Thursday, October 14, 2010

Schrader et al v. Holder et al: A New SAF Gun Law Challenge

Alan Gura and the Second Amendment Foundation filed suit yesterday in the U.S. District Court for the District of Columbia on behalf of a Georgia man who was prohibited from purchasing a firearm due to a decades-old conviction for simple misdemeanor assault. The plaintiff, Jefferson Wayne Schrader, was also informed that he must surrender all of his current firearms or face criminal prosecution. The defendents in this case are Attorney General Eric Holder and the Federal Bureau of Investigation.

Jefferson Schrader was serving in the U.S. Navy when he was attacked by a street gang in the summer of 1968 while stationed in Annapolis, Maryland. The gang assaulted Schrader because they said he was "in their territory". A few days after this initial attack, he was walking in Annapolis when he was accosted by one of his original assailants. A fight ensued and Schrader punched the gang member. Unfortunately, this was seen by a local police officer and Schrader was arrested for assault and battery, and disorderly conduct.

In court, Schrader was found guilty of misdemeanor assault and battery. He was fined $109 including court costs which he paid. The alternative to not paying the fine was 30 days in jail. Sometime after this, Schrader shipped out for a tour of duty in Vietnam and then was honorably discharged upon his return. Since that time, Schrader has not had any further brushes with the law with the exception of one traffic ticket.

The key points to remember here is that Schrader was only convicted of a simple misdemeanor for which at the time Maryland law did not set any maximum sentence. As the complaint notes, the only maximum was that guaranteed under the Eight Amendment governing cruel and unusual punishments. Further, he is an honorably-discharged veteran, did not commit any act of domestic violence, does not have any domestic restraining orders against him, doesn't use drugs, and has not been found to be mentally defective or had a commitment to a mental institution.

All Schrader is guilty of is being in the wrong place at the wrong time and, perhaps, reacting a bit strongly when accosted by a street thug. Schrader is a normal guy who served his country, kept his nose clean, has gone about his life, and who, by all accounts, should be allowed to exercise his Second Amendment rights to purchase and possess a firearm.

Fast forward to late 2008. His companion attempted to purchase a shotgun for him as a gift. This transaction was canceled when the NICS check indicated he was a prohibited person. According to the complaint, in January 2009, Schrader also placed an order at his local gun shop for a handgun for self-defense.

In June 2009, Schrader was advised by the FBI that the shotgun transaction was denied because of his Maryland misdemeanor assault conviction and that he was considered a prohibited person under 18 USC §922(g)(1). An FBI Agent at the time also advised Schrader to dispose of any firearm that he might possess or he would face criminal prosecution. He immediately canceled his handgun order.

18 USC §922(g)(1) which describes who is a prohibited person is as follows:
It shall be unlawful for any person—
(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;
(2) who is a fugitive from justice;
(3) who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802));
(4) who has been adjudicated as a mental defective or who has been committed to a mental institution;
(5) who, being an alien—
(A) is illegally or unlawfully in the United States; or
(B) except as provided in subsection (y)(2), has been admitted to the United States under a nonimmigrant visa (as that term is defined in section 101(a)(26) of the Immigration and Nationality Act (8 U.S.C. 1101 (a)(26)));
(6) who has been discharged from the Armed Forces under dishonorable conditions;
(7) who, having been a citizen of the United States, has renounced his citizenship;
(8) who is subject to a court order that—
(A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate;
(B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and
(C) (i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or
(ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury; or
(9) who has been convicted in any court of a misdemeanor crime of domestic violence,
to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.
The suit asks that the Attorney General correct the erroneous NICS information under his authority from 18 USC §925A and remove Schrader from the prohibited person's list. The relevant part of that section of the code reads:
A person who is prohibited from possessing, shipping, transporting, or receiving firearms or ammunition may make application to the Attorney General for relief from the disabilities imposed by Federal laws with respect to the acquisition, receipt, transfer, shipment, transportation, or possession of firearms, and the Attorney General may grant such relief if it is established to his satisfaction that the circumstances regarding the disability, and the applicant's record and reputation, are such that the applicant will not be likely to act in a manner dangerous to public safety and that the granting of the relief would not be contrary to the public interest.
The second claim for relief made in the suit asks for a permanent injunction barring enforcement of 18 USC §922(g)(1) by the Defendents and all of those under their power on the basis of simple common-law misdemeanor offenses which have no statutory penalties.

As Alan Gura said at the Gun Rights Policy Conference regarding his post-McDonald litigation, he looks for situations where you have "low hanging fruit", it is annoying, and unconstitutional. I would say this situation qualifies on all three counts.


  1. Please note the title is misleading. The suit is not about simple misdemeanors, but simple misdemeanors whose penalties have no stated maximum. The next step is simple misdemeanors by themselves with overly large and exaggerated maximum sentences.

  2. @Terraformer75: You are correct. I did take the title mostly from the SAF's press release.

  3. I just simplified the title so as not to mislead.