Date: 01-24-2023

Case Style:

Jay Brian Brush v. United States of America

Case Number: 2:22-cv-00032

Judge: David D. Nace

Court: United States District Court for the Eastern District of Missouri (Ralls County)

Plaintiff's Attorney: table>

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Defendant's Attorney: Shane Kyle Blank

Description: Hannibal, Missouri civil rights lawyer represented Plaintiff seeking a declaratory judgment on the Constitutionality of "18 U.S.C. §§ 921(a)(33) and 922(g)(9).

Federal Court, Hannibal, Missouri

Plaintiff alleges the following in his Second Amended Complaint. On September 28, 1989, he pled guilty to a misdemeanor, assault third degree under § 565.070 R.S.Mo., in the Circuit Court of Scotland County, Missouri (“misdemeanor assault conviction”). He “has no other criminal pleas of guilt.” (Id. at 2.) In January 2019, plaintiff attempted to purchase firearms on the internet from a firearms company in South Carolina. The firearms were sent to a federal firearms licensee who on January 19, 2019, required plaintiff to submit to a background check using ATF form 4473. On January 21, 2019, the sale transaction was denied because his misdemeanor assault conviction was misclassified as a
“misdemeanor crime of domestic violence” under 18 U.S.C. §§ 921(a)(33) and 922(g)(9), in spite of the fact that under § 610.140 R.S.Mo. he had had the record of his misdemeanor assault conviction expunged.

Plaintiff further alleges that in September 2019 he attempted again to purchase firearms from the same federal licensee who again required him to submit a Form 4473, which he did. On November 8, 2019, he received a letter from the Federal Bureau of Investigation reaffirming its denial of plaintiff's right to possess or receive a firearm under §§ 921(a)(33) and 922(g)(9), because he had been convicted of a “misdemeanor crime of domestic violence.” He alleges that under §§ 921(a)(33) and 922(g)(9) his misdemeanor assault conviction does not disqualify him from possessing a firearm because, during the state court proceeding in which he pled guilty to the misdemeanor assault, he was not represented by counsel, he was entitled to a jury trial, and he did not waive either his right to counsel or his right to a jury trial. He seeks a declaratory judgment that he is not prohibited under federal law from receiving or possessing a firearm or ammunition.

On October 26, 2022, this Court denied the government's motion to dismiss plaintiff's First Amended Complaint under the Rooker-Feldman doctrine or, in the alternative, under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. Soon thereafter, the Court denied the government's motion for reconsideration of that decision.

Outcome: For these reasons, IT IS HEREBY ORDERED that the motion of plaintiff Jay Brian Brush for summary judgment [Doc. 38] is GRANTED.

IT IS FURTHER ORDERED that the motion of the defendant United States for summary judgment [Doc. 33] is DENIED.

IT IS HEREBY DECLARED that plaintiff Jay Brian Brush is not and may not be barred or prohibited by any agency of the United States from obtaining firearms or ammunition by virtue of his Missouri state court conviction in 1989 for misdemeanor assault third degree under § 565.070 R.S.Mo.

A separate Judgment Order is filed herewith. Plaintiff has 21 days to file a motion for reasonable attorney's fees. See E. D. Mo. Local Rule 8.02.

* * *


Plaintiff moves for summary judgment on the grounds that that the uncontroverted material facts demonstrate that his state court misdemeanor assault conviction is not a disqualifying “misdemeanor crime of domestic violence” under federal law because he was pro se, had a right to a jury trial under Missouri law, and did not knowingly and intelligently waive his rights to counsel or to a jury. Plaintiff submitted the following evidence in support of his motion: the state court case file (“Court File”); the declaration of plaintiff; ATF Form 4473; FBI correspondence; the declaration of plaintiff's wife, Samantha Brush; deposition excerpts of Gary Dial; and ATF Form 4473.

The evidence proffered by plaintiff unequivocally reveals the following. On September 28, 1989, plaintiff pled guilty to a misdemeanor, i.e., assault third degree under § 565.070 R.S.Mo., in the Circuit Court of Scotland County, Missouri. (Exh. 1, Court File.)

