BAISDEN v. BARR et al
MEMORANDUM OPINION re 16 Motion to Dismiss: See document for details. Signed by Judge Jia M. Cobb on November 15, 2023. (lcjmc2)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
LOWELL A. BAISDEN,
Civil Action No. 19-3105 (JMC)
MERRICK B. GARLAND, 1 in his official
capacity as Attorney General of the United
States, et al.,
Before this Court is the Government’s motion to dismiss Plaintiff Lowell Baisden’s first
amended complaint. ECF 16. Baisden, due to his prior conviction for felony attempted tax evasion,
is prohibited from purchasing or possessing a firearm under 18 U.S.C. §§ 922(g)(1) and (d)(1). He
asks this Court to enjoin the Government from applying this law to him. ECF 14 at 25. Specifically,
his amended complaint alleges that his conviction falls within a statutory exception to the federal
prohibition on felon firearm possession or, in the alternative, that the federal felon-in-possession
law violates the Second Amendment. Id. While the Court finds that Baisden has standing to make
these challenges, the Court also finds them to be precluded by straightforward principles of
statutory construction and D.C. Circuit precedent. As such, the Court will GRANT the
Government’s motion to dismiss for failure to state a claim. 2
Pursuant to Federal Rule of Civil Procedure 25(d), Merrick B. Garland is automatically substituted for his
predecessor, Jeffrey A. Rosen, Acting Attorney General of the United States.
Unless otherwise indicated, the formatting of citations has been modified throughout this opinion, for example, by
omitting internal quotation marks, emphases, citations, and alterations and by altering capitalization. All pincites to
documents filed on the docket in this case are to the automatically generated ECF Page ID number that appears at
the top of each page.
Not much has changed since this Court dismissed Baisden’s original complaint, so the
Court will provide only a brief summary of the facts. Cf. Baisden v. Barr, No. 19-cv-3105 (KBJ),
2020 WL 6118181 (D.D.C. Oct. 16, 2020). In 2012, Baisden pleaded guilty to felony attempted
tax evasion in violation of 26 U.S.C. § 7201 and 18 U.S.C. § 2 and was sentenced to a term of
thirty-seven months of imprisonment. See United States v. Baisden, No. 4:09-cr-03031-2, ECF
223 at 1, ECF 283 at 1 (D. Neb.). He served his term of imprisonment in California, and his
associated period of supervised release ended on June 16, 2016. ECF 14 ¶¶ 27, 32, 36. On October
3, 2019, Baisden initiated this lawsuit, pro se, against the Attorney General and the Acting Deputy
Director of the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), seeking declaratory
and injunctive relief to allow him to possess a firearm. ECF 1.
After briefing on the Government’s motion to dismiss, see ECF 6; ECF 8; ECF 9, this
Court found that Baisden failed to “allege any cognizable, non-speculative injury that is capable
of supporting Article III standing” and dismissed Baisden’s first complaint for lack of standing.
See Baisden¸ 2020 WL 6118181, at *1. Baisden’s alleged injury was that Sections 922(g) and
922(d) “together prevent him from acquiring a firearm.” ECF 1 ¶ 40. However, his complaint was
“completely silent with respect to any specific facts concerning whether he ever owned a firearm
or possessed a permit, ever used a firearm or intended to use one, or ever wished or desired to
possess one in the future,” and “[t]his deficiency [was] a fatal one.” Baisden¸ 2020 WL 6118181,
at *4. Even acknowledging Baisden’s sworn declaration that he intended to “use a gun for any
lawful purpose as allowed in other states when this Federal firearms disability is removed,”
ECF 8-1 ¶ 16, this Court held that “such ‘some day’ intentions—without any description of
concrete plans, or indeed any specification of when the some day will be—do not support a finding
of the ‘actual or imminent’ injury that our cases require.” Baisden¸ 2020 WL 6118181, at *5
(quoting Summers v. Earth Island Inst., 555 U.S. 488, 496 (2009)).
Baisden’s amended complaint contains a variety of new allegations. On top of his new
legal claim that the felon-in-possession statute violates the Second Amendment, Baisden has added
factual allegations about his intent to obtain a firearm. He alleges that he “has a specific plan to
purchase and possess a firearm upon being lawfully authorized to do so,” but does not “inten[d] to
violate any law or regulation” so he will not act on that plan until “after his Second Amendment
disability has been lawfully and properly removed.” ECF 14 ¶ 73. He adds detail to his “specific
plan” by alleging that he “desires to purchase and possess firearms for self-defense and for
sportsmanship in Ohio,” a state whose law poses no bar to Baisden’s gun ownership despite his
felony tax fraud conviction. Id. ¶ 72 (citing Ohio Rev. Code §§ 2923.13(A)(2)–(3), 2923.14).
