Struck down! District’s “Presence in a Motor Vehicle Containing a Firearm” (PMVCF) statute held unconstitutional on its face. Good precedent on the plain error standard, too.

Conley v. United States, No. 11-CF-589

(decided Sept. 26, 2013)

Players: Glickman, Thompson, Oberly.  Opinion by Judge Glickman.  Opinion concurring in the judgment by Judge Thompson.  Ian A. Williams for Mr. Conley, with PDS as amicus curiae.  Trial judge: Craig Iscoe.

Facts:  Antwaun Conley was pulled over in a traffic stop; there was one passenger in the car with him.  Police found a loaded handgun in the center console.  Mr. Conley was charged with and tried for four possessory offenses (felon-in-possession of a firearm, carrying a pistol without a license, possession of an unregistered firearm, and unlawful possession of ammunition), as well as the non-possessory offense of PMVCF, which makes it a felony for a person to be “voluntarily in a motor vehicle if that person knows that a firearm is in the vehicle, unless the firearm is being lawfully carried or lawfully transported.”  D.C. Code § 22-2511(a).  His defense at trial was that he neither possessed the gun nor knew that it was there, and that it must have been placed in the console by either his passenger or one of the police officers.  The jury acquitted him of all the possessory offenses but found him guilty of PMVCF.

Issue: Whether the District’s PMVCF law (D.C. Code § 22-2511) is constitutional.

Held:  The PMVCF statute is unconstitutional on its face and cannot be saved through statutory interpretation.  The law violates due process in two ways:  First, its affirmative defense provision, which requires the defendant to show that he intended to leave the vehicle upon learning of the firearm but did not have a “reasonable opportunity to do so,” § 22-2511(b), unconstitutionally places the burden of persuasion on an essential element—the defendant’s voluntary presence in the vehicle—onto the defendant.  Conley, Slip op. at 12-23.  Second, even if the statute were interpreted to require the government to prove that the defendant had a reasonable opportunity to leave the vehicle but chose to stay, it still violates due process because the average person would have no notice that merely being in a vehicle containing a gun is a felony offense.  Id. at 23-44 (relying on Lambert v. California, 355 U.S. 225 (1957)). 

Of note:

• The Court rejects the government’s argument that Conley waived his claim by failing to raise it as a defect in the indictment prior to trial pursuant to Criminal Rule 12(b)(2).  That rule does not apply when the appellant’s claim is that the statute creating the charged offense is unconstitutional.   Id. at 9-11.
• The Court reversed under plain error review.  (Conley’s trial lawyer did not object to the constitutionality of the PMVCF statute.)  Notably, the Court found the unconstitutionality of the statute to be “plain” even though there was no precedent directly on point, explaining that “the ‘plainness’ of the error can depend on well-settled legal principles as much as well-settled legal precedents.”  Id. at 45 (quoting United States v. Brown, 352 F.3d 654, 664 (2d Cir. 2003)).   

How to use:

• If you have a client charged with PMVCF, move to dismiss the indictment ASAP.  If you have a client on appeal who was convicted of PMVCF, move for summary reversal.  Nobody can be charged with PMVCF.  This statute is no more.  It has ceased to be.  Bereft of life.   Kicked the bucket.  Shuffled off its mortal coil.  This is an ex-statute.
•  Conley also has some other useful implications beyond striking down PMVCF:
• Heretofore, the DCCA had expressed doubt about whether one can bring a facial challenge outside the First Amendment context.  Conley demonstrates that facial challenges are not limited to the First Amendment.
• FOR APPELLATE PRACTITIONERS:  The government often tries to make “plainness,” the second prong of the plain error test, a much more exacting standard than it is—they argue that it requires a case with identical facts that decided the exact same legal issue.  Conley offers a strong rebuttal to that argument, as it makes clear that the plainness prong can be met so long as the underlying principle of law (in this case, Lambert) is well-established; its application to a new issue or factual context need not be.  CM