UNITED STATES v. PEREZ (2025)

MEMORANDUM ORDER

Before the Court is a Motion for Reconsideration (ECF No. 163) of the Motion to Dismiss at ECF No. 110 filed by Defendant Angel Perez (“Defendant” or “Defendant Angel Perez”). Defendant is charged in a two-count Indictment (ECF No. 28) with violating federal firearms laws. On July 31, 2023, Defendant filed the Motion to Dismiss, arguing, inter alia, that 18 U.S.C. § 922(g)(1), the statute under which he is charged, is unconstitutional under the Second Amendment to the United States Constitution as applied to him. On September 19, 2023, the Court held oral arguments on the Motion. ECF No. 123. And on October 29, 2023, the Court issued a Memorandum Order denying the Motion. ECF No. 126.

In the intervening time, the United States Supreme Court ruled on United States v. Rahimi, 602 U.S. 680, 144 S.Ct. 1889, 219 L.Ed.2d 351 (2024) and the Third Circuit Court of Appeals ruled on Range v. Att'y Gen. U.S., 124 F.4th 218 (3d Cir. 2024) and Pitsilides v. Barr, 128 F.4th 203 (3d Cir. 2025), all of which further illuminate issues relevant to the constitutionality of § 922(g)(1). With the new light shed upon the Second Amendment, Defendant moves the Court to dismiss the charge in the Indictment as unconstitutional as applied to him. On September 4, 2025, the Court held an evidentiary hearing on the limited question of Defendant's dangerousness (the “Evidentiary Hearing”). With new judicial guidance respecting the law under which this Court decided the initial Motion to Dismiss, the updated briefing submitted by the parties (ECF Nos. 163, 167, 169), and the benefit of oral arguments, evidence, and testimony presented at the Evidentiary Hearing, for the reasons that follow, the Court concludes that, on this record, § 922(g)(1) is unconstitutional as applied to Defendant Angel Perez and will grant the Motion for Reconsideration and dismiss the Indictment.

I. INTRODUCTION

A. The Indictment

On October 13, 2021, a grand jury returned a two-count Indictment against Defendant and his son, Troy Perez. Count One charges Defendant Angel Perez with the unlawful possession of two firearms and various ammunition. It alleges that, nearly 35 years earlier, on November 24, 1987, Defendant was convicted of two separate charges of manufacture, delivery, or possession with intent to manufacture or deliver a controlled substance, each punishable by greater than one year in prison. ECF No. 28 at 1. Count One further charges that, knowing he had these prior convictions, Defendant knowingly possessed “a Walther P22 .22lr caliber pistol with no serial number; a Beretta APX 9mm pistol bearing serial number A034293X; Hornady 9mm ammunition; FMJ Red Army 9mm ammunition; and CCI .22lr ammunition.” Id.

Defendant is accused of violating 18 U.S.C. § 922(g)(1). That statute provides:

(g) It shall be unlawful for any person—

(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year ․ 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 which has been shipped or transported in interstate or foreign commerce.

18 U.S.C. § 922(g)(1).

B. The Factual Record

The government asserts that it is prepared to prove the following facts in support of Count One:

In the early morning hours of September 15, 2021, law enforcement officers executed a search warrant on Room 222 of the Holiday Inn Express in Monroeville, PA. The defendant and his co-defendant (Troy Perez) were the only two occupants of the room. Troy Perez was on one of two beds in the room and on that same bed was a black satchel which was unzipped and contained two semi-automatic pistols in plain view, a Walther P22 and a Beretta APX. Both firearms were accessible to Troy and Angel Perez, and both were loaded. One of them, the Walther P22, had an obliterated serial number: each digit of the serial number had been ground down and rendered unreadable. The black satchel in which the firearms were found had been in the trunk of the defendant's vehicle—a vehicle in which the defendant had been the only occupant—when he arrived at the Holiday Inn on the evening of September 14, 2021. At some point later that night, Angel Perez was observed opening the trunk of his vehicle so that Troy Perez could retrieve the satchel and attempt to surreptitiously carry it into the Holiday Inn.

Gov't’s Resp. to Def.’s Mot. to Dismiss Indictment at 1–2 (ECF No. 113).

