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222 F.3d 1129 Page 1 222 F.3d 1129, 00 Cal. Daily Op. Serv. 7078, 2000 Daily Journal D.A.R. 9363
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order, government must prove that defendant U.S. v. Kafka
“knowingly” violated statute; however, knowledge C.A.9 (Wash.),2000.
requirement applies only to the act of possession, and not to the prohibition on possessing firearms. 18 United States Court of Appeals,Ninth Circuit. U.S.C.A. ? 922(g)(8).UNITED STATES of America, Plaintiff-Appellee,
v.
Joe John KAFKA III, Defendant-Appellant. [3] Constitutional Law 92 4509(25)
No. 99-30305.
92 Constitutional Law
Argued and Submitted June 6, 2000 92XXVII Due Process
Filed Aug. 23, 2000 92XXVII(H) Criminal Law
92XXVII(H)2 Nature and Elements of Crime After his motion to dismiss was denied, defendant 92k4502 Creation and Definition of entered conditional guilty plea, and was convicted in Offense the United States District Court for the Eastern 92k4509 Particular Offenses District of Washington, Edward F. Shea, J., of 92k4509(25) k. Weapons and possession of a firearm while under a domestic Explosives. Most Cited Cases violence restraining order. Defendant appealed. The (Formerly 92k258(3.1)) Court of Appeals, Brunetti, Circuit Judge, held that
conviction did not violate defendant's due process rights, even though only defendant's possession of Weapons 406 4
firearm was knowing, and he did not know that his possession violated the statute under which he was 406 Weapons convicted. 406k4 k. Manufacture, Sale, Gift, Loan,
Possession, or Use. Most Cited Cases Affirmed. Conviction for possession of a firearm by defendant
while under a domestic violence restraining order did
not violate defendant's due process rights, even though West Headnotes only defendant's possession of firearm was knowing, and defendant did not know that his possession [1] Criminal Law 110 1139 violated statute under which he was convicted; existence of restraining order against defendant, 110 Criminal Law which was based on a specific finding that he had 110XXIV Review committed an act of domestic violence, transformed 110XXIV(L) Scope of Review in General otherwise “innocent” nature of firearm possession, 110k1139 k. Additional Proofs and Trial De and defendant's carrying of a loaded pistol in Novo. Most Cited Cases waistband of his pants while driving was not “wholly Court of Appeals reviews constitutional challenges to passive” conduct. U.S.C.A. Const.Amend. 5; 18 a statute de novo. U.S.C.A. ? 922(g)(8). [2] Weapons 406 4 *1129 Tom Monaghan, AFP, Yakima, Washington, for the appellant. 406 Weapons S. Frederick Winiker III, AUSA, Yakima, Washington, 406k4 k. Manufacture, Sale, Gift, Loan, for the appellee. Possession, or Use. Most Cited Cases To obtain a conviction for possession of a firearm by Appeal from the United States District Court for the defendant while under a domestic violence restraining Eastern District of Washington; Edward F. Shea,
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District Judge, Presiding. D.C. No. that he was carrying a pistol in the waistband of his CR-99-02056-1-EFS. pants. The pistol was loaded with a magazine
containing eight rounds of ammunition. Kafka surrendered the pistol to the officers who cited him for Before: HUG, Chief Judge, BRUNETTI and GOULD, carrying a concealed weapon without a valid permit. Circuit Judges. This charge was later dismissed. BRUNETTI, Circuit Judge: On May 18, 1999, Kafka was indicted on a federal Joe John Kafka appeals his conviction for possession charge of possessing a firearm while being subject to a of a firearm while under a domestic violence domestic violence restraining order in violation of 18 restraining order in violation of 18 U.S.C. ? 922(g)(8). U.S.C. ? 922(g)(8). Kafka filed a motion to dismiss, On appeal, Kafka contends that section 922(g)(8) contending that the indictment violated the principles violates due process because it does not require notice of fundamental fairness and due process guaranteed to be given to persons subject to state domestic under the Fifth Amendment. After the motion was violence restraining orders that they are prohibited denied, Kafka entered a conditional guilty plea, under from possessing firearms under federal law. We have which he expressly reserved his right to appeal the jurisdiction under 28 U.S.C. ? 1291, and we affirm. denial of the motion to dismiss. The district court departed downward and sentenced Kafka to a Factual Background two-year term of probation and a $100 penalty. The judgment was issued on September 17, 1999. Kafka In 1998, Kafka's ex-wife petitioned for a domestic timely filed this appeal. violence restraining order against Kafka in Washington state court. Kafka was properly served Discussion with notice and appeared and participated in a hearing concerning the petition on June 25, 1998. At the [1] Kafka argues that 18 U.S.C. ? 