Petition for Writ of Certiorari — Deondre Lamont Bain, Petitioner v. United States
Supreme Court briefOct 29, 2025
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No.
IN THE
SUPREME COURT OF THE UNITED STATES
DEONDRE LAMONT BAIN,
Petitioner,
versus
UNITED STATES OF AMERICA,
Respondent.
On Petition for a Writ of Certiorari
to the United States Court of Appeals for the Eleventh Circuit
PETITION FOR A WRIT OF CERTIORARI
RICHARD F. DELLA FERA
500 East Broward Blvd., Suite 1710
Fort Lauderdale, FL 33394
Telephone: (954) 848-2872
Attorney for the Petitioner
1
QUESTION PRESENTED
Is the lifetime ban on possession of firearms by all felons, codified at 18 U.S.C.
§ 922(g)(1), plainly unconstitutional on its face under New York State Rifle & Pistol
Association, Inc. v. Bruen, 597 U.S. 1 (2022), because it is permanent and applies to
all persons convicted of felonies?
2
TABLE OF CONTENTS
QUESTION PRESENTED ............................................................................................ 2
TABLE OF CONTENTS ................................................................................................ 3
APPENDIX INDEX........................................................................................................ 4
TABLE OF AUTHORITIES .......................................................................................... 5
OPINIONS BELOW....................................................................................................... 7
JURISDICTION ............................................................................................................. 7
STATUTORY PROVISIONS INVOLVED .................................................................... 7
STATEMENT OF THE CASE ....................................................................................... 7
REASONS FOR GRANTING THE WRIT................................................................... ..9
I.
II.
Simple application of Bruen’s historical-tradition test makes clear that
a blanket, lifetime ban on possession of firearms for all felons cannot
withstand constitutional scrutiny.............................................................. 10
A.
Bruen represented a fundamental shift in Second Amendment
B.
Under the new framework, Section 922(g)(1) violates the Second
Amendment because firearm possession is protected by the
Amendment’s plain text, and the government cannot show a
historical tradition of categorically disarming felons ...................... 11
analysis .............................................................................................. 10
1.
The text of the Second Amendment covers Bain’s
conduct, and he is among “the people” the Amendment
protects.................................................................................... 11
2.
There is no relevantly similar historical regulation that
bans firearm possession for life ............................................. 13
This is a critically important and recurring question ............................... 20
3
III.
Alternatively, this Court should hold Bain’s petition pending
consideration of one of the many other petitions that will place these
same issues before this Court ................................................................. 21
CONCLUSION ............................................................................................................. 21
APPENDIX INDEX
Eleventh Circuit opinion, August 20, 2025…...................................................App. A
District court judgment, February 12, 2024.....................................................App. B
4
TABLE OF AUTHORITIES
CASES
Binderup v. Att’y Gen. of the U.S., 836 F.3d 336 (3d Cir. 2016) (en banc) ................ 17
Dist. of Columbia v. Heller, 554 U.S. 570 (2008) .................................................passim
Entler v. Gregoire, 872 F.3d 1031 (9th Cir. 2017) ...................................................... 13
Jennings v. State, 5 Tex. Ct. App. 298 (1878) ..............................................................19
Kanter v. Barr, 919 F.3d 437 (7th Cir. 2019)................................................... 9-10, 16, 17
McDonald v. City of Chicago, 561 U.S. 742 (2010) ............................................... 10, 11
New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022) ....passim
Rehaif v. United States, 588 U.S. 225, 239 (2019……………………………………… 20
United States v. Bain, 24-10480 (11th Cir. Aug. 20, 2025)(unpublished).....................7
United States v. Dubois, 139 F.4th 887 (11th Cir. 2025)………………………………..8
United States v. Lara, 815 F.3d 605 (9th Cir. 2016)……………………………………13
United States v. Rahimi, 144 S. Ct. 1889 (2024)…………………………………….passim
United States v. Rozier, 598 F.3d 768 (11th Cir. 2010)………………………………….10
United States v. Verdugo-Urquidez, 494 U.S. 259 (1990) .......................................... 12
STATUTES
U.S. Const. Amend. I ................................................................................................... 15
U.S. Const. Amend. II ...........................................................................................passim
U.S. Const. Amend. IV ............................................................................................ 14-15
18 U.S.C. § 922(g)(1) .............................................................................................passim
18 U.S.C. § 924(c)(1) .................................................................................................... 8-9
1 Wm. & Mary c. 15, § 4, in 3 Eng. Stat. at Large 399 (1688).................................... 19
5
Sec’y of the Commonwealth, Acts and Resolves of Massachusetts 1786–87,
(1893) ................................................................................................................. 20
OTHER
Adam Winkler, Heller’s Catch-22, 56 U.C.L.A. L. Rev. 1551 (2009) ......................... 17
C. Kevin Marshall, Why Can’t Martha Stewart Have A Gun?, 32 Harv. J.L. & Pub.
Policy 695 (2009) ............................................................................................... 18
Dru Stevenson, In Defense of Felon-in-Possession Laws, 43 CARDOZO L. REV.