Finally, Baisden alleges that, “during June through December, Baisden resides with his relatives
in Ohio” due to his financial and health problems, which are worsened by his presence in
California. Id. ¶¶ 74–77; see also id. ¶ 2 (describing Baisden as a “resident of the State of California
and the State of Ohio”).
The Government now moves to dismiss this case again under Federal Rules of Civil
Procedure 12(b)(1) and 12(b)(6), raising nearly identical arguments to those in its prior motion to
dismiss. Compare ECF 16-1, with ECF 6-1. That is, the Government argues that Baisden still has
not alleged enough to establish Article III standing and, in any case, he has failed to state a claim
on which relief can be granted because (1) felony tax evasion does not fall within the statutory
exception to the federal felon-in-possession law and (2) D.C. Circuit precedent forecloses
Baisden’s Second Amendment challenge. ECF 16-1 at 16, 23, 34. Baisden counters by pointing to
his new allegations of his “desire and concrete plan to purchase and possess firearms” in Ohio,
which are supplemented with allegations about Ohio’s more lenient gun laws, his prior time in
Ohio, and his intent to return to the state to live with his relatives there. ECF 18 at 3–4. On the
merits, Baisden insists that his felony tax evasion conviction is exempt from the felon-inpossession prohibition because his crime relates to “business practices,” and that, as a
constitutional matter, he should not lose his firearms rights as a nonviolent felon. Id. at 6–9.
When assessing a motion to dismiss under Rule 12(b)(1), “it is to be presumed that a cause
lies outside the federal courts’ limited jurisdiction.” Muhammad v. FDIC, 751 F. Supp. 2d 114,
118 (D.D.C. 2010) (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)).
A court must “treat the complaint’s factual allegations as true” and afford the plaintiff “the benefit
of all inferences that can be derived from the facts alleged.” Sparrow v. United Air Lines, Inc.,
216 F.3d 1111, 1113 (D.C. Cir. 2000). That said, a court is obligated to “scrutinize the plaintiff’s
allegations more closely” than it would when considering a motion to dismiss pursuant to Rule
12(b)(6). Schmidt v. U.S. Capitol Police Bd., 826 F. Supp. 2d 59, 65 (D.D.C. 2011) (citing
Macharia v. United States, 334 F.3d 61, 64, 69 (D.C. Cir. 2003)).
For a Rule 12(b)(6) motion, the Court must determine whether the complaint “contain[s]
sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Once again, the Court “must accept as true all of the
allegations contained in a complaint,” but need not do the same for legal conclusions. Harris v.
D.C. Water & Sewer Auth., 791 F.3d 65, 68 (D.C. Cir. 2015) (quoting Iqbal, 556 U.S. at 678). At
bottom, the complaint must contain allegations sufficient to permit a “reasonable inference that
the defendant is liable for the misconduct alleged.” Matrixx Initiatives, Inc. v. Siracusano, 563 U.S.
27, 46 (2011) (quoting Iqbal, 556 U.S. at 678).
The Court finds that Baisden has standing. Standing is an “irreducible constitutional
minimum” required for a federal court to exercise its subject-matter jurisdiction over a lawsuit.
Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016). It requires a showing of a “concrete and
particularized” injury in fact that is “actual or imminent, not conjectural or hypothetical,” “a causal
connection between the injury and the conduct complained of,” and a true likelihood, not mere
speculation, that “the injury will be redressed by a favorable decision.” Lujan v. Defs. of Wildlife,
504 U.S. 555, 560 (1992).
Baisden appears to concede the Government’s argument that, to the extent he hopes to
purchase or possess a gun in California, his case has serious traceability and redressability issues.
That is, Baisden does not refute that the law of California “independently bars his possession of
firearms because he is a convicted felon” and “thus [he] cannot rely on his inability to possess a
firearm in his state of residence—California—to establish standing.” ECF 16-1 at 17; ECF 18 at
2–3; see ECF 14 ¶ 2 (“LOWELL BAISDEN, is a natural person and resident of the State of
California and the State of Ohio.”); see also Cal. Penal Code § 29800(a)(1) (prohibiting a “person
who has been convicted of . . . a felony under the laws of the United States,” from owning,
purchasing, receiving, or possessing a firearm).
Yet, as Baisden correctly observes, California law does not extend so far as to prohibit him
from purchasing or possessing a firearm anywhere in the United States. See ECF 18 at 2–3. As at
least one court in this District has held when addressing this issue, although California law may
prohibit Baisden from possessing or even owning a gun while residing in California, at minimum
this law “does not stop [him] from possessing a firearm in another state, because California courts
lack the authority to penalize conduct that takes place wholly outside the state’s borders.” Medina
v. Sessions, 279 F. Supp. 3d 281, 286 (D.D.C. 2017) (citing People v. Betts, 103 P.3d 883, 887
(Cal. 2005)), aff’d sub nom., Medina v. Whitaker, 913 F.3d 152 (D.C. Cir. 2019).