At the Evidentiary Hearing, Detective Jeffrey Smaracheck, a former Task Force Officer with the Federal Drug Enforcement Administration (“DEA”), testified respecting the affidavit he swore to underlying the search warrant for Room 222, consistent with the following. The events of September 14, 2021, from the perspective of law enforcement, began with a traffic stop on I-76 in Everett, PA. ECF No. 178 at 46. The vehicle was being driven by a Daniel Cortez, but was later discovered to be registered to a deceased woman from Philadelphia, who was the subject of a Pennsylvania State Police (“PSP”) investigation respecting vehicles that may have been involved in drug trafficking. Id. at 46–47. Based on that investigation, the PSP and the DEA began surveilling the vehicle. Id.

That same day, while the vehicle was stopped in East Pittsburgh Borough, the surveillance team observed two women enter the vehicle. Id. Detective Smaracheck described the women as “disheveled” and “with the appearance of intravenous drug users.” Id. After some time inside the vehicle, the women left. As surveillance continued, the vehicle drove through East Pittsburgh, Turtle Creek, Monroeville, and Oakland. Id. at 48. The witness described this behavior as “maneuvers consistent with someone who is surveillance conscious.” Id. at 48. Ultimately, the car stopped at a Holiday Inn in Monroeville. Id. at 49.

Three men got out of the vehicle. The driver, Daniel Cortez, retrieved a gym bag from the car, which Detective Smaracheck described as “weighted,” and went into the hotel. Id. The other two men, Defendant's sons Troy Perez and Jeremy Perez, also entered the hotel. Shortly thereafter, Defendant Angel Perez arrived at the Holiday Inn in a ride share vehicle. Id. After a short stay at the hotel, Defendant Angel Perez left in another ride share vehicle and returned back some time later, this time driving a Chevrolet Malibu rental. Id. at 50. When Defendant AngelPerez exited the vehicle, he retrieved a Target bag from the trunk, which was also described to the Court as “weighted.” Id. After this, all four men left the hotel for dinner. Id. When they returned, Troy Perez retrieved a “block-like item” from the trunk of the Malibu. Id. at 51. Once Troy started heading toward the hotel with the item, Defendant Angel Perez went to the trunk and smoothed out the carpet liner before closing the trunk. Id.

Once all four men were back in the hotel, the surveilling law enforcement team employed a drug sniffing K-9 on the Chevrolet Malibu that Defendant had operated. Id. at 52. Based on the K-9's alert near the trunk of the vehicle, search warrants were obtained for the car stopped on I-76 operated by Daniel Cortez, the Chevrolet Malibu operated by Defendant Angel Perez, and two hotel rooms that the subjects were occupying at the Holiday Inn. Id.

In the early morning hours of September 15, 2021, when the search team entered Room 222, where Angel Perez and his son Troy Perez were staying, officers found a rectangular zipper bag (not the “weighted” bags officers had observed being removed from the vehicles) containing a Beretta pistol and a Walther .22 caliber pistol. Id. at 53. No contraband was found inside the Chevrolet Malibu to which the K-9 alerted, and no drugs of any kind were found during the course of the investigation. Id. at 70. After arresting both men, law enforcement learned, during an interview with Defendant Angel Perez, that he had traveled from Philadelphia to Pittsburgh to visit his son, Angel Perez, Jr., who had been shot several days prior to Defendant Angel Perez Sr.’s arrest. Id. at 56. Detective Smaracheck testified that law enforcement found no evidence that Defendant Angel Perez had any intention to retaliate against his son's assailant. Id. at 64.

C. Second Amendment Caselaw

The Second Amendment to the United States Constitution provides that “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. CONST. amend. II. Despite the Second Amendment's arguably ambiguous phrasing, in 2008, the United States Supreme Court ruled that the Constitution enshrined and codified protection of a preexisting individual right to possess a firearm, not merely as part of maintaining a militia, but also for other personal activities, such as self-defense and hunting. District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008).

