Reply Brief — Jorge L. Medina, Petitioner v. William P. Barr, Attorney General

No. 19-287

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In The

Supreme Court of the United States

-----------------------------------------------------------------JORGE L. MEDINA,

Petitioner,

v.

WILLIAM P. BARR,

Respondent.

-----------------------------------------------------------------On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The District Of Columbia Circuit

-----------------------------------------------------------------REPLY BRIEF FOR PETITIONER

-----------------------------------------------------------------JASON D. WRIGHT

CURTIS, MALLET-PREVOST,

COLT & MOSLE LLP

101 Park Avenue

New York, NY 10178

212.696.6000

jwright@curtis.com

ALAN GURA*

GURA PLLC

916 Prince Street, Suite 107

Alexandria, VA 22314

703.835.9085

alan@gurapllc.com

November 18, 2019

Counsel for Petitioner

*Counsel of Record

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COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................................

ii

ARGUMENT ........................................................

1

CONCLUSION.....................................................

8

ii

TABLE OF AUTHORITIES

Page

CASES

Binderup v. Atty. Gen.,

836 F.3d 336 (3d Cir. 2016) (en banc) ............. passim

Borden’s Farm Products Co. v. Baldwin,

293 U.S. 194 (1934) ...................................................3

District of Columbia v. Heller,

554 U.S. 570 (2008) ....................................... 1, 3, 4, 5

Kanter v. Barr,

919 F.3d 437 (7th Cir. 2019) ......................................4

Marks v. United States,

430 U.S. 188 (1977) ............................................... 6, 7

McDonald v. City of Chicago,

561 U.S. 742 (2010) ...................................................4

Old Chief v. United States,

519 U.S. 172 (1997) ...................................................2

Reno v. Koray,

515 U.S. 50 (1995) .....................................................8

United States v. Hager,

288 F.3d 136 (4th Cir. 2002) ......................................7

United States v. Rozier,

598 F.3d 768 (11th Cir. 2010) (per curiam) ..............6

United States v. Scroggins,

599 F.3d 433 (5th Cir. 2010) ......................................6

United States v. Williams,

616 F.3d 685 (7th Cir. 2010) ......................................4

United States v. Zackular,

945 F.2d 423 (1st Cir. 1991) ......................................8

iii

TABLE OF AUTHORITIES—Continued

Page

STATUTES AND RULES

18 U.S.C. § 922(g)(1) ......................................... 1, 2, 4, 5

Sup. Ct. R. 10(c) ............................................................1

OTHER AUTHORITIES

Adam Winkler, Scrutinizing the Second Amendment, 105 Mich. L. Rev. 683 (2007) ...........................2

Petition for Certiorari, Lynch v. Binderup, No.

16-847 (filed Jan. 5, 2017) ................................. 1, 2, 5

1

ARGUMENT

The government makes no effort to deny that

this case, at a minimum, raises “an important question of federal law that has not been, but should be,

settled by this Court. . . .” Sup. Ct. R. 10(c). Nor does

the government deny that the questions of whether

individuals may challenge an application of 18 U.S.C.

§ 922(g)(1) and, if so, on what grounds, constantly raise

profound issues implicating fundamental rights and

public safety.

Yet the decision below does not merely raise a

question that this Court should settle. It conflicts

with District of Columbia v. Heller, 554 U.S. 570 (2008)

by allowing Congress and state legislatures to define

the scope of a constitutional right, in disregard of this

Court’s instruction that felon disarmament is only

“presumptively lawful.”

Finally, the decision below squarely implicates the

circuit conflict that the government identified when it

petitioned for certiorari in Lynch v. Binderup, No. 16847 (filed Jan. 5, 2017) (“Binderup Pet.”). The government misstates the holding of Binderup v. Atty. Gen.,

836 F.3d 336 (3d Cir. 2016) (en banc) and other decisions, while overlooking other notable precedents. But

there is no sense denying that the decision below is the

latest entry in a mature and well-developed circuit

split that requires this Court’s resolution.

1. The government understands the importance

of the issues raised here when such understanding

suits its needs. “Section 922(g)(1) is by far the most

2

frequently applied of Section 922(g)’s firearms disqualifications, forming the basis for thousands of

criminal prosecutions and tens of thousands of firearmpurchase denials each year.” Binderup Pet. 23 (footnoted omitted) (referring to Title 18 of the United

States Code). “In addition, ‘[b]ans on the possession of

firearms by convicted felons are the most common type

of gun control regulation’ in the States, and many

States apply the standard definition of felony to bar

persons convicted of crimes punishable by imprisonment for more than one year.” Id. 23-24 (quoting Adam

Winkler, Scrutinizing the Second Amendment, 105

Mich. L. Rev. 683, 721 (2007)) (other quotation marks

and footnote omitted).