1573 (2022)…………………………………………………………………………… 21
Joseph G.S. Greenlee, The Historical Justification for Prohibiting Dangerous
Persons from Possessing Arms, 20 Wyo. L. Rev. 249 (2020)................... 18, 20
Robert H. Churchill, Gun Regulation, the Police Power, and the Right to Keep
Arms in Early America: The Legal Context of the Second Amendment, 25
Law & Hist. Rev. 139 (2007)............................................................................. 20
Steven G. Bradbury, et al., Whether the Second Amendment Secures an
Individual Right, 28 OP. O.L.C. 126 (2004) .................................................... 21
U.S. Sent’g Comm’n, Quick Facts: 18 U.S.C. § 922(g) Firearms Offenses
(June 2024)……………………………………………………………………………..20
6
OPINIONS BELOW
The opinion of the United States Court of Appeals for the Eleventh Circuit
affirming petitioner’s conviction and sentence can be found at United States v. Bain,
No. 24-10480 (11th Cir. August 20, 2025) (unpublished), and is set forth at App. 001.
JURISDICTION
The judgment of the court of appeals was entered on August 20, 2025. The
jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).
STATUTORY PROVISIONS INVOLVED
18 U.S.C. § 922(g)(1) states in relevant part:
(g) It shall be unlawful for any person—
(1) who has been convicted in any court of, a crime punishable by
imprisonment for a term exceeding one year;
***
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.
The Second Amendment to the U.S. Constitution provides in relevant part:
A well regulated Militia, being necessary to the security of a free State,
the right of the people to keep and bear Arms, shall not be infringed.
STATEMENT OF THE CASE
The Petitioner Deondre Lamont Bain was indicted with possession of a firearm
by a convicted felon in violation of 18 U.S.C. § 922(g)(1) (Count 1) and illegal
possession of a machine gun in violation of 18 U.S.C. § 922(o)(1)(Count 2). Bain filed
a motion to dismiss Count 1 as violative of his Second Amendment rights. That
7
motion was denied. The case proceeded to trial and on September 14, 2023, a jury
found Bain guilty on both counts. Bain was sentenced to 144 months imprisonment
on Count 1 and 120 months on Count 2 to run concurrently and three years of
supervised release. A written judgment was entered by the district court on February
12, 2024. Bain filed a timely notice of appeal on February 13, 2025.
Bain appealed the facial constitutionality of Section 922(g)(1), his only count of
conviction, to the Eleventh Circuit. Bain asserted that Section 922(g)(1) was facially
unconstitutional after New York State Rifle & Pistol Association, Inc. v. Bruen, 597
U.S. 1 (2022) because there was no historical evidence of categorically disarming all
felons. On August 20, 2025, the Eleventh Circuit affirmed Bain’s conviction and
rejected his Second Amendment challenge to Section 922(g)(1) under United States
v. Dubois, 139 F.4th 887 (11th Cir. 2025), where the Eleventh Circuit had upheld the
facial constitutionality of Section 922(g)(1).
8
REASONS FOR GRANTING THE WRIT
This Court should grant a writ of certiorari in Bain’s case, or, alternatively,
grant certiorari in another case raising the same issues and then hold Bain’s petition
pending a resolution of these important questions.
In Bruen, this Court established a new framework for determining whether a
firearm regulation is constitutional under the Second Amendment, eliminating the
two-step history and means-end scrutiny test that the Eleventh Circuit and others
previously employed. Specifically, Bruen got rid of the second step. This Court
declared that “a constitutional guarantee subject to future judges’ assessments of its
usefulness is no constitutional guarantee at all.” Bruen, 597 U.S. at 23 (quotations
omitted). Now, under Bruen, for a law to survive a Second Amendment challenge, the
government must “identify an American tradition” justifying the law’s existence. If it
cannot, courts may no longer apply “means-end scrutiny” to uphold the law under the
second step. Id. at 2125, 2138. Instead, the inquiry ends, and the law is
unconstitutional.
Thus, under Bruen, the government must prove that Section 922(g)(1) is
consistent with this Nation’s historical tradition of firearm regulation. But it plainly
cannot do so because there is no relevantly similar historical analogue to a lifetime
ban on possession of firearms. As one Justice has noted, no historical tradition of
prohibiting felons from possessing firearms for life exists. Kanter v. Barr, 919 F.3d
9
437, 458 (7th Cir. 2019) (Barrett, J., dissenting), abrogated by Bruen, 597 U.S. 1.
Thus, Section 922(g)(1) is unconstitutional on its face. And that is clearly and
obviously dictated by simple application of Bruen. The Eleventh Circuit was wrong
to hold that Bruen does not compel this straightforward result. Bain’s conviction
under Section 922(g)(1) should be reversed.
I.
Simple application of Bruen’s historical-tradition test makes clear that a
blanket, lifetime ban on possession of firearms for all felons cannot withstand
constitutional scrutiny
A.
Bruen represented a fundamental shift in Second Amendment analysis
The Second Amendment to the U.S. Constitution mandates that a “wellregulated militia, being necessary to the security of a free state, the right of the people
to keep and bear arms, shall not be infringed.” U.S. Const. amend. II. In Dist. of
Columbia v. Heller, this Court held that the Second Amendment codifies an
individual right to possess and carry weapons, explaining that the inherent right of
self-defense is central to its protections. 554 U.S. 570, 628 (2008); see also McDonald
v. City of Chicago, 561 U.S. 742, 767 (2010) (holding “that individual self-defense is
the central component of the Second Amendment right”).
Following Heller (but before Bruen), the Eleventh Circuit and others adopted
a two-step, means-end inquiry for analyzing laws that might impact the Second
Amendment. United States v. Rozier, 598 F.3d 768 (11th Cir. 2010). In Bruen, this
Court expressly abrogated the two-step inquiry adopted by the Eleventh Circuit and
others and announced a new framework for analyzing Second Amendment claims.