922(g)(8) violates hearing, the state court found that Kafka had due process by failing to require that persons subject committed an act of domestic *1130 violence under to state domestic violence restraining orders receive state law. The state statute defines domestic violence notice and fair warning of the federal prohibition on as: possessing firearms. In other words, he contends that section 922(g)(8) is unconstitutional because it does (a) Physical harm, bodily injury, assault, or the not require the government to prove that the defendant infliction of fear of imminent physical harm, bodily had actual knowledge that his possession of a firearm injury or assault, between family or household was illegal. This court reviews constitutional members; (b) sexual assault of one family or challenges to a statute de novo. United States v. household member by another; or (c) stalking ... of Lara-Aceves, 183 F.3d 1007, 1009 (9th Cir.1999), cert. one family or household member by another family denied,528 U.S. 1095, 120 S.Ct. 836, 145 L.Ed.2d 702 or household member. (2000). It is unclear whether Kafka is making only a facial challenge to section 922(g)(8) or whether he is Wash. Rev.Code ? 26.50.010. Based on its finding, also asserting an “as applied” challenge. Even under the state court granted the petition and issued an order FN1the lesser “as applied” standard, Kafka's challenge against Kafka, restraining him from “causing physical fails. harm, bodily injury, assault, including sexual assault, and from molesting, harassing, threatening, or FN1.Compare United States v. Salerno, 481 stalking” Mrs. Kafka or her daughter. Kafka was not U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d informed by the domestic violence restraining order or 697 (1987) (“[a] facial challenge to a by any other method that he could be prosecuted under legislative Act is, of course, the most difficult federal law for possession of firearms as a result of the challenge to mount successfully, since the issuance of the restraining order. challenger must establish that no set of circumstances exists under which the Act On March 30, 1999, state police officers stopped would be valid”) and City of Chicago v. Kafka for a traffic violation. He advised the officers Morales, 527 U.S. 41, 55 n. 22, 119 S.Ct.
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1849, 144 L.Ed.2d 67 (1999) (plurality op.) (Stevens, J., Souter, J., and Ginsburg, J.) [3] Kafka contends that the lack of such a mens rea (criticizing Salerno and suggesting that a requirement violates due process. “The rule that plaintiff can prevail on a facial challenge by „ignorance of the law will not excuse‟ is deep within merely showing a statute is unconstitutional our law....” Lambert v. California, 355 U.S. 225, 228, in most cases) with Foti v. City of Menlo 78 S.Ct. 240, 2 L.Ed.2d 228 (1957) (citation omitted); Park, 146 F.3d 629, 635 (9th Cir.1998) see also Cheek v. United States, 498 U.S. 192, 199, (“[a]n as-applied challenge contends that the 111 S.Ct. 604, 112 L.Ed.2d 617 (1991). According to law is unconstitutional as applied to the Kafka, however, an exception to this general rule litigant's particular speech activity, even applies here because section 922(g)(8) is a technical, though the law may be capable of valid obscure statute which punishes conduct that a application to others”). reasonable person ordinarily would not consider to be
criminal. Although every circuit court which has Section 922(g)(8) prohibits the possession of a firearm considered this argument has rejected it, see United
by an individual subject to a domestic violence States v. Reddick, 203 F.3d 767, 769-71 (10th
restraining order issued after a hearing in state court. Cir.2000); United States v. Baker, 197 F.3d 211,
18 U.S.C. ? 922(g)(8). An individual charged under 218-20 (6th Cir.1999), cert. denied,528 U.S. 1197,
this statute must have received actual notice of the 120 S.Ct. 1262, 146 L.Ed.2d 117 (2000); United
restraining order hearing and must have had an States v. Meade, 175 F.3d 215, 225-26 (1st Cir.1999);
opportunity to participate in the hearing. Id. In Bostic, 168 F.3d at 722-23;United States v. Wilson,
addition, *1131section 922(g)(8) requires that the 159 F.3d 280, 288-89 (7th Cir.1998), cert. denied,527
restraining order include either (1) a finding that the U.S. 1024, 119 S.Ct. 2371, 144 L.Ed.2d 774 (1999),
individual represents a credible threat to physical Kafka seeks to have this court embrace the minority safety of his intimate partner or child, or (2) an explicit view espoused by Judge Posner's dissent in Wilson
prohibition on the individual's use of physical force and a district court decision in United States v.
