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Harley v. Barr

United States District Court, E.D. Virginia, Alexandria Division

April 16, 2019

WILLIAM BARR, Attorney General of the United States Defendant.



         Nearly thirty years ago plaintiff was involved in a domestic incident with his ex-wife and was convicted of misdemeanor assault and battery of a family member, in violation of Va. Code § 18.2-57.2. Under federal law, specifically 18 U.S.C. § 922(g)(9), plaintiffs 1993 misdemeanor domestic assault conviction makes it illegal for him to possess a firearm. Plaintiff, who, as the record reflects, has obeyed the law without incident since 1993, and who, as the record also reflects, has a long history of public service, now challenges the constitutionality of § 922(g)(9) as applied to him. Simply put, plaintiff argues that one misdemeanor conviction nearly thirty years ago should not preclude him from possessing a firearm for the rest of his life. He believes that under his specific circumstances, § 922(g)(9) unconstitutionally violates his Second Amendment right to keep and bear arms. Thus, he seeks summary judgment in his favor, a decision that would allow him to possess firearms legally again.

         For its part, the government has moved for summary judgment, noting that each federal court of appeals to consider arguments like plaintiffs has rejected as-applied challenges to § 922(g)(9). In other words, according to the government, § 922(g)(9) has no good behavior exception or expiration provision and is not rendered unconstitutional simply because a former perpetrator of a domestic violence misdemeanor behaves himself for any particular period of time.

         For the reasons that follow, the government's motion for summary judgment must be granted and plaintiffs motion must be denied.


         The essential and material facts of this case are undisputed. They are as follows:

• In July of 1993, plaintiff was convicted in Fairfax County Juvenile and Domestic Relations Court of committing misdemeanor assault under Va. Code §18.2-57.2 following the entry of a guilty plea.
• This conviction arose after plaintiff called the Fairfax County Police Department and reported to the police that he and his then-estranged wife, Angela, had argued and gotten into a physical altercation.
• Plaintiff has not committed any other crimes since 1993.
• Plaintiff worked thirty (30) years for Fairfax County Public Works and was recognized for his contributions to the public upon his retirement.
• Plaintiff also served as a volunteer fireman/EMT for many years and was highly decorated for this service.

         Because there is "no genuine dispute as to [these] material fact[s]" and because both parties have filed motions for summary judgment, at least one party "is entitled to judgment as a matter of law." Celotex v. Catrett, 477 U.S. 317, 322 (1986).


         The operative statutory subsection in this case, § 922(g)(9), [1] was added to the statute in 1997 after Congress recognized that existing felon-in possession laws "were not keeping firearms out of the hands of domestic abusers, because 'many people who engage in serious spousal or child abuse ultimately are not charged with or convicted of felonies.'" United States v. Hayes, 555 U.S. 415, 426 (2009) (quoting 142 Cong. Rec. 22, 985 (1996) (statement of Sen. Lautenberg)). Section 922(g)(9) attempts to close this "'dangerous loophole, '" by extending the federal firearm prohibition to persons convicted of "'misdemeanor crime[s] of domestic violence.'" Id. (quoting 142 Cong. Rec. at 22, 986 (statement of Sen. Lautenberg)) (alteration in original).

         Plaintiff, having been convicted of misdemeanor family assault, plainly falls within the group of individuals Congress intended to preclude from possessing firearms. And because the facial validity of § 922(g)(9) has not been challenged here, nor has it been successfully challenged elsewhere, [2] the only issue presented in this case is whether § 922(g)(9) is unconstitutional as applied to plaintiff.

         As the Third Circuit has noted, an as-applied challenge differs from a facial challenge because it "does not contend that a law is unconstitutional as written but that its application to a particular person under particular circumstances deprived that person of a constitutional right." United States v. Mitchell,652 F.3d 387, 405 (3d Cir. 2011). As-applied challenges to the constitutionality of statutes are not uncommon and therefore it is not surprising that the Fourth Circuit has considered "the proper framework for deciding as-applied Second Amendment challenges." United States v. Staten, 666 F.3d 154, 158-59 (4th Cir. 2011) (discussing the two-step analysis for considering as-applied constitutional challenges and rejecting Staten's as-applied constitutional challenge to 18 U.S.C. § 922(g)(9)); see also United States v. Chester,628 F.3d 673, 680 (4th Cir. 2010) (adopting the two-step analysis for an as-applied challenge to 18 U.S.C. § 922(g)(9)) (citing United States v. Marzzarella,614 F.3d 85, 89 (3d Cir. 2010)). Distilled to its essence, the Fourth Circuit's analytical framework for ...

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