UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA,

v. Criminal Action No. 23-200-1 (JDB)

GARRICK RICHARDSON, Defendant.

MEMORANDUM OPINION & ORDER

Garrick Richardson is charged by indictment with one count of unlawful firearm

possession by a convicted felon, in violation of

(g)(1). He argues that the

indictment must be dismissed because the statute criminalizing firearm possession by felons is

unconstitutional as applied to him under New York State Rifle & Pistol Ass’n v. Bruen,

(2022). For the reasons set forth below, the Court will deny Richardson’s motion.

Background

In the early morning hours on May 13, 2023, a fight broke out in a parking garage near a

D.C. night club. Opp’n to Mot. to Dismiss Indictment [ECF No. 41] (“Opp’n”) at 2–9. 1 After the

altercation ended, two of the men allegedly attempted to flee by car, while their adversaries (now

joined by others) surrounded the vehicle. Id. at 2. Among the group, the government says, was

Richardson, who is captured on video running toward the fleeing vehicle with a black handgun.

Id. at 2–3. Also among the group, according to the government, was co-defendant Dirk Easton,

who is accused of firing several shots at the vehicle, quitting only after a round from his own gun

ricocheted off the car and struck him in the face. Id. at 4. After the shooting, the group headed by

car to George Washington University Hospital, where they dropped off Easton. Id. at 5–6. Police

1 The following facts are drawn from the government’s opposition to Richardson’s motion. United States v. Park,

(D.C. Cir. 2019) (assuming the truth of the government’s allegations for purposes of a motion to dismiss).

1 caught up with Richardson and other participants near the hospital. Id. at 6. In the back seat of a

car where Richardson had been riding, police found a black Glock 35 .40 caliber handgun equipped

with a conversion device known as a “Glock switch” or “giggle switch,” which can be used to

convert a semi-automatic weapon into a fully automatic one. Id. at 6–7. This gun matched the

firearm Richardson was seen carrying in the surveillance video. Id. at 8.

A grand jury indicted Richardson on one count of unlawful firearm possession by a

convicted felon, in violation of

(g)(1). See Superseding Indictment [ECF No. 22]

at 1–2. He has two prior felony convictions from D.C. Superior Court for possessing a firearm

without a license. See

at 1 (citing Criminal Case Nos. 2022 CF2 001516 and 2018 CF2

001308); see also Mem. Op. & Order [ECF No. 31] at 3 (discussing prior convictions). Richardson

moved to dismiss the case, arguing that the federal felon-in-possession law violates his Second

Amendment rights as construed by the Supreme Court in Bruen. Mot. to Dismiss [ECF No. 34]

(“Mot.”). The government filed an opposition, Opp’n, and Richardson filed a reply, Reply in

Supp. of Mot. (“Reply”) [ECF No. 43], and notices of supplemental authority from the Middle

District of Louisiana, Notice of Add’l Auth. [ECF No. 45], and the Southern District of Illinois,

Notice of Add’l Auth [ECF No. 48]. The motion is now fully briefed and ripe for decision.

Legal Standard

A defendant in a criminal case may move to dismiss an indictment before trial for “failure

to state an offense.” Fed. R. Crim. P. 12(b)(3)(B)(v). “The defense of failure of an indictment to

charge an offense includes the claim that the statute apparently creating the offense is

unconstitutional.” United States v. Eshetu,

(D.C. Cir. 2017) (quoting United

States v. Seuss,

, 387 n.2 (1st Cir. 1973)), vacated on other grounds,

(D.C. Cir. 2018).

2 Analysis

I. Second Amendment Framework

Before Bruen, the D.C. Circuit (and other courts of appeal) applied a two-step framework

for determining the constitutionality of gun restrictions. See Bruen, 142 S. Ct. at 2126–27. The

court would “first ask whether the activity or offender subject to the challenged regulation falls

outside the Second Amendment’s protections.” Schrader v. Holder,

(D.C. Cir.

2013). If yes, the challenge was unsuccessful.

. If no, the court would apply strict or

intermediate scrutiny depending on “the nature of the conduct being regulated and the degree to

which the challenged law burdens the right.”

(internal quotation marks omitted).

The Bruen Court generally endorsed the first step of that framework, observing that it is

“broadly consistent with [District of Columbia v. Heller,

(2008)], which demands a

test rooted in the Second Amendment’s text, as informed by history.”

. The

Court, however, rejected application of tiered constitutional scrutiny as a second step in the

analysis.

. The Court then articulated the following test for reviewing firearm

regulations:

When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.

at 2129–30. Hence, when a law regulates individual conduct generally protected by the Second

Amendment, it is the government’s burden to produce evidence of relevantly similar historical

regulations. See

at 2131–33.

