UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

UNITED STATES OF AMERICA, )

)

Plaintiff, )

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v. ) Case No.

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, )

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Defendant. )

MEMORANDUM IN SUPPORT OF DEFENDANT'S MOTION

TO DISMISS THE INDICTMENT

On January 3, 1995, St. Louis Metropolitan Police officers stopped a car in which defendant * was riding as a passenger. Following the stop, police frisked Hatten, felt a hard metal object in Hatten's right front jacket pocket. Police then discovered a Browning .25 caliber pistol.

The federal government subsequently indicted Hatten for being a felon in possession of a weapon, alleging a single-count under 18 U.S.C. § 922(g).

I. CONGRESS HAS NO POWER UNDER THE COMMERCE CLAUSE TO PROHIBIT THE MERE POSSESSION OF WEAPONS; THEREFORE, 18 U.S.C. § 922(g), AS APPLIED TO THE FACTS OF THIS CASE, IS UNCONSTITUTIONAL.

Unlike state governments, the federal government has no general police power enabling it to prohibit any activity it chooses--wisely or unwisely--to condemn. See United States v. Lopez, 115 S. Ct. 1624, 1631, 1631 n.3 (1995). Congress's power to create criminal statutes derives solely from its Constitutionally enumerated powers. Id. at 1631 n.3. Congress exceeded its Constitutionally enumerated power when it sought to prohibit the mere possession of firearms. See 18 U.S.C. § 922(g). Although this statute requires proof of a nexus to interstate commerce, this statutory requirement fails to cure the threshold Constitutional defect. The United States Supreme Court's recent decision in United States v. Lopez, 115 S. Ct. 1624 (1995), eliminates any doubt about Congress's power under the Commerce Clause and about the absence of any Constitutionally enumerated power allowing Congress to prohibit the mere possession of handguns under the circumstances of Hatten's case. It establishes that section 922(g), as applied to mere possession of a weapon, is unconstitutional.

Section 922(g) purports to derive from Congress's power under the Commerce Clause. See 18 U.S.C. § 922(g) ("It shall be unlawful . . . to . . . possess in or affecting commerce any firearm . . . ."). As applied to Hatten's mere possession on January 3, 1995 of a firearm, this statute is constitutional only if Congress has power under the Commerce Clause to prohibit Hatten's mere possession of a firearm. The Commerce Clause, however, provides Congress with authority to regulate only: (1) use of the channels of interstate commerce; (2) instrumentalities of interstate commerce and persons and things in interstate commerce; and (3) activity having a substantial relation to interstate commerce or substantially affecting interstate commerce. Lopez, 115 S. Ct. at 1629-30. As interpreted by Lopez, the scope of this authority does not encompass the mere possession of weapons.

Lopez held, as a matter of law, that mere possession of a firearm within 1,000 of a school does not substantially affect interstate commerce. Id. at 1631-34.

To uphold the Government's contentions here, we would have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States. Admittedly, some of our prior cases have taken long steps down that road, giving great deference to congressional action. . . . The broad language in these opinions has suggested the possibility of additional expansion, but we decline here to proceed any further. To do so would require us to conclude that the Constitution's enumeration of powers does not presuppose something not enumerated, cf. Gibbons v. Ogden, supra, at 195, and that there never will be a distinction between what is truly national and what is truly local, cf. Jones & Laughlin Steel, supra, at 30, 57 S.Ct., at 621. This we are unwilling to do.

Id. at 1634. Like section 922(q), section 922(g), as applied to mere possession, lies outside the reach of the Commerce Clause, as a matter of law. Section 922(g), as applied in Hatten's case, does not regulate the use of channels of interstate commerce. See id. at 1630. Similarly, section 922(g)'s application to Hatten's possession of a firearm in his residence constitutes neither the prohibition of the interstate transportation of a commodity, nor the protection of an instrumentality of interstate commerce nor the protection of a thing in interstate commerce. Id. Therefore, if section 922(g)'s application to Hatten's mere possession of a firearm is constitutional, Congress's power must derive from its authority to regulate activities substantially affecting interstate commerce. Id. Yet, like section 922(q), section 922(g)

is a criminal statute that by its terms has nothing to do with "commerce" or any sort of economic enterprise, however broadly one might define those terms. Section 922[(g)] is not an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated. It cannot, therefore, be sustained under . . . cases upholding regulations of activities that arise out of or are connected with a commercial transaction, which viewed in the aggregate, substantially affects interstate commerce.

Id. at 1630-31 (footnote omitted). Thus, there is nothing obvious about section 922(g)'s prohibition of the mere possession of a firearm that brings it within Congress's Commerce Clause power.

Lopez's conclusion that as a matter of law mere gun possession lies beyond the reach of Congress's power under the Commerce Clause marks the Court's return to a Constitutional question it raised without resolving almost a quarter century ago. United States v. Bass, 404 U.S. 336, 339 n.4 (1971). Bass concerned section 922(g)'s predecessor, 18 U.S.C. App. 1202(a), and the question whether the statute's phrase "'in commerce or affecting commerce'" modified the verbs "possesses," "receives" and "transports." Id. at 337-38. The government argued that section 1202(a) barred all possession and receipt of firearms by previously convicted felons without requiring the government to prove that the possession or receipt was "'in commerce or affecting commerce'" in individual cases. Id. at 338. Bass argued that "the statute did not reach possession of a firearm not shown to have been 'in commerce or affecting commerce,' and that, if it did, Congress had overstepped its constitutional powers under the Commerce Clause." Id. Although the Court questioned whether the Commerce Clause permitted Congress to "punish the 'mere possession' of firearms," it chose not to resolve this issue. Id. at 339 n.4. Instead, it resolved the case on statutory interpretation grounds, holding that the statute required the government to prove a nexus between interstate commerce and the defendant's possession of a weapon. Id. at 347. Because the government failed to prove this nexus, ⁽¹⁾ the Court reversed Bass's conviction. Id. In the quarter century since Bass, the Court has not resolved the Constitutional question it raised in footnote four. See United States v. Lopez, 2 F.3d 1342, 1347 (5th Cir. 1993) (noting that the question raised about Congress's power to prohibit the mere possession of a firearm remained open), aff'd 115 S. Ct. 1624 (1995); Maloney, Shooting for an Omnipotent Congress: The Constitutionality of Federal Regulation of Intrastate Firearms Possession, 62 Fordham L. Rev. 1795, 1816 n.145 (1994).

