United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
C. NYE, CHIEF U.S. DISTRICT COURT JUDGE
before the Court is Defendant Travis Schoendaller's
Motion to Dismiss Indictment. Dkt. 21. Schoendaller asserts
that the indictment in this matter violates his Second
Amendment rights. On March 13, 2019, the Court held oral
argument and took the motion under advisement. Upon review,
and for the reasons outlined below, the Court finds good
cause to DENY the Motion.
February 23, 2018, an Idaho State Police trooper stopped
Schoendaller for a traffic violation. During the stop,
Schoendaller admitted to having firearms in the vehicle. When
the trooper performed a records check, it revealed an active
protection order against Schoendaller. Schoendaller was
arrested and charged with driving on a suspended license and
violating 18 U.S.C. § 922(g)(8). A Grand Jury
subsequently indicted Schoendaller for one count of unlawful
possession of a firearm in violation of a court order,
pursuant to 18 U.S.C. § 922(g)(8).
underlying court order-a protective order-forming the basis
for this charge was entered on September 8, 2017, by a state
court magistrate judge in the Circuit Court of the 8*
Judicial District in Converse County, Wyoming.
2017, Schoendaller, his wife Amber, and their daughter (SS)
lived in Idaho. Schoendaller and Amber split in August of
2017, and Amber and SS moved to Wyoming. Amber subsequently
petitioned for a protective order against Schoendaller. A
hearing was held on Amber's petition. Schoendaller
received notice of the hearing and attended it by telephone.
the hearing, the Court heard testimony from Schoendaller and
Amber. The magistrate judge stated he was going to grant the
protection order but gave Schoendaller the opportunity to
stipulate to the entry of the order. Alternatively, the judge
stated that he would enter the order with a finding that
Schoendaller committed an act of domestic violence.
Ultimately, Schoendaller consented to the order. In light of
Schoendaller's consent, the judge stated there would be
no finding on the record that Schoendaller committed an act
of domestic violence. The judge then entered the protection
doing so, the judge checked a box on the order form stating
that Schoendaller had consented to the the entry of the order
even though he disputes that he committed an act of domestic
violence. The judge then ordered Schoendaller to not possess
any firearms during the pendency of the protection order
which was set to expire on September 8, 2018. The judge also
advised Schoendaller that he would be in violation of federal
law if found in possession of a firearm while the protective
order was active. Schoendaller now argues that because there
was no adjudicated finding that Schoendaller committed an act
of domestic violence or posed a credible threat to his wife,
the indictment under 18 U.S.C. § 922(g)(8) violates his
Second Amendment rights.
statute is challenged on Second Amendment grounds, strict
scrutiny or intermediate scrutiny may apply. District of
Columbia. v. Heller, 554 U.S. 570, 628 n.27 (2008). For
a statute to withstand intermediate scrutiny, the Government
must demonstrate a "significant, substantial, or
important" objective in enforcing the statute.
United States v. Chovan, 753 F.3d. 1127,
1139 (9th Cir. 2013). It must then show there is a
"reasonable fit between the challenged regulation and
the asserted objective." Id. Conversely, under
strict scrutiny, "the law must advance a compelling
state interest by the least restrictive means
available." Bernal v. Fainter, 467 U.S. 216,
Ninth Circuit has explained that whether strict scrutiny or
intermediate scrutiny applies in a Second Amendment challenge
to a statute depends on two factors: "(1) how close the
law comes to the core of the Second Amendment right, and (2)
the severity of the law's burden on the right."
Chovan, 735 F.3d at 1138. The Court finds that
intermediate scrutiny applies and denies the motion to
dismiss the indictment for the reasons explained below.
Court finds that section 922(g)(8) does not implicate a core
Second Amendment right. In Heller, The United States
Supreme Court found that strict scrutiny applied to a D.C.
statute prohibiting all handgun possession in homes
regardless of criminal background. The Court reasoned that
the Second Amendment's protection is at its core when it
concerns the right of "law-abiding responsible citizens
to use arms in defense of hearth and home."
Heller, 554 U.S. at 635. Schoendaller argues that,
because there has never been an official finding that he
committed an act of domestic violence or posed a credible
threat, he is a "law-abiding responsible citizen"
under Heller. Thus, concludes Schoendaller, the
statute as applied to him implicates his core Second
Amendment rights and strict scrutiny applies.
Court disagrees with this reasoning. First, Schoendaller has
a temporary protective order against him prohibiting him from
possessing firearms. When a protective order is entered
against an individual, at minimum, a court has found
sufficient justification to suspend the Second Amendment
rights of the individual. So, although Schoendaller was not
found to have violated the law, he has lesser standing ...