Second Amendment as Relevant to Defendant's Right To Sue for Declaration of His Federal Firearms Rights?

An interesting decision (Jennings v. Mukasey) that was just uploaded to Lexis, though it was handed down two and a half months ago:

Plaintiff, Bruce L. Jennings, has brought suit seeking, inter alia, a judgment from this Court declaring the status of his rights under 18 U.S.C. § 922(g)(9), which prohibits the possession of firearms by those convicted of a misdemeanor crime of domestic violence. Specifically, Plaintiff asks this Court to determine whether a 1985 State court conviction for misdemeanor domestic violence prohibits Plaintiff from lawfully possessing a firearm under federal law, notwithstanding the fact that the conviction has been expunged or otherwise set aside by the State court. Because his conviction has been expunged, Plaintiff alleges that 18 U.S.C. § 921(a)(33)(B)(ii) excepts him from § 922(g)(9)’s prohibition against firearm possession.

Plaintiff has further alleged that Defendants have threatened him with criminal prosecution if he should decide to possess a firearm; that this threat of prosecution infringes upon the exercise of his Second Amendment rights; and that Defendants’ threatened prosecution has precluded him from obtaining employment in the firearms industry, in which he has had approximately thirty (30) years of experience in evaluating various designs of handguns for licensed firearm dealers....

Defendants argue that by seeking a declaration that the State court judgment setting aside and expunging Plaintiff’s conviction for misdemeanor domestic violence effects § 921(a)(33)(B)(ii)’s exception to § 922(g)(9), Plaintiff has asked this Court to “restrain the prosecutorial authority of the United States.” As a result, Defendants contend that this Court is without subject matter jurisdiction to hear Plaintiff’s case.

While the Supreme Court has observed that the executive branch has “exclusive authority and absolute discretion to decide whether to prosecute a case,” and the Fifth Circuit has noted that “courts are not to interfere with the free exercise of the discretionary powers of the attorneys of the United States in their control over criminal prosecutions,” this discretion can give way where important constitutional rights are at stake....

Assuming, as the Court must at this stage in the proceedings, that Plaintiff’s conviction was duly expunged, it seems that he would clearly fall within the statutory exception in § 921(a)(33)(B)(ii) and would not be subject to prosecution under § 922(g)(9). Furthermore, in light of District of Columbia v. Heller, Plaintiff raises a viable claim that the violation of his Second Amendment right to bear arms also deprives him of the right to earn a livelihood. Taken together, the Court concludes that Plaintiff’s allegations fall within the very limited exception to the general principle of immunity, that Plaintiff is otherwise without an adequate remedy at law, and that Plaintiff would suffer irreparable harm if not permitted to proceed in the instant action....

Where the plaintiff’s suit does not seek to impose upon the fisc, but only to declare the status of fundamental constitutional rights, the requirement of a statutory waiver [of sovereign immunity] should give way....

For more on the dispute about whether Jennings' conviction has indeed been properly expunged, see the discussion here, though the Ninth Circuit in that opinion didn't conclusively deal with Jennings' claim based on the December 2005 state court order.

Soronel Haetir (mail):
Given the earlier 9th circut opinion I'm surprised that the pantiff isn't estopped from making this argument.
12.10.2008 5:08pm
Eugene Volokh (www):
Soronel Haetir: I at first thought so, too, but the Ninth Circuit opinion expressly declines to conclusively pass on the Dec. 2005 order, which apparently came too late to become part of the record that it was examining in its review of the BATF decision. I take it that Jennings is now relying on that very order.
12.10.2008 5:37pm
It's odd that our system of justice might force the plaintiff to gamble on his legal argument (by possessing and be arrested as a FIP) instead of giving him a definitive ruling on the merits. Of course, the prejudice against declaratory rulings is proper in the general sense, it creates a very palpable sense of injustice in the instant case.
12.10.2008 7:15pm
John (mail):
How about an update on the jurisdictional argument with some of the lawproffery that we've become accustomed to?
12.10.2008 7:19pm
fortyninerdweet (mail):
Interesting conundrum for the plaintiff. Thanks for the post. Could this be a case of excessive prosecutorial zeal? Or did this plaintiff simply bunch up someone important's shorts?
12.10.2008 7:47pm
fortynine, there is a genuine question of law whether California's section 1203.4 relief makes his conviction "expunged" for the purposes of § 921(a)(33)(B)(ii). The government can reasonably argue that 1203.4 did not expunge his conviction and he therefore remains a prohibited person. What's unreasonable to me is the inability for him to challenge that argument (because his argument that 1203.4 did expunge the conviction is also reasonable) without possibly committing a federal felony.

Interestingly enough, the background checks that are commonly reviled on this site may have saved the plaintiff from committing that federal felony, depending on the answer to the 1203.4 question.
12.10.2008 8:16pm
Dave Hardy (mail) (www):
I'm a bit confused here, 30+ years outa law school, but how does Ex Parte Younger or whatever have anything to do with a declaratory action, against Federal officials?
12.10.2008 9:22pm
the background checks that are commonly reviled on this site may have saved the plaintiff from committing that federal felony, depending on the answer to the 1203.4 question.

No it won't. They'll just prosecute him for attempt.
12.10.2008 10:57pm
DangerMouse, as is evident from the facts on records, they have not any such thing.
12.11.2008 12:17am
... have done no such thing.
12.11.2008 1:06am
fortyninerdweet (mail):
Oren, sorry for the belated comment. Obviously this question turns on the federal law, and the definition of "expunge", but imo a brief read of 1203.4 PC Cal should lead a reasonable person to conclude that for at least two reasons stated in the section a conviction reversed therein does not per se expunge it completely. ie: 1. Prohibited from firearm possession, [which is the main problem anyway] and 2. Prohibited in several situations from stating he/she had never been arrested and/or convicted, etc.
Since the code itself lists at least those two exceptions, one would think the expunge issue itself would be settled in the negative. So I change my view. But since I'm not the expert, I suspect there is too much more to settle here. Thanks again for all your efforts. Forgive those of us in the hoi polloi of our occasional brashness. This was fun for me to delve into.
12.11.2008 3:12am
No offense taken, but I don't think the question of whether 1203.4 qualifies for §921(a)(33)(B)(ii) is resolved that easily.
12.11.2008 11:18am

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