While the individual right to possess a firearm is not unlimited, appreciation of it must begin “with a recognition that the Founders were practical, prudent, and well-read. They fled from and rebelled against a nation that took away the right to keep and bear arms and that used its military to occupy several American cities. The Founders wished to enshrine that right in the core organic document of this Nation – our Constitution.” Range, 124 F.4th at 246–47 (Phipps, J., concurring).

While, as a practical matter, citizens convicted of a crime may lose certain constitutional rights as a condition of their confinement or supervision, as a core constitutional principle, the Government is never justified in imposing a “lifetime disarmament of an otherwise free citizen.” Id. at 249. “Once a citizen repays his debt to society, a legislative restriction on the right to keep and bear arms based on nothing more than a prior conviction is without relevant historical antecedent. And legislation permanently disarming a person who has already repaid his debt to society is even further removed from our Founding-era heritage. Thus, any law imposing a permanent restriction on ‘the right of the people to keep and bear Arms’ is constitutionally suspect as a facial matter.”¹ Id. at 249–50.

After Heller and before Bruen, courts would assess cases involving such laws using a two-step test that “combine[d] history with means-end scrutiny.” See, e.g., United States v. Marzzarella, 614 F.3d 85, 89 (3d Cir. 2010) (“First, we ask whether the challenged law imposes a burden on conduct falling within the scope of the Second Amendment's guarantee. If it does not, our inquiry is complete. If it does, we evaluate the law under some form of means-end scrutiny. If the law passes muster under that standard, it is constitutional. If it fails, it is invalid.”).

In New York State Rifle & Pistol Ass'n, Inc. v. Bruen, the Supreme Court rejected the second step of that test, eschewing means-end scrutiny in favor of a test based on the Nation's history and tradition of regulating arms. 597 U.S. 1, 142 S.Ct. 2111, 213 L.Ed.2d 387 (2022). “Only if a firearm regulation is consistent with this Nation's historical tradition may a court conclude that the individual's conduct falls outside the Second Amendment's ‘unqualified command.’ ” Id. at 17, 142 S.Ct. 2111 (quoting Konigsberg v. State Bar of Cal., 366 U.S. 36, 50 n.10, 81 S.Ct. 997, 6 L.Ed.2d 105 (1961)). Thus, following Bruen, in cases challenging firearm restrictions, courts determine first whether the law burdens a Second Amendment protection, such as the ability to own a firearm for self-defense or hunting. If it does not, the inquiry ends, as the law is constitutional. If it does, the court must then determine whether such a burden on an otherwise protected right is longstanding, thereby falling under the Nation's history and tradition of arms regulation. If it is not, then the burden is unconstitutional.

Following Bruen, in a 2023 case captioned Range v. Attorney General of the United States, the Third Circuit Court held that § 922(g)(1) was unconstitutional as applied to one Bryan David Range. 69 F.4th 96 (3d Cir. 2023) (“Range I”). In 1995, Mr. Range had pled guilty to “one count of making a false statement to obtain food stamps in violation of Pennsylvania law.” Id. at 98. Over two decades later, after learning that he was barred from possessing a firearm under § 922(g)(1), Mr. Range sought a declaratory judgment that the statute was unconstitutional as applied to him. Id. at 99.

Using the Bruen framework, the Third Circuit Court found that Mr. Range was a member of “the people” for purposes of the Second Amendment, notwithstanding his prior criminal conviction. Range, 69 F.4th at 102. The court then determined further that because Mr. Range sought to purchase a rifle for deer hunting and a shotgun for self-defense, § 922(g)(1) regulated his protected conduct. Id. Having found that the law fell within the scope of the Second Amendment's guarantee, the Range court moved to the second step of the Second Amendment analysis, finding that § 922(g)(1) itself fell short of the “longstanding” standard needed to satisfy Bruen’s history and tradition test. Id. at 104. Despite his prior conviction of a crime punishable by imprisonment for a term exceeding one year, Mr. Range, the Third Circuit Court found, had a constitutional right to own a firearm.

It was this then-controlling precedent that this Court attempted to adhere to in denying Defendant's Motion to Dismiss the Indictment by Order dated October 29, 2023. ECF No. 126. This Court followed the Bruen court's model, first finding that Defendant was a “person” under the meaning of the Second Amendment, and then that the firearms he was charged with possessing were protected by the Second Amendment. However, the Court ultimately concluded that applying § 922(g)(1) to Defendant is consistent with the Nation's history and tradition of firearms regulation. Id.

