A Successful As-Applied Challenge to a Felon in Possession
by: Ryan • September 30, 2014 • no comments
You can find the details of the first-ever as-applied challenge to a federal charge of felon in possession here.
As the post notes, a number of federal courts have said that they might, someday, uphold such a challenge. But it doesn't appear any have previously done so. See United States v. Moore, 666 F.3d 313, 320 (4th Cir. 2012); United States v. Barton, 633 F.3d 168, 174 (3d Cir. 2011); United States v. Williams, 616 F.3d 685, 693 (7th Cir. 2010); United States v. Duckett, 406 Fed. Appx. 185, 187 (9th Cir. 2010) (Ikuta, J., concurring); United States v. McCane, 573 F.3d 1037, 1049-50 (10th Cir. 2009) (Tymkovich, J., concurring).
As far as I can tell, there is no statutory vehicle in Oregon for an as-applied challenge to a statute. However, see State v. Sutherland, 987 P. 2d 501 (1999) for the principal that the constitution itself provides the vehicle itself for as-applied challenges.
So how good were the facts in the federal case mentioned above?
- His only conviction was nearly 17 years before. It stemmed from a nonviolent incident — a consensual sexual relationship Binderup had with a 17-year-old employee. Pennsylvania law does not even treat the offense as a statutory rape; the formal age of consent in Pennsylvania (as in most other states) is 16, and sexual conduct by an adult with a 16- or 17-year-old is treated as consensual, though bad for a the minor and therefore the crime of corruption of minors. The statistics presented by the government, showing that people with criminal convictions — even nonviolent ones — are likely to commit other crimes aren’t probative given the nature of the crime, how long ago the crime was, and Binderup’s current age (59).
And in light of that, the court concluded:
- [P]laintiff has demonstrated that, if allowed to keep and bear arms in his home for purposes of self-defense, he would present no more threat to the community that the average law-abiding citizen.