against his intimate partner or child. Id. Emerson, 46 F.Supp.2d 598 (N.D.Tex.1999). Kafka
also relies on the Supreme Court's landmark decision in Lambert as supporting this minority view. However, [2] To obtain a conviction, the government must prove, Lambert is distinguishable on its facts, and we are not as set forth in 18 U.S.C. ? 924(a)(2), that a defendant persuaded by the reasoning of Emerson or Judge “knowingly” violated section 922(g)(8). This Posner's dissent in Wilson. knowledge requirement applies only to the act of
possession, not to the prohibition on possessing
firearms. See Bryan v. United States, 524 U.S. 184, In Lambert, the defendant was convicted of violating a 193, 118 S.Ct. 1939, 141 L.Ed.2d 197 (1998) (“unless municipal ordinance which made it a crime for felons the text of the statute dictates a different result, the to remain in the city for more than five days without term „knowingly‟ merely requires proof of knowledge registering with the police. The defendant was not of the facts that constitute the offense”) (footnote aware that her mere presence in the city gave rise to a omitted); United States v. Bostic, 168 F.3d 718, duty to register and there was no showing of any 722-23 (4th Cir.), cert. denied,527 U.S. 1029, 119 circumstances that might have alerted her to such a S.Ct. 2383, 144 L.Ed.2d 785 (1999) (finding the term duty or prompted her to inquire as to the necessity of “knowingly” as applied to section 922(g)(8) offenses registration. Because the ordinance punished, without does not require a defendant be aware of the illegality forewarning, “wholly passive” conduct that a of his conduct), cert. denied,527 U.S. 1029, 119 S.Ct. reasonable person would not consider to be criminal, 2383, 144 L.Ed.2d 785 (1999); see also United States the Supreme Court found that it violated due process. v. Miller, 105 F.3d 552, 555 (9th Cir.1997) (“the ? See355 U.S. at 228-30, 78 S.Ct. 240. Under these
924(a) knowledge requirement applies only to the unique circumstances, the Court determined that a possession element of ? 922(g)(1), not to the interstate departure from the traditional rule that ignorance of nexus or to felon status”). Accordingly, in this case, the law is no excuse was warranted. Id.; see also
the government was not required to prove, and did not Bryan, 524 U.S. at 194-95, 118 S.Ct. 1939 (noting
exceptions to the traditional rule where highly prove, that Kafka knew his possession of a firearm
violated the law. technical statutes presented a “danger of ensnaring
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individuals engaged in apparently innocent conduct”). abuse are no secret, and the possibility of tragic
encounters has been too often realized. We think it follows that a person who is subject to such an order In Wilson, Posner dissented from the majority's ruling would not be sanguine about the legal consequences that section 922(g)(8) is *1132 constitutional. In order of possessing a firearm, let alone of being to avoid the constitutional due process issue raised by apprehended with a handgun in the immediate section 922(g)(8), Posner argued that the majority vicinity of his spouse.should have interpreted the term “knowingly” to
require proof that a defendant knew his possession of a
firearm was unlawful. 159 F.3d at 293. Applying 175 F.3d at 226 (citations omitted); see also Baker,
Lambert, Posner reasoned that due process concerns 197 F.3d at 220 (“it was not reasonable for someone are implicated by this “obscure” statute because it [subject to a restraining order] to expect to possess traps gun owners who have no reason to believe or to dangerous weapons free from extensive regulation”); know that their “apparently innocent conduct” of Bostic, 168 F.3d at 722 (“[l]ike a felon, a person
continuing to possess guns is illegal under federal law [subject to a restraining order] cannot reasonably once a state restraining order is entered against them. expect to be free from regulation when possessing a
