United States v. Reese
2010 U.S. App. LEXIS 25224
| 10th Cir. | 2010Background
- Reese was subject to a Hawaii Family Court protective order issued after a hearing in which he and Jennifer were identified as intimate partners.
- The order barred Reese from contacting or abusing Jennifer or their children and prohibited firearms possession, requiring him to turn over firearms to police.
- Jennifer reported concerns about Reese and firearms after relocating to Maryland; ATF investigated but found no current firearms in Reese’s possession.
- In 2009-2010, Reese was arrested in New Mexico after police found firearms at his residence and business; armed with a protective order, he faced federal charges under 18 U.S.C. § 922(g)(8).
- The district court dismissed the three § 922(g)(8) counts as applied, while the government appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 922(g)(8) is unconstitutional as applied to Reese | Reese argues the 50-year order is overbroad and not narrowly tailored | The government contends collateral attack on the underlying order is barred and the statute is constitutionally applied | Statute is constitutionally applied under intermediate scrutiny; collateral attack barred |
| What level of scrutiny governs § 922(g)(8) after Heller | N/A | N/A | Intermediate scrutiny applies (not strict scrutiny) |
| Whether Reese can collaterally attack the Hawaii protective order in a § 922(g)(8) prosecution | Reese seeks to challenge the order’s validity | Courts generally preclude collateral attacks on state protective orders under § 922(g)(8) | Collateral challenges to the underlying order are improper; the federal challenge focuses on the statute's application |
| Remedy for district court's error | N/A | N/A | District court’s dismissal reversed; case remanded for further proceedings |
Key Cases Cited
- District of Columbia v. Heller, 554 U.S. 570 (U.S. 2008) (recognized an individual right to keep and bear arms but not unlimited; guided scrutiny approach)
- United States v. Marzzarella, 614 F.3d 85 (3d Cir. 2010) (two-pronged framework; intermediate scrutiny possible depending on law type)
- United States v. Skoien, 614 F.3d 638 (7th Cir. 2010) (en banc; intermediate scrutiny for § 922(g)(9))
- United States v. Emerson, 270 F.3d 203 (5th Cir. 2001) (treats § 922(g)(8) as applicable without requiring a separate finding of credible threat)
- United States v. DuBose, 598 F.3d 726 (11th Cir. 2010) (protective orders analogous to felony convictions for § 922(g)(8) purposes)