The Court reasoned that “[s]tep one of the predominant framework is broadly
consistent with Heller, which demands a test rooted in the Second Amendment’s text,
10
as informed by history.” Bruen, 597 U.S. at 19. However, Bruen rejected the practice
of applying “means-end scrutiny” to conduct deemed protected (i.e., step two of the old
framework), explaining that “Heller and McDonald do not support applying meansend scrutiny in the Second Amendment context.” Id. Under Bruen’s newly announced
framework, “when the Second Amendment’s plain text covers an individual’s conduct,
the Constitution presumptively protects that conduct.” Id. at 17. And, upon such a
finding, “[t]he government must then justify its regulation by demonstrating that it is
consistent with the Nation’s historical tradition of firearm regulation.” Id. at 24. Only
upon the government making such a showing may a court “conclude that the
individual’s conduct falls outside of the Second Amendment’s ‘unqualified command.’”
Id. (citation omitted). In other words, for a firearm regulation to pass constitutional
muster, “the government must affirmatively prove that its firearms regulation is part
of the historical tradition that delimits the outer bounds of the right to keep and bear
arms.” Id. at 19.
B.
Under the new framework, Section 922(g)(1) violates the Second
Amendment because firearm possession is protected by the
Amendment’s plain text, and the government cannot show a historical
tradition of categorically disarming felons
Straightforward application of Bruen’s test makes clear that Section 922(g)(1)
cannot survive constitutional scrutiny, and the Eleventh Circuit was wrong to hold
otherwise.
1.
The text of the Second Amendment covers Bain’s conduct, and he
is among “the people” the Amendment protects
11
The plain text of the Second Amendment protects the right to possess and carry
weapons for self-defense. See Heller, 554 U.S. at 583-92. And Bruen clarified that this
right extends outside of the home. 597 U.S. at 8. Section 922(g)(1) is a permanent and
complete ban on any firearm possession by felons in any context. Thus, the statute
regulates (and in fact fully prohibits) conduct that is presumptively protected under
the plain text of the Second Amendment. As a result, the statute is presumptively
unconstitutional under Bruen. Id. at 24.
In an attempt to sidestep this straightforward conclusion, the government has
adopted a novel argument that a person’s status as a “felon” excludes that person
from the Second Amendment’s protections. But the plain text of the Second
Amendment and this Court’s precedent hold otherwise. In Heller, this Court rejected
the theory that “the people” protected by the Second Amendment was limited to a
specific subset—i.e., those in a militia. 554 U.S. at 579-81, 592-600. The Court
explained that when the Constitution refers to “‘the people,’ the term unambiguously
refers to all members of the political community, not an unspecified subset,” and there
is thus a “strong presumption that the Second Amendment right is exercised
individually and belongs to all Americans.” Id. at 580-81 (emphasis added).
Comparison to other constitutional amendments confirms this view. As Heller
explained, “the people” is a “term of art employed in select parts of the Constitution,”
including “the Fourth Amendment, . . . the First and Second Amendments, and . . .
the Ninth and Tenth Amendments.” Id. (quoting United States v. Verdugo-Urquidez,
494 U.S. 259, 265 (1990)). It is beyond challenge that felons are among “the people”
12
whose “persons, houses, papers, and effects” enjoy Fourth Amendment protection.
U.S. Const. Amend. IV; see United States v. Lara, 815 F.3d 605 (9th Cir. 2016). And
felons likewise enjoy “the right of the people” to “petition the government for redress
of grievances.” U.S. Const. Amend. I; see Entler v. Gregoire, 872 F.3d 1031, 1039 (9th
Cir. 2017). If a person with a felony conviction is one of “the people” protected by the
First and Fourth Amendments, Heller teaches that he is one of “the people” protected
by the Second Amendment, too.
This view was confirmed when this Court addressed a challenge to a different
subsection of § 922(g) in United States v. Rahimi, 144 S. Ct. 1889 (2024). The Court
analyzed historical laws dealing with dangerous persons to find that
§ 922(g)(8) was consistent with historical tradition and therefore constitutional. Id.
at 1899-1900. But the Court never suggested for a moment that Mr. Rahimi was not
one of “the people” protected by the Second Amendment. Accordingly, Bain is among
“the people” to whom the Second Amendment applies.
2.
There is no relevantly similar historical regulation that bans
firearm possession for life
Bruen provided guidance on conducting historical analysis in the hunt for
relevantly similar regulations. The Court can consider “whether ‘historical precedent’
from before, during, and even after the founding evinces a comparable tradition of
regulation.” Bruen, 597 U.S. at 27. But Bruen reminded that “not all history is
created equal.” Id. at 34. That is because “[c]onstitutional rights are enshrined with
the scope they were understood to have when the people adopted them.” Id.
(quotations omitted). Because the Second Amendment was adopted in 1791, earlier
13
historical evidence “may not illuminate the scope of the right if linguistic or legal
conventions changed in the intervening years.” Id. Similarly, post-ratification laws
that “are inconsistent with the original meaning of the constitutional text obviously
cannot overcome or alter that text.” Id. at 36 (quotations and emphasis omitted).
Bruen—and, later, Rahimi—also offered analytical guidance for evaluating
historical clues. As this Court explained in Rahimi: “A court must ascertain whether
the new law is ‘relevantly similar’ to laws that our tradition is understood to permit,
‘apply[ing] faithfully the balance struck by the founding generation to modern
circumstances.’” Rahimi, 144 S. Ct. at 1898 (quoting Bruen, 597 U.S. at 29). In doing
so, “[w]hy and how the regulation burdens the right are central to this inquiry.”