firearm”). Kafka correctly notes that Meade and Posner concluded that “to intone „ignorance of the law
is no defense‟ [with respect to section 922(g)(8) ] is to Bostic are factually distinguishable because, unlike condone a violation of fundamental principles for the Kafka, the defendants in those cases were arrested for sake of a modest economy in the administration of violating section 922(g)(8) after or during a violation criminal justice.” Id. at 295. Following Posner's of their domestic violence restraining orders. However, reasoning, Emerson held that section 922(g)(8) the reasoning of these cases and of Baker is persuasive
offends both substantive and procedural due process and will be applied here.
because it is such an “obscure, highly technical” criminal provision that the defendant did not know he In this case, the state court issued a restraining order was violating the law. 46 F.Supp.2d at 612-13. The against Kafka based on a specific finding that he had district court determined that it is unfair to hold a committed an act of domestic violence. The defendant accountable without notice under section restraining order transformed the otherwise 922(g)(8) where “there is nothing inherently evil “innocent” nature of Kafka's gun possession because it about [the defendant] possessing a firearm while being specifically curtailed his activities in light of the under a domestic violence restraining order.” Id. at court's recognition of his past violent behavior. In 612. particular, the order restrained him from causing Mrs.
Kafka or her daughter physical harm, bodily injury, or Although Posner's dissent and Emerson correctly assault, and from molesting, harassing, threatening or assume that the mere possession of firearms can be stalking either of them. Given these restrictions, the characterized as “apparently innocent” conduct, see issuance of the order itself should have alerted Kafka Staples v. United States, 511 U.S. 600, 609-12, 114 to the possibility of other limitations on his conduct, S.Ct. 1793, 128 L.Ed.2d 608 (1994), they wrongfully including the prohibition on *1133 his possession of
ignore the effect that a state court's decision to issue a firearms, especially when one acknowledges that a domestic violence restraining order has on the firearm is the ultimate instrument to accomplish the “innocent” nature of such conduct. In Meade, the First acts which the restraining order specifically prohibited. Circuit explained the significance of restraining orders Accordingly, the existence of the restraining order in the context of firearm possession:makes this case distinguishable from Lambert where
the “circumstances which might move one to inquire as to the necessity of registration [were] completely As Staples v. United States, makes clear, firearms lacking.” 355 U.S. at 229, 78 S.Ct. 240. Moreover, possession, without more, is not a kind of activity unlike Lambert, Kafka's carrying of a pistol loaded comparable to possession of hand grenades, with eight rounds of ammunition in the waistband of narcotics, or child pornography. But possession of his pants while driving a vehicle cannot be construed firearms by persons laboring under the yoke of as “wholly passive” conduct. anti-harassment or anti-stalking restraining orders is
a horse of a different hue. The dangerous
propensities of persons with a history of domestic Because Kafka's conduct does not involve conduct or
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circumstances so presumptively innocent as to fall within Lambert 's exception to the traditional rule that ignorance of the law is no defense, Kafka's due process challenge to section 922(g)(8) has no merit.
AFFIRMED.
C.A.9 (Wash.),2000.
U.S. v. Kafka
222 F.3d 1129, 00 Cal. Daily Op. Serv. 7078, 2000 Daily Journal D.A.R. 9363
END OF DOCUMENT
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