Robert Harley v. Robert Wilkinson, 988 F.3d 766

Background

In 1993 Robert Harley pleaded guilty to misdemeanor assault and battery of a family member (Va. Code § 18.2-57.2); that conviction triggers a lifetime federal firearm prohibition under 18 U.S.C. § 922(g)(9).
Since the conviction Harley has no further criminal history, had a long public-employment career, served decades as a volunteer firefighter/EMT, and his ex‑wife supplied an affidavit describing an ongoing amicable relationship.
Harley sued for a declaratory judgment and injunction, arguing § 922(g)(9) is unconstitutional as applied to him because the long passage of time and his post‑conviction conduct demonstrate he should not be disarmed.
The district court granted summary judgment for the government, assuming (without deciding) some Second Amendment protection for domestic‑violence misdemeanants and applying intermediate scrutiny, finding § 922(g)(9) reasonably fits the government’s interest.
The Fourth Circuit affirmed: it followed Staten and sister‑circuit precedent, applied intermediate scrutiny, and held the statute constitutional as applied to Harley.
The court refused to create a judicial exception for good behavior or passage of time, noting Congress provided remedies (pardon, expungement, § 925(c)) and that the statutory definition of “misdemeanor crime of domestic violence” already narrows the class covered.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether § 922(g)(9) is unconstitutional as applied to Harley given time and exemplary conduct	Harley: his long, law‑abiding post‑conviction life and elapsed time remove him from the statute’s proper reach	Gov: Staten and the record show § 922(g)(9) survives intermediate scrutiny; no judicial time/good‑behavior exception	Denied — statute constitutional as applied; no judicial good‑behavior/passage‑of‑time exception created
Proper Second Amendment framework / level of scrutiny	Harley: seeks as‑applied relief under Second Amendment (assumes some protection)	Gov: accept assuming some protection but urges intermediate scrutiny and focus on statutory fit	Court assumed some protection then applied intermediate scrutiny and found a reasonable fit
Whether courts should consider individualized post‑conviction characteristics in as‑applied review	Harley: courts must consider the specific facts of his offense and post‑conviction record	Gov: analysis should focus on statutory scope and empirical evidence of risk; Staten forecloses individualized relief here	Court declined to weigh Harley’s individual post‑conviction circumstances; focused on statute and precedent
Available remedial pathways for individuals subject to § 922(g)(9)	Harley: seeks judicial restoration of firearm rights	Gov: relief properly afforded by Congress, state pardon/expungement, or administrative § 925(c) relief	Court: relief must come from Congress, state pardon/expungement, or § 925(c); courts will not judicially craft an exception

Key Cases Cited

United States v. Staten, 666 F.3d 154 (4th Cir. 2011) (upholding § 922(g)(9) under intermediate scrutiny based on empirical evidence of DV risk and firearms)
United States v. Chester, 628 F.3d 673 (4th Cir. 2010) (adopting two‑prong Second Amendment test: scope then means‑end scrutiny)
District of Columbia v. Heller, 554 U.S. 570 (2008) (recognizing an individual right but noting longstanding prohibitions are not called into question)
United States v. Castleman, 572 U.S. 157 (2014) (interpreting “physical force” in § 922(g)(9) context)
Stimmel v. Sessions, 879 F.3d 198 (6th Cir. 2018) (refusing to read a good‑behavior exception into disarmament statutes)
Binderup v. Att’y Gen., 836 F.3d 336 (3d Cir. 2016) (en banc) (rejecting a passage‑of‑time exception to § 922(g)(1))
United States v. Bean, 537 U.S. 71 (2002) (holding courts lack jurisdiction absent an actual § 925(c) denial; AG is primary decisionmaker for discretionary relief)
United States v. Smoot, 690 F.3d 215 (4th Cir. 2012) (noting individualized as‑applied relief is theoretically possible but rare)
United States v. Moore, 666 F.3d 313 (4th Cir. 2012) (similar observation limiting individualized as‑applied success to exceptional cases)