Moreover, this Court has acknowledged that Section 922(g)(1)’s broad reach encompasses many potential crimes that the government might be reluctant to

prosecute for fear of risking jury nullification. “[A]n extremely old conviction for a relatively minor felony

that nevertheless qualifies under the statute might

strike many jurors as a foolish basis for convicting an

otherwise upstanding member of the community of

otherwise legal gun possession.” Old Chief v. United

States, 519 U.S. 172, 185 n.8 (1997).

Such gun possession is not merely “otherwise

legal.” It is a fundamental constitutional right, the

denial of which may harm public safety no less than

the possession of firearms by dangerous people. Yet

the brief in opposition is silent as to Medina’s observation that the issues here recur constantly, impact

3

countless individuals, and implicate matters of the

highest public concern.

2. The brief in opposition fails to address the

conflicts that courts have identified between the government’s position and this Court’s decision in Heller.

As the government notes, “this Court described felondisarmament laws as ‘longstanding’ and ‘presumptively lawful.’ ” BIO 3 (quoting Heller, 554 U.S. at 626,

627 n.26). But the qualifying effect of the term “presumptively” has not been lost on courts. Affirming the

award of relief in two cases, the en banc Third Circuit

noted that “[u]nless flagged as irrebutable, presumptions are rebuttable.” Binderup, 836 F.3d at 350 (citations omitted). “A presumption of constitutionality ‘is

a presumption . . . [about] the existence of factual conditions supporting the legislation. As such it is a rebuttable presumption.’ ” Id. at 361 n.6 (Hardiman, J.,

concurring) (quoting Borden’s Farm Products Co. v.

Baldwin, 293 U.S. 194, 209 (1934)).

[W]e doubt the Supreme Court couched its

first definitive characterization of the nature

of the Second Amendment right so as to completely immunize this statute from any constitutional challenge whatsoever. Put simply,

we take the Supreme Court at its word that

felon dispossession is presumptively lawful.

Id. (internal quotation marks omitted). “Heller referred to felon disarmament bans only as ‘presumptively lawful,’ which, by implication, means that there

must exist the possibility that the ban could be unconstitutional in the face of an as-applied challenge.”

4

United States v. Williams, 616 F.3d 685, 692 (7th Cir.

2010).

Moreover, immunizing Section 922(g)(1) from asapplied challenges, BIO 8, would allow Congress and

state legislatures to define the contours of a fundamental right. Whatever activity legislatures decree

felonious (or subject to a particular term of imprisonment) would, by that virtue, place individuals outside

the Second Amendment’s protective scope. Pet.25-26.

That position conflicts with Heller’s basic holding, reconfirmed in McDonald v. City of Chicago, 561 U.S. 742

(2010), that the right to arms is secured by the Constitution.

Instead of addressing this conflict with precedent,

the government sites the musings of some law professors to the effect that the right to arms is somehow

tied to the concept of a virtuous citizenry. BIO 7-8.

But neither the government, nor the professors, have

shown their work. As Judge Hardiman found, the virtuosity theory “falls somewhere between guesswork

and ipse dixit.” Binderup, 836 F.3d at 372 (Hardiman,

J., concurring); Pet.23. Consistent with these unsupported assertions, the government ignores the copious

contrary historical evidence presented by Medina and

his amicus, and recounted in various judicial opinions

including Judge Barrett’s dissent in Kanter v. Barr,

919 F.3d 437 (7th Cir. 2019) and Judge Hardiman’s

Binderup concurrence. And of course, were the court

below and the government correct, they would place

Congress and the state legislatures in the position

of doling out fundamental rights based on their

5

assessment of people’s virtue. If Heller means anything, it means that litigants must take history seriously. This Court’s precedent required more of the

court below, and it requires more of the government.

3. The government recently described the circuit

conflict to this Court in terms that plainly encompass

the decision below. It also misrepresents the state of

circuit precedent, the resulting circuit conflict, and

Medina’s argument.

As the government conceded earlier, Binderup

“opened the courthouse doors to an untold number of

future challenges by other individuals based on their

own particular offenses, histories, and personal circumstances.” Binderup Pet. 10. The “individuals” referenced by the government? “[C]onvicted felons.” Id. As

Medina noted, the government thinks nothing of the

felon-misdemeanant distinction in defending Section

922(g)(1) in each and every conceivable application.

