United States of America v. Edell Jackson
No. 22-2870
United States Court of Appeals For the Eighth Circuit
August 8, 2024
Before COLLOTON, Chief Judge, SMITH and BENTON, Circuit Judges.
Submitted: August 5, 2024
Filed: August 8, 2024
COLLOTON, Chief Judge.
Edell Jackson appeals his conviction for unlawful possession of a firearm as a previously convicted felon. He argues that the district court1 erred when it instructed the jury on the elements of the offense, and when it responded to two questions from the jury during deliberations. He also contends that he had a constitutional right under the Second Amendment to possess a firearm as a convicted felon. We affirmed the judgment in 2023. United States v. Jackson, 69 F.4th 495 (8th Cir. 2023).
The case is now on remand from the Supreme Court for further consideration in light of United States v. Rahimi, 144 S. Ct. 1889 (2024). Rahimi held that
I.
In January 2021, police officers responded to a report of “shots fired” in Brooklyn Center, Minnesota. The officers were informed that a suspect was located in a parking lot in nearby Minneapolis. When the officers arrived at the parking lot, they observed Jackson sitting in a parked vehicle, next to a snowbank. Two law enforcement vehicles drove forward and pinned Jackson‘s vehicle against the snowbank. Jackson fled his vehicle, shed his jacket while he ran from the officers, but eventually was apprehended. The officers later found a Bersa Thunder nine millimeter handgun in Jackson‘s jacket pocket.
Before this arrest, Jackson had sustained two convictions in Minnesota for sale of a controlled substance in the second degree in 2011 and 2012, respectively. See
The case proceeded to trial. Jackson testified that after he was released from state prison, he was on parole for three years until he was discharged in August 2020. He testified that when he was discharged, his parole officer brought him discharge papers to sign. According to Jackson, the parole officer told him that his rights had been restored, and that he was able to register to vote and “do everything else as a productive citizen of society.” Jackson also testified that his parole officer did not give him specific instructions on whether he could possess firearms. Jackson claimed that he believed based on these communications that his right to possess firearms had been restored.
The government introduced a copy of Jackson‘s discharge papers, entitled “Notice of Sentence Expiration and Restoration of Civil Rights.” The document provides that “your civil rights have been restored,” which “includes a restoration of your right to vote in Minnesota.” But the document also states that “if you have been convicted of a Crime of Violence under
The jury returned a guilty verdict. Before sentencing, Jackson moved to dismiss the indictment based on the Second Amendment in light of New York State Rifle & Pistol Ass‘n, Inc. v. Bruen, 597 U.S. 1 (2022). He argued that the felon-in-possession statute,
II.
Jackson first argues that the district court erred when it instructed the jury on the elements required for a conviction under
The district court instructed the jury that the government must prove the following elements:
- One, the defendant has previously been convicted of a crime punishable by imprisonment for more than one year;
- Two, after that, the defendant knowingly possessed a firearm, that is a Bersa model Thunder 9mm semi-automatic pistol bearing serial number E17838;
- Three, at the time the defendant knowingly possessed the firearm, he knew he had been convicted of a crime punishable by imprisonment for more than one year; and
- Four, the firearm was transported across a state line at some time during or before the defendant‘s possession of it.
The court instructed that under Minnesota law, the sale of a controlled substance in the second degree is a crime punishable by imprisonment for more than one year. See
For you to find that element number three is proved beyond a reasonable doubt, you must unanimously agree that the defendant knew he had been convicted of a crime punishable by imprisonment for more than one year at the time he knowingly possessed the firearm described in the Indictment. In making that determination, you may consider whether the defendant reasonably believed that his civil rights had been restored, including his right to possess a firearm.
