; (2) the reliability of any secondary evidence; (3) the defendant's loss of any factual inferences; and (4) the effect on the jury from the absence of evidence, including speculation and bias. In the end, “the government bears the burden of justifying its conduct.”
Sivilla, 714 F.3d at 1173 (quoting United States v. Loud Hawk, 628 F.2d 1139, 1152 (9th Cir. 1979)).
Id.
Id. at 1173-74.
Id. at 1173.
An adverse jury instruction is not warranted here because the quality of the government's conduct outweighs any prejudice to Gamble. Gamble argues that the government disregarded his interests when it sent the rifle for testing before his counsel had the opportunity to view it. The government responds that the parties arranged a viewing after the rifle returned from Maryland, but Gamble's counsel was a no-show. Although the rifle was in the government's control when it was sent to Maryland for testing-precluding any further opportunity for DNA testing in accordance with Metro's policy-the prejudice to Gamble is limited. The absence of DNA evidence does not establish an element of a crime in the same way that the presence of DNA might. And as exemplified by the DNA results from the bag, the factual inferences that may be gained from unidentifiable DNA on the rifle are not apparent. So I adopt the magistrate judge's recommendation and deny Gamble's request for a remedial jury instruction. ...
ECF No. 44 at 3.
ECF No. 49 at 4-5.
See supra at p. 13.
Conclusion
IT IS THEREFORE ORDERED that Gamble's objections [ECF Nos. 38, 39] are OVERRULED, the magistrate judge's recommendations [ECF Nos. 34, 35] are ADOPTED, and Gamble's motions to dismiss [ECF Nos. 27, 28] are DENIED.