Humphrey v. The U.S. Federal Bureau of Investigations et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
DION KIRK HUMPHREY,
Plaintiff,
v.
THE U.S. FEDERAL BUREAU OF
INVESTIGATIONS, et al.,
Defendants.
Case No. 3:22-cv-00193-SLG
ORDER RE DEFENDANTS’ RULE 59 MOTION TO AMEND THE JUDGMENT
AND PLAINTIFF’S MOTION FOR PRO SE ATTORNEY FEES
Before the Court at Docket 52 is Defendants’ Rule 59 Motion to Amend the
Judgment. Self-represented Plaintiff Dion Humphrey responded in opposition at
Docket 54; Defendants did not reply. Also before the Court at Docket 50 is Mr.
Humphrey’s Motion for Pro Se Attorney Fees Under Rule 11 of the Federal Rules
of Civil Procedure.1 Defendants responded in opposition at Docket 55; Mr.
Humphrey did not reply. Oral argument was not requested for either motion and
was not necessary to the Court’s determination of these motions.
BACKGROUND
At issue is whether Mr. Humphrey, who was convicted in 2010 of two
misdemeanor crimes of domestic violence (“MCDVs”) under the local law of the
1 Mr. Humphrey also filed a “Bill of Costs” at Docket 49.
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Municipality of Anchorage, Alaska,2 among other offenses, is federally prohibited
from possessing a firearm pursuant to 18 U.S.C. § 922(g)(9). The factual
background is set out in the Court’s order at Docket 46; the Court assumes
familiarity here. On December 8, 2023, the Court issued an order ruling that Mr.
Humphrey was not federally prohibited from possessing firearms because his 2010
local MCDV convictions did not, until 2022, fall under the federal definition of
MCDVs set forth in 18 U.S.C. § 921(a)(33)(A)(i).3 The Court held that a contrary
reading would violate the ex post facto clause; the Court thus denied Defendants’
Motion for Summary Judgment and instead entered summary judgment in favor of
Mr. Humphrey.4 Defendants then filed their motion to amend the judgment on
December 29, 2023, citing controlling Ninth Circuit precedent regarding the
applicability of the ex post facto clause to 18 U.S.C. § 922(g) offenses.5
Defendants noted that the parties did not brief the ex post facto issue prior to the
Court entering its order.6 For the reasons stated herein, the Court grants
Defendants’ motion to amend the judgment and denies Mr. Humphrey’s motion for
attorney fees.
2 See Docket 33-1 at 2-4.
3 See Docket 46 at 11-12; Consolidated Appropriations Act 2022, Pub. L. No. 117-103, §
1104(a), 136 Stat. 49, 921 (2022).
4 Docket 46 at 11-12, 15-16.
5 See Docket 52 at 5-6.
6 Docket 52 at 4-5.
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LEGAL STANDARD
Federal Rule of Civil Procedure 59(e) permits a district court to reconsider
and amend a previous order. However, Rule 59(e) is an “extraordinary remedy, to
be used sparingly in the interests of finality and conservation of judicial resources.”7
In general, there are four basic grounds upon which a Rule 59(e)
motion may be granted: (1) if such motion is necessary to correct
manifest errors of law or fact upon which the judgment rests; (2) if
such motion is necessary to present newly discovered or previously
unavailable evidence; (3) if such motion is necessary to prevent
manifest injustice; or (4) if the amendment is justified by an intervening
change in controlling law.8
A Rule 59(e) motion should not be used to raise arguments or present evidence
for the first time when they reasonably could have been raised earlier in the
litigation.9
DISCUSSION
For the reasons set forth below, the Court grants Defendants’ motion to
amend the judgment.