As such, the determinative question is whether Baisden has sufficiently alleged that he
plans to use a firearm in a state whose law does not independently prohibit him from doing so. He
must demonstrate that he has concrete plans, not generic “some day” intentions, that “support a
finding of the ‘actual or imminent’ injury that our cases require.” Earth Island Inst., 555 U.S. at
496. His allegations must go beyond a “vague suggest[ion] [of] a desire to use a firearm outside
of California,” Medina, 279 F. Supp. 3d at 286, for example by including specifics about where,
when, or for what purpose he intends to engage in this conduct that is otherwise prohibited by
federal law. In Baisden’s original complaint, the absence of any such “specific facts” about
whether he “ever wished or desired to possess [a firearm] in the future” proved “fatal.” Baisden¸
2020 WL 6118181, at *4.
Now, Baisden has alleged sufficiently concrete plans for standing purposes. He has alleged
an intent to purchase and possess firearms for the purposes of “self-defense” and “sportsmanship
hunting.” ECF 14 ¶ 72. He has identified a specific state (Ohio) with more lenient firearms laws
that would not pose an independent obstacle to his gun ownership or possession. ECF 14 ¶¶ 72–
73, 78–82. He has alleged facts that establish a nexus to that state that renders his stated plans both
concrete and plausible. ECF 14 ¶¶ 74–77. True enough, Baisden still has not alleged that he has
any experience with firearms or that he has attempted to acquire one, see Baisden¸ 2020 WL
6118181, at *4, but while such facts would certainly bolster a finding of standing, they are not
necessary. Accepting, as the Court must, that Baisden’s stated plans are truthful, he can establish
standing even if he is a would-be first-time gun owner. Moreover, he need not allege that he has
violated or intends to violate federal law, which “undoubtedly prohibit[s] him from purchasing [or
possessing] a firearm.” Dearth v. Holder, 641 F.3d 499, 503 (D.C. Cir. 2011). Rather, he need
only demonstrate that his injury is concrete, actual or imminent, and not merely conjectural or
hypothetical, which he has done by plausibly alleging that, once lawfully permitted, he will
purchase or possess a firearm for sportsmanship or self-defense in a state he (at minimum) visits
regularly and where local law presents no independent obstacle. See Dearth, 641 F.3d at 503;
Medina, 279 F. Supp. 3d at 286–87; Reyes v. Sessions, 342 F. Supp. 3d 141, 146 & n.1 (D.D.C.
2018). Considering these new allegations, the Court finds that Baisden has established that he has
standing to challenge the federal felon-in-possession statute.
Failure to State a Claim
Baisden brings two challenges to the validity of 18 U.S.C. §§ 922(d)(1) and (g)(1): one
statutory and one constitutional. The Government, in its motion to dismiss, argues that Baisden
has failed to state a claim for which relief can be granted. The Court agrees with the Government
and finds that both of Baisden’s challenges must be dismissed.
1. Statutory Challenge
The Court finds no merit in Baisden’s argument that his crime of felony tax evasion
qualifies for the “statutory business practices exception” under 18 U.S.C. § 921(a)(20)(A). See
ECF 14 ¶¶ 103–105. Section 921(a)(20)(A) exempts “Federal or State offenses pertaining to
antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to
the regulation of business practices.” 18 U.S.C. § 921(a)(20)(A). Baisden’s crime of conviction—
felony tax evasion under 26 U.S.C. § 7201—is none of these things. A “willful attempt . . . to
evade or defeat any tax imposed by [Title 26 of the United States Code]” is not an antitrust
violation, an unfair trade practice, a restraint of trade, or a “similar offense” relating to business
regulation. See 26 U.S.C. § 7201; 18 U.S.C. § 921(a)(20)(A). Instead, it is an offense that has long
been understood as one that penalizes and deters those who would directly cause a loss of revenue
to the federal treasury, regardless of the particular manner in which the offender does so. The
offense serves as a shield for the entire Internal Revenue Code, punishing the avoidance of any tax
under Title 26 with no special focus on trade, commercial practices, or business regulation. See
26 U.S.C. § 7201.
Baisden’s insistence that, under Reyes v. Sessions, “aiding and abetting of . . . federal
income tax evasion . . . falls within Section 921(a)(20)(A)’s exception for offenses related to the
regulation of business practices” is unpersuasive. See ECF 14 ¶¶ 46–47. Upfront, this Court
observes that it need not strictly follow the Reyes decision. See Camreta v. Greene, 563 U.S. 692,
709 n.7 (2011) (“A decision of a federal district court judge is not binding precedent in either a
different judicial district, the same judicial district, or even upon the same judge in a different
case.”). Even if the Court were to do so, however, that case does not support Baisden’s arguments.