II. Richardson’s Challenge

Richardson argues that

(g)(1), which imposes a lifelong ban on firearm

possession by felons, is unconstitutional as applied to him under the test laid out in Bruen. He

claims that felons are among the “people” protected by the Second Amendment, and that the

3 government cannot show a relevantly similar historical tradition of disarming felons at the

Founding. See, e.g., Mot. at 3–7. He directs the Court to decisions of other courts accepting

similar arguments post-Bruen. See Range v. Att’y Gen. of the U.S.,

(3d Cir. 2023)

(en banc); United States v. Bullock, Crim. A. No. 3:18-165 (CWR),

(S.D. Miss.

June 28, 2023).

Richardson’s argument is foreclosed by D.C. Circuit precedent, which necessitates denial

of his motion. In Medina v. Whitaker,

(D.C. Cir. 2019), an individual with a felony

fraud conviction brought an as-applied challenge to § 922(g)(1), contending that the Second

Amendment protects non-dangerous felons’ right to possess guns. Id. at 154, 157–58. The court

began by looking to “tradition and history,” beginning with the “public understanding of the right

at [the Founding] to determine if a convicted felon would fall outside the scope of its protection.”

Id. at 158. The court found support in the historical record for the proposition that felony crimes

were often treated as capital offenses at the Founding. Id. The court also noted some states’

confiscation of arms from those who would not swear loyalty to the United States. Id. at 159. The

court finally considered “guidance from the Supreme Court in Heller” describing felon firearm

prohibitions as “‘longstanding’ and ‘presumptively lawful.’” Id. (quoting Heller,

,

627 n.26). “On balance,” these authorities led the court “to reject the argument that non-dangerous

felons have a right to bear arms” and to hold that “those convicted of felonies are not among those

entitled to possess arms.”

at 159–60.

Medina disposes of Richardson’s motion. As seven other judges in this district have

concluded, the D.C. Circuit has decided that felons are not entitled to the protections of the Second

Amendment, and therefore § 922(g)(1) is facially constitutional. Medina,

(“[A]

4 felony conviction removes one from the scope of the Second Amendment . . . .”). 2 Medina left

open the possibility that § 922(g)(1) could be unconstitutional as applied to certain individuals

whose predicate offenses were so “minor or regulatory” as to distinguish them from the general

class of convicted felons. Id. While Richardson frames his challenge as whether § 922(g)(1) is

unconstitutional as applied to him, he does not explain why his prior convictions for possessing a

firearm without a license do not remove him from the category of law-abiding and responsible

individuals under Medina. Cf. id. (“Whether a certain crime removes one from the category of

‘law-abiding and responsible,’ in some cases, may be a close question.”); Whitaker Op. at 1, 4

(concluding that defendant failed to show why he was a “law-abiding, responsible citizen”

notwithstanding his prior convictions for firearms possession and narcotics distribution).

Accordingly, the Court does not consider further whether Richardson’s prior convictions might

remove him from the class of felons who can be disarmed consistent with Medina.

Instead, Richardson argues that the Court must ignore Medina because it has been

overruled by Bruen. See Mot. at 25–31. The Court disagrees. “[D]istrict judges, like panels of

[the D.C. Circuit], are obligated to follow controlling circuit precedent until either [the circuit],

sitting en banc, or the Supreme Court, overrule it.” United States v. Torres,

(D.C. Cir. 1997). A controlling precedent may be “effectively” overruled, but only when its

reasoning has been “eviscerate[d]” by a subsequent Supreme Court decision. Perry v. MSPB, 829

2 See United States v. Booker, Crim. A. No. 23-103 (RJL) (D.D.C. Nov. 1, 2023) (oral ruling); United States v. Shelton, Crim. A. No. 22-201 (RBW) (D.D.C. Sept. 15, 2023) (oral ruling); United States v. Ingraham, Crim. A. No 22-211 (TJK) (D.D.C. Aug. 3, 2023) (oral ruling); United States v. Glover, Crim. A. No. 20-204 (ABJ) (D.D.C. July 19, 2023), ECF No. 76; United States v. Bailey, Crim. A. No. 22-269 (BAH) (D.D.C. June 14, 2023) (minute order); United States v. Tatum, Crim. A. No. 22-120 (DLF) (D.D.C. Mar. 22, 2023) (oral ruling); United States v. Whitaker, Crim. A. No. 22-272 (CRC) (D.D.C. Jan. 12, 2023), ECF No. 33 (“Whitaker Op.”); see also United States v. Wilcox, Crim. A. No. 23-136 (DLF) (D.D.C. Sept. 13, 2023) (oral ruling); United States v. Stewart, Crim. A. No. 22-154 (CRC) (D.D.C. Sept. 6, 2023) (oral ruling).