I. Ex Post Facto Clause
Defendants assert that “[a]mendment of the Court’s order is appropriate
here because Ninth Circuit precedent makes clear that individuals convicted of
MCDV under ‘local laws’ are presently barred from possessing firearms regardless
7 Wood v. Ryan, 759 F.3d 1117, 1121 (9th Cir. 2014) (citation omitted).
8 Allstate Ins. Co. v. Herron, 634 F.3d 1101, 1111 (9th Cir. 2011) (citation omitted).
9 Kona Enters., Inc. v. Est. of Bishop, 229 F.3d 877, 890 (9th Cir. 2000) (citation omitted).
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of whether the MCDV conviction predated changes to the definition of MCDV.”10
Defendants maintain that “Ninth Circuit precedent reflects that § 922(g)(9)’s
application to Mr. Humphrey does not implicate the Ex Post Facto Clause” because
“the relevant crime is current possession of a firearm, not the predicate MCDV that
is required to trigger the bar on possession.”11
In response, Mr. Humphrey again cites to the “dating relationship” exception
provided by the Bipartisan Safer Communities Act of 2022, which, if applicable to
him, would automatically restore his firearm possession rights after five years had
elapsed from the end of his criminal sentence if he committed no further crimes of
violence.12 Mr. Humphrey also relies on the Court’s original ruling but does not
provide any additional authorities in opposition to Defendants’ motion.13
With regard to the ex post facto clause, the Supreme Court has held that
any statute which punishes as a crime an act previously committed,
which was innocent when done; which makes more burdensome the
punishment for a crime, after its commission, or which deprives one
charged with crime of any defense available according to law at the
time when the act was committed, is prohibited as ex post facto.14
10 Docket 52 at 4.
11 Docket 52 at 5 (first citing United States v. Arzate-Nunez, 18 F.3d 730, 734 (9th Cir. 1994);
and then citing United States v. Huss, 7 F.3d 1444, 1447 (9th Cir. 1993)).
12 Docket 54 at 1-2; Bipartisan Safer Communities Act, Pub. L. 117-159, § 12005, 136 Stat.
1313, 1332-33 (2022) (codified at 18 U.S.C. § 921(a)(33)).
13 Docket 54 at 2.
14 Collins v. Youngblood, 497 U.S. 37, 42 (1990) (citation omitted).
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However, in United States v. Huss, the Ninth Circuit held that an Oregon law
restricting felons from carrying firearms did not constitute punishment for a prior
conviction; rather, it held that if a change in the law is a “bona fide regulation”
furthering “substantial and legitimate safety interest[s],” then it is “not bad as an ex
post facto law even though the right to engage in the conduct is made to depend
on past behavior, even behavior before the passage of the regulatory act.”15 And
yet “a legislature may not insulate itself from an ex post facto challenge simply by
asserting that a statute’s purpose is to regulate present conduct rather than punish
prior conduct. The overall design and effect of the statute must bear out the non-
punitive intent.”16 In United States v. Arzate-Nunez, the Ninth Circuit further
expanded on its decision in Huss, holding “that the relevant offense for laws
prohibiting ex-felons from carrying firearms is the offense of carrying a firearm, not
the predicate felony.”17 The Circuit Court explained that “such laws, even when
they rely on past criminal convictions, do not run afoul of the ex post facto clause
as long as ‘the past conduct can reasonably be said to indicate unfitness to engage
in the future activity.’”18
15 7 F.3d at 1447-48 (quoting Cases v. United States, 131 F.2d 916, 921 (1st Cir. 1942)),
overruled on other grounds by United States v. Sanchez-Rodriguez, 161 F.3d 556 (9th Cir.
1998).
16 Id. (citing United States v. Ward, 448 U.S. 242, 248-49 (1980)).
17 18 F.3d at 734 (citing Huss, 7 F.3d at 1447).
18 Id. (quoting Huss, 7 F.3d at 1448).
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This Court’s prior order held that the 2022 change in the law that added local
MCDVs to the federal definition of MCDVs was penal legislation, which, if applied
retroactively, would violate the ex post facto clause.19 However, based on the
above cited cases, which are controlling precedent, the Court’s prior holding is
incorrect. In Huss, the defendant was convicted of burglary in 1987 under Oregon
law; at that time, “Oregon law prohibited felons from carrying any guns other than
long guns.”20 In 1990, “the Oregon legislature changed the law to prohibit felons
from possessing all firearms.”21 The defendant argued that the change in the law,
which prohibited him from carrying a long gun based on conduct committed before
the change in the law, increased his punishment for his 1987 conviction and was
therefore an ex post facto violation.22 However, the Ninth Circuit held that “the past
conduct considered by the Oregon legislature can reasonably be said to indicate
unfitness to engage in the future activity of possessing firearms,” and that the
statute “as a whole makes it clear that the Oregon legislature’s intent was to
provide for the safety of its citizens by restricting firearms possession from those
likely to engage in dangerous conduct.”23 The Circuit Court concluded that it was
19 Humphrey v. U.S. Fed. Bureau of Investigations, Case No. 3:22-CV-00193-SLG, 2023 WL
8527090, at *5 (D. Alaska Dec. 8, 2023).
