Shall He Overcome the Felony Gun Conviction?
12/1/2011 10:16:00 AM,
MANHATTAN (CN) - Martin Luther King's tradition of nonviolent civil disobedience apparently laid the groundwork for a felony gun conviction appeal, one 2nd Circuit judge suggested at a hearing Wednesday.
Like the Freedom Riders before him, New York resident Angel Decastro crossed state lines to violate the law. According to his indictment, Decastro bought a Taurus model PT92 pistol in Florida and took it back to New York in violation of Title 18 of United States Code, Section 922(a)(3). That statute prohibits "any person, other than a licensed importer, licensed manufacturer, licensed dealer, or licensed collector to transport into or receive in the state where he resides ... any firearm purchased or otherwise obtained by such person outside that state."
After a daylong bench trial on May 10, 2010, U.S. District Judge Robert Patterson found Decastro guilty as charged. He imposed a sentence of two years probation and a $100 special assessment about four months later.
Decastro quickly appealed his conviction to the 2nd Circuit, finally getting his day in court Wednesday.
None of the judges who heard the appeal appeared convinced that Decastro's constitutional rights were violated, although U.S. Circuit Judge Gerard Lynch entertained the possibility that civil disobedience had inspired Decastro.
"Isn't that what Martin Luther King did?" Lynch asked. "You do it, and get prosecuted to appeal."
Assistant U.S. Attorney Brian Jacobs, seemingly startled by the comparison, replied that King's example was "totally different from a case involving guns, which are dangerous." The prosecutor added that constitutional issues "should not be considered."
The judges considered the issue anyway, though they were skeptical that the statute burdened gun owners enough to present a Second Amendment challenge.
"When does such a regulation become a substantial burden?" Lynch asked.
Defense attorney Colleen Cassidy replied that the law is burdensome on its face.
"You can't even go to New Jersey [to buy a gun]," she said.
But the panel noted that Decastro had bought his weapon much farther away than the Garden State.
Cassidy replied that the distinction was irrelevant to the matter of law at hand.
Whether the judges agree remains to be seen.