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Gun Case Triggers Family Law Concerns
Right to bear arms prevails over federal statute prohibiting gun possession

Kurt Sauer
Texas Lawyer
April 12, 1999

In a two-fisted defense of individual rights against the power of the federal government, U.S. District Judge Sam R. Cummings of Lubbock struck down as unconstitutional a federal criminal provision in the Violent Crime Control and Law Enforcement Act of 1994, which prohibits the possession of a gun by persons subject to certain family law court orders.

Cummings' March 30 opinion in United States v. Timothy Joe Emerson declared that the statute, 18 U.S.C. &922(g)(8), violates the Second Amendment because it allows a state court divorce proceeding, without a finding of threatened future violence, to deprive automatically a citizen of his right to keep and bear arms.

If upheld by the 5th U.S. Circuit Court of Appeals, the case "is very significant and could force the Supreme Court to confront the issue of whether the Second Amendment" guarantees rights to individuals or the states, says Professor Sanford V. Levinson of the University of Texas School of Law.

Lubbock's William B. Mateja, the assistant U.S. attorney who prosecuted the case, says a notice of appeal has been filed.

Cummings also found the statute unconstitutional under the Fifth Amendment, reasoning that when a person is engaging in otherwise lawful behavior, it is unfair to convict him of a crime that is obscure and that he did not know existed.

The statute makes it a crime for a person to possess a gun if he or she is subject to a court order that explicitly prohibits the use or threatened use of physical force against a family member. The statute is applicable only if a defendant had actual notice of and an opportunity to participate in the hearing at which the court order was issued.

According to Cummings' opinion, during the pre-trial hearing in their divorce case, Sacha Emerson alleged that her husband, Timothy, threatened over the telephone to kill the man with whom she had been having an affair. Timothy attended the hearing without an attorney. Cummings notes that there was no evidence of violence or threatened violence by Timothy against Sacha or their child, the state court made no findings to that effect and Timothy received no warning that if the trial court granted the temporary orders, he would be subject to federal criminal prosecution for possessing a gun while subject to the temporary orders.

The trial court then entered temporary orders that contained provisions enjoining Timothy from "causing bodily injury" to Sacha or their child. Timothy was later indicted under &922(g)(8) for possessing a firearm while subject to the temporary orders, says Lubbock's David M. Guinn Jr., the assistant federal public defender who represented Timothy Emerson.

The opinion has important implications for Texas family law practitioners whose clients own guns.

"There are probably thousands of temporary restraining orders which contain language that may trigger the provisions of the statute," says Brian L. Webb, a partner in Dallas' Webb & Tilholiz and a former president of the Texas Academy of Family Law Specialists and the Texas Chapter of the American Academy of Matrimonial Lawyers.

"Many of the form books used by Texas family law practitioners also contain this language. [The statute] may be something we need to start paying more attention to," adds Webb.

Although the statute has not been widely used in Texas, this may change.

"We have had one prosecution under this statute in the Western District of Texas, but it's something we are notifying victims' groups about and we will be pursuing it in the future," says Michael McCrum, chief of the Major Crimes Section in the Office of the U.S. Attorney in San Antonio.

According to Mateja, "Congress has said that this is an area of concern that needs to be addressed by future prosecutors; it is important for family law practitioners and judges to be familiar with the statute and its impact in connection with domestic disputes."

Mateja points out that in the Emerson case, "not only had the defendant threatened numerous people, but according to police reports his threats were manifested by him pulling a gun on his estranged wife and daughter."

The police reports are dated after the temporary restraining order was entered.

Denise Gamache, associate director of the Battered Women's Justice Project, says that the statute was originally aimed at preventing the escalation of violence.

"Most data on firearms shows that they heighten the lethality of the situation," she says.

Bree Buchanan, public policy director for the Texas Council on Family Violence, believes most family law practitioners will be surprised to learn that the criminal penalties of &922(g)(8) may apply to temporary restraining orders. Buchanan believes this may not have been the intent of the provision's authors.

