United States of America v. Edell Jackson
No. 22-2870
United States Court of Appeals For the Eighth Circuit
June 2, 2023
Submitted: May 11, 2023
Before SMITH, Chief Judge, COLLOTON and BENTON, Circuit Judges.
COLLOTON, Circuit 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
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
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 Minn. Statute § 624.712 subd. 5, you cannot ship, transport, possess or receive a firearm for the remainder of your lifetime.”
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, 142 S. Ct. 2111 (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
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
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
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 rights had been restored, AND knowing that he had been convicted of a crime punishable by imprisonment for more than one year translate to having proven” element three of the offense. The court responded that “[t]his is a question that you must decide based on the evidence before you and my instructions.” Jackson objected to the court‘s response, and urged the court to answer “no.”
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
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
History shows that the right to keep and bear arms was subject to restrictions that included prohibitions on possession by certain groups of people. There appear to be two schools of thought on the basis for these regulations. A panel of the Third Circuit recently surveyed the history in light of Bruen and concluded that legislatures have longstanding authority and discretion to disarm citizens who are not “law-abiding“—i.e., those who are “unwilling to obey the government and its laws, whether or not they had demonstrated a propensity for violence.” Range v. Att‘y Gen., 53 F.4th 262, 269 (3d Cir. 2022) (per curiam), vacated, reh‘g en banc granted, 56 F.4th 992 (3d Cir. 2023). Jackson contends that a legislature‘s traditional authority is narrower and limited to prohibiting possession of firearms by those who are deemed more dangerous than a typical law-abiding citizen. While the better interpretation of the history may be debatable, we conclude that either reading supports the constitutionality of
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 Malcom, 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
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. 15, 1777, ch. 6, 1777 N.C. Sess. Laws 231; Act of Sept. 20, 1777, ch. XL, 1777 N.J. Laws 90; see also Joseph Blocher & Caitlan Carberry, Historical Gun Laws Targeting “Dangerous” Groups and Outsiders 5 & nn. 38-41 (Duke L. Sch. Pub. L. & Legal Theory Series No. 2020-80), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3702696.
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
Based on this historical record, the Third Circuit panel in Range concluded that legislatures traditionally possessed discretion to disqualify categories of people from possessing firearms to address a threat purportedly posed by these people “to an orderly society and compliance with its legal norms,” not merely to address a person‘s demonstrated propensity for violence. 54 F.4th at 281-82. This conclusion was 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 142 S. Ct. at 2122, 2125, 2131, 2133-34, 2135 n.8, 2138, 2150, 2156. 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).
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 the prohibition on possession by convicted felons still passes muster under historical analysis. Not all persons disarmed under historical precedents—not all Protestants or Catholics in England, not all Native Americans, not all Catholics in Maryland, not all early Americans who declined to swear an oath of loyalty—were violent or dangerous persons. The Third Circuit panel understood this fact to mean that the historical justification for regulation was not limited to dangerousness. Range, 53 F.4th at 275, 282. But if dangerousness is considered the traditional sine qua non for dispossession, then history demonstrates that there is no requirement for an individualized determination of dangerousness as to each person in a class of prohibited persons. Legislatures historically prohibited possession by categories of persons based on a conclusion that the category as a whole presented an unacceptable risk of danger if armed. In reasoning by analogy from that history, “the Constitution can, and must, apply to circumstances beyond those the Founders specifically anticipated.” Bruen, 142 S. Ct. at 2132; see Blocher & Carberry, supra, at 11-12.
Congress enacted an analogous prohibition in
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.
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
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)).3
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
* * *
For these reasons, the judgment of the district court is affirmed.
I concur fully in Parts I and II of the opinion. I concur as to the judgment in Part III and agree that