In the meantime, the Government petitioned the Supreme Court for writ of certiorari in Range I. While that petition was pending, the Supreme Court decided another Second Amendment § 922(g) case, United States v. Rahimi, 602 U.S. 680, 144 S.Ct. 1889, 219 L.Ed.2d 351 (2024). In Rahimi, the respondent's girlfriend had secured a restraining order against him, which included a finding that he “represents a credible threat to the physical safety of an intimate partner.” Rahimi, 602 U.S. at 684, 144 S.Ct. 1889 (quoting 18 U.S.C. § 922(g)(8)) (cleaned up). Under § 922(g)(8), as a result of the restraining order and the particular finding of a threat to physical safety, Mr. Rahimi was prohibited from owning a gun. Mr. Rahimi argued that this restriction was unconstitutional under the Second Amendment. The Supreme Court disagreed, finding that “[s]ince the founding, our Nation's firearm laws have included provisions preventing individuals who threaten physical harm to others from misusing firearms.” Id. at 690, 144 S.Ct. 1889 (emphasis added). With its ruling against Mr. Rahimi, the Supreme Court advised that the question of whether limitations on Second Amendment protections are longstanding hinges on a finding of dangerousness. In Rahimi, such a finding was straightforward, as the statute under which Rahimi lost his Second Amendment protections explicitly required a finding of dangerousness to be applied to the respondent.

After Rahimi, the Supreme Court vacated and remanded Range to the Third Circuit Court for further consideration. In the second Range opinion, Range v. Attorney General of the United States, the Third Circuit Court reassessed Mr. Range's case in light of the Supreme Court's updated guidance. 124 F.4th 218 (3d Cir. 2024) (“Range II”). The Range II court again determined that Mr. Range ought to be counted among “the people” protected under the Second Amendment. Next, the court found that § 922(g)(1) did regulate Second Amendment-protected conduct. At this point in the analysis, the Third Circuit Court instructs courts to “refuse to defer blindly” to § 922(g)(1)’s firearm bans for those convicted of a crime. While Rahimi upheld § 922(g)(8), a law that explicitly includes that there must have been a finding of physical danger to another, § 922(g)(1) requires no such finding. Instead, Congress simply stripped a class of people of Second Amendment protections whether or not it can be shown that each individual within said class poses a physical danger to others. Thus, the Range II court analyzed the facts to determine whether the Government had carried its burden of showing that Mr. Range posed a special danger of misusing firearms. The court ruled that it had not. Id.

In Pitsilides v. Barr, the Third Circuit Court offered additional guidance on the topic. “[D]isarmament is justified as long as a felon continues to ‘present a special danger of misus[ing firearms],’ in other words, when he would likely ‘pose[ ] a physical danger to others’ if armed.” Pitsilides, 128 F.4th at 210 (quoting Rahimi, 602 U.S. at 698, 144 S.Ct. 1889; Range, 124 F. 4th at 232) (internal citations removed). “As an original matter, the Second Amendment's touchstone is dangerousness.” Id. (quoting Folajtar v. Att'y Gen., 980 F.3d 897, 924 (3d Cir. 2020) (Bibas, J., dissenting)). What ultimately emerges from the caselaw is that § 922(g)(1) is only constitutionally applied to people who continue to pose a present danger. Thus, the question before this Court today is whether the record shows that Defendant Angel Perez continues to pose a special present danger if armed.

II. LEGAL STANDARDS

“A court has the power to revisit prior decisions of its own or of a coordinate court in any circumstance, although as a rule courts should be loathe to do so in the absence of extraordinary circumstances such as where the initial decision was clearly erroneous and would make a manifest injustice.” In re Pharmacy Benefit Managers Antitrust Litig., 582 F.3d 432, 439 (3d Cir. 2009) (quoting Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 816, 108 S.Ct. 2166, 100 L.Ed.2d 811 (1988)). The Court may grant a motion for reconsideration if the moving party shows: (1) an intervening change in the controlling law; (2) the availability of new evidence which was not available when the court issued its order; or (3) the need to correct a clear error of law or fact or to prevent a manifest injustice. United States v. Banks, No. CR 03-245, 2008 WL 5429620, at *1 (W.D. Pa. Dec. 31, 2008) (citing Max's Seafood Café by Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999)).

