morning and welcome to the last day of our sitting here in jacksonville you have very much enjoyed next and bill's hospitality while we're here and we're pleased to be able to sit here i just want to remind you that we have familiarize ourselves with your cases and so we encourage you to go straight to the heart of your argument you will not waive anything that's in your briefs if you don't talk about it today you may be familiar with our lighting system but just as a reminder the warning light the warning yellow light comes on when you have two minutes left in the time you've allotted but we know from the court's reasoning as well as the history of the nd amendment how a defendant can rebut that presumption you can rebut it by showing that his conviction is a store is a conviction that historically would not be considered a quote serious off not but these cases are not before us and we're not going to decide these issues right now but we're going to presume that they're that they're valid why it was saying what the court said really mean you can make an as applied challenge i think it's most natural reading heller and i think if the court simply was intending to say these are we're going to assume these are lawful they would have been no need to use the word presumptively the fact that they used presumptively in the most natural reading of that dic savage concluded that it is something that can be rebutted as applied challenge otherwise courts wouldn't have would obviate the need for do any constitutional analysis whatsoever with regard to these regulations and heller certainly didn't suggest that was the case facts that has occurred in his life since we're not looking at the facts of the instant conviction we're looking at objective criteria as the bigger up court under a court recognized we're looking at things like the elements of the three judges  o seems to me you don't if i'm right about the just then clearly like control well let me address your concern you may be right it wasn't all the judges that drawing that portion but that portion is correct as a historical matter what we look at is objective criteria and it makes sense that the reason of the bender up and adams and also the cantor decision the seven circuit support that historically what we cared about was what was a conviction we looked at objective criteria and it makes sense not only from a historical perspective and it also makes sense from a practical perspective as cantor recognized it's highly onion miserable have to look at the facts of every person's case when they bring in as applied challenge for instance and what they point to in support of these decisions is eighteen u s c nine hundred and twenty five c which congress in acted to give the executive branch the power to review someone's case and determine whether or not they have a person who should have their gun rights restored and then after a resources taken up by considering whether crimes are categorically that johnson tomorrow did this and the like is that has that been shown to really be and create the courts and easily carry out i i think it is far more  ball to look at objective facts and i mean peasant to say categorical approach it's really objective facts things like the elements of the maximum punishment and the fact that this is universally considered a misdemeanor which is not a label we should easily disregard in a nd amendment context it's looking at objective facts this far more news trouble than having to make predictive judgments about future dangerousness or evaluate someone's tire life that it becomes a very slippery slope and it's highly and miserable and as the u s supreme court recognizing united states versus being if the executive is not suited to test this do this type of a wide ranging neutral inquiry the judicial branch is probably less equipped so for that you know it seems to me when a person in your client's position is challenging the constitutionality of a statute which you've go says person constitutional he has the burden you have the burden of showing  that your particular situation falls under this particular set of circumstances when as a plat it is not to tional in fact if you know position is  statute on its face i mean everybody anybody on the most violent domestic  that's not true your honor but because we have to look at numerous objective facts it's not only the elements of the fence it's also house great states treat the maximum penalty it's also how the cross jurisdictional consensus there are numerous objective goldman numerous but there are some objective sentence under a statute that doesn't require by a land where the maximum is only a year something that's historically a misdemeanor if if we're going to look at that set of crimes and apply kassam as you suggest hasn't castleman r t found that these us to violent crime it in this domestic context smolla offenses escalate into great a fantasy and congress in fact when it will pass and it said they were closing a most dangerous lupo congress is free to try to achieve whatever paul sickles it seems that so long is it is in line with the constitution and the nd amendment has a historical matter which we have to look at under heller tells us that your honor but i will continue to go back to my refrain here which as a historical matter and i would even point to the minority report from the dissenting members of pennsylvania ratification convention and which w recognized as influential precursor to the nd amendment what matters is that the conviction and that's what we're looking at so as a historical matter and that's what we rely on we need to look at what the conviction was an objective criteria to determine whether he's removed from the class of law abiding citizens and just to reiterate looking at the conduct least the slippery slope the congress recognized and in their own work ability the congress recognized it depended nine hundred and twenty five dollars c i may have sometimes a status has a legal component and but nevertheless the government must prove a defendant knows this legal thing and of all the one thousand and two g s data says i think misdemeanor