Pandemic Darlings The pandemic economy, in original documents
Home Source documents Court filing — No. 5:23-cr-00021 (Dkt. 23, E.D.N.C.)

Court filing — No. 5:23-cr-00021 (Dkt. 23, E.D.N.C.)

Full text

                           UNITED STATES DISTRICT COURT
                        EASTERN DISTRICT OF NORTH CAROLINA
                                 WESTERN DIVISION

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


     UNITED STATES OF AMERICA                           SUPPLEMENTAL BRIEFINF AND
                                                    INCORPORATED MEMORANDUM OF LAW
        v.

     CARLOS ALSTON


        Defendant Carlos Alston, through undersigned counsel, respectfully provides this

brief in response to the Court’s request for Mr. Alston’s position as to whether the existence

of a rights-restoration provision and whether Congress’s denial of funds to the Attorney

General to implement the restoration provision impacts the questions before the court as to

whether the Indictment violates Mr. Alston’s Second Amendment right to keep and bear

arms.

I.      BACKGROUND

        A. Procedural History

        On January 24, 2023, Mr. Alston was charged in a two-count indictment with one

count of being a person in receipt of a firearm while under indictment, in violation of 18

U.S.C. § 922(n), and one count of being a person in possession of a firearm while a drug

user, in violation of 18 U.S.C. § 922(g)(3). [DE 11]. Arraignment is set for March 9, 2023.

        B. Factual Background

        Mr. Alston was waiting in the drive-thru line of a restaurant located in Henderson,

North Carolina, when police approached his car. [DE 1]. Mr. Alston anticipates that the

government will argue Mr. Alston brandished a weapon at the approaching police officer

after the officer gave verbal commands for Mr. Alston to show his hands and notified him of



             Case 5:23-cr-00021-FL-RN Document 23 Filed 05/25/23 Page 1 of 5
outstanding warrants. [DE 1]. The officer then shot Mr. Alston once, striking him in the

lower body. [DE 1]. After a foot chase, Mr. Alston collapsed from his injuries and was taken

into custody. [DE 1]. Police recovered a Smith & Wesson, SD9VE 9mm pistol near Mr.

Alston’s flight path, and they discovered marijuana in his car. Mr. Alston has a prior criminal

conviction related to marijuana. [DE 1]. At the time of the shooting, Mr. Alston did not have

any felony convictions.

II.    LAW REGARDING FEDERAL RESTORATION OF RIGHTS

       A. No application for restoration can be made in this case.

       Under federal law, a person who is convicted of a felony is prohibited from possessing

firearms. See § 922(g)(1). The Secretary [of the Treasury] was authorized to grant relief from

that prohibition if it is established to his satisfaction that certain preconditions are met. See

§ 925(c). An applicant may seek judicial review from a “United States district court” if his

application “is denied by the Secretary.” Id. See United States v. Bean, 537 U.S. 71, 74, 123

S.Ct. 584, 586 (2002). However, there is no practical process for restoration as the Bureau

of Alcohol Tobacco and Firearms (ATF) has been barred from acting on this due to an

appropriations ban that has been in place since 1992. Accordingly, the ATF is prohibited to

act on § 925(c) applications.      Specifically, the Secretary is barred from using “funds

appropriated herein ... to investigate or act upon applications for relief from Federal firearms

disabilities under 18 U.S.C. [§ ]925(c).” Treasury, Postal Service, and General Government

Appropriations Act, Pub. L. 102-393, 106 Stat. 1732.

       As there is a bar which effectively prevents Mr. Alston from applying for restoration

of rights under any circumstances. However, under the District of Columbia v. Heller, 554

U.S. 570 (2008) and New York State Rifle & Pistol Association, Inc. v. Bruen, 142 S. Ct. 2111




        Case 5:23-cr-00021-FL-RN Document 23 Filed 05/25/23 Page 2 of 5
(2022) decisions, Mr. Alston should not have to apply for restoration as the Second

Amendment codified a pre-existing individual right to possess and use firearms for lawful purposes

like self-defense. Heller, 554 U.S. 570, 592, 624 (2008). Under Bruen, the government cannot

meet its burden to identify a “relevantly similar” historical tradition of firearm regulation that

supports disarming individuals who have been merely indicted. Accordingly, Mr. Alston should

not be required to ask for restoration of his rights.