Id. Thus, “if laws at the founding regulated firearm use to address particular
problems, that will be a strong indicator that contemporary laws imposing similar
restrictions for similar reasons fall within a permissible category of regulations.” Id.
Importantly, though, “[e]ven when a law regulates arms-bearing for a permissible
reason, . . . it may not be compatible with the right if it does so to an extent beyond
what was done at the founding.” Id. And this Court made clear that the burden falls
squarely on the government to “affirmatively prove that its firearms regulation is
part of the historical tradition that delimits the outer bounds of the right to keep and
bear arms.” Bruen, 597 U.S. at 19. If the government cannot do so, the infringement
on the right cannot survive.
In Heller, this Court confirmed an individual’s right to keep and bear arms but
cautioned that this right is “not unlimited.” 554 U.S. at 626. As an example, the Court
14
provided, in dicta, a non-exhaustive list of “presumptively lawful regulatory
measures”—i.e., ones that had not yet undergone a full historical analysis. Id. at 627
n.26 (emphasis added). This list included laws restricting possession by felons and
the mentally ill and the carrying of firearms in “sensitive places.” Id. at 626. Heller
emphasized that “we do not undertake an exhaustive historical analysis today of the
full scope of the Second Amendment.” Id. And since this was the Court’s “first indepth examination of the Second Amendment,” Heller explained that it could not
“clarify the entire field.” Id. at 635. But Heller promised that there would be “time
enough to expound upon the historical justifications for the exceptions we have
mentioned if and when those exceptions come before us.” Id. That time is now. The
government cannot meet its burden to establish the requisite “relevantly similar”
historical tradition. Rahimi, 144 S. Ct. at 1898 (quoting Bruen, 597 U.S. at 29).
The government cannot meet its burden to establish Section 922(g)(1)’s
historical pedigree for a simple reason: neither the federal government nor a single
state barred all people convicted of felonies until the 20th century. See, e.g., Adam
Winkler, Heller’s Catch-22, 56 U.C.L.A. L. Rev. 1551, 1563 (2009). The modern
version of Section 922(g)(1) was adopted 177 years after the Second Amendment.
Bruen, 597 U.S. at 66 n.28 (“[L]ate-19th-century evidence” and any “20th-century
evidence . . . does not provide insight into the meaning of the Second Amendment
when it contradicts earlier evidence.”).
Section 922(g)(1) very much contradicts earlier evidence from the relevant
historical periods: “(1) . . . early modern England; (2) the American Colonies and the
15
early Republic; (3) antebellum America; [and] (4) Reconstruction.” Id. at 2135–36.
Those periods lack evidence of any analogue to Section 922(g)(1).
The government may argue that, historically, some jurisdictions sometimes
regulated firearm use by those considered presently violent. But not all people with
a felony conviction are presently violent. Moreover, the historical regulations
required an individualized assessment of a person’s threat to society. And finally, the
historical regulations almost always allowed people deemed violent to still possess
weapons for self-defense. Thus, even those convicted of serious crimes—including
rebellion—remained entitled to protect themselves in a dangerous world, with
firearms if necessary. Those laws’ targeted nature makes them a far cry from
declaring that any person, convicted of any felony, can never possess “the most
popular weapon chosen by Americans for self-defense in the home.” Heller, 554 U.S.
at 629.
England, before the founding, did not ban felons from ever again possessing a
firearm. See Kanter, 919 F.3d at 457 (Barrett, J., dissenting); C. Kevin Marshall, Why
Can’t Martha Stewart Have A Gun?, 32 Harv. J.L. & Pub. Policy 695, 717 (2009);
Joseph G.S. Greenlee, The Historical Justification for Prohibiting Dangerous Persons
from Possessing Arms, 20 Wyo. L. Rev. 249, 260 (2020). To the extent that England
sought to disarm individuals, those regulations usually required a more culpable
mental state and made exceptions for self-defense, both features absent from Section
922(g)(1). Rahimi discusses at length the surety laws and laws against affray or going
armed against the king’s subjects. 144 S. Ct. at 1899-1902.
16
To the extent that England tried to disarm whole classes of subjects, it did so
on discriminatory grounds that would be unconstitutional today—and yet still
permitted those targeted to keep arms for self-defense. For example, in the age of
William and Mary (both Protestants), Catholics were presumed loyal to James II (a
Catholic trying to retake the throne) and treasonous. Thus, Catholics could keep
“Arms, Weapons, Gunpowder, [and] Ammunition,” only if they declared allegiance to
the crown and renounced key parts of their faith. See Bruen, 597 U.S. at 45 n.12
(quoting 1 Wm. & Mary c. 15, § 4, in 3 Eng. Stat. at Large 399 (1688)). In short, the
English never tried to disarm all felons. Rather, they tried to limit the use of firearms
by those individuals found to be violent and rebellious. And even those individuals
could keep arms for self-defense. A “relevantly similar” historical regulation that is
not. Bruen, 597 U.S. at 29.
“[T]here is little evidence of an early American practice of,” forever barring all
people convicted of a felony from ever again possessing a firearm. Bruen, 597 U.S. 1
at 46. The early United States accepted that those who committed crimes—even
serious ones—retained a right to defend themselves. That can be seen in the colonies’
and states’ statutes, early American practice, and rejected proposals from state
constitutional conventions. See Kanter, 919 F.3d at 454 (Barrett, J., dissenting);
ssenting); Binderup v. Att’y Gen. of the U.S., 836 F.3d 336, 368 (3d Cir. 2016) (en
banc) (Hardiman, J., concurring).