crime of domestic violence might be the most complex in fact justice alito recognized that in his dissent and he said to be much harder for the government to establish these violations going forward because of how complex this definition is because they have to show the defendant knew the law doesn't make it easier when the person has pleaded that they knew you did not believe that he knew your honour's was a stipulation that he had a conviction this was a in fact the government never even argued below that in you they just argued we don't have to show that but all  had to show is the status that he had to know and a really have is that he had that status wrecked and he certainly admitted that relation he did not admit he knew that he admitted i have a conviction for a misdemeanor it's a qualifying conviction he never admitted i knew that i am in this prohibited category i was never admitted it was a very short stipulation in no were next to play should he admit he knew his status such a he would have the guilty min and twenty two d violation and without any evidence in the record to and were limited to the stipulation that this is a preserve sufficiency claim so without anything in the stipulation to show that he had that knowledge the stipulation is insufficient and some mental briefs those were cases very much like this one where it was a poster verdict change in the law and the evidence was insufficient light of that new law and what the court in those cases was they recognize that because evidence is insufficient error as opposed to a failure of the government to supply the necessary evidence here we raised this issue below and the government simply said we don't have to prove that they argued evidence was sufficient they argue oh we get stablished out even if it is the law they just said we prove that this does or he said that the person has to you know that they have that status or that they have to know that there is a on the one hand do they have to know that they committed the crime on the other hand do they have to know specifically that their prior commission of that crime puts them in a particular status bucket the latter the latter i don't believe reha says that way or in it in the opinion does it say that it says that if you do not have if you do not know the particular group that you're in you do not have the guilty mind needed to commit this offense and that's why justice alito was so pointed in his dissent saying it's going to be much harder to prove these offenses going forward because if you don't know you are in that status you do not have the guilty my needed i think i think i don't necessarily disagree with justice leo's concerns but at the same time i think that your argument is taken even a step further then there he opinion actually takes it over he says is that you have to know the law it's a mistake of law is a defense it's a legal thing you have to know and misdemeanor combo message violence is a very complex law but nevertheless the government must prove he knows the law he that the government has to prove that he knows that he committed that misdemeanor offense which is a question of law but they don't under my reading have to know he doesn't have to know that the commission his commission of that offense has this particular subsequent consequence are you saying that he says that he does have to know that nd bucket yes your honor and i would also add on out an where he knew he was out of school but his defense was all i didn't know that made me unlawfully present even though he knew he was out of school right but his defense wasn't i didn't know that maybe on lawfully present which had this other effect on my ability to handle a firearm that's not what we're saying your honor we're not saying you need to know the consequences of being in the status but he does need to know he has the status and there's nothing in the record showing he knows he has of the status and that's what r establish a rebuttable presumption it did so in mcdonnell douglas it's a very complicated test and so if the supreme court intended to tell courts you are to impose a robot you are to an analyze as with a rebuttal presumption is certainly could have said so the more natural reading the more logical reading is to say heller said these things we recognize we're not casting doubt on the constitutionality of things like felon dispossession that still and the present  valid isn't a footnote to that so all the supreme court is saying because the purpose was not for the supreme court to make a catalog of what was constitutional it was analyzing whether or not a regulation ordinance was constitutional and so the presumptively valid language is simply just saying these are things that we're not casting any doubt on and that includes the felon dispossession statute and then there are presumably other things too and we're not getting to that today and so i want to turn to white there is bend discussion that white somehow is not valid or has been called into question griffith this course case in griffith was long before white where this court said that the georgia battery statute which is similar to florida which is to involves i believe an unfair offensive touching satisfies the definition in nine hundred and twenty one dollars a thirty three dollars i believe it is so that one has the status of having committed a misdemeanor crime of domestic violence that's this court's binding precedent griffith that's what this court had on the books when white was decided and white didn't just say we don't know about griffith we don't know what mr meter crime a domestic violence means we think it means just violence as is stated often in mr brown's brief what it says is violence toward a family member domestic partner that's domestic violence and castleman later said domestic violence is violence violence that maybe may not be actionable outside of that context that we might not think of as being traditionally violent in the johnson context for example a violent felony in the domestic violence context that's violence even an offensive touching because of the special context of domestic violence where