In January 2019, plaintiff attempted to purchase firearms on the internet from a firearms company in South Carolina. (Exh. 2, Declaration of Jay Brush, ¶ 2.) The firearms

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were sent to a federal firearms licensee, who on January 19, 2019, required plaintiff to submit to a background check using Form 4473. (Exh. 3, Jay Brush Declaration, ¶ 3); Form 4473.) On January 21, 2019, the sale transaction was denied because plaintiff's state court misdemeanor assault conviction was classified as a “misdemeanor crime of domestic violence” under 18 U.S.C. §§ 921(a)(33) and 922(g)(9). (Exh. 2, Jay Brush Declaration, ¶ 4.) In September 2019, plaintiff attempted again to purchase the same firearms from the same federal licensee who again required that he submit a Form 4473, which he did. (Exh. 2, Jay Brush Declaration, ¶ 5.; Exh. 8, Form 4473.)

On or about November 8, 2019, plaintiff received a letter from the Federal Bureau of Investigation reaffirming the FBI's denial of plaintiff's right to possess or receive a firearm under §§ 921(a)(33) and 922(g)(9) because he had been convicted of a “misdemeanor crime of domestic violence.” (Exh. 3, Jay Brush Declaration, ¶ 6; Exh. 4, Letter from FBI dated November 8, 2019.)

During the state court proceeding in which plaintiff pled guilty to the misdemeanor assault, he was not represented by counsel. (Exh. 2, Jay Brush Declaration, ¶ 7; Exh. 5, Declaration of Samantha Brush; Exh. 1, Court File.) Plaintiff, who was charged with assault third degree under § 565.070 RSMo., was entitled to a jury trial under Missouri law. (See Mo. Const. art. 1, s. 18(a); Missouri Supreme Court Rule 27.01 (effective 1980); § 543.200 RSMo. (amended 1978, effective 1979).) Plaintiff had no prior experience in the criminal justice system, had never hired a criminal lawyer, and was not independently aware of his right to counsel or to a jury trial. (Exh. 2, Jay Brush Declaration, ¶¶ 8 and 9.) The proceeding was not on-the-record or recorded and did not take place in a courtroom. (Exh. 2, Jay Brush Declaration, ¶ 10-11; Exh. 5, Samantha Brush Declaration, ¶ 3-4, Exh. 1, Court File.) The only persons present at the proceeding were the judge, the prosecutor, plaintiff, and his wife, Samantha Brush. (Exh. 2, Jay Brush Declaration, ¶ 12; Exh. 5, Samantha Brush Declaration, ¶ 5.) Plaintiff was not provided any information about the right to counsel or the right to a jury trial. (Exh. 2, Jay Brush Declaration, ¶ 13; Exh. 5, Samantha Brush Declaration, ¶ 6.) Plaintiff did not affirmatively waive either right. (Exh. 2, Jay Brush Declaration, ¶ 14; Exh. 5, Samantha Brush Declaration, ¶ 7.)

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The judge informed Brush what his sentence would be and instructed him to enter his plea, which he did, feeling he had no choice. (Exh. 2, Jay Brush Declaration, ¶ 15; Exh. 5, Samantha Brush Declaration, ¶ 8.) There is no transcript or other documentary evidence, including Missouri's mandatory Waiver of Counsel form, that contradicts plaintiff's and Samantha Brush's recollections of the proceeding contained in the Court file. (Court File.)

In 1989, Judge John Ed Luther was the associate circuit court judge in the Missouri First Circuit, in Scotland County, Missouri, and Gary Dial was the prosecuting attorney there. (Exh. 6, Dep. of Gary Dial 5-9.) During his tenure as prosecutor, Dial, who later became the circuit judge in Scotland County for 24 years, handled over a thousand misdemeanor pleas. (Id. at 8:5-13, 9:5-14.)