(D.C. Cir. 2016) (internal quotation marks omitted), rev’d on other grounds Perry

v. MSPB,

(2017).

Bruen did not overrule Medina or “eviscerate” its reasoning. Bruen did not question the

constitutionality of the felon-in-possession law. See Bruen,

. To the contrary,

Bruen suggested that such restrictions remain valid. The opinion refers repeatedly to the rights of

“law-abiding citizens,” e.g.,

, noting that it was “undisputed” that the plaintiffs,

“ordinary, law-abiding, adult citizens—[were] part of ‘the people’ whom the Second Amendment

protects,”

. In a concurrence, Justice Kavanaugh (joined by Chief Justice Roberts)

reiterated his understanding that “longstanding prohibitions on the possession of firearms by

felons” were “presumptively lawful.”

(Kavanaugh, J., concurring) (quoting Heller,

, 627 n.26). And Justice Alito, in a separate concurrence, emphasized that Bruen

did not “disturb[]” the Court’s prior statements about “restrictions that may be imposed on the

possession or carrying of guns.” Id. at 2157 (Alito, J., concurring).

Richardson argues that Medina did not properly engage in “the comprehensive historical

and plain language analysis . . . required [by] Bruen” when determining if felons were among the

“people” protected by the Second Amendment. Mot. at 26. Specifically, he claims that Medina

did not hold the government to its burden, but rather upheld § 922(g)(1) with little supporting

historical evidence. Id. at 27–31. However, Medina generally followed the form of reasoning

required by Bruen. Medina engaged in historical analysis to review modern firearm regulations

and concluded that historical parallels provided support for the modern regulation; the court did

not engage in the tiered constitutional scrutiny Bruen rejects. See Medina,

(“Because the claim fails at the first step . . . , we need not reach the second step.”). Further, the

Medina court specifically identified historical analogues it deemed relevant to the modern felon-

in-possession law. For example, the court noted the severe penalties often applied to felonies at

6 the Founding and reasoned that “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,

. The court also cited a proposal at the Pennsylvania

ratifying convention limiting gun rights for those convicted of crimes, and laws in two states

confiscating weapons of loyalists at the Founding.

at 158–59.

While Richardson may disagree about whether these historical sources are “sufficient

under Bruen,” Mot. at 29, he has identified at most “tension” between Medina and Bruen, which

is not enough for this Court to disregard a “prior factually indistinguishable decision.” Angelo v.

Dist. of Columbia,

, 129 (D.D.C. 2022) (quoting Brewster v. Comm’r of

Internal Revenue,

(D.C. Cir. 1979)). Indeed, the D.C. Circuit recently

rejected an argument of similar form. In Bahlul v. United States,

(D.C. Cir. 2023),

the D.C. Circuit concluded that the Supreme Court did not “eviscerate[]” circuit precedent by

“elevating one factor” over two others in a three-factor approach applied previously.

at 926–

27. Similarly, here, the Supreme Court’s refinement of the historical method applied in Medina

does not “clearly dictate a departure” from Medina such that this Court could conclude it had been

overruled.

.

The Court recognizes that some other judges nationally have accepted the arguments

generally made by Richardson. And some of those judges have found the D.C. Circuit’s analysis

in Medina unpersuasive. See, e.g., Range,

. However, it is not for this Court to

decide whether it is sufficiently persuaded by the D.C. Circuit’s reasoning in Medina so as to

follow it. Medina is on point, and this Court will follow it. 3

3 The supplemental authority filed by Richardson does not alter the Court’s conclusion. Neither decision cited was made in the context of similar on-point circuit authority. The decision from the Middle District of Louisiana came after the Fifth Circuit observed that its prior precedents applying tiered constitutional scrutiny to uphold felon- in-possession laws were “obsolete” after Bruen. United States v. Leblanc, Crim. A. No. 23-45 (BAJ),

, at *3–4 (M.D. La. Dec. 19, 2023) (quoting United States v. Rahimi,

(5th Cir. 2023), cert. granted,

). Similarly, the decision from the Southern District of Illinois followed a ruling from the

7 * * *

For the foregoing reasons, it is hereby ORDERED that [34] defendant’s motion to

dismiss is DENIED.

/s/ JOHN D. BATES United States District Judge Dated: February 2, 2024

Seventh Circuit “instruct[ing] district courts to conduct a ‘proper, fulsome analysis of the historical tradition supporting § 922(g)(1).’” United States v. Taylor, Crim. A. No. 23-40001 (SMY),

, at *2 (S.D. Ill. Jan. 22, 2024) (quoting Atkinson v. Garland,

(7th Cir. 2023)). This Court is not similarly placed to depart from the Medina decision.

8