Government’s Supplemental Brief Regarding Applicability of 18 U.S.C. § 925(c) to Alston’s Motion to Dismiss — United States v. Alston (Dkt. 24, E.D.N.C.)

Summary

The government's supplemental brief on the applicability of 18 U.S.C. § 925(c) to Carlos Alston's motion to dismiss, filed May 26, 2023 in United States v. Carlos Alston, No. 5:23-CR-21-FL-RN-1, in the U.S. District Court for the Eastern District of North Carolina. The brief responds to the Court's May 12, 2023 order (DE 22) asking the parties to address the rights-restoration provision of 18 U.S.C. § 925(c), after Alston moved to dismiss (DE 17) on the ground that 18 U.S.C. §§ 922(g)(3) and (n) are unconstitutional under Bruen. The government argues that § 925(c) has no effect on the issues before the Court and traces the provision's history since 1986. The 11-page brief is signed by Assistant United States Attorney Sarah E. Nokes.

Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used

Record facts

Full text

IN THE UNITED STATES DISTRICT COURT
                 FOR THE EASTERN DISTRICT OF NORTH CAROLINA
                              WESTERN DIVISION

                                       NO. 5:23-CR-21-FL-RN-1


UNITED STATES OF AMERICA                           )
                                                   )       GOVERNMENT’S SUPPLEMENTAL
                 v.                                )       BRIEF REGARDING APPLICABILITY
                                                   )       OF 18 U.S.C. § 925(c) TO ALSTON’S
CARLOS ALSTON                                      )       MOTION TO DISMISS


         Defendant Carlos Alston moved to dismiss the Indictment pending against

him, arguing that the charged statutes, 18 U.S.C. §§ 922(g)(3) and (n), are

unconstitutional in the wake of the Supreme Court’s decision in New York State Rifle

& Pistol Ass’n, Inc. v. Bruen, 142 S.Ct. 2111 (2022). DE 17. The government

responded, arguing that the statutes are constitutional. DE 20. On May 12, 2023, the

Court ordered the parties to submit supplemental briefing regarding the effect of the

rights-restoration provision of 18 U.S.C. § 925(c) on the parties’ arguments. DE 22.

As further discussed below, 18 U.S.C. § 925(c) has no effect on the issues now before

the Court.

    I.      Background

         Since 1986, federal law has included a rights-restoration provision at 18 U.S.C.

§ 925(c) 1 which ostensibly allows individuals who are federally prohibited from



1 Congress promulgated an earlier version of the rights restoration statute in 1965. Ryan Laurence Nelson,
Rearming Felons: Federal Jurisdiction Under 18 U.S.C. § 925(c), 2001 Univ. of Chi. L. Forum 554, available at
https://perma.cc/EM73-HWK5. While intended to provide relief to corporations which had incurred prohibitions

                                                       1




         Case 5:23-cr-00021-FL-RN Document 24 Filed 05/26/23 Page 1 of 11

possessing, shipping, transporting or receiving firearms to petition the Secretary of

the Treasury (and later, the Attorney General) for restoration of their firearms

privileges. See Pub. L. No. 99-308, 100 Stat. 449 (1986); 18 U.S.C. § 925(c). The statute

provides, in pertinent part:

         A person who is prohibited from possessing, shipping, transporting, or
         receiving firearms or ammunition may make application to the Attorney
         General for relief from the disabilities imposed by Federal laws with
         respect to the acquisition, receipt, transfer, shipment, transportation, or
         possession of firearms, and the Attorney General may grant such relief
         if it is established to his satisfaction that the circumstances regarding
         the disability, and the applicant’s record and reputation, are such that
         the applicant will not be likely to act in a manner dangerous to public
         safety and that the granting of the relief would not be contrary to the
         public interest.

18 U.S.C. § 925(c). The statute further allows for unsuccessful applicants to petition

the district court in the district in which they reside for review of the denial of their

restoration of firearms rights. 18 U.S.C. § 925(c). The Bureau of Alcohol, Tobacco,

Firearms and Explosives (ATF) was tasked with reviewing rights restoration

applications and conducting “a broad-based field investigation of the convicted

applicant’s record and reputation before ruling on the application” according to

detailed regulations. United States v. McGill, 74 F.3d 64, 66 (5th Cir. 1996).

         In 1992, Congress prohibited executive branch agencies from using federal

funding to investigate or act upon petitions for relief under 18 U.S.C. § 925(c). United

States v. Bean, 537 U.S. 71, 74-75 (2002) (citing Treasury, Postal Service and General



against participation in the firearms trade, individual persons also took advantage of the program. Id.