The Bass Court's decision to avoid the Constitutional question and its disposition of the case on statutory grounds demonstrate that the threshold Constitutional question concerning Congress's power to prohibit the mere possession of firearms is distinct from the statutory question of the requisite nexus between possession and interstate commerce. That is, the mere inclusion of statutory language requiring proof of a nexus to interstate commerce does not resolve the threshold Constitutional question whether Congress has the power under the Commerce Clause to prohibit the mere possession of a firearm. See United States v. Mussari, 1995 WL 447266 at *4-*5, *7 (D. Ariz. 1995). If there was any doubt that the statutory-nexus issue is distinct from the Constitutional question about the Commerce Clause's scope, Lopez eliminated it.

First, Lopez unambiguously holds that the regulated activity itself must substantially affect interstate commerce. However, section 922(g)'s nexus requirement fails to establish that mere possession of a firearm in the circumstances of Hatten's case has any effect on interstate commerce, much less a substantial effect. The Eighth Circuit has repeatedly held that the government may satisfy section 922(g)'s nexus requirement with proof that the weapon once in its existence crossed a state line. See, e.g., United States v. Mosby, 1995 WL 411178 at *1 (8th Cir. 1995). ⁽²⁾ Regardless whether a possessed weapon once crossed a state line, a person, felon or otherwise, no more affects interstate commerce by merely possessing a firearm on a public street than a person does by possessing a firearm within 1,000 of a school. Section 922(g)'s statutory requirement, is, therefore, so broad and encompassing, that it is not even conceptually possible for it to satisfy Lopez's requirement that the nexus element "ensure, through case-by-case inquiry, that the firearm possession in question affects interstate commerce." 115 S. Ct. at 1631. *'s possession of a weapon on January 3, 1995, had no conceivable effect on commerce.

Second, Lopez noted Bass's reservation of the Constitutional question without even discussing the Court's further clarification of the nexus issue in Scarborough v. United States, 431 U.S. 563 (1977). Scarborough held that "proof that the possessed firearm previously traveled in interstate commerce is sufficient to satisfy the statutorily required nexus between the possession of a firearm by a convicted felon and commerce." Id. at 564 (emphasis added), 566-67. The Constitutional question raised in Bass's footnote 4 was not before the Scarborough Court, which resolved only the question concerning the type of proof necessary to satisfy the statutory requirement. Id. Indeed, of the five separate opinions in Lopez, none even cites to Scarborough. See Lopez, 115 S. Ct. at 1626-34 (majority opinion); 1634-42 (Kennedy, J., concurring); 1642-51 (Thomas, J., concurring); 1651 (Stevens, J., dissenting); 1651-57 (Souter, J., dissenting); 1657-64 (Breyer, J., dissenting). The Lopez Court's utter silence about Scarborough demonstrates that Congress's inclusion of a statutory nexus requirement is insufficient to establish that Congress acted within its Commerce Clause authority. See Mussari, 1995 WL 447266 at *4-*5, *7. This last question can be answered only by analyzing whether the regulated activity itself substantially affects interstate commerce. See id. at 1630. Accordingly, section 922(g)'s inclusion of a nexus requirement fails to rescue its unconstitutional application in *'s case.

For the reasons set forth in this memorandum, defendant * respectfully requests that the court dismiss the indictment.

Dated August 23, 1995.

Respectfully submitted,

________________________________

Assistant Federal Public Defender

1010 Market Street - Suite 200

St. Louis, Missouri 63101

314-241-1255

Attorney for Defendant *

C:\wwwfpd\922.wpd

1. 0. "There was no allegation in the indictment and no attempt by the prosecution to show that either firearm had been possessed 'in commerce or affecting commerce.' The government proceeded on the assumption that § 1202(a)(1) banned all possessions and receipts of firearms by convicted felons, and that no connection with interstate commerce had to be demonstrated in individual cases." Id. at 338.

2. 0. Indeed Mosby further broadens this nexus element by holding that the government may prove the necessary nexus if any of the component parts of ammunition once crossed a state line even if the completed ammunition never crossed a state line. Id. at *3. Construed this broadly, section 922(g)'s nexus requirement completely fails to "ensure , through case-by-case inquiry, that the firearm possession in question affects interstate commerce." 115 S. Ct. At 1631.

The issue before the Mosby panel involved only statutory interpretation, not the Constitutional question concerning the breadth of Congress's Commerce Clause power: "Because we find that the district court misconstrued § 922(g)(1) by imposing an unjustified limitation on the type of 'commerce' that Mosby's possession must be 'in or affecting,' we reverse and remand." Therefore, the court's later comments on Lopez and its possible application to Mosby's case are pure dicta. See Mosby, 1995 WL 411178 at *3, *3 n.3 (8th Cir. 1995).