20 Huss, 7 F.3d at 1446 (citation omitted).
21 Id. (citation omitted).
22 Id. at 1446-47 (citations omitted).
23 Id. at 1448 (citations omitted).
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“evident that the legislature tailored the statute to meet its legitimate safety interest
in regulating weapons.”24 In addition, the Ninth Circuit held that the statute, which
had the “marginal effect of adding long guns to the otherwise exhaustive list of
restricted weapons,” did not “amount to punishment for ex post facto purposes.”25
In Arzate-Nunez, the defendant was convicted of a drug offense in 1985
under California law; at that time, California law “defined his offense as a regular,
rather than an aggravated, felony.”26 In 1988, federal law changed so as to define
his offense as an aggravated felony; in 1991, the Sentencing Guidelines changed
to provide enhanced penalties for illegal reentry into the United States following an
aggravated felony.27 In 1992, the defendant illegally reentered the United States,
and he was indicted with a charge that subjected him to increased penalties if he
had a prior conviction for an aggravated felony.28 The government alleged that his
1985 drug conviction qualified as an aggravated felony, but the defendant argued
that such a stance would violate the ex post facto clause.29 While the Ninth Circuit
agreed that change in the law disadvantaged the defendant, it held that the law
24 Id.
25 Id.
26 18 F.3d at 732-33.
27 Id. at 733 (citations omitted).
28 Id. at 732.
29 Id.
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was not retrospective, because the relevant offense was the defendant’s 1992
illegal reentry, not his 1985 drug offense.30 The Circuit Court held that “[f]or
purposes of analyzing repeat offender statutes and statutes increasing penalties
for future crimes based on past crimes, the relevant ‘offense’ is the current crime,
not the predicate crime.”31 The Ninth Circuit explained that the defendant’s
situation was “more analogous to that of a defendant sentenced under a repeat
offender statute or a person convicted of being a felon in possession of a firearm,”
and it thus held that there was no ex post facto violation.32
In the instant case, Mr. Humphrey received MCDV convictions under local
law in 2010, well before the 2022 change in the law that now prohibits anyone with
a local MCDV conviction from possessing firearms.33 Prior to the change in the
law, Congress had already made it illegal for individuals with MCDV convictions
under federal, state, or tribal law to possess firearms.34 Thus, it can reasonably
be said that Congress found that the conduct of individuals with domestic violence
convictions “indicate[d] unfitness to engage in the future” possession of firearms.35
30 Id. at 733-34 (“In order to prove an ex post facto violation, a defendant must show (1) that the
law at issue disadvantages him and (2) that the law is retrospective, in that it applies to events
occurring before its enactment.”).
31 Id. at 734 (citations omitted).
32 Id. at 735.
33 Docket 33-1 at 2-4; § 1104(a), 136 Stat. at 921.
34 See 18 U.S.C. § 921(a)(33)(A)(i); § 1104(a), 136 Stat. at 921.
35 See Arzate-Nunez, 18 F.3d at 734 (quoting Huss, 7 F.3d at 1448).
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While the local MCDV conviction prohibition was not added until 2022, the addition
clearly falls within the umbrella category of MCDV offenses and can similarly be
said “to indicate unfitness to engage in the future” possession of firearms.36
Additionally, just as “the relevant offense for laws prohibiting ex-felons from
carrying firearms is the offense of carrying a firearm, not the predicate felony,” the
relevant offense in Mr. Humphrey’s case would be his possession of a firearm due
to his prior MCDV convictions, not the MCDV convictions themselves.37 While this
change in the law makes “the right to engage in the conduct . . . depend[ant] on
past behavior,” the Court finds that, like in Huss, the law is a bona fide regulation
furthering substantial and legitimate safety interests and thus bears a non-punitive
intent.38 Accordingly, the Court finds that there is no ex post facto violation here,
and Mr. Humphrey’s 2010 local MCDV convictions now federally prohibit him from
possessing any firearms.39
As to Mr. Humphrey’s claim that he falls under the “dating relationship”
exception pursuant to 18 U.S.C. § 921(a)(33)(C), the Court finds his argument
unpersuasive.40 Mr. Humphrey acknowledged that he has a child in common with
36 Id. (quoting Huss, 7 F.3d at 1448).
37 See id. (citing Huss, 7 F.3d at 1447).
38 Huss, 7 F.3d at 1447-48 (quoting Cases, 131 F.2d at 921).
39 To remove the federal prohibition, Mr. Humphrey would have to get his MCDV convictions set
aside.
40 See Docket 54 at 1-2.
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the victim of the MCDVs.41 As a result, the dating exception does not apply to him,
because “[r]estoration under this subparagraph is not available for . . . a person
with whom the victim shares a child in common.”42
II. Plaintiff’s Constitutional Claims
In its prior order, the Court did not reach Mr. Humphrey’s constitutional
claims because it granted him relief on other grounds.43 Because the Court now
finds in favor of Defendants on the ex post facto issue, the Court addresses Mr.