oftentimes the violence escalates from something like just as we have here in under the florida statute you have an intentional touching against the victim's will that this very clearly social science that's been accepted by every court that's looked at it including the supreme court in castleman shows domestic violence escalates over time and when there is a gun present the victim is between six to twelve times more likely to die than if there isn't and so that is why courts have consistently recognized that a misdemeanor crime of domestic violence can include something like is hypothesized here and i'll get to the categorical procida moment that someone who just touches someone on the arm lightly could be covered that's true that's not mr brown but that is true and that's what castle and says that's what gryphus said and on the categorical approach as we said it has absolutely no applicability here categorical approaches as i'm sure the court knows how a district court figures out whether a prior conviction constitutes a predicate offense for an enhanced penalty and so the categorical approach requires the courts to look at the elements not the real world context the context and all the facts they nor what the person actually did look at the elements to decide if they categorically belong to this to this crime whereas here we have an as applied challenge brown had to bring in as applied challenge because white forecloses a facial challenge and so he brings in as applied challenge but then asks his court to ignore his conduct and that just is not how this court approaches an as applied challenge as applied to government say that as applied challenges are permitted under the statute or not no you are not after white and then rose or so white made it very clear it wasn't just saying we find this facially valid white said if you commit same thing said if you commit a felony it qualifies under g one thousand nine hundred and twenty two g one then you are outside the protection of the nd amendment in every context does it make sense there's been a lot of judicial and scholarly discussion of the nature of the nd marriage obviously are there any are there any comparable rights that you say would apply or not apply to a person as opposed to particular conduct you mean someone's right like we don't we don't often say that people are that a particular person doesn't receive protection from the st amendment we say that particular speech like fighting words or obscenity isn't protected  is there any where that that analogy breaks down between the nd them and the st amendment well it's different here because we're in the criminal context so that the group of people that we're looking at are in that group because of their conduct that's the really the best way that i can answer it so it's not the fact they're in the group comes after the conduct that puts them in that group that is a very interesting point the seven say it in go ian is that you pronounce it i'm not obvious to me as a matter of common sense and the way as applied challenges have always been that we have to consider his personal conduct and not employ the approach but it is true that no case is well i guess the adams case that you cited does support that proposition the majority of the area and then you got the three judges on the other side in there not that i'm aware of your honor and are we talking about the as applied and the categorical pro right right so really if you think about what the categorical approach would require in these circumstances it's a facial challenge because the categorical approach saying take the least culpable conduct that's everybody in the universe who might have the status of being a convicted misdemeanor misdemeanor crime of domestic violence convicted of that crime if you look at the least culpable conduct is it still constitutional  approach which in effect makes it a facial challenge it doesn't mean you might then get back to white like controls that's that's exactly the argument your honor is that by trying to in graph the categorical approach onto the constitutional analysis and as applied in trying to say it really turns it on its head to say you have to impose categorical approach in an as applied challenge and then you could have someone who is extremely violent and they're kind their particular kind of does even though it was before if mr brown stipulated to the facts and evidence and said not only circulated the facts and evidence he said i agree that this constitutes sufficient evidence to find beyond a reasonable doubt that i committed the offense that was that was before he felt it was really the supreme court in our feet where he financially so there's a new element of the crime and i don't see how the stipulation covers that well that's the point is this to play she doesn't say what elements it's covering the stipulation says facts and evidence that's sufficient to establish that i'm guilty of jena in any preserved his constitutional challenge isn't it fair to assume that he was pleading to what ever understood at that time the elements were well on the idea of what everyone knew were the elements remember or he is the same same office as the lawyer for mr brown and they had already six or seven months before this stipulation was entered into had already asked for a jury instruction in re heath on the knowledge point and had already filed their initial brief with this court on the knowledge point so it's hard to imagine that this was not in the minds and i'm not going to speculate as to why it wasn't raised in this case but it certainly was out there and known to the folks who are litigating this case but if we look at again look at the stipulation we say essentially he waived any ability to come back later on and say even though i said the facts and evidence are sufficient and i committed this crime beyond a reasonable doubt now i want to do it over and add to this thing because everything we would submit is your brief cites all out of circuit precedent except for a c we have never held as this correct that a defendant to a stipulation like this never held them to it when during the pendency