The defendant, * W. *, pursuant to Federal Rule of Criminal Procedure 12(b), moves the court to declare 18 USC § 922(g)(8) unconstitutional on its face and as applied and dismiss Count One of the Indictment ⁽¹⁾, stating:

1. The defendant is charged in an Indictment which alleges in Count One ⁽²⁾ he possessed firearms and ammunition while subject to an order restraining him from harassing or threatening an intimate partner, in violation of Title 18, United States Code, section 922(g)(8).

2. 18 USC § 922(g)(8) is an unconstitutional exercise of congressional power under the Commerce Clause.

3. 18 USC § 922(g)(8) is unconstitutional because it exceeds the authority granted to Congress under the Tenth Amendment by violating long established principles of comity and federalism.

4. The statute is unconstitutional both on its face and as applied to * *.

5. Therefore, the statute is an unconstitutional exercise of federal power and this court must dismiss Count One of the Indictment.

* * is a 51 year old male. He was a Huntsville, Alabama, police officer from 1970 until 1981. Since that time, he has been mostly involved in security related businesses. The weapons seized in this case have been owned by the defendant, at least, for over 10 years and some as long as 30 years. The weapons include the defendant's former police service related firearms, hunting weapons, and a shotgun, given to the defendant by his father, that was stolen from the defendant in a burglary of his Huntsville home in 1978 and recovered with the barrel sawed-off. That weapon was returned to him by law enforcement authorities.

* and * * were married on April 11, 1992. Their residence at 2861 Orange Grove Way in Palm Harbor was originally marital property. Over the years, their relationship was unstable, punctuated by * * moving out and seeking restraining orders against * * on at least two occasions. Ultimately, a Judgment for Dissolution of Marriage was entered on January 22, 1996, in Cook County, Illinois. It dissolved the marital relationship but did not address the residence.

Despite the dissolution and their prior rocky relationship, * * began again living with the defendant some time during January of 1996. However, in early June of 1996, * * once again abandoned the relationship and the residence, taking her property with her.

On June 6, 1996, she filed another ex parte request for an injunction from domestic violence in Pinellas County, Florida. On June 20, 1996, an order of injunction for protection was issued by the court in Pinellas County. At that hearing, the court orally excluded * * from the residence at 2861 Orange Grove Way and the written injunction order specifically awarded the residence to the defendant. The injunction is in effect until June 20, 1997.

In October, 1996, although the injunction had not been modified, * * again moved into the residence with the defendant. On February 28, 1997, * * again moved out of the residence and rented an apartment a short time later.

On March 2, 1997, * * had the defendant arrested by the Pinellas County Sheriff's Department for violating the injunction by contacting her at her place of employment. On March 3, 1997, the defendant was sentenced to 15 days in jail and twelve (12) months probation.

On March 12, 1997, * * contacted the Tampa Bureau of Alcohol, Tobacco, and Firearms field office and told * possessed firearms in his residence. She purportedly gave consent to search the residence and, later that day, ATF agents seized several weapons during a warrantless search of the residence conducted while the defendant was still in jail. The defendant was then arrested and charged in this case.

Federal Rule of Criminal Procedure 12(b) provides that defenses and objections based on defects in the institution of the prosecution or defects in the information must be raised prior to trial. ⁽³⁾

This prosecution is considered a premiere prosecution by the United States Attorney's Office. As such, it is a case of first impression not only here but throughout the country and no other court has considered this statute nor analyzed its constitutional character.

Title 18 USC § 922(g)(8), (hereinafter "922(g)(8)") criminalizes an individual's right to ship, transport, possess or receive firearms or ammunition when the person is subject to a domestic relations restraining order. ⁽⁴⁾ However, it is beyond the power of Congress to govern, by criminal enactment, matters which relate to State Court decrees such as domestic restraining orders. The statute is, therefore an unconstitutional exercise of congressional power under the Commerce Clause and in excess of the authority granted Congress by the Tenth Amendment.

Ordinarily, the legislative history of a statute provides guidance to a court when determining its constitutionality. Unfortunately, there is a paucity of legislative history relative to the statute. Factually, the record reveals that Congress gave little thought to its findings on the ability to criminalize the act.

18 USC §922(g)(8) was added to the Federal Firearms Act by amendment, effective September 13, 1994, as a small part of an overall bill titled as the "Safe Homes for Women Act". Sec. 1625, H.R. 4092, 103d Congress; Pub.L. 103-322, §110401(c). ⁽⁵⁾

In that bill, it was noted that:

The Congress finds that--

(1) domestic violence is the leading cause of injury to women in the United States between the ages of 15 and 44;

(2) firearms are used by the abuser in 7 percent of domestic violence incidents and produces an adverse effect on interstate commerce; and

(3) individuals with a history of domestic abuse should not have easy access to firearms.

