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RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2003 FED App. 0291P (6th Cir.)

File Name: 03a0291p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ALEXANDER CALOR,

Defendant-Appellant.

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No. 02-5099

Appeal from the United States District Court

for the Eastern District of Kentucky at Lexington.

No. 01-00063—Karl S. Forester, Chief District Judge.

Argued: July 31, 2003

Decided and Filed: August 15, 2003 

Before: KENNEDY, GILMAN, and GIBBONS, Circuit

Judges.

_________________

COUNSEL

ARGUED: Fred E. Peters, Lexington, Kentucky, for

Appellant. Kenneth R. Taylor, ASSISTANT UNITED

STATES ATTORNEY, Lexington, Kentucky, for Appellee.

ON BRIEF: Fred E. Peters, Lexington, Kentucky, Elizabeth

S. Hughes, GESS, MATTINGLY & ATCHISON, Lexington,

Kentucky, for Appellant. Kenneth R. Taylor, ASSISTANT

2 United States v. Calor No. 02-5099

UNITED STATES ATTORNEY, Lexington, Kentucky, for

Appellee.

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OPINION

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KENNEDY, Circuit Judge. Alexander Calor appeals the

district court’s denial of his motion to dismiss his prosecution

under 18 U.S.C. § 922(g)(8) for possession of five firearms

while subject to a court order, and its denial of his motion to

suppress evidence connected to his prosecution under 26

U.S.C. § 5861(d) for possession of an unregistered

Bushmaster .223 caliber rifle with an eleven and one-half inch

barrel. We AFFIRM the district court’s disposition of both

motions.

I.

On Friday, February 9, 2001, Mary Beth Calor, Alexander

Calor’s wife, sought and obtained an ex parte Emergency

Protective Order (EPO). The EPO was served on Mr. Calor

at the Calors’ residence on the evening of February 9 by two

Harrison County deputy sheriffs. The EPO restrained Mr.

Calor from contacting Mrs. Calor, ordered Mr. Calor to

vacate the marital residence, ordered Mr. Calor “not to

possess any firearms, turn all firearms into [Harrison County]

Sheriff’s Office,” and summoned Mr. Calor to appear at a

hearing on Monday, February 12, 2001 at 11:00 a.m. to

respond to domestic violence allegations. The EPO was

effective through February 12, 2001. Calor allowed the

deputy sheriffs who served the EPO to retrieve a quantity of

guns, including a Bushmaster .223 caliber rifle with an eleven

and one-half inch barrel.

On February 12, 2001, Mr. Calor retained temporary

counsel to request an adjournment of the scheduled hearing.

The court granted the request and adjourned the hearing until
No. 02-5099 United States v. Calor 3

1

In addition to the terms of the first EPO, the second EPO restrained

Mr. Calor from coming into the city of Cynthiana except to see his

attorney and for court appearances, required him to stay away from his

wife’s place of employment and his daughter’s daycare, and provided that

a list of Mr. Calor’s clothing and personal belongings be given to Mrs.

Calor’s attorney and that Mr. Calor could retrieve these items from the

Harrison County Sheriff’s Office.

February 21, 2001. The court did not take any testimony

from sworn witnesses and no other evidence was presented,

but it did address some collateral matters raised by Mrs.

Calor’s counsel and issued a second EPO that was effective

through February 21, 2001.1

On February 14, 2001, Mr. Calor violated the EPO by

returning to the marital residence. Mrs. Calor reported Mr.

Calor’s violation to the Harrison County Sheriff’s Office.

The deputy sheriffs who responded to Mrs. Calor’s complaint

observed Mr. Calor leaving the residence and arrested him.

A search of his vehicle revealed four handguns. Mr. Calor’s

counsel later reported the presence of a fifth handgun in the

impounded vehicle.

On July 12, 2001, a federal grand jury indicted Defendant

on one count of possessing a firearm in violation of title 18 of

the United States Code, § 922(g)(8) (Count I), and one count

of possessing a firearm in violation of title 26 of the United

States Code, § 5861(d) (Count II). Calor was convicted on

both counts by a jury.

II.