To the extent that the new nation sought to disarm people, the regulatory
17
approach was much more limited than Section 922(g)(1). For example, the Virginia
colony disarmed Catholics, still viewed as traitors to the crown. Robert H. Churchill,
Gun Regulation, the Police Power, and the Right to Keep Arms in Early America: The
Legal Context of the Second Amendment, 25 Law & Hist. Rev. 139, 157 (2007)
(citation omitted). But there was an exception for weapons allowed by a justice of the
peace “for the defense of his house and person.” Id. And following the Declaration of
Independence, Pennsylvania ordered that those who did not pledge allegiance to the
Commonwealth and renounce British authority be disarmed. Id. at 159. Thus, to the
extent that either regulation would comply with the Second Amendment, as
understood today, they required a specific finding that a specific person posed a risk
of violence to the state.
Colonial and Founding-era practice also suggests that committing a serious
crime did not result in a permanent disarmament. For example, leaders of the
seminal Massachusetts Bay colony once disarmed supporters of a banished
seditionist. Greenlee, supra, at 263 (citations omitted). Nevertheless, “[s]ome
supporters who confessed their sins were welcomed back into the community and able
to retain their arms.” Id. And in 1787, after the participants in Shay’s Rebellion
attacked courthouses, a federal arsenal, and the Massachusetts militia, they were
barred from bearing arms, for three years, not life. Id. at 268-67. In fact,
Massachusetts law required the Commonwealth to hold and then return the rebels’
arms after that period. Sec’y of the Commonwealth, Acts and Resolves of
Massachusetts 1786–87, at 178 (1893).
18
American practice and laws during the Nineteenth Century—before and after
the Civil War—also confirm that Section 922(g)(1) does not comport with the
“Nation’s historical tradition of firearm regulation.” Bruen, 597 U.S. at 34. The
United States continued to regulate—but not ban—firearm possession by those
feared to be violent. See id. at 55 (holding that 19th century surety laws allowed
people likely to breach the peace to still keep guns for self-defense or if they posted a
bond). But, as discussed above, that is not similar to Section 922(g)(1). There is no
evidence of a precursor to Section 922(g)(1)’s broad, categorical ban. In fact, there are
at least two documented instances where attempts to disarm a class of offenders was
rejected as inconsistent with the right to bear arms.
First, as with Shay’s Rebellion, Congress declined to disarm southerners who
fought against the Union in the Civil War. Steven G. Bradbury, et al., Whether the
Second Amendment Secures an Individual Right, 28 OP. O.L.C. 126, 226 (2004). The
reason: some northern and Republican senators feared that doing so “would violate
the Second Amendment.” Id. Second, when a Texas law ordered that people convicted
of unlawfully using a pistol be disarmed, it was struck down as unconstitutional
under the Texas constitution. Jennings v. State, 5 Tex. Ct. App. 298, 298 (1878).
In sum, the 19th century history provides clear evidence that mass
disarmament for people convicted of an offense is unconstitutional. Not only was
there a consistent practice of allowing people who broke the law to keep weapons for
self-defense—at least one state appellate court and Congress agreed that disarming
lawbreakers was unconstitutional. As Bruen teaches: “[I]f some jurisdictions actually
19
attempted to enact analogous regulations during this timeframe, but those proposals
were rejected on constitutional grounds, that rejection surely would provide some
probative evidence of unconstitutionality.” 597 U.S. at 27.
Rahimi did not affect this analysis—and, in fact, made all the clearer Section
922(g)(1)’s lack of constitutional backing. The prohibition there passed constitutional
muster because there were historical analogues temporarily disarming those proven
to be presently violent. 144 S. Ct. 1898-99. The restraining order subsection of
§ 922(g) passed constitutional muster because there is an individualized finding of
dangerousness, after notice and an opportunity to be heard, and the restriction lasts
only as long as the restraining order does. Id. at 1895-96.
Again, “[w]hy and how the regulation burdens the right are central to the
inquiry.” Id. at 1898. Section 922(g)(1) contains a lifetime prohibition on possession
of firearms by all convicted felons, without an individualized determination of
ongoing dangerousness. It therefore violates the Second Amendment on its face, and
Bain’s conviction under Section 922(g)(1) must be vacated.
II.
This is a critically important and recurring question.
The Court should grant the petition because the question is critically important
and recurring. After all, “§ 922(g) is no minor provision.” Rehaif v. United States, 588
U.S. 225, 239 (2019) (Alito, J., dissenting). Out of about 64,000 cases reported to the
Sentencing Commission in Fiscal Year 2023, more than 7,100 involved convictions
under § 922(g)(1). See U.S. Sent’g Comm’n, Quick Facts: 18 U.S.C. § 922(g) Firearms
Offenses, at 1 (June 2024). Those convictions accounted for over 10% of all federal
criminal cases. See id. The government itself has acknowledged “the special need for
20
certainty about Section 922(g)(1) given the frequency with which the government
brings criminal cases under it.” Gov’t Supp. Br. at 10 n.5, Range v. Att’y Gen. (No. 23374). Even beyond new prosecutions, § 922(g)(1)’s reach is staggering. The statute
prohibits millions of Americans from exercising their right to keep and bear arms for
the rest of their lives. Recent estimates of the number of individuals with felony
convictions range from 19 million to 24 million. Dru Stevenson, In Defense of Felonin-Possession Laws, 43 CARDOZO L. REV. 1573, 37 1591 (2022) (citations omitted).
