Argued: August 2, 2017
from the United States District Court for the Northern
District of Ohio at Akron. No. 5:14-cv-02081-John R. Adams,
A. DeBrosse, BARNEY DEBROSSE, LLC, Columbus, Ohio, for
Patrick G. Nemeroff, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellees.
A. DeBrosse, BARNEY DEBROSSE, LLC, Columbus, Ohio, for
Appellant. Patrick G. Nemeroff, Michael S. Raab, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
R. McGuire, MORRISON & FOERSTER LLP, San Francisco,
California, Julie Y. Park, MORRISON & FOERSTER LLP, San
Diego, California, for Amicus Curiae.
Before: BOGGS, GRIFFIN, and WHITE, Circuit Judges.
GRIFFIN, Circuit Judge.
Terry Lee Stimmel tried to purchase a firearm at a Walmart
store in 2002. However, the store rejected Stimmel's
offer because a mandatory national background check revealed
that he had been convicted of misdemeanor domestic violence
in 1997 and federal law prohibits domestic violence
misdemeanants from possessing firearms. 18 U.S.C. §
922(g)(9). Thereafter, he unsuccessfully appealed to the
Federal Bureau of Investigation ("FBI") and
challenged the law in district court. Following the district
court's dismissal of his complaint, Stimmel appeals.
gravamen of Stimmel's appeal to this court is a question
of first impression in our circuit: whether the firearm
restriction, 18 U.S.C. § 922(g)(9), unconstitutionally
burdens his Second Amendment rights. We hold that it does
affirming the district court, we join the growing consensus
of our sister circuits that have unanimously upheld the
constitutionality of the domestic violence misdemeanant
restriction to firearms possession. Here, the record contains
sufficient evidence to reasonably conclude that disarming
domestic violence misdemeanants is substantially related to
the government's compelling interest of preventing gun
violence and, particularly, domestic gun violence. Because
Stimmel's conviction remains in effect, and he fails to
rebut the government's evidence that domestic violence
misdemeanants pose a significant risk of future armed
violence, we conclude that § 922(g)(9) survives
1997, Stimmel pleaded no contest to violating Ohio Revised
Code § 2919.25(A), which prohibits "knowingly
caus[ing] or attempt[ing] to cause physical harm to a family
or household member, " a misdemeanor crime of
first-degree domestic violence. According to the arrest
report, Stimmel "threw his wife up against a wall"
during an argument and "knock[ed] her to the
floor." Stimmel then "tried to remove her wedding
rings, " and she "received a cut to her head."
He was sentenced to 180 days in jail, with all but one day
suspended on condition of Stimmel's good behavior for two
years, and a $100 fine. He was also ordered to stay away from
the victim, to whom he is no longer married. Stimmel has not
been convicted of another crime since.
2002, Stimmel tried to buy a firearm to "defend his
home and his family." When he failed the required
national background check, he appealed to the FBI. The FBI
denied his appeal because, as a domestic violence
misdemeanant, he is subject to a firearm restriction under 18
U.S.C. § 922(g)(9). Thereafter, Stimmel challenged the
statute in district court. He asserted five claims there, but
on appeal argues only that: (1) § 922(g)(9)
unconstitutionally burdens his Second Amendment rights; and
(2) Congress's creation of a relief program available to
certain disarmed individuals, but not Stimmel, violates his
Fifth Amendment right to equal protection under the law.
district court dismissed Stimmel's complaint pursuant to
Federal Rule of Civil Procedure 12(b)(6), concluding his
Second Amendment challenge to § 922(g)(9) "fail[s]
as a matter of law" and his equal protection challenge
fails because he is not similarly situated to persons barred
from owning firearms under § 922(g)(4). Stimmel v.
Lynch, No. 5:14CV2081, 2015 WL 5730104, at *7-8 (N.D.
