B.L.U.F. Another case where a Judge used Bruen to come to the correct decision. This This one is §922(g)3 and §922(d)2. This is a criminal case in front of a US Federal Judge for the Western District of Texas. It highlights how case law works.


On December 28, 2021 the El Paso Police Department responded to a 911 call. Transcripts are not available nor needed. When the police arrived they heard several gunshots and observed Paola’s husband with a shotgun at the neighbors house. The police then arrested Paola’s husband.

From this they managed to get permission to conduct[ed] a protective sweep of Connelly’s house &mcite; Order on Motion for Reconsideration P. 1. The cops found evidence of firearms and marijuana. From this they called in the ATF.

The ATF searched the house and found 1.2 grams of marijuana, 0.21 grams of marijuana extract, 27.74 grams of “THC Edible” and 37.74 grams of suspected psilocybinId. as well as multiple firearms and ammunition.

I have no idea if that is “a lot” or almost nothing. According to my sources this is a little low for medical use. In Texas up to two oz. is a class B misdemeanor with a maximum punishment of 180 days in jail and a $2000 fine. Paola is facing two felony counts with upto 12 years on each count.

Paola through her husband under the bus, accusing him of smoking crack. She was then asked about her own drug use and told the cops …she uses marijuana on a regular basis “to sleep at night and to help her with anxiety.”Id. at 2.

If this was the locals then it would have likely meant nothing more than the loss of her pot. Because the feds were involved, it now became a felony charge:

Based on these facts, Connelly was indicted with one count of possession of a firearm by an unlawful user of a controlled substance, in violation of 18 U.S.C. § 922(g)(3). Superseding Indictment 1–2. Connelly was also indicted with one count of transferring a firearm and ammunition to her husband, an unlawful user of a controlled substance, in violation of 18 U.S.C. § 922(d)(3). Id. at 2–3.
Id. at 2

The second count, transfer or sale to a prohibited person is charged because the lived together. Since he had access and could have gotten the firearms the state argues that she had transferred the firearms to her husband. It is unclear who owned the shotgun he used.

October 18, 2022 Paola filed to have the charges dismissed. Her argument was that post Bruen §922(g)(3) and §922(d)(3) were unconstitutional under the second amendment because the denied her rights to keep and bear arms while the state was unable to find an similar regulation from the founding era. She also argued that the law was unconstitutional under the fifth amendment because it was vague. What does addicted mean? What does “user” mean?

She points out that under the dictionary definition, user could mean anybody that ever took a toke.

Her motion to have her indictment dismissed was denied on December 21, 2022.

The Second Try

The judge’s ruling in December was based on case law. The case law in question was established by the Fifth Circuit Court, prior to Bruen. The Fifth Circuit affirmed that this was good case law on June 8th of 2022 United States v. Rahimi (5th Cir. 2021) ECF No. 68.

The original decision by the Fifth Circuit was based on its previous order.

In its previous Order, the Court held that United States v. Patterson, 431 F.3d 832 (5th Cir. 2005), and United States v. May, 538 F. App’x 465 (5th Cir. 2013), foreclosed Connelly’s Motion to Dismiss her indictment on Second Amendment grounds. Order 6–7. Now, Connelly argues that Rahimi has rendered these precedents obsolete, enabling this Court to evaluate her Second Amendment argument under the standard set forth by New York State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111 (2022). Mot. Recons. 1–2.
Order on Motion for Reconsideration at 5

A bit later the Fifth Circuit court reached out and said “We want to look at this case again.” and on March 2, 2023 they vacated the conviction.

At this point, the original Fifth Circuit court opinion was no longer good case law. Because of this Connelly moved to have the district court reconsider its order denying the motion for dismissal.

The district court analyzed the Rahimi opinion from the 5th Cir. and came to the conclusion that the opinion was not tightly bound to just TROs. Though it did not mention May or Patterson specifically, the Court finds that Rahimi recognized the abrogation of those precedents as well.Id. at 6. This meant that the district court could look at this case in light of the Bruen decision, and it did.

The Beautiful Two Step Shuffle of Bruen

The court used the first step, was Connelly’s Second Amendment rights infringed upon? The Court had a resounding “yes” to that.

This means that the second step was now required, the state must prove a history and tradition of regulations that match the regulation being challenged, §922(g)(3) and §922(d)(3).

The question the court put to the state was: Provide relevantly similar regulations from the 18th century.

The State Claims She’s Not Part of The People

The state uses two arguments the first being historical regulations but the place they want the court to start is to rule that Paola isn’t a part of “The People” because she an “unvirtouse” individual.