       B. The remote chance of “restoration” does not cure the unconstitutionality
          of the statute.
       The fact that Congress disabled the program means 925(c) is a dead letter. There is, in

effect, no possibility of getting firearms rights restored under any circumstances under the current

legislative regime. Further, the remote possibility that 925(c) might someday be revived AND that

someone might prevail under it cannot cure the unconstitutionality of the prohibitions.

       The fact that, in theory, someone could regain his arms right through a discretionary, long-

shot process just doesn’t mean that his right isn’t being infringed right now. Bruen makes clear

that the right to keep and bear arms can be infringed by deprivations short of total disarmament.

The New York statute’s proper-cause requirement stuck down by the Supreme Court in Bruen was

discretionary and difficult to satisfy in the same way that 925(c) is. Once again, a very speculative

avenue for relief does not meaningfully prevent deprivation of a constitutional right.

       Further, consistent with Bruen’s focus on history, there is no evidence showing that any

founding-era examples indicating that people who were entitled to bear arms could be disarmed if

the government left open a very small, highly discretionary avenue for those people to regain their

rights. As the holding of Bruen clearly articulates, the government can’t take away a person’s

Second Amendment rights, contingent on their proving that they meet some highly subjective and

demanding criteria, unless the government can show there was evidence of such a scheme in the



         Case 5:23-cr-00021-FL-RN Document 23 Filed 05/25/23 Page 3 of 5
founding era. Once again, the government cannot meet its burden to identify a “relevantly similar”

historical tradition of firearm regulation that supports disarming individuals who have been merely

indicted. Accordingly, Mr. Alston does not have to ask for restoration of his rights to lawfully

possess firearms.

III.   CONCLUSION

       The government has failed to demonstrate that § 922(g)(3) and § 922(n) are

supportable by any historic tradition of firearm regulation in the United States, rendering

them unconstitutional under Bruen and the Second Amendment. Mr. Alston continues to

argue that this Court should dismiss both counts of the indictment against Mr. Alston.

       Respectfully requested this 25th day of May, 2023.

                                                     G. ALAN DUBOIS
                                                     Federal Public Defender

                                                     /s/ Edward D. Gray
                                                     EDWARD D. GRAY
                                                     Assistant Federal Public Defender
                                                     Attorney for Defendant
                                                     Office of the Federal Public Defender
                                                     150 Fayetteville Street, Suite 450
                                                     Raleigh, North Carolina 27601
                                                     Telephone: 919-856-4236
                                                     E-mail: Edward_Gray@fd.org
                                                     N.C. State Bar No. 37539
                                                     LR 57.1 Counsel Appointed




        Case 5:23-cr-00021-FL-RN Document 23 Filed 05/25/23 Page 4 of 5
                         CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing was served upon:

       Sarah E Nokes
       Assistant United States Attorney
       United States Attorney’s Office
       Eastern District of North Carolina
       150 Fayetteville Street, Suite 2100
       Raleigh, NC 27601

by electronically filing the foregoing with the Clerk of Court on May 25, 2023, using the

CM/ECF system which will send notification of such filing to the above.

               This the 25th day of May, 2023.

                                                    G. ALAN DUBOIS
                                                    Federal Public Defender

                                                    /s/ Edward D. Gray
                                                    EDWARD D. GRAY
                                                    Assistant Federal Public Defender
                                                    Attorney for Defendant
                                                    Office of the Federal Public Defender
                                                    150 Fayetteville Street, Suite 450
                                                    Raleigh, North Carolina 27601
                                                    Telephone: 919-856-4236
                                                    E-mail: Edward_Gray@fd.org
                                                    N.C. State Bar No. 37539
                                                    LR 57.1 Counsel Appointed




        Case 5:23-cr-00021-FL-RN Document 23 Filed 05/25/23 Page 5 of 5


File and source

File
23.pdf
Size
202,362 bytes
SHA-256
a91ac22ed1919fc53b4f7def990845b36fa4cd65e6a7f035b1a02c5f130e4911
Our copy
23.pdf
Original
archive.org
Back to top