"The original intent seems to have been to apply the provision not to temporary restraining orders . . . but to protective orders enforceable by criminal contempt, such as those governed by Chapter 85 of the Texas Family Code. In their attempt to write a federal statute covering court orders in all 50 states, the authors may have used language that is overbroad for Texas," says Buchanan.

In concluding that the Second Amendment recognizes a personal right to keep and bear arms, Cummings answered a question of first impression within the 5th Circuit.

"As far as I know, this is the first time a federal court of any kind has held that the Second Amendment creates a personal right to keep and bear arms. It's a question the Supreme Court has not answered," says Guinn. "Judge Cummings is saying that the right to bear arms is a personal right just like the right to free speech and the free exercise of religion."

Cummings acknowledged that four U.S. Circuit Courts have held that the Second Amendment does not establish a personal right to keep and bear arms; instead, these courts held that it establishes a "collective" right - a right held by the states.

"One would expect the 5th Circuit to be willing to assert some innovation in this issue," says Levinson, whose work is cited in the opinion.

Some say that Cummings' opinion is simply an acknowledgement that the Second Amendment has long recognized a personal right to keep and bear arms.

Bob Dowlett, general counsel for the National Rifle Association, believes the Circuit Court opinions holding otherwise are "flat wrong. The Supreme Court has said the Second Amendment creates individual rights ever since the Dred Scott v. Sanford decision."

Cummings' 5th Amendment due process analysis centered on the issue of when ignorance of the law is an excuse.

Citing Chief Justice Richard A. Posner of the 7th U.S. Circuit Court of Appeals - "We want people to familiarize themselves with the laws bearing on their activities. But a reasonable opportunity doesn't mean being able to go to a local law library and read Title 18" - Cummings concluded that because &922(g)(8) "is an obscure, highly technical statute with no mens rea requirement, it violates Emerson's 5th Amendment due process rights to be subject to prosecution without proof of knowledge that he was violating the statute."

Levinson says the due process issue "could be much more explosive" than the Second Amendment issue if addressed by the 5th Circuit.

Editor's note: U.S. District Judge Sam R. Cummings' opinion in United States v. Timothy Joe Emerson contains a 12-page historical analysis of the right to keep and bear arms, beginning in 690 A.D. when Englishmen were required to possess arms and serve in the military, and ending in the debates among Patrick Henry, James Madison, Thomas Jefferson and Samuel Adams during the ratification of the U.S. Constitution and the drafting of the Bill of Rights. What follows are excerpts from the opinion, edited for length and style:

. . . [W]hat it means to take rights seriously is that one will honor them even when there is significant social cost in doing so. Protecting freedom of speech, the rights of criminal defendants or any other part of the Bill of Rights has significant costs - criminals going free, oppressed groups having to hear viciously racist speech and so on - consequences we take for granted in defending the Bill of Rights. This mind-set changes, however, when the Second Amendment is concerned. "Cost-benefit" analysis, rightly or wrongly, has become viewed as a "conservative" weapon to attack liberal rights. Yet the tables are strikingly turned when the Second Amendment comes into play. Here "conservatives" argue in effect that social costs are irrelevant and "liberals" argue for a notion of the "living Constitution" and "changed circumstances" that would have the practical consequence of erasing the Second Amendment from the Constitution.

It is absurd that a boilerplate state court divorce order can collaterally and automatically extinguish a law-abiding citizen's Second Amendment rights, particularly when neither the judge issuing the order, nor the parties nor their attorneys are aware of the federal criminal penalties arising from firearm possession after entry of the restraining order. That such a routine civil order has such extensive consequences totally attenuated from divorce proceedings makes the statute unconstitutional. There must be a limit to government regulation on lawful firearm possession. This statute exceeds that limit, and therefore it is unconstitutional.

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. It lies at the heart of any civilized system of law. . . .

United States v. Emerson

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