Ohio Sept. 28, 2015). The district court held that the
domestic violence misdemeanant restriction does not
"implicate the Second Amendment" because it
"falls squarely within the authority to disarm serious
lawbreakers in existence well before the enactment of the
Second Amendment." Id. at *5. In the
alternative, the district court applied strict scrutiny and
ruled that § 922(g)(9) was narrowly tailored to achieve
the government's compelling interest of preventing
domestic gun violence. Id. at *6-7. The district
court rejected Stimmel's argument that he has abided by
the law ever since his conviction, cautioning that he was not
to be "afforded rights simply by virtue of being
conviction-free for numerous years." Id. at *7.
district court also determined that Stimmel, having committed
the "volitional act of domestic violence, " could
not pursue his equal protection claim because he was not
similarly situated to those prohibited from possessing
weapons after being adjudicated mentally ill or committed to
a mental institution. Id. at *8.
review de novo the district court's grant of
defendants' motion to dismiss Stimmel's complaint for
failure to state a claim. Linkletter v. W. & S. Fin.
Grp., Inc., 851 F.3d 632, 637 (6th Cir. 2017). In doing
so, we accept Stimmel's well-plead factual allegations as
true and construe the complaint in the light most favorable
to him. Hill v. Blue Cross & Blue Shield of
Mich., 409 F.3d 710, 716 (6th Cir. 2005).
Control Act of 1968 bars firearm possession by certain groups
of individuals, including convicted felons, and those
"adjudicated as a mental defective or who ha[ve] been
committed to a mental institution." See 18
U.S.C. § 922(g)(1), (4). In 1996, Congress added the
domestic violence misdemeanant restriction, § 922(g)(9).
Pub. L. No. 104-208, Tit. VI, § 658, 110 Stat. 3009-371
to 3009-372 (1996). Recognizing that "[e]xisting
felon-in-possession laws . . . were not keeping firearms out
of the hands of domestic abusers, because many people who
engage in serious spousal or child abuse ultimately are not
charged with or convicted of felonies, " Congress
extended "the federal firearm prohibition to persons
convicted of misdemeanor crimes of domestic violence" to
"close this dangerous loophole." United States
v. Hayes, 555 U.S. 415, 426 (2009) (internal quotation
marks, citation, and bracket omitted).
Specifically, the statute provides that:
It shall be unlawful for any person . . . who has been
convicted in any court of a misdemeanor crime of domestic
violence . . . to ship or transport in interstate or foreign
commerce, or possess in or affecting commerce, any firearm or
ammunition; or to receive any firearm or ammunition which has
been shipped or transported in interstate or foreign
See § 922(g)-(g)(9). To qualify as a
"misdemeanor crime of domestic violence" for
purposes of § 922(g)(9), the predicate offense must have
as an element the "use or attempted use of physical
force, or the threatened use of a deadly weapon" by a
person who has a specified relationship with the victim.
See 18 U.S.C. § 921(a)(33)(A)(ii). Stimmel,
then his victim's spouse, pleaded no contest to
"knowingly caus[ing] or attempt[ing] to cause physical
harm to a family or household member" in violation of
Ohio Revised Code § 2919.25(A), and thus falls squarely
within § 922(g)(9)'s scope.
appeal, Stimmel argues the domestic violence misdemeanant
restriction violates his Second Amendment rights. The Second
Amendment provides that "[a] well[-]regulated Militia,
being necessary to the security of a free State, the right of
the people to keep and bear Arms, shall not be
infringed." U.S. Const. amend. II. The Amendment
guarantees "an individual right to keep and bear
arms" without regard to militia service. District of
Columbia v. Heller, 554 U.S. 570, 595 (2008).
circuit that has considered a post-Heller Second
Amendment challenge to § 922(g)(9) has upheld the
statute, albeit under varying frameworks and rationales.
See United States v. Chovan, 735 F.3d 1127, 1139
(9th Cir. 2013); United States v. Staten, 666 F.3d
154, 160-61 (4th Cir. 2011); United States v.
Booker, 644 F.3d 12, 22-26 (1st Cir. 2011); United
States v. Skoien, 614 F.3d 638, 639-45 (7th Cir. 2010)
(en banc); United States v. White, 593 F.3d 1199,
1205-06 (11th Cir. 2010); cf. Fisher v. Kealoha, 855
F.3d 1067, 1070 (9th Cir. 2017) (per curiam); United
States v. Chester, 514 ...