Federal Rule of Criminal Procedure 12(b)(3)(B) provides for the filing of pretrial motions asserting “a defect in the indictment.” Fed. R. Crim. Pro. 12. “An indictment is defective if it alleges [a] violation of an unconstitutional statute.” United States v. Ho Ka Yung, Crim. No. 17-14-LPS, 2018 WL 619585, at *1 (D. Del. Jan. 30, 2018) (quoting United States v. Dean, 670 F. Supp. 2d 457, 458 (E.D. Va. 2009)). “An as-applied attack ․ does not contend that a law is unconstitutional as written but that its application to a particular person under particular circumstances deprived that person of a constitutional right.” United States v. Marcavage, 609 F.3d 264, 273 (3d Cir. 2010). Thus, to prevail on an as-applied challenge, a petitioner must show that the indictment alleges a violation of a statute that is unconstitutional as applied to him.

III. DISCUSSION

Arguing that the law has changed since the Court's original ruling on the Motion to Dismiss the Indictment, Defendant renews his as-applied constitutional challenges to § 922(g)(1). The Government argues that Defendant does pose a special danger, both because of his previous convictions and because of the circumstances of the present charges, which the Government implies demonstrate that Defendant Angel Perez was engaged in illicit conduct and possessed a firearm for the purpose of seeking retribution against the assailant who shot his son, Angel Perez, Jr.

As noted above, Bruen and Range I set out the relevant framework for assessing as-applied challenges under the Second Amendment. First, the Court must determine whether the text of the Second Amendment applies to the challenged conduct. Second, the Court must determine whether the government has met its burden to show that § 922(g)(1) is consistent with this Nation's history and tradition of firearms regulation on those who pose a danger. Under Rahimi and Range II, this requires that the Court determine dangerousness.

The Court's analysis in its Memorandum Order at ECF No. 126 as to whether the Second Amendment applies to the challenged conduct and whether § 922(g)(1) is consistent with the Nation's history and tradition of firearms regulation remains unchanged, and the Court incorporates those findings by reference here. However, with new guidance as to the second step of this analysis, the Court must now turn to the question of Defendant's particular dangerousness under Rahimi and Range II.

In support of his assertion that the Court is obliged to undertake a highly individualized analysis of dangerousness, Defendant cites to United States v. Williams, where the Sixth Circuit Court stressed, as the Third Circuit did in Range II, its concerns about allowing dangerousness to be determined at the legislative level. 113 F.4th 637 (6th Cir. 2024). “The very premise of constitutional rights is that they don't spring into being at the legislature's grace. When a disarmament statute doesn't provide an administrative scheme for individualized exceptions, as-applied challenges provide a mechanism for courts to make individualized dangerousness determinations.” Williams, 113 F.4th at 661.

This does not quite mean that courts should be burdened with case-by-case analyses for all parties advancing as-applied challenges to restrictions on their Second Amendment protections. After all, to take one example, petitioners charged pursuant to § 922(g)(8), which requires an ongoing court order that includes a finding of dangerousness, cannot make the same claims about dangerousness as are advanced here. As the Supreme Court showed in Rahimi, the statute that restricts a citizen's gun rights may itself indicate to a court that the individual in question poses a danger to others, and so no further analysis respecting dangerousness is necessary. Rahimi, 602 U.S. 680, 144 S.Ct. 1889 (denying an as-applied challenge to § 922(g)(8) where the statute has an inherent finding of dangerousness).

