5th U.S. Circuit Court of Appeals
Reese, et al. v. Bureau of Alcohol, Tobacco, Firearms, and Explosives, et al.
No. 23-30033 1/30/25
Issue:
Does 18 U.S.C. 922(b)(1) and (c)(1), which prohibits Federal Firearms Licensees from selling handguns to 18-to-20-year-old adults, violate the Second Amendment?
Holding:
Yes. “There are no age or maturity restrictions in the plain text of the [Second] Amendment, as there are in other constitutional provisions. … This suggests that the Second Amendment lacks a minimum age requirement.” The Court also concluded that the history of firearm use in the U.S., “particularly in connection with militia service, contradicts the premise that 18-to-20-year-olds are not covered by the plain text of the Second Amendment.” Read opinion.
Commentary:
The bulk of this very lengthy opinion focused upon whether 18-to-20-year-olds constitute part of the “people” mentioned in the Second Amendment. The historical analysis is quite thorough, but the fact that 18-year-olds could serve in a militia at the time of the founding seems to be the strongest evidence used by the court in finding that 18-to-20-year-olds are included in the Second Amendment. This decision could call into question the continued validity of a prosecution under §46.02(a) of the Penal Code when the defendant is under 21 years old. Decisions of federal courts of appeals are not binding in Texas state court, but they are certainly of persuasive authority. Prosecutions under §46.02(a) are already difficult, so take this decision into account until a higher federal court or Texas state court weighs in on the issue. In light of the fact that a federal court of appeals has declared a federal statute to be unconstitutional, prosecutors should expect that the United States Supreme Court will want to review this decision, just as the Court recently did in the Rahimi case. But do not count on the same result reached by the Court in Rahimi. The Supreme Court could very well agree with the federal court of appeals in this case and hold that the statute is unconstitutional.
Texas Court of Criminal Appeals
Zapata v. State
No. PD-0800-23 2/5/25
Issue:
May a trial court make and enter an affirmative finding of family violence when imposing an order of deferred adjudication at a plea hearing?
Holding:
Yes. On rehearing, the Court concluded that because nothing in the language of either Code of Criminal Procedure Arts. 42.013 or 42A.105 “forecloses such a family-violence affirmative finding, we conclude, as did the court of appeals, that such a finding falls squarely within the trial court’s discretion.” In its original opinion issued Oct. 23, 2024, the Court held that the trial court could not make an affirmative finding of family violence because there was no admissible evidence in the record to support it. Read opinion.
Commentary:
In its previous opinion, the majority of the court addressed the sufficiency of the evidence to support an affirmative finding of family violence in this case and did not specifically address the question that this new majority reaches—whether an affirmative finding of family violence can be made when the defendant is placed on deferred adjudication community supervision. This new majority decision does not address whether the evidence was sufficient to support an affirmative finding of family violence, probably because the court viewed that question as not properly before the court (as argued by former Presiding Judge Keller and Judge Yeary in their original dissenting opinions). Without a sufficiency analysis, this decision becomes a relatively simple exercise in statutory construction. Prosecutors who want a trial judge to make affirmative findings of family violence in their cases should make sure that there some evidence in the record to support those findings. But that was not the issue that is ultimately addressed in this opinion on rehearing.
Texas Courts of Appeals
Ogbuehi v. State
No. 03-23-00793-CR 1/31/25
Issue:
Does the phrase “released from custody” in Penal Code §38.10 (bail jumping and failure to appear) require a showing that the initial arrest that resulted in the suspect being placed in custody was proper?
Holding:
No. The Court concluded that the phrase “lawfully released from custody” in a failure to appear case “means that an individual’s release from custody was done through a lawful process or authorized by a legal authority as opposed to someone escaping from custody or otherwise removing themselves from custody through a process not authorized by law.” The plain language of §38.10 does not address the lawfulness of a suspect’s initial placement into custody and instead focuses on the lawfulness of the person’s having been released from custody. Read opinion.
Commentary:
This decision is another exercise in statutory construction, and the court was able to easily hold that the phrase “lawfully released from custody” did not deal with whether the initial placement into custody was legal or not. The phrase only deals with the release from custody. In this case, that question was easily resolved, as the defendant was lawfully released on bond before he then subsequently failed to appear. This decision should be helpful in failure-to-appear/bail-jumping cases in which the defendant attempts to relitigate the lawfulness of his original detention that brought him into court in the first place.