Zherka v. Barr

Background

Selim “Sam” Zherka sued Merrick B. Garland, in his official capacity as Attorney General. The opinion notes that Garland was automatically substituted for William P. Barr as the defendant under Federal Rule of Civil Procedure 25(d). The case name supplied for the matter is Zherka v. Barr.

Zherka had pleaded guilty to conspiracy involving a false statement to a bank and a false federal income-tax return. The opinion states that the fraud caused tens of millions of dollars in losses. He received a 37-month prison sentence, a $1.5 million fine, more than $1.8 million in restitution, and more than $5.2 million in forfeiture. After completing imprisonment, home confinement, and supervised release, he challenged the continuing effect of 18 U.S.C. § 922(g)(1), which generally bars a person convicted of a crime punishable by more than one year in prison from possessing, receiving, or acquiring a firearm.

When Congress enacted the firearm restriction, 18 U.S.C. § 925(c) provided a process through which a person could apply to have the restriction lifted. The opinion states that Congress stopped funding the federal review process in 1992. As a result, applications would be returned without being granted or denied, making the process ineffective.

Second Amendment claim

Zherka argued that applying § 922(g)(1) to him violated the Second Amendment because his conviction involved a non-violent financial felony. The court applied the Second Circuit’s two-step framework: first, whether the challenged law burdens conduct protected by the Second Amendment; and second, if it does, what level of constitutional review applies and whether the law survives that review.

The court held that Zherka’s claim failed at the first step. Relying on Supreme Court and appellate decisions, including the principle that firearm prohibitions for felons are presumptively lawful, the court concluded that Zherka had not plausibly alleged that he belonged to the category of “law-abiding, responsible citizens” protected by the Second Amendment. The court reasoned that a person’s lack of dangerousness did not change the result because Zherka’s felony conviction removed him from that category for Second Amendment purposes. The court did not decide the second step of the analysis.

Fifth Amendment claim

Zherka also argued that the inability to obtain a hearing under § 925(c) violated procedural due process. He appeared to seek a hearing to determine whether he was currently dangerous and whether his firearm rights should be restored.

The court rejected that claim based on the Supreme Court’s decision in Connecticut Department of Public Safety v. Doe. The court reasoned that § 922(g)(1) makes the firearm restriction turn on the fact of a prior felony conviction, not on a person’s current dangerousness. Therefore, a hearing about current dangerousness would not affect whether the statute applies, and due process did not require such a hearing. The court dismissed this due process claim.

Disposition

The court granted the defendant’s motion to dismiss in its entirety. It directed the Clerk of Court to terminate the pending motion and close the case.