640 F.Supp.3d 697
W.D. Tex.2022Background
- Litsson Antonio Perez-Gallan was stopped at a Border Patrol checkpoint in Presidio, TX; he admitted to and consented to a search that produced a pistol found in his backpack.
- Agents recovered a Kentucky state court conditions-of-release order in his wallet and later identified a Kentucky family-court restraining order.
- Perez-Gallan was indicted under 18 U.S.C. § 922(g)(8) (possession of a firearm while subject to certain court orders).
- The Government failed to supply a meaningful founding-era historical record in its initial briefing; the Court ordered supplemental briefing and conducted the Bruen historical inquiry.
- The Court found the state Court Order met § 922(g)(8)’s textual elements and proceeded to Bruen’s two-step inquiry (text then history).
- Concluding that historical evidence did not show a tradition of disarming persons subject to domestic protective orders or suitable analogues, the Court held § 922(g)(8) facially unconstitutional and granted the motion to dismiss.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Applicability of § 922(g)(8) to the Court Order | Court Order prohibits "abuse" and threats; fits § 922(g)(8) elements | Order text not "explicit" as § 922(g)(8)(C)(ii) requires | Court: Order sufficiently restrains threats/abuse; satisfies § 922(g)(8) elements |
| Whether possession is protected by the Second Amendment | N/A (Gov't prosecutes) | Possession is protected; Heller defines "keep" as possess | Court: Possession covered by Second Amendment text |
| Whether § 922(g)(8) survives Bruen’s historical test | Government: analogies (surety statutes, disarming dangerous or disloyal persons) support modern ban | Perez-Gallan: protective orders and disarmament for domestic abusers are recent; analogies fail | Court: Historical record and analogues insufficient under Bruen; § 922(g)(8) unconstitutional |
| Reliance on state orders and procedural safeguards | Government: § 922(g)(8) has procedural safeguards and targets risky persons | Defense: § 922(g)(8) can piggyback on orders entered without notice and can criminalize conduct not prohibited by the state order | Court: Notes practical problems with piggybacking and rejects historical justification; nonetheless focuses decision on Bruen history analysis |
Key Cases Cited
- D.C. v. Heller, 554 U.S. 570 (2008) (Second Amendment protects individual right to possess firearms in the home)
- N.Y. State Rifle & Pistol Ass'n v. Bruen, 142 S. Ct. 2111 (2022) (establishes textual/historical test for gun regulations)
- McDonald v. City of Chicago, 561 U.S. 742 (2010) (incorporation of the Second Amendment against the states)
- United States v. Reese, 627 F.3d 792 (10th Cir. 2010) (noting limited historical evidence supporting disarmament tied to protective orders)
- United States v. Chovan, 735 F.3d 1127 (9th Cir. 2013) (found lack of historical support for disarming domestic-violence misdemeanants)
- United States v. Skoien, 614 F.3d 638 (7th Cir. 2010) (en banc) (addressed firearm prohibition for domestic-violence misdemeanants; split on historical scope)
- United States v. Chester, 628 F.3d 673 (4th Cir. 2010) (concluded historical evidence inconclusive for disarming misdemeanants)
- Kanter v. Barr, 919 F.3d 437 (7th Cir. 2019) (discusses founding-era ratifying convention proposals about disarming dangerous persons)