Given § 922(g)(1)’s widespread impact both on new prosecutions and on the millions
of Americans it prohibits from exercising a fundamental constitutional right, this
Court should answer this important and recurring question as soon as possible.
III.
Alternatively, this Court should hold Bain’s petition pending consideration of
one of the many other petitions that will place these same issues before this
Court
Finally, Bain notes that numerous petitions raising the same issues are now
or will shortly be filed in this Court. Accordingly, Bain requests that his petition be
held pending those and/or other petitions if this Court anticipates that it may grant
a writ of certiorari on the issues raised herein.
CONCLUSION
The petition for a writ of certiorari should be granted.
Respectfully submitted on October 29, 2025
BY: s/ Richard F. Della Fera
RICHARD F. DELLA FERA
500 East Broward Blvd., Suite 1710
Fort Lauderdale, FL 33394
Telephone: (954) 848-2872
Attorney for the Petitioner
21
APPENDIX
USCA11 Case: 24-10480
Document: 32-1
Date Filed: 08/20/2025
Page: 1 of 12
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 24-10480
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DEONDRE BAIN,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket Nos. 1:23-cr-20048-RKA-1,
1:13-cr-20551-RKA-1
APP. A
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____________________
Before JORDAN, NEWSOM, and GRANT, Circuit Judges.
PER CURIAM:
Deondre Bain appeals his convictions for possession of a firearm and ammunition by a convicted felon and illegal possession of
a machine gun. He challenges the constitutionality of his conviction under the Second Amendment and asserts that the district
court erred in denying his motion to suppress.
I
On January 19, 2023, Miami Gardens police stopped and
searched Mr. Bain’s vehicle. The five participating officers testified
to the following chain of events.
Officer Derek Rodriguez recognized a Yukon vehicle that
had been involved in a homicide in 2021, and identified Mr. Bain as
the driver. Officer Rodriguez had arrested him in 2013 for possession of a firearm by a convicted felon. Officer Rodriguez began
following the Yukon and noticed that it had a plastic license plate
cover. Although the tag remained legible, he believed it constituted
a traffic violation. When Mr. Bain pulled into a gas station, Officer
Rodriguez informed his colleagues of Mr. Bain’s location and that
he had a felony record and was known to carry firearms. Officer
Rodriguez did not mention the alleged traffic violation relating to
the tag.
Detective Michael Ruiz, joined by Detective Onassis Perdomo and Special Agent Alexis Kelly in an unmarked police car,
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arrived and observed a Yukon matching Officer Rodriguez’s description back out of a handicap parking space in front of a cell
phone store, which Detective Perdomo claimed was a hub for narcotics transactions. Detective Perdomo noticed that the Yukon was
missing a rearview mirror, and that it appeared to have unlawfully
dark window tints. Detective Ruiz testified that he did not observe
the alleged license plate violation prior to the stop. Detective Ruiz
communicated Mr. Bain’s location to other officers, and a marked
police unit activated its lights and sirens to initiate the stop. Detectives Ruiz and Perdomo and Agent Kelly pulled over as well.
While approaching the vehicle, Detective Ruiz observed Mr.
Bain lean down and make furtive movements as though hiding
something. Suspecting that Mr. Bain might be armed, Detective
Ruiz drew his firearm and commanded Mr. Bain to show his hands
or else he would shoot him. Mr. Bain did not immediately comply,
but ultimately exited the Yukon with empty hands.
Detective Perdomo smelled marijuana and saw what he believed to be marijuana residue on the seats and floorboard and plastic bags “used to package narcotics” on the driver’s seat. Detective
Ruiz testified that “due to the totality of the circumstances of him
hiding his hands, [and] the strong smell of marijuana,” the officers
searched the vehicle to look for narcotics. After initiating the
search, officers observed that the cupholder was ajar. They lifted it
and recovered a firearm that had been modified into a fully automatic machine gun. They also found what they believed to be the
butt of a marijuana cigarette on the armrest and marijuana “shake”
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on the floorboard, although they never collected and tested it to
confirm that it was marijuana.
The officers arrested Mr. Bain and issued him citations for
having an obstructed tag, parking in a handicap space without a
permit, and missing a rearview mirror.
In February 2023, a federal grand jury charged Mr. Bain with
possession of a firearm and ammunition by a convicted felon in violation of 18 U.S.C. § 922(g)(1) (Count 1) and illegal possession of
a machinegun in violation of 18 U.S.C. § 922(o)(1) (Count 2). Mr.
Bain moved to dismiss Count 1, arguing that § 922(g)(1) violated
the Second Amendment. The government responded in opposition and the district court denied the motion in a paperless order.
Mr. Bain filed a motion to suppress all the evidence obtained
during the search, alleging that the stop and the search were unlawful. The district court denied the motion after an evidentiary
hearing. It credited the officers’ testimony and found that there
were four independent grounds for the stop— parking in a handicap spot without a permit, a missing rearview mirror, illegally
tinted windows, and the license plate cover—each of which was
sufficient and “none of which had to do with the defendant’s history of gun possession or gun use.” D.E. 82 at 163.
The district court also found that the officers had probable
cause to search the car. It concluded that the seven reasons provided for the search—Mr. Bain’s criminal history involving guns,
his known membership in a gang, his furtive movements, his refusal to immediately show his hands upon command, the smell of
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marijuana, the sight of marijuana, and the fact that the cup holder
was ajar—“together certainly gave the officers more than enough
probable cause to then search the car[.]” Id. at 172–77. Responding
to Mr. Bain’s argument that the smell of marijuana alone cannot
alone establish probable cause in the wake of Florida’s legalization
of hemp and of marijuana for medical use, the district court found
that officers may continue to assume that the marijuana is probably
illegal unless there is evidence of a medical license. The court also
found it “very likely . . . what the officers were witnessing was not
hemp but marijuana[,]” and noted that multiple officers on the
scene were cross-designated federal agents authorized to enforce
the federal ban on marijuana. See id. at 178–79.