of the appeal we learned that the government was required to prove a was a domestic violence misdemeanor but he says the government has to prove and not constitutional challenge namely that he also knew that  that would mean he lost his right to possess guns i understand your honor and here i would say that we have because as was being discussed miss we just have to show that mr brown knew that he had the rahe for say that that you have to know more well than simply that you are in the status of a domestic violence misdemeanor now your honor and i would say that that additional step that they're asking for is the legal conclusion that's what we have to prove so we we have to prove that he knew he was in this prohibitive status we did that then we have to prove that he was in fact in that prohibited status that he was he does fall under g nine he has he has to know that the offense has as an element the use or attempted use of physical force that's not a categorical approach right that's correct you're on seems to me to be something fairly technical i wouldn't i don't know that is necessarily technical we're looking at what did he know he knew that he had he said i engaged in this conduct which is a mystery a battery which is an intentional touching against the will of the victim it's a misdemeanor and this person is in a domestic relationship with me he knew that it made it he had a lengthy discussion with the judge he pleaded no contest that establishes his knowledge whether that then he doesn't need to know the word element he just needs to know that he engaged in that conduct and he needs to know that he was convicted of this crime and then we have to show that that means does he need to know that it disqualifies him from mr brown had to have known his status there's also evidence and this court can look at all of the evidence in the record there's also evidence that he knew he wasn't supposed to have a gun and the district court looked at this in particular and it's in the court it's in the record where the district court notes and i believe it's in the verdict that mr brown sold the gun in a drug deal to someone after he said on it and there is no challenge t proffer the prosecutor proffered that a confidential informant who purchased the gun that mr brown said to him i bought this gun for my cracker he bought this pistol at a store and then it's in the p s r which you can also look at in this context you can look at the whole record before he handed that gun over he wiped his fingerprints off of it so in addition to all the evidence showing he knew what he did he knew what he did was a crime that crime we could we proved qualifies under g nine couldn't he have his fingerprints because he didn't want to be implicated in whatever crimes he may have suspected were going to happen with that he could have your honor but the point is a district court construed that to be this is a straw purchase or this is this is he knew that this was illegal it's honor i am not sure about that because the last sentence in white says given that heller does not cast doubt on the constitutionality of nine hundred and twenty two g nine we have firm and it was said that in the context of having said that it doubt on the constitutionality of g nine that sounds like they are saying categorically not to use that word as a group someone who has committed a misdemeanor crime of domestic violence falls outside of the protection of nd amendment and i guess it really doesn't presented at trial so we are limited to the stipulation revealing the sufficiency of the evidence that's this court's precedent so the government's attend to look outside the record may work on an on preserve claim a sufficiency to preserve claim we are limited to the evidence and was going to be going outside the record because it was simultaneous supplemental briefings on the effect of i hafe give me the cite that nd case that if nd case ninety seven nd six hundred and ninety seven insight seven o two united of the law that was flat out rejected or hafe but you have to know the category you're in even if that requires you to know a legal thing and that is what the government must prove and it's a difficult thing to prove in the g nine because the legal thing is complex but there's nothing in the in this for paragraphs to be in which we're limited to the chosen mr brown has that knowledge and because the government built establish he has that knowledge the property remedy here under mt and guess bar is to remand this case for entry of a with the or the official place to place and stated that the same information that he understood that he had been convicted of this charge the same exact language they are saying we shouldn't consider if that were in the part of the record to say we can consider whether that be sufficient knowledge you know your honor because it still wouldn't show he knows he's in the category and that's what rape and what category in the category what we watch category look at and he knows his prior conviction is a misdemeanor crime of go mastic violence i can't aggravated assault that doesn't mean they know it's a violent felony right so it's the same thing here he knows he has a misdemeanor battery it doesn't mean no to it's a misdemeanor crime of domestic violence and that's what the government has to prove here that he knows it's a misdemeanor  violence is if he doesn't know he has that if he doesn't know isn't it how do we know from we know from castleman that he doesn't have to be actually violent it can be an offensive touching that's and he stipulated to that that's a different question your honor that's whether it qualifies as a misdemeanor crime in a mess of violence we all agree it qualifies the question is does he know it's a misdemeanor or does he know it qualifies to see no it's a misdemeanor crime of domestic violence that's what rate is about and because there's nothing in the stipulation shows he knows that this legal thing in the government failed to show that he is guilty of the offense i see i'm at eight seconds here so i would respectfully request that this court vacate the lower court's decision and