R. Doc. 65, at 15 (emphasis added).
Jackson contends that the court abused its discretion when it instructed the jury on the first element of the offense—that the defendant had been convicted of a crime punishable by more than a year of imprisonment. He relies on the fact that a prior conviction does not qualify under
Jackson contends that the court should have provided the jury with the statutory language from
Jackson next challenges the district court‘s instruction on the third element of the offense regarding knowledge. Although the instructions permitted the jury to consider whether Jackson reasonably believed his rights were restored, he maintains that the language should have required the jury to do so by using the phrase “must consider.” But Jackson himself proposed to instruct the jury that it “may consider” whether he reasonably believed his rights had been restored. The court incorporated his suggestion into the final instructions. Because Jackson requested the precise language about which he now complains, any error was invited, and his objection is waived. United States v. Defoggi, 839 F.3d 701, 713 (8th Cir. 2016).
Even if Jackson‘s objection were not waived, the claim of error was forfeited, and we would review at most for plain error. United States v. Reed, 636 F.3d 966, 970 (8th Cir. 2011). Jackson cannot meet this standard, because the instruction on the third element was not obviously wrong. See United States v. Olano, 507 U.S. 725, 734 (1993). Rehaif held that in a prosecution under
Consistent with Rehaif, the jury instructions required the government to prove that Jackson “knew he had been convicted of a crime punishable by imprisonment for more than one year.” Jackson contends that the instruction was flawed because it did not require the jury to find that he knew he was still a prohibited person at the time of the charged offense, despite a possible restoration of rights. But the instructions further provided that in making the determination about knowledge, the jury may consider whether Jackson reasonably believed that his right to possess a firearm had been restored. The instruction thus allowed Jackson to argue, and a jury to find, that he lacked the requisite knowledge due to a belief that his rights had been restored. Jackson cites no authority that the instruction as formulated was plainly erroneous.
Jackson also argues that the district court erred when it responded to two questions from the jury during its deliberations. We review a district court‘s decision on whether to supplement jury instructions for abuse of discretion. United States v. White, 794 F.2d 367, 370 (8th Cir. 1986).
The jury first inquired about the court‘s instruction on the third element of the offense. The question asked for “clarification” on a sentence in the instructions that stated: “In making that determination, you may consider whether the defendant reasonably believed that his civil rights had been restored, including his right to possess a firearm.” The court responded: “It is one issue that you may consider in evaluating whether the government has proven element #3 beyond a reasonable doubt.” Jackson agreed to the response, telling the court that “I don‘t have any objection.” Jackson therefore waived his objection to the court‘s supplemental instruction. See United States v. Davis, 826 F.3d 1078, 1082 (8th Cir. 2016).
The jury asked a second question: “Does the defendant believing that his civil
Jackson argues that the jury‘s question suggests that it did not understand the instructions, and may have convicted him despite his asserted belief that his right to possess a firearm had been restored. He contends that the court abused its discretion by not supplementing the instructions to “cure the jury‘s misdirection.” A district court has broad discretion to decide what amplification of the instructions, if any, is necessary. United States v. Bayer, 331 U.S. 532, 536 (1947). “The trial judge in the light of the whole trial and with the jury before him may feel that to repeat the same words would make them no more clear, and to indulge in variations of statement might well confuse.” Id. Here, the jury‘s question effectively asked the court to direct the jury whether a particular element of the offense had been proved under a hypothetical set of assumptions. The question, moreover, did not align with the original instructions, because it referred to the defendant “believing that his civil rights had been restored” without the qualification that the belief was “reasonable.” The district court permissibly declined to answer the jury‘s hypothetical and instead properly referred them back to the original instructions. There was no abuse of discretion.
III.
Jackson also appeals the district court‘s denial of his motion to dismiss the indictment. He argues that
We conclude that the district court was correct that
Restrictions on the possession of firearms date to England in the late 1600s, when the government disarmed non-Anglican Protestants who refused to participate in the Church of England, Joyce Lee Malcolm, To Keep and Bear Arms: The Origins of an Anglo-American Right 45 (1994), and those who were “dangerous to the Peace of the Kingdom,” Militia Act of 1662, 13 & 14 Car. 2 c. 3, § 13. Parliament later forbade ownership of firearms by Catholics who refused to renounce their faith. An Act for the Better Securing the Government by Disarming Papists and Reputed Papists, 1 W. & M., Sess. 1, c. 15 (1688). The English Bill of Rights established Parliament‘s authority to determine which citizens could “have arms ... by Law.” An Act Declaring the Rights and Liberties of the Subject and Settling the Succession of the Crown, 1 W. & M., Sess. 2, c. 2, § 7 (1689)); see Bruen, 597 U.S. at 44.