Based on its findings and conclusions, the district court denied the motion to suppress. Mr. Bain filed a motion for reconsideration, which the district court denied in a paperless order.
Mr. Bain proceeded to trial and was convicted on both
counts and sentenced to 168 months of imprisonment, followed by
3 years of supervised release.
II
We generally review the constitutionality of a statute de
novo. See United States v. Gruezo, 66 F.4th 1284, 1292 (11th Cir.
2023).
Because rulings on motions to suppress evidence present
mixed questions of law and fact, we review the district court’s factual findings for clear error and the application of the law to the
facts de novo. See United States v. Lewis, 674 F.3d 1298, 1302–03 (11th
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Cir. 2012). We afford substantial deference to the factfinder’s credibility determinations. See id. at 1303; United States v. Ramirez-Chilel,
289 F.3d 744, 749 (11th Cir. 2002).
III
A
Mr. Bain challenges the constitutionality of 18 U.S.C.
§ 922(g)(1), which prohibits anyone who has been convicted of a
crime punishable by more than one year of imprisonment from
possessing a firearm. He argues that this prohibition violates the
Second Amendment. But that argument is foreclosed by this Circuit’s recent decision in United States v. Dubois. See 139 F.4th 887,
892–94 (11th Cir. 2025) (concluding that neither United States v.
Rahimi, 602 U.S. 680 (2024), nor New York State Rifle & Pistol Ass’n,
Inc. v. Bruen, 597 U.S. 1 (2022), abrogated this court’s holding in
United States v. Rozier, 598 F.3d 768, 770–71 (11th Cir. 2010), that
§ 922(g)(1) is constitutional under the Second Amendment).
B
Mr. Bain next challenges the district court’s denial of his motion to suppress. The Fourth Amendment provides that “[t]he
right of the people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures, shall not be
violated, and no [w]arrants shall issue, but upon probable cause[.]”
U.S. Const. amend. IV. Traffic stops are seizures under the Fourth
Amendment. See Delaware v. Prouse, 440 U.S. 648, 653 (1979).
When determining whether an officer had probable cause or reasonable suspicion, we ask if “the circumstances, viewed
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objectively, justif[ied] that action.” Whren v. United States, 517 U.S.
806, 813 (1996). “[T]he officer’s motive in making the traffic stop
does not invalidate what is otherwise objectively justifiable behavior under the Fourth Amendment.” United States v. Harris, 526 F.3d
1334, 1337 (11th Cir. 2008) (citation and quotation marks omitted).
An officer’s mistake of fact or law about a possible violation may
justify a traffic stop, so long as the mistake is objectively reasonable.
See Heien v. North Carolina, 574 U.S. 54, 60–61, 66 (2014).
1
To justify a stop for a traffic violation, the officer must have
reasonable suspicion—that is, a “particularized and objective basis
for suspecting the person stopped of criminal activity.” United
States v. Campbell, 26 F.4th 860, 880 (11th Cir. 2022) (en banc) (citation and quotation marks omitted). An officer has reasonable suspicion to initiate a traffic stop when he observes a traffic violation.
See, e.g., Harris, 526 F.3d at 1338 (holding that an officer had reasonable suspicion to stop a vehicle that failed to signal a lane change).
Mr. Bain contends that none of the proffered rationales—
parking in a handicap spot without a permit, a missing rearview
mirror, the illegally tinted windows, or the license plate cover—
established reasonable suspicion to warrant a stop. We disagree.
First, Mr. Bain argues that there was no reasonable suspicion
that he violated Fla. Stat. § 316.1955(1) because the officers only
witnessed his vehicle backing out of the handicap space—not stopping, standing, or parking in the space in violation of the statute.
Second, he contends that the officers failed to establish a violation
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of Fla. Stat. § 316.294 because the statute does not require the mirror to be to be affixed to the front windshield—it only requires a
mirror that “reflect[s] to the driver a view of the highway for a distance of at least 200 feet to the rear of the motor vehicle.” He contends that he complied with this requirement by placing the rearview mirror on the dashboard, and alternatively that sideview mirrors alone satisfy the statutory requirement. Third, Mr. Bain asserts that officers did not observe the alleged tinted window violation until after initiating the stop, so it could not have served as a
basis for the stop. Nor, he says, did the officers test the windows
for illegal tints or issue a citation for this alleged offense. Fourth,
he maintains that there was no reasonable suspicion to stop the Yukon for a violation of Fla. Stat. § 316.605 because the statute’s purpose is to ensure that license plates are not obscured, and the Yukon’s license plate remained clearly legible beneath a transparent
cover.
Under Florida law, it is “unlawful for any person to stop,
stand, or park a vehicle within, or to obstruct” a handicap parking
spot without a disabled parking permit or license plate. See Fla.
Stat. § 316.1955(1). Based on seeing the Yukon backing out of a
handicap spot, the officers had reason to believe that Mr. Bain had
violated § 316.1955 and therefore had reasonable suspicion to stop
his vehicle. See, e.g., Campbell, 26 F.4th at 880–81 (holding that a
minor traffic violation can establish reasonable suspicion to stop a
driver). In a case in which officers stopped a defendant after they
observed his vehicle stop in a handicap parking spot for two
minutes, Florida’s Sixth District Court of Appeal overruled the trial
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court’s grant of a motion to suppress, holding that there was probable cause to believe that the defendant had violated § 316.1955.