                                                          2




         Case 5:23-cr-00021-FL-RN Document 24 Filed 05/26/23 Page 2 of 11

Government Appropriations Act, 1993, Pub. L. 102-393, 106 Stat. 1732). Congress

explained that the task of reviewing, investigating and deciding upon rights

restoration applications was “a very difficult and subjective task which could have

devastating consequences for innocent citizens if the wrong decision is made” and

that the time spent reviewing and investigating the applications would be better

spent in “crack[ing] down on violent crime.” S. Rep. No. 353, 102nd Cong. 2d Sess. 77

(1992). Congress has continued to withhold funding for review of rights restoration

applications. See Consolidated Appropriations Act, 2022, Pub. L. No. 117–103, 136

Stat. 49.

         The withdrawal (and continued withholding) of funding effectively eliminated

the ability of individuals to obtain relief under 18 U.S.C. § 925(c), because the ATF

cannot issue a final decision on any individual’s restoration application and the

district courts lack jurisdiction to consider an individual’s petition without such a

final decision. Bean, 537 U.S. at 75-78; Saccacio v. Bureau of Alcohol, Tobacco &

Firearms, 211 F.3d 102, 104 (4th Cir. 2000). This outcome aligned with Congressional

intent, as Congress intended its withdrawal of funds “to suspend the relief provided

by [18 U.S.C.] § 925(c).” McGill, 74 F.3d at 67. Since 1993 then, 18 U.S.C. § 925(c)

“has been rendered inoperative.” Logan v. United States, 552 U.S. 23, 28 n.1 (2007).

   II.      Argument

         Neither the existence of 18 U.S.C. §925(c)’s rights-restoration provision nor

Congress’s denial of funds to implement that provision impacts the analysis in this


                                           3




         Case 5:23-cr-00021-FL-RN Document 24 Filed 05/26/23 Page 3 of 11

case for two reasons. First, Section 925(c)’s rights-restoration provision would be

relevant, if operational, to the propriety of as-applied challenges to federal firearms

statutes, and Defendant makes only a facial challenge to Sections 922(g)(3) and (n).

Second, Section 925(c)’s rights-restoration process is not constitutionally required,

and Defendant could not satisfy its requirements even if it were operational.

          A. Section 925(c)’s operation may be relevant to an as-applied
             challenge, but Defendant makes only facial challenges to the
             constitutionality of 18 U.S.C. §§ 922(g)(3) and (n)

      The unavailability of judicial review under 18 U.S.C. § 925(c) does not prevent

a criminal defendant from raising a Second Amendment challenge to a charge of

illegal possession of a firearm under 18 U.S.C. § 922. If the relief process under

Section 925(c) were operational, it would significantly weaken or perhaps entirely

foreclose a defendant’s claim that a federal ban on firearm possession was

unconstitutional as applied to him. See Lewis v. United States, 445 U.S. 55, 64 (1980)

(stating that “Congress clearly intended that the defendant clear his status before

obtaining a firearm” and pointing to § 925(c) as a possible means of doing so). But in

the years following Congress’s withdrawal of funds from the program, courts,

including the Fourth Circuit, have entertained as-applied challenges to various

provisions of 18 U.S.C. § 922. See, e.g., Harley v. Wilkinson, 988 F.3d 766 (4th Cir.

2021); Kanter v. Barr, 919 F.3d 437 (7th Cir. 2019); Binderup v. Att’y Gen. United

States of Am., 836 F.3d 336 (3d Cir. 2016).




                                          4




       Case 5:23-cr-00021-FL-RN Document 24 Filed 05/26/23 Page 4 of 11

      Some judges have expressed the view that such as-applied challenges are

improper given Congress’s decision to de-fund Section 925(c). See Harley, 988 F.3d

766, 774 (4th Cir. 2021) (Wynn, J., concurring) (observing that the defendant “seeks

to avoid the limitations of § 925(c) by pursuing an as-applied challenge directly in

federal court” and expressing the view that “relief, if any, lies in obtaining a pardon

in Virginia or receiving relief from the Attorney General” under Section 925(c));

Binderup, 836 F.3d at 403 (Fuentes, J., dissenting) (“Notwithstanding Congress’s

experience with § 925(c), [petitioners] seem to believe that by shoehorning their

complaints about § 922(g)(1)’s scope into the rubric of ‘as-applied challenges,’ they

necessarily force us to assess their individual characteristics rather than rely on

