593 F.Supp.3d 73
S.D.N.Y.2022Background
- Plaintiff Selim “Sam” Zherka pled guilty (Dec. 22, 2015) to conspiracy to commit bank and tax fraud and was sentenced to 37 months, restitution, fines, and forfeiture; supervised release ended May 26, 2020.
- Zherka acknowledges § 922(g)(1) bars him—based on his felony conviction—from acquiring, receiving, or possessing firearms.
- 18 U.S.C. § 925(c) originally allowed felons to petition the ATF (delegated by the Attorney General) for restoration of firearm rights, but Congress defunded ATF review beginning in 1992, effectively halting meaningful relief under § 925(c).
- Zherka sued the Attorney General asserting: (1) an as-applied Second Amendment challenge to § 922(g)(1) (he is a non-violent financial felon); and (2) a Fifth Amendment procedural due process claim based on the inability to obtain review under § 925(c).
- Defendant moved to dismiss; the court considered circuit and Supreme Court precedent and supplemental letters filed after briefing.
- The court granted Defendant’s motion in full and closed the case.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 922(g)(1), as applied to a non-violent financial felon, burdens conduct protected by the Second Amendment | Zherka: his non-violent, post‑conviction conduct places him among “law‑abiding, responsible citizens,” so § 922(g)(1) cannot apply to him | Govt: Felony status removes him from Second Amendment protections; § 922(g)(1) is presumptively lawful | Court: Held no protected conduct—felony conviction excludes him at step one; as‑applied Second Amendment claim dismissed |
| Whether denial of an effective § 925(c) review violates procedural due process | Zherka: inability to obtain an individualized § 925(c) hearing denies him process to show he is not currently dangerous | Govt: § 922(g)(1) disqualification is based on the fact of conviction, not current dangerousness; hearings would be futile | Court: Held Doe controls—due process does not require a hearing where conviction alone determines the disability; due process claim dismissed |
Key Cases Cited
- District of Columbia v. Heller, 554 U.S. 570 (individual right to possess arms; acknowledged longstanding prohibitions on felons)
- McDonald v. City of Chicago, 561 U.S. 742 (incorporation of Second Amendment against the states)
- Connecticut Dept. of Public Safety v. Doe, 538 U.S. 1 (no due process hearing required where disability turns on fact of prior conviction)
- Medina v. Whitaker, 913 F.3d 152 (D.C. Cir.) (felony convictions categorically remove individuals from Second Amendment protection)
- United States v. Jimenez, 895 F.3d 228 (2d Cir.) (two‑step Second Amendment framework applied in this Circuit)
- Libertarian Party of Erie County v. Cuomo, 970 F.3d 106 (2d Cir.) (upholding exclusions from core Second Amendment protection for persons convicted of serious offenses)