United States of America v. DAvid Keith Nutter

Charleston, West Virginia criminal defense lawyer represented the Defendant charged with felony possession of a firearm.



In August 2021, Nutter was indicted for violating § 922(g)(9), which prohibits individuals with convictions for "misdemeanor crime[s] of domestic violence" from possessing, "in or affecting commerce, any firearm or ammunition." § 922(g)(9). The term "misdemeanor crime of domestic violence" is defined in § 921(a)(33). With various caveats either not at issue in this case or that will be discussed below, that term means "an offense that . . . is a misdemeanor under Federal, State, Tribal, or local law" and "has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon" committed by certain individuals in specified familial, cohabitation, or dating relationships with the victim. § 921(a)(33)(A).



Nutter's indictment specified that he had three such prior convictions in Ohio that brought him within § 922(g)(9)'s class of persons prohibited from possessing firearms. Those convictions are: (1) a July 1998 conviction for domestic violence on a family or household member, in violation of Ohio Rev. Code Ann. § 2919.25; (2) an August 2002 conviction for domestic violence on a family or household member felony in the fifth degree, in violation of Ohio Rev. Code Ann. § 2919.25(A); and (3) an August 2002 conviction for endangering children (child abuse), in violation of Ohio Rev. Code Ann. § 2919.22(B)(1).



Nutter acknowledged that he possessed the firearms identified in the present indictment and did not dispute that he had the foregoing Ohio convictions. Nonetheless, he moved to dismiss the indictment, arguing that § 922(g)(9) was unconstitutional because it violated the Second Amendment.



Applying District of Columbia v. Heller, 554 U.S. 570 (2008), and this Court's then-applicable means-end analysis that it had adopted in Heller's wake, the district court denied Nutter's motion. The parties then entered a conditional plea agreement that allowed Nutter to appeal the denial of his motion to dismiss the indictment, and the district court accepted Nutter's guilty plea.



A few weeks after the guilty plea hearing, but before Nutter's sentencing hearing, the Supreme Court decided New York State Rifle &Pistol Ass'n v. Bruen, 597 U.S. 1 (2022). That decision "rejected . . . as involving 'one step too many'" the means-end analysis that this and other courts had adopted when reviewing Second Amendment challenges post-Heller. United States v. Price, 111 F.4th 392, 398 (4th Cir. 2024) (en banc) (quoting Bruen, 597 U.S. at 19). Given Bruen's holding, Nutter filed a second motion to dismiss his indictment, arguing that under the Supreme Court's framework for analyzing Second Amendment claims, § 922(g)(9) violated the Constitution.



The district court denied the motion, concluding that § 922(g)(9) "fits easily within" the Nation's history and tradition of disarming categories of individuals deemed to be "a threat to the public safety" and thus satisfied Bruen's inquiry. United States v. Nutter, 624 F.Supp.3d 636, 643 (S.D. W.Va. 2022) (internal quotations omitted). In the court's view, "[n]othing in the historical record suggest[ed] a popular understanding of the Second Amendment at the time of the founding that extended to preserving gun rights for groups who pose a particular risk of using firearms against innocent people." Id. at 645. In light of its conclusion, the court denied Nutter's motion, leaving his guilty plea intact. Nutter's plea agreement was modified, however, to reserve his right to appeal the denial of his second motion to dismiss.

The district court sentenced Nutter to twelve months' imprisonment and three years' supervised release.



Affirmed



See: https://www.ca4.uscourts.gov/opinions/224541.P.pdf