Pet.24-25 (citing Binderup Pet. 16).

The government points to the lower court’s theoretical allowance for as-applied challenges, arguing

that the matter remains open in the D.C. Circuit and

thus, the decision below is not among conflicting precedent. BIO 12. This approach overreads the court’s language and minimizes the conflict’s scope. The D.C.

Circuit’s apparent reservation is empty. It might well

have been offered for no reason other than to minimize

the prospect of this Court’s review. Without question,

Medina raised an individualized as-applied challenge.

The D.C. Circuit rejected that challenge without

6

explaining why Medina fell short, or even what the

standards for such a challenge might be. The government, too, fails to explain how or why this is merely a

case that fails for lack of proof.

Absent any actual discussion of the as-applied

standard, of Medina’s evidence, and of how the two relate, we are left only with the D.C. Circuit’s holding

“that those convicted of felonies are not among those

entitled to possess arms,” Pet.App.16a (citation omitted), and that Medina cannot obtain relief for the simple fact that he has a felony conviction, Pet.App.17a. If

the court below truly wished to account for as-applied

challenges, it should have explained why Medina’s asapplied challenge fails rather than merely declared

that he is a felon and called it a day.

Beyond this, the government’s familiar yet erroneous recitation of circuit precedent it claims to be implicated in this split, such as United States v. Rozier,

598 F.3d 768 (11th Cir. 2010) (per curiam) and United

States v. Scroggins, 599 F.3d 433 (5th Cir. 2010), has

already been anticipated and addressed. Pet.18. The

government makes no effort to engage the showing

that these decisions did not foreclose individualized

as-applied challenges, just as it ignores the petition’s

detailing of the relevant precedent in the various circuits.

The government also errs in asserting that

Judge Ambro’s three-judge Binderup plurality is circuit law under the rule of Marks v. United States, 430

U.S. 188 (1977). Judge Ambro’s opinion is not in any

7

sense narrower than Judge Hardiman’s five-judge concurrence. It is just different, and its claim to precedential status under Marks itself garnered merely three of

fifteen votes. Pet.17 n.6.

The government also erroneously denies that

Medina claims he would prevail under either Binderup

approach, BIO 8, contra Pet.16-17. And it erroneously

argues that Medina would have lost under Judge

Ambro’s four-factor test. While Medina’s predicate

conviction “was not violent,” BIO 13, the government

contends that the other three factors—felony classification, cross-jurisdictional consensus, and imprisonment—weigh against Medina. BIO 13-14. To be sure,

Medina’s offense was a felony, but the relevance of

cross-jurisdictional consensus is doubtful when speaking of federal crimes where only one jurisdiction is at

stake.

Even less persuasive is the government’s equation

of home detention and imprisonment. Sixty days of

home detention do, in fact, qualify as “not a single day

of jail time.” BIO 13 (quoting Binderup, 836 F.3d at

352 (Ambro, J.)). Judge Ambro probably did not have

a short period of home confinement in mind when he

offered that terms of imprisonment reflect a crime’s

severity. “Home confinement is not incarceration.”

United States v. Hager, 288 F.3d 136, 137 (4th Cir.

2002). “While a defendant’s movement may be severely

curtailed by the conditions of his home confinement,

it cannot seriously be doubted that confinement to

the comfort of one’s own home is not the functional

equivalent of incarceration in either a practical or a

8

psychological sense.” United States v. Zackular, 945

F.2d 423, 425 (1st Cir. 1991); cf. Reno v. Koray, 515 U.S.

50, 59 (1995).

Medina would have doubtless prevailed under

Judge Hardiman’s Binderup approach, and he would

likely have prevailed under Judge Ambro’s Binderup

approach for triggering only two of four or perhaps one

of three relevant factors. In any event, either Binderup

approach differs from the D.C. Circuit’s illusory nonapproach to resolving such claims, to say nothing of the

way a case like this would have been decided under

other circuits’ precedent. If, as the government would

have had in Binderup, a conflict merits resolution

when lower courts protect fundamental rights, it merits resolution when a court disregards a right that another circuit would enforce.

------------------------------------------------------------------

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

JASON D. WRIGHT

CURTIS, MALLET-PREVOST,

COLT & MOSLE LLP

101 Park Avenue

New York, NY 10178

212.696.6000

jwright@curtis.com

ALAN GURA*

GURA PLLC

916 Prince Street, Suite 107

Alexandria, VA 22314

703.835.9085

alan@gurapllc.com

November 18, 2019

Counsel for Petitioner

*Counsel of Record