Notably, as the Sixth Circuit Court advised in Williams, drug trafficking, while not posing an immediate or direct threat of violence, nevertheless puts people and the community at risk and therefore can justify a finding of dangerousness. Williams, 113 F.4th at 661. Binding on this Court, the Third Circuit Court similarly found in Pitsilides that, although “residential burglary and drug dealing are not necessarily violent, they are dangerous because they often lead to violence.” Pitsilides, 128 F.4th at 213 (quoting Folajtar, 980 F.3d at 922 (Bibas, J., dissenting)) (cleaned up). In that case, because the appellant's crime, illegal gambling, did not fall as neatly into a dangerous category, the court did an additional analysis on dangerousness. However, in United States v. Mollett, a case in this District involving § 922(g)(1) arising from a drug offense, the court found the statute constitutional as applied to a defendant who had previously been convicted of a drug trafficking crime. United States v. Mollett, No. 3:21-CR-16-21, 2025 WL 564885 (W.D. Pa. Feb. 20, 2025) (citing to Williams, 113 F.4th at 663 and Pitsilides, 128 F.4th at 210–13); see also United States v. Birry, No. 3:23-CR-288, 2024 WL 3540989, at *7–8 n.5 (M.D. Pa. July 25, 2024) (denying an as-applied challenge to § 922(g)(1) for a defendant with prior convictions for possession with intent to distribute drugs).

However, the Mollett ruling, a revealing post-Pitsilides analogue case, involved a less than two-year-old drug conviction. As Judge Horan put it, the defendant “was adjudged guilty of the[ drug] offenses in September 2019, less than two years before he allegedly possessed the firearms enumerated in the Superseding Indictment.” Mollett, 2025 WL 564885, at *7. In United States v. Handlovic, No. 3:24-CR-207, 2025 WL 1085172 (M.D. Pa. Apr. 10, 2025), Judge Mariani denied an as-applied challenge to § 922(g)(1) for a drug offense, but in that case, the defendant also had an escape conviction on his record, a patently more apparent indicator of dangerousness. Judge Wolson in the Eastern District of Pennsylvania has ruled on two similar post-Pitsilides cases, United States v. Roach, No. 2:24-CR-00077-JDW, 2025 WL 871618 (E.D. Pa. Mar. 20, 2025) and United States v. Cooper, No. 2:24-CR-00410-JDW, 2025 WL 611044 (E.D. Pa. Feb. 25, 2025), both of which involve defendants who, in addition to their predicate drug convictions, had been convicted of violent crimes, including assault and reckless endangerment.

While the Court recognizes that perfect analogues are not required to illuminate the law, the themes in the above-cited cases are easily differentiated from the instant matter. Defendant has drug convictions from when he was twenty-one years old, nearly thirty-five years before his § 922(g)(1) charge. As far as the Court could discern from the four corners of the Indictment and the Government's supplements, Defendant had not had a conviction since 1987, was under no court order at the time of the conduct alleged in the present Indictment, and did not appear to continue to pose a special danger in any meaningful respect. See Pitsilides, 128 F.4th at 210. With this in mind, the Court held the Evidentiary Hearing to assist in making a “fact-specific” determination based “on the unique circumstances of th[is] individual [D]efendant.” Williams, 113 F.4th at 660.

By this Court's understanding of the available binding appellate authority respecting Second Amendment protections, once Defendant served his sentence and any subsequent court-imposed penalties, a statute purporting to strip his Second Amendment protections “is constitutionally suspect as a facial matter.” Range, 124 F.4th at 250. At this point, the Court may no longer defer to § 922(g)(1) and must engage in an individualized factual assessment of Defendant's dangerousness to determine whether his continued disarmament is constitutional. Congress may have passed a law that claims to permanently strip Defendant of this right, but where its application extends beyond incarceration or subsequent court supervision, its indefinite application raises serious constitutional difficulties.

Respecting the government's argument that the recent assault on Defendant's son, meaningfully contributes to this Court's § 922(g)(1) analysis regarding Defendant Angel Perez's dangerousness, this Court concludes that Defendant's past convictions do not place him in some existential limbo, wherein his Second Amendment rights are suspect, or so uncertain that they may or may not exist depending on recent personal events that the government believes might provoke Defendant to violence. Defendant, who for thirty-five years after his predicate offenses posed no special danger, could not again lose his Second Amendment protections merely because his son was harmed, even if it might be fairly contended that such an event, whether only theoretically, or even predictably, might provoke a father to seek retribution through violence. Further, under such an argument, Defendant would not pose a “special danger,” in Rahimi parlance, but rather an ordinary danger of doing something the Government seems to believe any father would, or at least might more likely, do.