Dial testified to the following at his deposition. He does not specifically remember plaintiff's plea. However, at that time Judge Luther commonly took misdemeanor pleas sitting at a desk in an office-like room, like every other county officer had, located one floor below the only actual courtroom in the courthouse. Aside from DWIs, Judge Luther did not have a practice of obtaining written waivers of counsel, of reading from any script regarding the right to counsel, or of having pro se defendants sign a checklist waiving their rights. Likewise, Judge Luther did not have a practice of apprising pro se defendants of their right to a jury trial or of reading from a written script regarding jury rights. The “vast majority” of misdemeanor pleas before Judge Luther were not on-the- record or transcribed. (Id. at 11-29.)

Dial furtherer testified that Judge Luther ran a “loose ship” procedurally, and Dial, who was 24 years old at the time, “wasn't going to pick a fight with the judge, because [he] didn't think he was doing things correctly, especially as a young prosecutor.” (Id. at 21:1823:1.) Judge Luther often told pro se defendants what their sentence would be before they entered a plea of guilty. (Id. Tran 9:5-22, 41:16-42:2.) It was not unusual for the alleged victim of a misdemeanor assault to be present during the guilty plea. (Id. Tran. 34:2-13.) It was the court's practice to keep everything pertaining to the case in the court file. (Id. Tran. 21-39.)

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Under 18 U.S.C. § 925A, a person denied a firearm pursuant to subsection (s) or (t) of section 922 “who was not prohibited from receipt of a firearm pursuant to subsection (g) or (n) of section 922, may bring an action against ... the United States ... for an order directing that the erroneous information be corrected or that the transfer be approved....” Plaintiff is alleged to be barred from possessing firearms by virtue of 18 U.S.C. §§ 921(a)(33) and 922(g)(9). (SUMF ¶ 4.)

Under § 922(g)(9), it is unlawful for anyone to possess any firearm or ammunition “who has been convicted in any court of a misdemeanor crime of domestic violence.” 18 U.S.C. § 922(g)(9). Title 18 U.S.C. § 921 defines the term “misdemeanor crime of domestic violence,” 18 U.S.C. § 921(a)(33)(A), then states the following:

(B)(i) A person shall not be considered to have been convicted of such an offense for purposes of this chapter, unless-

(I) the person was represented by counsel in the case, or knowingly and intentionally waived the right to counsel in the case; and

(II) in the case of a prosecution for an offense described in this paragraph for which a person was entitled to a jury trial in the jurisdiction in which the case was tried, either

(aa) the case was tried by a jury, or

(bb) the person knowingly and intelligently waived the right to have the case tried by a jury, by guilty plea or otherwise.

18 U.S.C. § 921(a)(33)(B).

Here, the undisputed evidence shows that plaintiff's misdemeanor assault conviction under state law may not for the purposes of federal law be considered a misdemeanor crime of domestic violence as defined by federal law. Plaintiff's and his wife's uncontradicted testimony set forth above affirm that he did not have a lawyer during the 1989 Scotland County plea proceeding. Moreover, under Missouri law in 1989, as well as today, plaintiff was entitled to a jury trial for the third degree assault offense with which he was charged in state court.

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Finally, the uncontested evidence supports plaintiff's claim that he did not waive his rights to counsel or to a jury trial. He had no experience in the criminal justice system, had never hired a criminal lawyer, and was unaware of his right to counsel or a jury. He and his wife, who was also present at the plea, testified that he was not informed of his rights and did not affirmatively waive them. The judge instructed plaintiff to plead guilty, which he did, because he felt he had no choice. The proceeding was off-the-record and did not take place in a courtroom. The Scotland County court file lacks any contrary evidence, including Missouri's mandatory waiver form, even though the court's practice was to keep everything pertaining to the case in the court file. (Id. at ¶ 16.)

Furthermore, the contemporaneous practices and procedures in the circuit court also support plaintiff's claim. Gary Dial, the prosecuting attorney in Scotland County in 1989, testified at his deposition that while he does not specifically recall plaintiff's 1989 plea, generally, at that time pro se criminal defendants who were charged with misdemeanors were made to give their pleas outside of a formal courtroom, without any record, and without being apprised of their rights or signing waiver forms. Judge Dial testified that the court's practice was not entirely procedurally correct, but as a junior attorney he was not comfortable correcting a long-serving judge.

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