Congress’s categorical rule.”). But the Fourth Circuit has routinely considered as-

applied Second Amendment challenges in the context of federal firearms

prosecutions, despite the existence of § 925(c). See, e.g., Harley, 988 F.3d at 768-71;

United States v. Collins, 982 F.3d 236, 243 (4th Cir. 2020); United States v. Hosford,

843 F.3d 161, 167-70 (4th Cir. 2016). And nothing in Bruen indicates that such as-

applied challenges are impermissible. See Range v. Attorney General, 53 F.4th 262,

270 n.9 (3d Cir. 2022) (“[T]here is still room for ‘as-applied’ challenges even after

Bruen.”), vacated on rehearing en banc, 56 F.4th 992 (2023); but see United States v.

Wagoner, No. 4:20-CR-00018, 2022 WL 17418000, at *4 (W.D. Va. Dec. 5, 2022)

(calling into question whether as-applied challenges may be made post-Bruen because

the only question for the court is “whether the challenged law is facially consistent


                                          5




       Case 5:23-cr-00021-FL-RN Document 24 Filed 05/26/23 Page 5 of 11

with the Nation’s historical tradition of firearm regulation.”).

       In any event, Defendant raises a facial challenge that would not be affected

even if Section 925(c) were operational. Defendant’s Motion does not explicitly claim

to be either a facial challenge or an as-applied challenge. But because Defendant

neither included “a developed factual record” nor challenged “the application of a

statute to a specific person,” his challenge is not an as-applied challenge. Educ. Media

Co. at Va. Tech v. Insley, 731 F.3d 291, 298 n.5 (4th Cir. 2013) (emphasis added)

(quoting Richmond Med. Ctr. for Women v. Herring, 570 F.3d 165, 172 (4th Cir. 2009)

(en banc)). Defendant’s Motion does not argue specific facts about his own

characteristics, history or circumstances that would lead the Court to conclude that

the prohibitions in 18 U.S.C. §§ 922(g)(3) and (n) are unconstitutional as they have

been specifically applied to him. Rather, Defendant makes a broader argument: that

18 U.S.C. §§ 922(g)(3) and (n) are unconstitutional in any application, because they

are not consistent with the nation’s history and tradition of firearms regulation. This

is a quintessential facial challenge.

       Section 925(c) is a provision which, when in use, was focused solely on the

specific characteristics of the petitioner. 18 U.S.C. § 925(c) (directing inquiry into “the

applicant’s record and reputation.”). When funding existed for such individual

inquiries, ATF considered information about each specific petitioner, including, inter

alia, statements from personal references, employment history, medical history,

military service and the applicant’s criminal record, in order to make necessary


                                            6




       Case 5:23-cr-00021-FL-RN Document 24 Filed 05/26/23 Page 6 of 11

findings about whether that particular petitioner would be a danger to the public. 27

C.F.R. § 478.144(c). The Court has no such information about the defendant, and thus

Defendant’s Motion is not analogous to a petition under § 925(c). Because Defendant

has not made the kind of showing contemplated by § 925(c) or the types of as-applied

challenges considered in Harley, Kanter or Binderup, the existence and inoperability

of § 925(c) are not relevant to his Motion.

          B. Section    925(c)’s  rights-restoration provision    is   not
             constitutionally required, and Defendant could not satisfy its
             requirements in any event.

      The existence of Section 925(c) does not prevent Defendant from bringing an

as-applied challenges to Sections 922(g)(3) and (n). But neither does Section 925(c)’s

inoperability help Defendant prevail on those challenges. Section 925(c)’s rights-

restoration scheme is not constitutionally required. The government is not aware of

any decision holding that defendants must be able to seek relief from the prohibitions

in Section 922, nor any decision holding that Congress’s failure to fund Section 925(c)

creates constitutional concerns. Defendant has not alleged—and cannot show—that

a funded rights-restoration process is necessary to a constitutional firearms

regulation scheme.

      This is particularly true in the context of the temporary prohibitions on firearm

possession and receipt that Defendant challenges. Several of Section 922’s

prohibitions are permanent. See, e.g., 18 U.S.C. §§ 922(g)(1) and (g)(9) (permanently

depriving felons and domestic violence misdemeanants from firearm possession). The


                                              7




       Case 5:23-cr-00021-FL-RN Document 24 Filed 05/26/23 Page 7 of 11

Heller and Bruen courts cited at least some permanent disposition statutes as

constitutionally sound. See, e.g., District of Columbia v. Heller, 554 U.S. 570, 626

(2008) (“[N]othing in our opinion should be taken to cast doubt on longstanding

prohibitions on the possession of firearms by felons….”); Bruen, 142 S.Ct. at 2162

(Kavanaugh, J., concurring) (same). But the permanent nature of these prohibitions

has been the crux of many as-applied challenges in the wake of Section 925(c)’s

defunding. See, e.g., Kanter, 919 F.3d at 468-69 (Barret, J., dissenting); Harley, 988

F.3d at 771.