The Court is also not convinced that Defendant could have lost his Second Amendment protections because of the events alleged in his present Indictment and further illuminated during the Evidentiary Hearing. Allowing the Government to rely on the allegations in this Indictment to establish that Defendant is dangerous and can therefore be charged with the offense in the Indictment is simply question begging. Just because a jury may determine that Defendant did what he is accused of does not, at present, provide a good reason to believe that he is dangerous for the purpose of allowing this Indictment against him to move forward. It stretches all logical impulses to find that if the fact finder ultimately determines that Defendant did what he is charged with in the Indictment, then the danger this poses retroactively justifies bringing the charges against him in the first place. No, in order for the Indictment to move forward, Defendant must have already lacked the constitutional right to possess a firearm at the moment that he allegedly committed the offense. Therefore, the Court must determine whether Defendant Angel Perez's history demonstrates that he poses a special danger, without consideration of the likelihood of his conviction on the present charges.² Instead, the Court will dispose of the present Motion relying upon the only relevant evidence respecting Defendant's dangerousness available in this record, namely Defendant's overall criminal record, and more specifically, the nature and date of the predicate offenses and the lack of any subsequent convictions over several decades.

As noted, the predicate offenses were drug possession convictions from 1987, when Defendant was twenty-one years old. The Government attached to its briefing on the present Motion a Bond Report prepared by the United States Probation Office's Pretrial Services, describing Defendant's convictions for Possession from 1987, and two subsequent items on his criminal history, an alleged aggravated assault and related offenses from 1988, which was dismissed and an alleged reckless endangerment and related offenses from 2000, which was later withdrawn. ECF No. 168. Defendant was not convicted of either of these subsequent charges, and no evidence was offered at the Evidentiary Hearing respecting the specific details and circumstances of the charged offenses, or the specific conduct, culpability, or degree of involvement of Defendant in the charged offenses. Id. Whatever the circumstances of his predicate offenses, Defendant's last four decades of conduct have led to no relevant criminal history to support a finding of dangerousness. If ever there was a convicted felon who demonstrated genuine rehabilitation and a lack of continued present danger, then Defendant Angel Perez, at least on the record before this Court, strikes the Court as being a candidate for such an example. In this Court's view, not only has the government failed to demonstrate by a preponderance of the evidence that Defendant Angel Perez poses a special danger of misusing a firearm, but on this record, this Court finds that Defendant Angel Perez has demonstrated by a preponderance of the evidence that he does not pose a special danger of misusing a firearm.³ Now in his late fifties, Defendant has nothing on his record for twenty-five years and has not had a conviction in nearly forty years. To establish dangerousness based on any of these dated entries would already strain the Court's comfort levels as to its constitutionality. To use the predicate offenses as a foundation for a finding that Defendant lacks constitutional protections and therefore faces a potential ten-year prison sentence demonstrates the very reason why a statute that purports to strip a class of persons of their constitutional protections requires a process for earnest judicial review of the individualized application of such a rule.

IV. CONCLUSION

It is hereby ORDERED that the Motion for Reconsideration is granted, and the Indictment against Angel Perez is dismissed with prejudice.

FOOTNOTES

1.   While not strictly bound by these expressions of constitutional principles in Judge Phipps's concurring opinion, this Court agrees with this learned assessment of the profound implications of what is at stake any time a court reckons with a law that strips a citizen of his constitutional protections.

