Constitutional law - Ninth Circuit upholds constitutionality of felon-in-possession of body armor statute with de minimus jurisdictional element - United States v. Alderman.

• Author: Gambale, Richard A.

Although Congress may, as a general matter, extensively regulate interstate commerce, the federal government's authority to legislate in areas of traditional state concern is limited. (1) Courts, spurred by a renewed interest in federalism, have begun scrutinizing federal criminal laws that regulate noncommercial intrastate behavior by means of de minimus jurisdictional elements--statutory provisions that purport to ensure legislation's constitutionality by limiting its applicability to conduct involving items that have previously traveled in interstate commerce. (2) In United States v. Alderman, (3) the United States Court of Appeals for the Ninth Circuit, in a case of first impression, considered whether 18 U.S.C. [section] 931 constitutionally prohibits a felon from possessing body armor where the sole link to commerce is the body armor's prior interstate movement. (4) the court deemed [section] 931's jurisdictional element sufficient to render the statute an appropriate exercise of congressional power under the Commerce Clause. (5)

After arresting Cedrick Alderman during a controlled purchase of cocaine, an officer noticed that Alderman was wearing a bulletproof vest. (6) Alderman's possession of the vest, coupled with his prior conviction for felony robbery, subjected him to indictment under [section] 931, which criminalizes the possession of body armor that has traveled in interstate commerce by a person previously convicted of a crime of violence. (7) After indictment, Alderman promptly filed a motion to dismiss, asserting five separate grounds for relief. (8) Most notably, Alderman contended that Congress exceeded its authority under the Commerce Clause by enacting [section] 931. (9)

Relying on Ninth Circuit precedent upholding the constitutionality of another felon-in-possession statute with an analogous jurisdictional element, the district court found the body armor's prior passage through interstate commerce sufficient to bring its possession within federal jurisdiction, and accordingly denied Alderman's motion to dismiss. (10) Alderman subsequently entered a conditional guilty plea, reserving the right to appeal [section] 931's constitutionality. (11) On appeal, the Ninth Circuit affirmed the district court's judgment, holding that legislative findings, the nature of the statute, and, most importantly, the presence of a jurisdictional element rendered the statute constitutional. (12)

The development of a national economy has played a pivotal role in shaping the Supreme Court's Commerce Clause jurisprudence over the past two centuries; with the widespread growth of America's infrastructure, the Court has employed legal principles with the effect of expanding the scope of the commerce power. (13) It was during this period of economic growth and deferential Commerce Clause jurisprudence that the Court, in United States v. Scarborough, (14) broadly interpreted the jurisdictional element of a felon-in-possession statute as reaching noncommercial intrastate activity. (15) In a nearly unanimous decision, the Court rejected the defendant's contention that the predecessor statute to 18 U.S.C. [section] 922(g)(1) required the government to prove the defendant possessed a firearm in a manner presently affecting commerce, and held that the firearm's prior interstate movement was sufficient to satisfy the statute's jurisdictional hook. (16) three recent decisions, however, not only cast doubt on Scarborough's continuing vitality, but also call into question Congress's power to regulate spheres typically reserved to the states. (17)

In United States v. Lopez, (18) the Supreme Court considered whether the Commerce Clause empowers Congress to prohibit the possession of firearms in school zones. (19) In striking down the Gun-Free School Zones Act, the Court rejected the government's argument that gun possession substantially affected commerce. (20) Central to the majority's reasoning was that noncommercial intrastate conduct with an attenuated impact on commerce could not fall within congressional control if the Court was to preserve the distinction between "what is truly national and what is truly local." (21) The Court resolved some questions regarding Lopez's import when, in United States v. Morrison, (22) the Court once again narrowly construed the Commerce Clause by declaring unconstitutional a statute providing a federal civil remedy for victims of gender-motivated violence. (23) In holding that Congress could not, under the guise of the commerce power, regulate non-economic local criminal activity based on that activity's aggregated commercial effect, Morrison further demonstrated the Court's increased willingness to limit congressional authority in order to preserve the federal-state balance. (24) In each case, the majority found salient that the statutes under scrutiny lacked jurisdictional elements, which, according to the Court, could ensure a statute's constitutionality by limiting its applicability to a discrete set of cases with a substantial commercial nexus. (25)