Humphrey’s constitutional claims here. Defendants previously requested that the
Court dismiss Mr. Humphrey’s Second, Fifth, and Fourteenth Amendment claims
for failure to state a claim upon which relief can be granted.44 Mr. Humphrey
generally alleges that the prohibition against his possession of firearms is an
“overbroad infringement,” “impermissible burden,” and “unconstitutionally broad
ban” on his Second Amendment, Fifth Amendment due process, and Fourteenth
41 See Docket 37 at ¶ 1-3.
42 18 U.S.C. § 921(a)(33)(C). Although Mr. Humphrey asserts that he “did not have legal
knowledge or authority of” his child with the victim at the time of the assault, he does not cite to
any authority that would change the analysis here, and the Court is not aware of any such
authority. Docket 54 at 2.
43 Humphrey, 2023 WL 8527090, at *6.
44 Docket 33 at 13-14; Docket 1 at ¶¶ 21-39. While Defendants did not mention the Second
Amendment in this part of their motion, they included a footnote incorporating their previous
Motion to Dismiss at Docket 10, which does make mention of the Second Amendment. Docket
33 at 13 n.4; Docket 10 at 13-18. Accordingly, the Court considers all of Mr. Humphrey’s
constitutional claims.
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Amendment equal protection and due process rights.45 He also asserts a
constitutional violation because “there is no reasonable Administrative procedure
. . . [to] regain . . . Second Amendment rights after being denied by the Voluntary
Appeal Process within the U.S [sic] Federal Bureau of Investigations” (“FBI”).46
Further, he alleges that he “intends to acquire firearms for both personal protection,
subsistence[,] and for recreation.”47
The Court first addresses Mr. Humphrey’s Second Amendment claim. As
the Supreme Court in District of Columbia v. Heller explained, “the right secured
by the Second Amendment is not unlimited” and is “not a right to keep and carry
any weapon whatsoever in any manner whatsoever and for whatever purpose.”48
The Supreme Court emphasized that “nothing in our opinion should be taken to
cast doubt on longstanding prohibitions on the possession of firearms by felons,”
and that the prohibition on the possession of firearms by felons was “presumptively
lawful.”49 In New York State Rifle & Pistol Ass’n v. Bruen, the Supreme Court held
that, in analyzing Second Amendment challenges, “the government must
demonstrate that the [challenged] regulation is consistent with this Nation’s
45 See Docket 1 at ¶¶ 21-39.
46 Docket 1 at ¶ 25 (emphasis omitted).
47 Docket 1 at ¶ 5.
48 554 U.S. 570, 626 (2008).
49 Id. at 626, 627 n.26.
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historical tradition of firearm regulation.”50 But the Supreme Court upheld its
decision in Heller regarding the prohibition on the possession of firearms by
felons.51 In his concurrence, Justice Kavanaugh, joined by Chief Justice Roberts,
stated that Bruen does not disturb what the Court said in Heller about the
restrictions imposed on possessing firearms, namely the “longstanding
prohibitions on the possession of firearms by felons.”52 Justice Alito also stated in
his concurrence: “Nor have we disturbed anything that we said in Heller or
McDonald . . . .”53 And in the dissent, Justice Breyer, joined by Justices Kagan
and Sotomayor, stated that Bruen “cast[s] no doubt on” Heller’s treatment of laws
prohibiting firearms possession by felons.54
In light of Bruen, this Court and many others have continued to uphold the
constitutionality of the firearm prohibition on individuals with MCDV convictions
50 597 U.S. 1, 17 (2022).
51 The Bruen Court explained that Heller does not support the two-step means-ends scrutiny
applied by the circuit courts, but it did not alter Heller’s statement that the prohibition of firearms
by felons is “longstanding” and “presumptively lawful.” See Bruen, 597 U.S. at 19; United
States v. Ingram, 623 F. Supp. 3d 660, 663 (D.S.C. 2022) (“The Court agrees with the
government that Bruen clarified and ‘reiterated[,]’ rather than modified, the constitutional ruling
in Heller.”). Indeed, the Bruen majority noted that the holding is “[i]n keeping with Heller.”
Bruen, 597 U.S. at 17.
52 Id. at 81 (Kavanaugh, J., concurring) (citation omitted).
53 Id. at 72 (Alito, J., concurring).
54 Id. at 129 (Breyer, J., dissenting).
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pursuant to 18 U.S.C. § 922(g)(9).55 Thus, Mr. Humphrey’s Second Amendment
claim fails.