2.   Even if the Court were to indulge the government's invitation to undertake something of a mini-trial on the conduct surrounding the present indictment, by simply taking a commonsense view of the circumstances surrounding the Indictment, such as evidence that Defendant was found in possession of a firearm, and near another firearm with an obliterated serial number, while caught up in apparent illicit activity in order to justify a finding of dangerousness, the Court finds that here the Government has not presented sufficient evidence to meet its burden. In fact, the Government has not presented persuasive evidence that Defendant was involved in anything illegitimate or even that the Government has a good reason to believe that he possessed a firearm. As noted above, Defendant appears to have been in Pittsburgh for the unfortunate, but, at least in this Court's view, not at all suspicious (as it pertains to Defendant) reason that his son was receiving medical treatment in Pittsburgh for a gunshot wound. Law enforcement observations of Defendant began with his arrival at a hotel where his sons were staying for the night and where they (and not Defendant) were being surveilled on suspicion of drug-related crimes. After the men had dinner together, officers observed Troy Perez remove a block-like item from the trunk of his father's rental car, after which Defendant adjusted the trunk lining. Officers then saw Defendant bringing a “weighted” Target bag into the hotel room that his son had been occupying earlier that day. A Target receipt later retrieved at the hotel room indicated that Defendant had purchased toiletries at Target. ECF No. 178 at 66. Officers entered the hotel room where Angel and his son were staying to find two firearms in a bag (not one of the “weighted bags” retrieved from Defendant's rental vehicle or the surveilled car driven by Cortez) on one of the beds. Investigators linked one of the firearms to Troy Perez through images and text messages. Investigators suspect, with no other discernible evidence, that the block-like item that Troy Perez retrieved from Defendant's rental car trunk contained the two firearms. Id. at 72. In short, even if the Court accepted that the scope of evidence appropriate to determine dangerousness was broad enough to include the details contained in the affidavit and the testimony of the Government's witness respecting the events surrounding the Indictment, that record evidence does not support a finding that Defendant is dangerous. In fact, on the present record, the Court is not convinced that the Government can establish by a preponderance of the evidence, let alone beyond a reasonable doubt, that Defendant possessed a firearm at all. Ultimately, the Court need not reach conclusions about what the fact finder may or may not conclude at trial.

3.   While Defendant advances no legal argument in favor of burdening the Government to prove his dangerousness, he nevertheless asserts that the Government should bear this burden. See, e.g., ECF No. 173 at 2–3 (“[T]he Government must show that § 922(g)(1), as applied to him, is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms․ The Government bears the burden to bring forth evidence to strip an individual of their Second Amendment right.”). The Government, on the other hand, asserts that “it is rather [Defendant] who bears the ‘burden to show that his individualized circumstances do not make him a danger to the community.’ ” ECF No. 174 at 3 (quoting United States v. Trusty, 2025 WL 830124, *5 (D.N.J. March 17, 2025)). This Court need not resolve this dispute, as the Court would reach its ultimate conclusion on this Motion regardless of where the burden of proof lies. However, in this Court's view, once a defendant has served his sentence and is no longer under legal supervision or subject to a court order, the Government carries the burden associated with removing that defendant's constitutional protections. Consideration of multiple factors will likely come into play: the nature of the predicate offense, the age of the defendant at the time of the predicate offense, the passage of time since the predicate offense, subsequent related or unrelated convictions, specific uncharged incidents of violence, if provable, and perhaps a myriad of other relevant considerations, all of which, upon consideration by the court would constitute the elements of a balancing test to determine whether continued disarmament is constitutional as to a specific defendant because he “continues to ‘present a special danger of misus[ing firearms],’ or in other words, when he would ‘likely pose[ ] a physical danger to others if armed.’ ” Pitsilides, 128 F.4th at 210 (quoting Rahimi, 602 U.S. at 698, 144 S.Ct. 1889; Range, 124 F. 4th at 232) (internal citations removed). Soon after the predicate offenses, satisfying the Government's burden may be relatively easy. See, e.g., Mollett, 2025 WL 564885 (finding that a two-year-old drug conviction as a predicate offense alone was enough to establish dangerousness for § 922(g)(1) purposes). As time passes without any convictions, perhaps the Government would need to show more than the nature of the predicate offense alone to demonstrate that the defendant remains dangerous. See, e.g., Trusty, 2025 WL 830124 (finding that a thirteen-year-old drug conviction, along with what appeared to that court as a relevantly similar drug charge on the pending indictment, established dangerousness to allow a § 922(g)(1) indictment to move forward). But where, as here, more than three decades pass without proven incident, the evidence necessary to meet the burden on the Government likely needs to be substantial.

Robert J. Colville, United States District Judge