Calor’s appeal presents two distinct issues. The first issue

is whether the February 12 court proceeding before the state

trial judge provided the predicate hearing necessary to render

the February 12 EPO a court order within the meaning of

§ 922(g)(8). The second issue is whether the deputy sheriffs

lawfully seized the Bushmaster .223 caliber rifle for the

purposes of a criminal prosecution. Because the relevant

4 United States v. Calor No. 02-5099

facts were not disputed, the district court did not hold an

evidentiary hearing prior to ruling on Calor’s motions. The

district court’s denial of the motion to dismiss and intertwined

statutory construction present questions of law that are

reviewed de novo. United States v. Stewart, 306 F.3d 295,

331 (6th Cir. 2002). Likewise, the district court’s denial of

the motion to suppress evidence is reviewed de novo. United

States v Pelayo-Landero, 285 F.3d 491, 494 (6th Cir. 2002).

A.

Calor argues that the district court erred when it denied his

motion to dismiss because the court order upon which his

prosecution under § 922(g)(8) is based was not issued after a

hearing that is within the scope of § 922(g)(8). That statutory

section makes it unlawful for any person:

(8) who is subject to a court order that–

(A) was issued after a hearing of which such person

received actual notice, and at which such person had an

opportunity to participate;

(B) restrains such person from harassing, stalking, or

threatening an intimate partner of such person or child of

such intimate partner or person, or engaging in other

conduct that would place an intimate partner in

reasonable fear of bodily injury to the partner or child;

and

(C)(i) includes a finding that such person represents a

credible threat to the physical safety of such intimate

partner or child; or

(ii) by its terms explicitly prohibits the use, attempted

use, or threatened use of physical force against such

intimate partner or child that would reasonably be

expected to cause bodily injury;

. . . 

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
No. 02-5099 United States v. Calor 5

which has been shipped in interstate or foreign

commerce.

This Circuit has upheld the constitutionality of § 922(g)(8).

United States v. Napier, 233 F.3d 394 (6th Cir. 2000)

(holding that § 922(g)(8) does not violate Due Process and

Commerce clauses, or Second Amendment), United States v.

Baker, 197 F.3d 211 (6th Cir. 1999) (holding that § 922(g)(8)

does not violate Due Process or Commerce clauses). The

construction of what is necessary to meet the hearing

requirement, however, presents a question of first impression.

“In all cases of statutory construction, the starting point is

the language employed by Congress. Where the statute’s

language is plain, the sole function of the courts is enforce it

according to its terms.” Vergos v. Gregg’s Enters., Inc., 159.

F.3d 989, 990 (6th Cir. 1998) (internal quotation marks and

citations omitted). “The court must look beyond the language

of the statute, however, when the text is ambiguous or when,

although the statute is facially clear, a literal interpretation

would lead to internal inconsistencies, an absurd result, or an

interpretation inconsistent with the intent of Congress.” Id.

The parties contend that the term “hearing” is ambiguous.

While we agree that the term has not been given a consistent

meaning in federal law and its construction has been context

dependent, the term is not ambiguous in this context. In order

for a court proceeding to be the predicate hearing for a court

order that triggers the § 922(g)(8) firearm disability, the

statute straightforwardly requires that the subject of the court

order be given actual notice of the proceeding and an

opportunity to participate. In this case, the actual notice

requirement is satisfied by the summons written into the EPO

that was served on Calor on the evening of February 9. The

opportunity to participate requirement is satisfied because

Calor could have presented reasons why the court should not

enter an order finding that he posed a credible threat to the

safety of his wife or child at the February 12 court

proceeding. That Calor elected to waive his opportunity to

6 United States v. Calor No. 02-5099

2

Calor’s reliance on United States v. Spruill, 292 F.3d 207 (5th Cir.

2002), is misplaced. The domestic violence order at issue in Spruill did

not fall within the scope of § 922(g)(8) because it was entered by

agreement of the parties, but without the parties appearing before a judge

at a noticed hearing. Id. at 219-20.

participate does not does not alter his status under

§ 922(g)(8). The second EPO, which was issued at the

conclusion of the February 12 court appearance, provided the

predicate court order for Calor’s prosecution for possessing

the five firearms in violation of §922(g)(8).