Despite the Supreme Court's recent attempts to curtail federal power, the four federal courts to address [section] 931's constitutionality have upheld the statute. (26) Likewise, [section] 922(g)(1)--prohibiting felons from possessing firearms "in or affecting commerce"--has withstood every Lopez-based attack in each of the United States Circuit Courts of Appeals, notwithstanding the statute's extension to firearms that have previously traveled through interstate commerce. (27) Also, the Ninth Circuit has repeatedly relied on Scarborough in upholding federal criminal statutes containing jurisdictional elements similar to that of [section] 931. (28)

In United States v. Alderman, the Ninth Circuit adhered to Scarborough in determining that body armor's prior interstate movement created a sufficient nexus between the possession of body armor and commerce so as to bring [section] 931 within the ambit of congressional power. (29) The court analogized the possession of body armor to that of a firearm, and recognized that [section] 931 and [section] 922(g)(1)--the predecessor of which was at issue in Scarborough--contained nearly identical jurisdictional elements. (30) Although the Ninth Circuit acknowledged that recent Supreme Court decisions suggested noncommercial intrastate activity was beyond the scope of congressional regulation, the court narrowly interpreted those cases by concluding Congress could nonetheless regulate such conduct if it involved some item that had crossed state lines. (31) In other words, the court read Scarborough not only as surviving Lopez and Morrison, but also as extending to [section] 931. (32) In light of Lopez and Morrison's failure to overrule any prior case involving a federal criminal statute containing a de minimus jurisdictional element, and the Supreme Court's express recognition that jurisdictional elements may satisfy the substantial effects test, the majority interpreted Lopez and Morrison as suggesting that the commerce power may extend to noncommercial intrastate activity. (33) In rejecting the federalist principles underlying the Supreme Court's recent Commerce Clause jurisprudence, the Ninth Circuit also looked to what it considered binding circuit authority regarding felon-in-possession statutes containing jurisdictional elements analogous to that of [section] 931, and to those jurisdictions that had adjudicated the constitutionality of [section] 931. (34)

Faced with the choice of deviating from well-settled Supreme Court and circuit precedent clearly upholding a statute practically identical to [section] 931 or following a contemporary line of cases applying vital principles but announcing ambiguous legal rules, the Ninth Circuit understandably reached the wrong decision in validating [section] 931. (35) In strongly suggesting Congress could not regulate noncommercial intrastate behavior, Lopez and Morrison embody the Court's endeavor to safeguard federalism. (36) Preventing federal incursions into areas of state concern enhances liberty by preventing the accumulation of power and concomitant risk of tyranny by a single branch of government, by not obfuscating political accountability, and by preserving the role of states as laboratories devising unique solutions to social problems. (37) Congress may be primarily responsible for abiding by constitutional principles, but the very nature of public office counsels against blind reliance on legislative self-restraint and politics, especially when congressional judgment infringes on federalist principles. (38)

The Court's reasoning in Lopez and Morrison implied statutes regulating noncommercial intrastate conduct were unlikely to pass constitutional muster under Lopez's third prong. (39) Had the Court failed to distinguish commercial from noncommercial activity, it would have effectively recognized federal power to regulate nearly every human activity because, in the context of the United States economy, even strictly noncommercial conduct, at least in the aggregate, "substantially affects" commerce in a literal sense. (40) The key question, then, in ascertaining the propriety of the Ninth Circuit's decision in Alderman, is whether [section] 931 and the statutes at issue in Lopez and Morrison are distinguishable on the basis that [section] 931, because its jurisdictional element cabins the statute's reach to body armor "sold or offered for sale" in interstate commerce...