Sec.1624, H.R. 4092, 103d Congress. ⁽⁶⁾

No other discussion is contained in the legislative history to justify passing the amendment. Without more, this is not enough to ascertain Congress' belief of why it has the power to regulate this behavior. Therefore, judicial analysis is necessary.

1. THE COMMERCE CLAUSE.

The Commerce Clause empowers Congress "[t]o regulate Commerce with foreign Nations and among the Several States and with the Indian Tribes." U.S. Const., Art. I § 8, cl.3. Section 922(g)(8) far exceeds Congress' legislative authority based on the Commerce Clause and is, therefore, unconstitutional, particularly in view of the absence of a possible explanation for the statute in the rather limited legislative history regarding the "commerce" nexus necessary for the constitutional enactment of the legislation.

The Supreme Court has addressed the limits of the power given to Congress in United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624 (1995). In Lopez, the Supreme Court announced a three-part standard to determine constitutionality under the Commerce Clause:

First, Congress may regulate the use of the channels to interstate commerce...Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities....Finally, Congress' commerce authority includes the power to regulate those activities having substantial relation to interstate commerce...i.e., those activities that substantially effect interstate commerce.

Lopez, 115 S.Ct. at 1629-30. The Lopez Court examined the scope of the Commerce Clause in relation to a criminal activity which had no direct relationship to interstate commerce and held that the Commerce Clause did not authorize the enactment of the Gun Free School Zone Act. In striking down the statute the Court found that it:

...is a criminal statute that by its terms has nothing to do with commerce or any sort of commercial enterprise, however broadly one might define these terms....

Id. at 1630-1631. The same can be said of 922(g)(8). It regulates the possession of firearms or ammunition under certain circumstances, just as the Gun Free School Zone did. Section 922(g)(8) does not regulate any channel of interstate commerce, nor any instrumentality, person or thing in interstate commerce.

Additionally, as applied to Mr. *, there is no impact on interstate commerce no matter how broadly the term is used. In this case, both subjects live in Florida and the domestic restraining order was issued by a Florida court. Moreover, the firearms possessed by Mr. * were not recently purchased, in "commerce", but rather are guns that he has "possessed" long before Congress though to make it a crime to do so. None of the weapons has even a minimal impact on commerce. Nor has Mr. * been convicted of a felony, which by operation, would prohibit their possession.

Instead, Congress passed a law that temporarily ⁽⁷⁾ "intervenes" into Mr. *' long lawful possession of the firearms, making it now criminal, without any judicial due process, decree, or determination to consider the actual possession of the firearms related to the restraining order. The Eleventh Circuit has applied the Lopez analysis to 18 USC § 844(I), a federal arson statute, with different results. In United States v. Denalli, 73 F.3d 328 (11th Cir. 1996), the court, following the reasoning of the Ninth Circuit in United States v. Pappadopoulos, 64 F.3d 522 (9th Cir. 1995), determined that the federal arson statute was similar to the gun-free zone statute in that neither statute regulated commercial or economic activity. The court then held that under the third prong of the test, the evidence adduced by the Government failed to show a substantial effect on interstate commerce and thus, reversed the Defendant's conviction under the federal arson statute.

The Denalli decision provides clear guidance for the court in determining the constitutionality of 922(g)(8). In Denalli, it was clear that the residence that was burned was not used in interstate commerce. The issue, therefore, was whether the residence's destruction affected interstate commerce and the court held it did not. Similarly, there is no doubt that * did not possess the guns in commerce ⁽⁸⁾ in any way. Just as clear is the fact that his mere possession of them does not affect commerce at all. Moreover, the statute held unconstitutional in Denalli contained an express jurisdictional prerequisite of affecting commerce, albeit interstate, just as here.

In fact, none of the elements traditionally used to justify the exercise of congressional power under the Commerce Clause can be used to save § 922(g)(8). Without these elements, and particularly in light of Lopez and Denalli, the Government cannot show that § 922(g)(8) substantially affects commerce and it becomes obvious § 922(g)(8) was not enacted as a legitimate means of regulating commerce.

Although there may be some compelling social and moral argument, the court cannot adopt it as a basis to uphold this statute. Otherwise, it would be hard to imagine any activity that Congress could not, would not, and should not regulate. This precise situation is what the Supreme Court sought to avoid in Lopez when it rejected what it deemed the Government's "national productivity reasoning" by holding that to adopt the Government's reasoning (which was similar to the inferences drawn above), "would be 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." Id. at 1634.

Therefore, there are no affects, substantial or otherwise, on interstate commerce to find § 922(g)(8) meets constitutional muster and this court must find it an unconstitutional exercise of congressional power.