The Court now addresses Mr. Humphrey’s Fifth and Fourteenth Amendment
due process claims. Mr. Humphrey asserts that “[t]he unconstitutionally broad ban
on acquiring a firearm without providing for a means to seek review and relief from
such a ban violates [his] right to equal protection of the law” under both the Fifth
and Fourteenth Amendments.56 However, the Court notes that Mr. Humphrey has
indeed been able to seek review and relief from his federal firearm prohibition
through both the FBI’s Voluntary Appeal Process and this lawsuit, even though his
request for relief has been denied. And to the extent that Mr. Humphrey’s claim is
that there is no reasonable set-aside procedure to regain his firearm rights, which
violates his right to due process, the Court finds such an argument unpersuasive.
Mr. Humphrey has not cited to—and the Court is unaware of any—authority that
delineates what set-aside procedures must exist in each state.57 Furthermore,
55 See, e.g., United States v. Ryno, __ F. Supp. 3d ___, Case No. 3:22-cr-00045-JMK, 2023 WL
3736420, at *7 (D. Alaska May 31, 2023) (holding that there is “sufficient historical guidance and
analogues for the constitutionality of 18 U.S.C. § 922(g)(9)”; United States v. Padgett, Case No.
3:21-cr-00107-TMB-KFR, 2023 WL 2986935, at *11 (D. Alaska Apr. 18, 2023); United States v.
Guthery, Case No. 2:22-cr-00173-KJM, 2023 WL 2696824, at *5 (E.D. Cal. Mar. 29, 2023) (“As
some courts observe, colleagues considering the constitutionality of § 922(g)(9)—the related
provision prohibiting firearm possession by domestic violence misdemeanants—have declined
to find that statute unconstitutional post-Bruen.” (citing United States v. Kays, 624 F. Supp. 3d
1262, 1266-67 (W.D. Okla. 2022))); United States v. Jackson, 622 F. Supp. 3d 1063, 1067 (W.D.
Okla. 2022) (“Domestic violence misdemeanants can logically be viewed as ‘relevantly similar to
felons’ who should be ‘denied weapons for the same reasons.’” (citation omitted)).
56 See Docket 1 at ¶¶ 29, 36-37.
57 In any case, the State of Alaska does have procedures for post-conviction relief. See Alaska
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because Mr. Humphrey brings this suit against the federal government and not a
state, the Fourteenth Amendment is inapplicable here because it only applies to
claims against a state.58 Finally, given that Mr. Humphrey is barred from
possessing any firearms due to his MCDV convictions, the Court finds that
amendment of his complaint would be futile, and the Court therefore denies him
leave to amend.59 Accordingly, the Court dismisses Mr. Humphrey’s constitutional
claims with prejudice.
Because Mr. Humphrey is not the prevailing party, his Motion for Pro Se
Attorney Fees Under Rule 11 of the Federal Rules of Civil Procedure at Docket 50
and request for costs at Docket 49 must be denied.60
CONCLUSION
In light of the foregoing, IT IS ORDERED that Defendants’ Rule 59 Motion
to Amend the Judgment at Docket 52 is GRANTED. Accordingly, the Court’s order
Statute § 12.72.010.
58 See U.S. Const. amend. XIV, § 1 (“No State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the United States; nor shall any State deprive
any person of life, liberty, or property, without due process of law; nor deny to any person within
its jurisdiction the equal protection of the laws.”).
59 See Johnson v. Buckley, 356 F.3d 1067, 1077 (9th Cir. 2004) (“Futility alone can justify the
denial of a motion to amend.”).
60 Even if Mr. Humphrey were the prevailing party, pro se litigants typically are not awarded
attorney fees. See Blanchard v. Morton Sch. Dist., 509 F.3d 934, 938 (9th Cir. 2007) (“Pro se
plaintiffs, though, are not entitled to attorney's fees.” (citing Kay v. Ehrler, 499 U.S. 432, 438
(1991))); Grant v. Nat’l Coll. for DUI Def., Case No. CV 12-3255-GW(AGRx), 2012 WL
12886965, at *1 (C.D. Cal. Aug. 30, 2012) (noting that, with regard to a Rule 11 motion, a pro se
litigant “would not . . . be entitled to a fee award”), aff’d, 586 F. App’x 693 (9th Cir. 2014).
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at Docket 46 is VACATED, and the Court grants summary judgment to
Defendants. Mr. Humphrey’s claims pursuant to the Second, Fifth, and Fourteenth
Amendments are DISMISSED with prejudice. Mr. Humphrey’s Motion for Pro Se
Attorney Fees Under Rule 11 of the Federal Rules of Civil Procedure at Docket 50
is also DENIED.
The Clerk of Court shall enter an amended judgment.
DATED this 29th day of February, 2024, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
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