In colonial America, legislatures prohibited Native Americans from owning firearms. Michael A. Bellesiles, Gun Laws in Early America: The Regulation of Firearms Ownership, 1607-1794, 16 Law & Hist. Rev. 567, 578-79 (1998); see also Act of Aug. 4, 1675, 5 Records of the Colony of New Plymouth 173 (1856); Act of July 1, 1656, Laws and Ordinances of New Netherland 234-35 (1868). Religious minorities, such as Catholics in Maryland, Virginia, and Pennsylvania, were subject to disarmament. Bellesiles, supra, at 574; Joseph G.S. Greenlee, The Historical Justification for Prohibiting Dangerous Persons from Possessing Arms, 20 Wyo. L. Rev. 249, 263 (2020). In the era of the Revolutionary War, the Continental Congress, Massachusetts, Virginia, Pennsylvania, Rhode Island, North Carolina, and New Jersey prohibited possession of firearms by people who refused to declare an oath of loyalty. See 4 Journals of the Continental Congress, 1774-1789, at 205 (Worthington Chauncey Ford ed., 1906); Act of Mar. 14, 1776, ch. 21, 1775-76 Mass. Acts 479; Act of May 1777, ch. III, 9 The Statutes at Large; Being a Collection of all the Laws of Virginia 281-82 (1821); Act of June 13, 1777, ch. 756 §§ 2-4, 1777 Pa. Laws 110, 111-13; Act of June 1776, 7 Records of the Colony of Rhode Island and Providence Plantations in New England 567 (1862); Act of Nov.
The influential “Dissent of the Minority,” see Heller, 554 U.S. at 604, published by Anti-Federalist delegates in Pennsylvania, proposed that the people should have a right to bear arms “unless for crimes committed, or real danger of public injury from individuals.” 2 Bernard Schwartz, The Bill of Rights: A Documentary History 665 (1971). Early legislatures also ordered forfeiture of firearms by persons who committed non-violent hunting offenses. See Act of Oct. 9, 1652, Laws and Ordinances of New Netherland 138 (1868); Act of Apr. 20, 1745, ch. III, 23 The State Records of North Carolina 218-19 (1904). And they authorized punishments that subsumed disarmament—death or forfeiture of a perpetrator‘s entire estate—for non-violent offenses involving deceit and wrongful taking of property. See An Act for the Punishment of Certain Crimes Against the United States, Pub. L. No. 1-9, § 14, 1 Stat. 112, 115 (1790); Act of Feb. 21, 1788, ch. 37, 1788 N.Y. Laws 664-65; Act of May 1777, ch. XI, 9 The Statutes at Large; Being a Collection of all the Laws of Virginia 302-03 (1821); A Digest of the Laws of Maryland 255-56 (1799); Stuart Banner, The Death Penalty: An American History 3, 18, 23 (2002); John D. Bessler, Cruel & Unusual: The American Death Penalty and the Founders’ Eighth Amendment 56-57 (2012); Kathryn Preyer, Penal Measures in the American Colonies: An Overview, 26 Am. J. Legal Hist. 326, 330-32, 342, 344-47 (1982). While some of these categorical prohibitions of course would be impermissible today under other constitutional provisions, they are relevant here in determining the historical understanding of the right to keep and bear arms.