Our reading of §922(g)(8) is consistent with that of the

Seventh Circuit. United States v. Wilson, 159 F.3d 280 (7th

Cir. 1998), considered a due process challenge to defendant’s

conviction under §922(g)(8). The court concluded that the

state court proceeding afforded to Wilson prior to entry of the

plenary protection order against him provided “‘an

opportunity to be heard at a meaningful time and in a

meaningful manner.’” Id. at 289-90 (quoting Mathews v.

Eldridge, 424 U.S. 319, 333 (1976). Defendant had an

opportunity to be heard in a meaningful manner because, even

though no proof was presented, he had “‘the opportunity to

present reasons, either in person or in writing, why proposed

action should not be taken.’” Id. at 290 (quoting Cleveland

Bd. of Educ. v. Loudermill, 470 U.S. 52, 546 (1985)). Given

that the minimum requirements of the statute comport with

the requirements of due process, we follow the Seventh

Circuit in declining to embellish the hearing requirements

explicitly set forth in § 922(g)(8). Consequently, we affirm

the district court denial of Calor’s motion to dismiss his

prosecution under 18 U.S.C. § 922(g)(8) for possession of

five firearms while subject to a court order.2

B.

Calor next argues that the district court erred when it denied

his motion to suppress the evidence of his possession of an

unregistered firearm because the February 9 EPO cannot
No. 02-5099 United States v. Calor 7

constitute a valid search warrant under the Fourth

Amendment and the pre-hearing seizure of the firearms

violates constitutional due process requirements.

With respect toCalor’s Fourth Amendment challenge to the

validity of the EPO as a search warrant, the district court

found that an EPO necessarily includes the authority for the

sheriff’s department to enter a residence to enforce the

seizure-of-weapons provision. As such, the district court

found that “the deputy sheriffs were acting pursuant to a valid

search warrant, issued by the terms of a constitutional statute,

when the Bushmaster weapon was seized.” This claim,

however, fails on narrower grounds because Calor does not

argue that the deputy sheriffs’ entry into his residence and

retrieval of his guns for transportation to the Harrison County

Sheriff’s Office was done without his permission. United

States v. Elkins, 300 F.3d 638, 647 (6th Cir. 2002) (“‘A

search may be conducted without a warrant if a person with

a privacy interest in the [place] to be searched gives free and

voluntary consent.’” (quoting United States v. RiascosSuarez, 73 F.3d 616, 625 (6th Cir. 1996)). In fact, at trial,

Calor testified that he complied with the order, albeit

reluctantly, and that he helped the deputies pack up his

firearms. Had Calor denied the deputy sheriffs permission to

enter and the deputies relied on the EPO to search for and

seize Calor’s guns, we then would have a basis for

considering whether an EPO, which requires the removal of

an alleged domestic abuser and his firearms from the home,

is a valid search warrant under the Fourth Amendment.

With respect to Calor’s due process challenge to the seizure

of his firearms, the district court found that Calor’s argument

failed because, under the balancing test articulated in

Mathews v. Eldridge, 408 U.S. 471, 481 (1972), Kentucky’s

interest in protecting the victims of domestic violence from

further violence, and possibly death, outweighed Calor’s

interest in maintaining possession of his firearms during the

brief period between seizure and a hearing, and that the risk

of an erroneous deprivation of property rights was small. The

8 United States v. Calor No. 02-5099

district court’s balancing of the relative interests appropriately

assigns greater weight to the government’s interest in

protecting an alleged domestic violence victim from gun

violence and possible death after an alleged abuser has been

served an EPO than to a gun owner’s brief loss of possession.

Consequently, we affirm the district court’s denial of Calor’s

motion to suppress the evidence of his possession of an illegal

rifle.

III.

For the foregoing reasons, we affirm the district court’s

denial of Calor’s motion to dismiss his prosecution under 18

U.S.C. § 922(g)(8) for possession of five firearms while

subject to a court order. We also affirm the district court’s

denial of Calor’s motion to suppress evidence connected to

his prosecution under 26 U.S.C. § 5861(d) for possession of

an unregistered Bushmaster .223 caliber rifle with an eleven

and one-half inch barrel. Calor’s conviction is affirmed.