See State v. Diaz, 395 So.3d 622, 625–26 (Fla. 6th DCA 2024).
Mr. Bain’s contention that the officers only observed the Yukon backing out of the space does not alter our conclusion. Officers
need not be certain of a violation, so long as they have reason to
believe it probable that a violation occurred. See Harris, 526 F.3d at
1337 (“A determination of reasonable suspicion . . . does not require
officers to catch the suspect in a crime.”) (citation and quotation
marks omitted). See also United States v. Chanthasouxat, 342 F.3d
1271, 1276 (11th Cir. 2023) (“[I]f an officer makes a traffic stop based
on a mistake of fact, the only question is whether his mistake of
fact was reasonable.”). Moreover, to back out of the handicap spot
the Yukon must have first been stationed in that spot. Because the
officers had a particularized and objective basis for suspecting that
Mr. Bain violated § 316.1955, we need not reach the alternative bases for the stop.
2
“[S]earches conducted outside the judicial process, without
prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.” Katz v. United States, 389
U.S. 347, 357 (1967) (footnotes omitted). One exception to the warrant requirement is the automobile exception, which “allows the
police to conduct a search of a vehicle if (1) the vehicle is readily
mobile; and (2) the police have probable cause for the search.”
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United States v. Lindsey, 482 F.3d 1285, 1293 (11th Cir. 2007). Mr.
Bain does not contest that his Yukon was readily mobile.
“Probable cause exists where the facts and circumstances
within the collective knowledge of the law enforcement officials,
of which they had reasonably trustworthy information, are sufficient to cause a person of reasonable caution to believe an offense
has been or is being committed.” United States v. Jimenez, 780 F.2d
975, 978 (11th Cir. 1986) (citation and quotation marks omitted).
Officers need not “rule out . . . innocent explanation[s]” for a suspect’s conduct in order to find probable cause. See District of Columbia v. Wesby, 583 U.S. 48, 61 (2018).
Mr. Bain first challenges the district court’s findings of fact,
noting that numerous officers pulled him over for an alleged minor
traffic violation. He suggests that the officers were dishonest about
their real motivations for the stop and search and that this undermined their overall credibility. He argues that the officers’ testimony that green residue seen from outside of the car served as a
basis for the search was not credible because they did not ultimately collect it.
A district court’s credibility findings are entitled to substantial deference, and we will not disturb a credibility finding “unless
it is contrary to the laws of nature, or is so inconsistent or improbable on its face that no reasonable factfinder could accept it.”
Ramirez-Chilel, 289 F.3d at 749 (citation and quotation marks omitted). Mr. Bain has not satisfied this high standard. We therefore
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conclude that the district court did not clearly err in crediting the
officers’ testimony.
To the extent that Mr. Bain is arguing that the officers’ purported reasons for the stop were pretextual, his claim fails because
we generally do not look to subjective intentions of officers in determining whether a Fourth Amendment violation occurred. See
Whren, 517 U.S. at 813. “When determining whether an officer had
probable cause to believe that a traffic violation occurred, the officer’s motive in making the traffic stop does not invalidate what is
otherwise objectively justifiable behavior under the Fourth
Amendment.” Harris, 526 F.3d at 1337 (citation and quotation
marks omitted). See also United States v. Holloman, 113 F.3d 193, 194
(11th Cir. 1997) (“[U]lterior motives may [not] invalidate police
conduct that is justified on the basis of probable cause[.]”).
Mr. Bain contends that the smell of marijuana alone no
longer serves as a sufficient basis for probable cause now that Florida has legalized marijuana for medical purposes, as well as hemp.
See Fla. Stat. § § 381.986, 581.217. He points to Detective Ruiz’s
testimony that the state attorney circulated a memorandum instructing officers that hemp looks and smells the same as marijuana
and that the sight and smell of marijuana alone was no longer
enough to establish probable cause.
As noted earlier, the district court found that the seven reasons provided for the search—Mr. Bain’s criminal history involving
guns, his known membership in a gang, his furtive movements, his
refusal to immediately show his hands upon command, the smell
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of marijuana, the sight of marijuana, and the fact that the cup
holder was ajar—together established probable cause to search the
Yukon. Mr. Bain’s argument focuses only on the marijuana, and
he does not address the other bases that the government cites as
establishing probable cause. We note that the officers only observed the ajar cupholder after initiating the search, so this could
not have constituted a basis for probable cause. Nonetheless, even
if we put aside the marijuana, we do not believe that the district
court erred in finding that the officers had probable cause to search
the Yukon based on the totality of the other circumstances. Probable cause “requires only a probability or substantial chance of
criminal activity, not an actual showing of such activity.” Wesby,
583 U.S. at 57 (internal quotation marks and citation omitted).
Having witnessed an individual known to illegally possess guns refuse to immediately comply with commands to show his hands and
make movements suggesting that he was hiding something, the officers could reasonably conclude that Mr. Bain had contraband inside his car. See United States v. Clark, 559 F.2d 420, 424 (5th Cir.
1977) (“In determining whether there was reasonable cause to believe the vehicle contained contraband, we look to the totality of
the circumstances and the inferences that flow therefrom.”).
IV
We affirm Mr. Bain’s conviction.
AFFIRMED.
APP. B
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.