The Court questions the applicability of these broader traditions to Connelly specifically, and drug users generally. First, it is unclear whether legal authorities at the founding era would consider Connelly’s homebound drug use “unvirtuous.” Colonial-era jurist William Blackstone, for example, drew a distinction between “public and private vices,” with the former amenable to the “punishments of human tribunals,” and the latter subject only to “eternal justice.” 4 William Blackstone, Commentaries on the Laws of England 42 (1769). Notably, Blackstone opined that “the vice of drunkenness, if committed privately and alone, is beyond the knowledge and of course beyond the reach of human tribunals: but if committed publicly, in the face of the world, [its] evil example makes it liable to temporal censures.” Id. at 41–42. Connelly’s alleged drug use more resembles private drinking than public drunkenness, casting doubt on the idea that history supports criminalizing or disarming her for this behavior. And more generally, nothing in § 922(g)(3) limits its applicability to public dangers or active intoxication, putting it out of step with colonial-era attitudes. Cf. Rahimi, 61 F.4th at 457 (distinguishing historical laws aimed generally at the “preservation of political and social order” from modern laws aimed at addressing specific issues).
Id. at 19

Here the court finds that while there were regulations regarding the carrying of weapons while intoxicated, that only applied to public intoxication. Paola’s use of pot was done in her home and according to William Blackstone private intoxication is only subject to “eternal justice” not “punishments of human tribunals”. A little bit of wiggle in there but not bad.

One of the things I’ve noticed is that many of the district court opinions are not as wide in scope as we could hope for. In my opinion a stronger statement would have been for the judge to say that carrying while intoxicated is different and not relevantly similar to possessing.

The State’s Historical Regulations

Here we are seeing what could be an issue moving forward. Under means-end the courts used intermediate-scrutiny vs. strict-scrutiny. When the court decided to use strict-scrutiny we, The People, won. When the court decided to use intermediate-scrutiny we lost.

Post Bruen the state is trying to set up a similar type of analysis. That being of what level of relevance is needed with historical analogies. Those cases where the laws must be “distinctly similar” and laws which must only be “relevantly similar”. With a third category being twisted via a “more nuanced approach” to “relevantly similar”.

Because the 5th Cir. used “relevantly similar” this district court choose to use relevantly similar as well. This is a safe choice.

The state used regulations forbidding going armed while intoxicated. The court shot that one down nicely.

To illustrate the point, consider an analogy to motor vehicles. The Virginia law regulated guns in much the same way that modern driving-under-the-influence (“DUI”) laws regulate cars: it prevented individuals from using dangerous equipment while intoxication might impair their abilities and judgment. Consider instead a law that would prevent individuals from possessing cars at all if they regularly drink alcohol on weekends. Nobody would say that this hypothetical law is similar to DUI laws in how it regulates cars. The hypothetical law’s focus on possession, rather than use, of the vehicle imposes a much greater burden on drivers. A similar distinction exists between § 922(g)(3) and the Virginia law. The two laws, therefore, are not relevantly similar.
Id. at 14

This should be quoted in any case where the state argues that carrying while intoxicated allows them to infringe today.

Of course the state wants to use reconstruction-era laws. As stated before, when the 14th amendment was ratified the states were voting to accept what the bill of rights meant when they were ratified. They were not getting a do over.

Interestingly the court decides that Paola’s Second Amendment rights were not implicated in the conduct of transfering a firearm to her husband. That it was his rights that were infringed. The court says that Paola doesn’t really have standing because of that. The court then continues with: but the state charged her which gives her the standing to question the constitutionality of that law.

The Court is concerned that, as charged here, § 922(d)(3) may also infringe upon Connelly’s individual Second Amendment rights. Connelly argues that “[t]he Government’s [§ 922(d)(3)] theory in this case appears to be that [she] had a duty to prevent her husband from accessing their firearms in the home.” Mot. Dismiss 10–11. If the Government were to proceed on this theory of § 922(d)(3) culpability, it would substantially burden Connelly’s right to possess firearms in her home. If a person can “sell or otherwise dispose of” a firearm to their spouse by simply storing the weapon in a home that the two share, then that person would be exposed to felony liability under § 922(d)(3) for owning a gun while being married to a user of controlled substances. This expansive theory of liability would force Connelly to choose between her fundamental right to keep and bear arms and her fundamental right to “marry [and] establish a home” with her spouse. See Obergefell v. Hodges, 576 U.S. 644, 668 (2015) (quoting Zablocki v. Redhail, 434 U.S. 374, 384 (1978)). But for the purposes of this Motion, the Court assumes without deciding that only Connelly’s husband’s Second Amendment right—and not her own—is implicated by Count Two of the Indictment.
Id. at 29


In sum, § 922(d)(3) does not withstand Second Amendment scrutiny for much the same reasons that § 922(g)(3) does not. The law’s broad prohibition on the sale or transfer of firearms to unlawful users of controlled substances burdens the Second Amendment rights of those individuals to nearly the same extent as § 922(g)(3). And, as the Court found when assessing § 922(g)(3), our Nation’s historical tradition of firearm regulation does not support placing such a burden on the Second Amendment right. Accordingly, Count Two of the Indictment is also dismissed.
Id. at 31

And with that the court dismissed the charges against Paola Connelly.

Spread the love

By awa

2 thoughts on “Another One Bites the Dust — <i>USA v. Connelly</i>”
  1. This is one of those “I need coffee, and to make a cheat sheet” posts… 😉
    Thanks, AWA. Always good to hear good news!

  2. Took me a bit to puzzle out the way they used certain things but it is very interesting to see how the judgement came down in the end and justification.

Only one rule: Don't be a dick.

This site uses Akismet to reduce spam. Learn how your comment data is processed.