This historical record suggests that legislatures traditionally possessed discretion to disqualify categories of people from possessing firearms to address a danger of misuse by those who deviated from legal norms, not merely to address a person‘s demonstrated propensity for violence. This conclusion is bolstered by the Supreme Court‘s repeated statements in Bruen that the Second Amendment protects the right of a “law-abiding citizen” to keep and bear arms. See 597 U.S. at 8, 15, 26, 29-31, 33 n.8, 38, 60, 70. As stated by the D.C. Circuit, “it is difficult to conclude that the public, in 1791, would have understood someone facing death and estate forfeiture to be within the scope of those entitled to possess arms.” Medina v. Whitaker, 913 F.3d 152, 158 (D.C. Cir. 2019); cf. Rahimi, 144 S. Ct. at 1902 (“[I]f imprisonment was permissible to respond to the use of guns to threaten the physical safety of others, then the lesser restriction of temporary disarmament that Section 922(g)(8) imposes is also permissible.“).
On this view, for which there is considerable support in the historical record, Congress did not violate Jackson‘s rights by enacting
If the historical regulation of firearms possession is viewed instead as an effort to address a risk of dangerousness, then
Congress operated within this historical tradition when it enacted
The Supreme Court has observed that the purpose of the Safe Streets Act, as amended by the Gun Control Act, was to curb “lawlessness and violent crime.” Huddleston v. United States, 415 U.S. 814, 824 (1974). The “very structure of the Gun Control Act demonstrates that Congress ... sought broadly to keep firearms away from the persons Congress classified as potentially irresponsible and dangerous.” Barrett v. United States, 423 U.S. 212, 218 (1976). Congress prohibited “categories of presumptively dangerous persons from transporting or receiving firearms,” Lewis v. United States, 445 U.S. 55, 64 (1980), because they “pose[d] an unacceptable risk of dangerousness.” Dickerson v. New Banner Inst., Inc., 460 U.S. 103, 120 (1983). “Congress obviously determined that firearms must be kept away from persons, such as those convicted of serious crimes, who might be expected to misuse them.” Id. at 119. That determination was not unreasonable.
The Supreme Court in Heller cited this prohibition on the possession of firearms by felons as one of several “presumptively lawful regulatory measures.” 554 U.S. at 627 n.26. Some have taken the phrase “presumptively lawful” to mean that the Court was suggesting a presumption of constitutionality that could be rebutted on a case-by-case basis. That is an unlikely reading, for it would serve to cast
The Court in Rahimi did not suggest that the Second Amendment prohibits the enactment of laws banning the possession of guns by categories of persons thought by a legislature to present a special danger of misuse.” 144 S. Ct. at 1901 (citing Heller, 554 U.S. at 626). In fact, the Court referred back to its statement in Heller that prohibitions on the possession of firearms by felons are presumptively lawful. Id. at 1902.
To be sure, the historical understanding that legislatures have discretion to prohibit possession of firearms by a category of persons such as felons who pose an unacceptable risk of dangerousness may allow greater regulation than would an approach that employs means-end scrutiny with respect to each individual person who is regulated. But that result is a product of the method of constitutional interpretation endorsed by Bruen:
Indeed, governments appear to have more flexibility and power to impose gun regulations under a test based on text, history, and tradition than they would under strict scrutiny. After all, history and tradition show that a variety of gun regulations have co-existed with the Second Amendment right and are consistent with that right, as the Court said in Heller. By contrast, if courts applied strict scrutiny, then presumably very few gun regulations would be upheld.
Heller v. District of Columbia, 670 F.3d 1244, 1274 (D.C. Cir. 2011) (Kavanaugh, J., dissenting); cf. Kanter v. Barr, 919 F.3d 437, 465 (7th Cir. 2019) (Barrett, J., dissenting) (concluding before Bruen that Congress cannot dispossess felons based solely on status, and that “a very strong public-interest justification and a close means-end fit” is required before a felon may be subject to a dispossession statute based on dangerousness) (quoting Ezell v. City of Chicago, 846 F.3d 888, 892 (7th Cir. 2017)).
In sum, we conclude that legislatures traditionally employed status-based restrictions to disqualify categories of persons from possessing firearms. Whether those actions are best characterized as restrictions on persons who deviated from legal norms or persons who presented an unacceptable risk of dangerousness, Congress acted within the historical tradition when it enacted
The judgment of the district court is affirmed.