2. THE TENTH AMENDMENT - PRINCIPLES OF FEDERALISM AND COMITY.

The Constitution makes the federal government a government of limited powers. Gregory v. Ashcroft, 501 U.S. 452, 111 S.Ct. 2395 (1991). The Tenth Amendment expressly declares the federal government may assert only those powers granted it in the Constitution. All other powers are reserved to the states or the people. U.S. Const. amend. X. This amendment shows it was the intent of the framers of the Constitution that the states retain sovereign authority under their newly created constitutional system. James Madison stated:

"The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite....The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement and prosperity of the State." The Federalist No. 45. pp.292-293 (C. Rossiter ed 1961)(J. Madison).

Gregory, 501 U.S. at 458, 111 S.Ct. at 2399. One of the overriding purposes of this heavy restriction on federal power is to establish a system of checks and balances and reduce the risk of abuse by the more distant federal government. Id. at 458-59.

Section 922(g)(8) violates every principle set forth by James Madison and therefore serves only to interfere with states' regulation of its citizens. The Supreme Court has long disfavored the notion of federal interference in what have traditionally been matters left to the states. See, Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710 (1993); Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558 (1982); Younger v. Harris, 401 U.S. 37, 97 S.Ct. 746 (1971); Byrne v. Karalexis, 401 U.S. 216, 91 S.Ct. 777 (1971); Dyson v. Stein, 401 U.S. 216, 91 S.Ct. 769 (1971).

Domestic relations issues have been left to the states for over two hundred years and, respecting that sovereignty, federal courts have avoided becoming involved. See, Simms v. Simms, 175 U.S. 162, 20 S.Ct. 58 (1899) (domestic relations belongs to state not federal law); Carver v. Carver, 954 F.2d 1573 (11th Cir. 1992); Ingram v. Hayes, 866 F.2d 368 (11th Cir. 1988); Crouch v. Crouch, 566 F.2d 486, 487 (5th Cir. 1978).

This prosecution is about domestic relations law. Undoubtedly, this court recognizes the gravity of domestic violence as a serious and widespread problem throughout the United States and that Congress, in passing the Violence Against Women Act, attempted to address the problem. Nevertheless, in the absence of the foundation afforded by the Commerce Clause, 18 USC 922(g)(8) is federal criminalization of a matter that is constitutionally the subject of state legislation. ⁽⁹⁾ Similarly, Congress, in

contravention of the United States Constitution and decades of legal precedent, is now seeking to interfere in the states' processes through the enactment of 18 USC § 922(g)(8) which also exceeds its authority under the Tenth Amendment.

WHEREFORE, the defendant requests his motion be granted or the court hold a hearing to determine the constitutionality of the statute.

Respectfully submitted,

C:\wwwfpd\uncon3.wpd

1. On April 22, 1997, the defendant filed a motion to suppress alleging a fourth amendment violation. The defendant contends that the court should also dismiss Count Two of the indictment if it grants this motion since the criminal statute in Count One served as the basis for the search which resulted in the discovery of the weapon charged in Count Two. In other words, if the Court finds the statute charged in Count One is unconstitutional, Count Two must be dismissed as a matter of law.

2. The defendant is charged in Count Two with possession of an unregistered short barreled shotgun in violation of 26 USC §5841, 5845, 5861, and 5871.

3. At the April 25, 1997, status conference, the Court ordered that this motion be filed within 15 days.

4. The text of § 922(g)(8) states:

It shall be unlawful for any person-

who is subject to a court order that-

(A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate;

(B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and

(C)(i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or

(ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury;

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.

5. Amazingly, in 1996 Congress made it a crime "for any person who has been convicted in any court of a misdemeanor crime of domestic violence, to...possess in or affecting commerce,...any firearm or ammunition,...". (emphasis added) 18 USC §922(g)(9).

6. The Violence Against Women Act was first introduced in the 101st Congress as S. 2754 and H.R. 5168. It was then introduced in the 102d Congress as S. 15 and H.R. 1502. In the 103d Congress, it was introduced as H.R. 1133. All bills were reported favorably by subcommittees. The Safe Homes for Women Act came from this history.

7. The restraining order is valid only for one year from June 20, 1996, until June 20, 1997.

8. The indictment charges that Mr. * did "knowingly possess firearms and ammunition that effected interstate commerce...". However, the portion of the statute applicable to Mr. * does not contain the word "interstate" and simply makes it a crime to "...possess in or affecting commerce..."

9. See: Appendix A: United States v. Larry G. Wright, #8:96Cr-145, where United States District Judge Shanahan recently found 18 USC §2262(a)(1), interstate violation of a protective order, unconstitutional.