The Reyes court concluded that “offenses only qualify as excluded offenses under § 921(a)(20)(A)
if the violated statutes relate to the regulation of business practices and are intended to address
harm to competition or consumers.” Reyes, 342 F. Supp. 3d at 148. It concluded that securities
fraud committed in violation of the Exchange Act, which was “primarily intended to prevent
economic harm to investors,” qualified as an excepted commercial offense. Id. at 152. Baisden
does not allege that felony tax evasion has a similar purpose of addressing “economic harm to
consumers” generally, id. at 151, but instead relies on the “aiding and abetting” nature of his
offense in particular, emphasizing that his conduct caused “material harm” to his own customers.
ECF 14 ¶ 56; ECF 18 at 6–7. According to Baisden, since he helped his customers unlawfully
evade taxes and, as a result, they “may be liable for penalties or criminal prosecution related to the
false reporting of their income,” his offense is “an economic activity crime.” ECF 18 at 6–7.
Baisden’s argument proves too much. Someone who aids and abets a crime can contribute
to another person’s potential exposure to penalties or criminal liability, which of course may result
in some economic harm to that person. See 18 U.S.C. § 2. But if a defendant acts alone when
committing a crime that does not have the primary purpose of addressing economic harm to
consumers or competition, that offense does not become “an economic activity crime” when the
defendant helps a “customer” engage in the same criminal conduct. See Reyes, 342 F. Supp. 3d at
151 (holding that the Court must look to “the primary purpose of the violated statute”). The Court
has already observed that prohibitions on tax evasion serve to punish filers who seek to avoid tax
liability and cause a loss of revenue to the government—it does not primarily target those who
harm consumers or competition. Accordingly, because tax evasion is not a “business regulation”
offense exempted from the felon-in-possession ban, Baisden’s statutory claim cannot survive the
Government’s motion to dismiss.
2. Constitutional Challenge
Baisden’s constitutional challenge fares no better than his statutory one. The Second
Amendment does not confer an absolute “right to keep and carry any weapon whatsoever in any
manner whatsoever and for whatever purpose.” District of Columbia v. Heller, 554 U.S. 570, 626
(2008). Rather, it is subject to certain historic limitations that have long been deemed permissible,
including “prohibitions on the possession of firearms by felons.” Id. While Baisden protests that
“Section 922’s prohibition on nonviolent felons from bearing arms is an unconstitutional burden
that cannot be justified,” ECF 14 ¶ 95, his argument is foreclosed by D.C. Circuit precedent
rejecting a near-identical challenge to Section 922.
In Medina v. Whitaker, the D.C. Circuit reviewed the dismissal of a Second Amendment
challenge to Section 922(g)(1) brought by an individual convicted of one felony count of making
a false statement to a lending institution. 913 F.3d at 154. In affirming, the court “look[ed] to
tradition and history” and found no persuasive evidence “that only dangerous persons could be
disarmed.” Id. at 158. Rather, the historical evidence led the court to hold that, “dangerous” or not,
“those convicted of felonies are not among those entitled to possess arms.” Id. at 159–160; see
also N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111, 2162 (2022) (Kavanaugh, J.,
concurring) (“Nothing in our opinion should be taken to cast doubt on longstanding prohibitions
on the possession of firearms by felons.”). And while the Court observed without deciding that
there may be some “possib[ility] for a convicted felon to show that he may still count as a lawabiding, responsible citizen,” the plaintiff could not succeed on any as-applied challenge without
proving something “about [his] crime [that] distinguishes him from other felons.” Medina,
913 F.3d at 160–61. The plaintiff in Medina failed to do so, as “[h]e was convicted of felony
fraud—a serious crime, malum in se, that is punishable in every state.” Id. at 160.
The D.C. Circuit’s opinion in Medina forecloses Baisden’s constitutional challenge. Just
like the plaintiff in Medina, Baisden was convicted of a felony fraud—tax fraud—and the fact that
his crime was directed at the treasury rather than a lending institution is a distinction without a
difference. See Ingram v. United States, 360 U.S. 672, 675–76 (1959) (“[A]ttempt to evade or
defeat federal taxes [is] ‘the gravest of offenses against the revenues.’”). It was Baisden’s burden
to show that the crime of felony tax evasion is one “so minor or regulatory that he did not forfeit
his right to bear arms by committing it.” Medina, 913 F.3d at 160. Baisden, like the plaintiff in
Medina, has not met his burden. While Baisden provides some detail about his particular
circumstances and alleges, for example, that he is “no threat to public safety,” ECF 14 ¶¶ 85–86,
these facts are “not relevant” as a matter of law. Medina, 913 F.3d at 160.
For the foregoing reasons, Defendants’ motion to dismiss for failure to state a claim, ECF
16, is GRANTED, and as a result Plaintiff’s first amended complaint and this civil action is
JIA M. COBB
United States District Judge
Date: November 15, 2023
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