      However, the statutory provisions currently before the Court for constitutional

review are not permanent in nature. In order to receive relief from the prohibition on

firearm possession in Section 922(g)(3), an individual need only cease use of illegal

controlled substances. A person who has not engaged in illegal controlled substance

use with recency and regularity is not subject to the prohibition in 18 U.S.C. §

922(g)(3). See United States v. Jackson, 280 F.3d 403, 406 (4th Cir. 2002). Similarly,

a person who is subject to the prohibition on his receipt of firearms under Section

922(n) because he is under felony indictment will be relieved of the restriction if he is

found not guilty of his crime[s] or the indictment is dismissed. Even if he is found

guilty of the felony offense[s] for which he was under indictment, the prohibition in

Section 922(n) no longer applies, though he would face prohibition under 18 U.S.C. §

922(g)(1). In short, both challenged statutes impose only temporary burdens on an

individual’s rights to receive or possess firearms and such person would not need a


                                           8




       Case 5:23-cr-00021-FL-RN Document 24 Filed 05/26/23 Page 8 of 11

formal rights-restoration scheme in order to be relieved of either statute’s

prohibitions.

      Moreover, even if Section 925(c) were operational, Defendant could not meet

that provision’s requirements. Defendant, as a daily user of marijuana and person

under indictment for a serious, violent felony is not someone who could show that he

would “not be likely to act in a manner dangerous to public safety” and whose

rearmament “would not be contrary to the public interest.” 18 U.S.C. § 925(c); see,

e.g., Kanter, 919 F.3d at 440 (considering and denying an as-applied challenge from

a plaintiff who had been convicted of a non-violent felony, completed his sentence and

paid his monetary penalties). Defendant showed that he was, in fact, dangerous when

he brandished a loaded handgun at an officer who approached him to effectuate a

lawful arrest. See DE 15 (finding, by clear and convincing evidence, that no release

condition which could be imposed upon the defendant could reasonably assure the

safety of any person or the community). Because Defendant could not hope to satisfy

the requirements of 18 U.S.C. § 925(c) (or an as-applied challenge in which the court

applied similar criteria), that section’s inoperability has no effect on his Motion.

   III.     Conclusion

          The existence and inoperability of Section 925(c) has no effect on the issues

 before the court. Sections 922(g)(3) and 922(n) are constitutional both facially and




                                            9




          Case 5:23-cr-00021-FL-RN Document 24 Filed 05/26/23 Page 9 of 11

as applied to Defendant, and Defendant’s motion to dismiss should be denied.

     Respectfully submitted this 26th day of May, 2023.

                                            MICHAEL F. EASLEY, JR.
                                            United States Attorney

                                            BY: /s/ Sarah E. Nokes
                                            SARAH E. NOKES
                                            Assistant United States Attorney
                                            Criminal Division
                                            150 Fayetteville Street, Suite 2100
                                            Raleigh, North Carolina 27601
                                            Telephone: (919) 856-4054
                                            Facsimile: (919) 856-4487
                                            E-mail: sarah.nokes@usdoj.gov
                                            VA Bar No. 82472




                                       10




     Case 5:23-cr-00021-FL-RN Document 24 Filed 05/26/23 Page 10 of 11

                         CERTIFICATE OF SERVICE

      This is to certify that I have this 26th day of May, 2023, served a copy of the

foregoing response upon the defendant in this action by CM/ECF to:

Edward D. Gray
Attorney for Defendant



                                             /s/ Sarah E. Nokes
                                             Sarah E. Nokes
                                             Assistant United States Attorney
                                             Criminal Division




                                        11




      Case 5:23-cr-00021-FL-RN Document 24 Filed 05/26/23 Page 11 of 11

File and source

File

gov.uscourts.nced.198716.24.0.pdf

Size

262,588 bytes

SHA-256

c2482d5546204791f16e78076336c92e8ac42c6a8541b23058db59aa332e1c45

Our copy

gov.uscourts.nced.198716.24.0.pdf

Original

archive.org