United States Court of Appeals

For the Eighth Circuit

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No. 13-3078

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Larry Lewis Cooney

lllllllllllllllllllll Defendant - Appellant

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 Appeal from United States District Court 

for the Eastern District of Arkansas - Little Rock

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 Submitted: April 18, 2014

 Filed: July 22, 2014

[Unpublished]

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Before WOLLMAN, BYE, and SHEPHERD, Circuit Judges.

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PER CURIAM.

Larry Lewis Cooney entered a conditional guilty plea to one count of being a

felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). He appeals,
arguing that the district court erred in prohibiting him from presenting a justification

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defense. We affirm.

I. Background

As a convicted felon, Cooney is prohibited from possessing firearms. In 2011,

Cooney lived in a duplex with his fifty-year-old brother Warren Cooney (Warren) and

his brother’s family. Warren had a long history of health problems, including two

heart attacks. 

On October 27, 2011, Warren and nineteen-year-old Dwight Avance began to

argue in the Cooney duplex. As the argument escalated and became physical, the two

men took the fight outside, while Cooney remained within the residence. Once

outside, Warren and Avance wrestled on muddy ground, near which several loose

bricks were lying. Several onlookers had gathered, and some were concerned that

Avance might strike Warren with one of the nearby bricks. Avance had gained the

upper hand in the fight and had pinned Warren to the ground. After attempts to quell

the fight proved unsuccessful, Warren’s wife, Ressie, sent an onlooker into the duplex

with instructions to tell Cooney to retrieve Ressie’s gun from Warren’s bedroom and

to come outside to break up the fight. Moments later, Cooney exited the duplex,

carrying the gun and yelling at the men to stop fighting. The men ignored the

commands, whereupon Cooney ended the fight by firing a single gunshot into the air

or into the ground. Warren’s injuries from the fight consisted of a cut lip and a few

scratches on his arms and hands. 

Cooney was charged with one count of being a felon in possession of a firearm. 

Prior to trial, Cooney filed a notice of defense in which he disclosed his intent to

The Honorable Susan Webber Wright, United States District Judge for the

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Eastern District of Arkansas. 

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present a justification defense, specifically, the defense of others. In response, the

government filed a motion in limine seeking to preclude Cooney from arguing such

a defense. Following an evidentiary hearing, the district court granted the

government’s motion, after whichCooney entered a conditional guilty plea, reserving

the right to appeal the district court’s ruling on the government’s motion. The district

court sentenced Cooney as an armed career criminal, see 18 U.S.C. § 924(e)(1), and

imposed the statutory mandatory minimum sentence of 180 months’ imprisonment. 

II. Discussion

“We review de novo a district court’s decision whether there is sufficient

evidence to submit an affirmative defense to a jury.” United States v. El-Alamin, 574

F.3d 915, 925 (8th Cir. 2009) (quoting United States v. Hudson, 414 F.3d 931, 933

(8th Cir. 2005)). We have previously declined to “recognize[ ] a defense of legal

justification to a violation of § 922(g).” Id. (quoting Hudson, 414 F.3d at 933). We

have indicated, however, that if we were to recognize the defense, we would require

proof of the following four elements: 

(1) that defendant was under an unlawful and “present, imminent, and

impending [threat] of such a nature as to induce a well-grounded

apprehension of death or serious bodily injury,” (2) that defendant had

not “recklessly or negligently placed himself in a situation in which it

was probable that he would be [forced to choose the criminal conduct],”

(3) that defendant had no “reasonable, legal alternative to violating the

law, ‘a chance both to refuse to do the criminal act and also to avoid the

threatened harm,’” and (4) “that a direct causal relationship may be

reasonably anticipated between the [criminal] action and the avoidance

of the [threatened] harm.”

United States v. Poe, 442 F.3d 1101, 1103-04 (8th Cir. 2006) (alterations in original)

(quoting United States v. Stover, 822 F.2d 48, 50 n.3 (8th Cir. 1987)). “To be entitled

to a jury instruction on a justification defense, a defendant must show ‘an underlying

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evidentiary foundation as to each element of the defense,’ such that a reasonable

person could conclude that the evidence supported the defendant’s position.” Id. at

1104 (internal quotation marks omitted) (quoting Hudson, 414 F.3d at 933).

Cooney contendsthat he can establish an underlying evidentiary foundation as

to all four elements of the justification defense. He thus asks us to recognize a

justification defense to a § 922(g)(1) charge and to allow him to present the defense

to a jury. Even if we were to recognize a justification defense in the context of this

case, however, it would not be available to Cooney because he cannot establish all

of the required elements. 

At a minimum, Cooney cannot show that he had no reasonable, legal

alternative to violating the law. First, Cooney could have called the police. We have

held that a defendant cannot establish that he had no reasonable, legal alternative to

violating the law if the record reflects that he could have called the police. See

El-Alamin, 574 F.3d at 926; United States v. Blankenship, 67 F.3d 673, 678 (8th Cir.

1995). Aside from calling the police, Cooney could have attempted to break up the

fight without using the gun. When Cooney exited the duplex, Warren and Avance

were wrestling in the mud. Neither man had a weapon of any kind, and Cooney

testified that he never saw Avance reach for a brick. Because no reasonable person

could conclude that the evidence supports Cooney’s claim that he lacked a

reasonable, legal alternative to using the gun to break up the fight, the district court

did not err in precluding Cooney from presenting a justification defense. 

Alternatively, Cooney argues that the four-part test is too stringent in light of

the United States Supreme Court’s holding in District ofColumbia v. Heller, 554 U.S.

570 (2008), that the Second Amendment protects an individual’s right to keep and

bear arms for the purpose of self-defense. The Court clarified, however, that this

right was not without limitation, stating that “nothing in our opinion should be taken

to cast doubt on longstanding prohibitions on the possession of firearms by felons[.]” 

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Id. at 626. Nothing in Heller indicates that we should apply a different test in

determining whether Cooney should have been allowed to present a justification

defense, and thus we reject his argument to the contrary.

III. Conclusion

The judgment is affirmed.

BYE, Circuit Judge, concurring in the result.

I agree we should affirm the district court's decision prohibiting Cooney from

presenting a justification defense. I write separately because I do not agree entirely

with the reasons the court gives for affirming.

The court concludes one of Cooney's reasonable, legal alternatives to using a

firearm to break up his brother'sfight wasto call the police. Under the circumstances

involved in this case, I disagree calling the police was a reasonable alternative. I do

not understand how calling the police would have solved the imminent problem

facing Cooney when he exited the duplex, the sight of Avance having close access

to weapons (the bricks) that could have caused his brother serious injury or death. 

Neither the government nor our court explains how calling the police under those

circumstances would have removed the immediate threat of serious injury facing

Cooney's brother.

I do believe, however, Cooney had other reasonable, legal alternatives to

protect his brother other than to possess and discharge a firearm. One alternative was

simply to remove the bricks from Avance'sreach by picking them up or kicking them

out of reach. Another reasonable alternative wasto use a weapon other than a firearm

to attempt to break up the fight between the two men, such as a knife. For example,

in United States v. El-Alamin, 574 F.3d 915 (8th Cir. 2009), we affirmed a district

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court's rejection of a justification defense where the defendant entered his home and

grabbed a knife because he feared an intruder was inside, but then swapped the knife

for a firearm. In relevant part, we said the defendant could have chosen not to

upgrade his weapon from a knife to a gun. Id. at 926. Similarly, in this case, Cooney

could have first tried to break up the fight between his brother and Avance with a

weapon other than a gun.

I concur in the result.

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