A Silicon Valley CEO-turned-white-collar-criminal teamed up with prominent Republican lawyer Charles Cooper this week to launch a new offensive in the battle over gun rights.
Cooper filed a lawsuit in the U.S. District Court for the District of Columbia on Monday on behalf of Gregory Reyes. Reyes, the former CEO of the storage networking company Brocade Communication Systems, was convicted of financial crimes in 2010, including securities fraud and making false filings to the Securities and Exchange Commission.
Reyes, now out of jail and living in Montana, claims the government is using those convictions to prevent him from buying a firearm in violation of the Second Amendment.
Cooper said the filing is one in a series of “second generation” cases designed to clarify the scope of the Second Amendment in the wake of the Supreme Court’s 2008 landmark decision District of Columbia v. Heller.
“When Heller was decided and confirmed there’s an individual right to keep and bear arms … that’s what kind of opened up these now Heller-follow-on-cases that are determining what the scope of that individual right is,” Cooper said.
A Justice Department spokeswoman declined to comment on the lawsuit.
Following his convictions, Reyes served 18 months in prison and was fined $15 million. Reyes now wants to purchase a firearm “for defense of himself and his family and for hunting,” according to the complaint. However, the law bars anyone convicted of “a crime punishable by imprisonment for a term exceeding one year” from purchasing a gun, with an exemption for “offenses pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices.” Reyes, the lawsuit claims, falls into that category.
The lawsuit seeks a declaration from the court that the nature of Reyes’ crimes exempt him from the ban on felons buying firearms. However, if Reyes is not exempt, the lawsuit claims the gun statute creates an “impermissible distinction” not only of which federal offenders are prohibited from owning a gun, but also of which citizens are prohibited from owning a gun.
“We think the constitutional line that must be drawn by the government when it prohibits offenders from possessing guns permanently is one that is defined by propensity to commit violence,” Cooper said. “Does the crime itself bespeak a propensity to commit violence?”
In Reyes’ case, Cooper said the answer is no, and the plaintiff has never tried to purchase a gun. That’s because, the lawsuit said, those looking to do so must fill out a form that asks whether they have been convicted of a crime punishable by at least a year in prison, but it does not mention the exception for business-related crimes. The lawsuit claims that the government advises gun dealers not to sell to anyone who answers yes. Thus, Reyes does not even have the option, according to his claims.
Asked if that creates an issue on standing in the court, Cooper said he doubts that would hold up if the government makes it. Even if Reyes could find a gun dealer willing to sell him a gun after seeing the form, the law is still unclear as to whether Reyes would be committing a felony by purchasing it.
“To say [Reyes] doesn’t have standing, we think, would be, honestly, ridiculous,” Cooper said. “It would be absurd.”
The Supreme Court recently declined to take up a case out of the Third Circuit, Sessions v. Binderup, that attempted to get at the issue of who is included in the exemptions in prohibitions on felons buying firearms. Justices Ruth Bader Ginsburg and Sonia Sotomayor dissented from the denial, though they did not give reasons why. The high court also declined to hear a different gun rights challenge, Peruta v. California, out of the Ninth Circuit, which dealt with the right to carry a gun in public. On the opposite side of the political spectrum, Justices Clarence Thomas and Neil Gorsuch dissented from that denial.
Cooper is a well-known advocate for Second Amendment rights. He recently scored a major win in the D.C. Circuit, which struck down a Washington, D.C., law requiring residents to provide a “good reason” to obtain a handgun license. Cooper has also long represented the National Rifle Association.
Also on Cooper’s client list is the defendant in the case, Attorney General Jeff Sessions. Cooper confirmed he still represents Sessions in his personal capacity. Cooper said that if the case comes across the attorney general’s desk for any reason, Sessions’ policy is to recuse from matters Cooper is opposing counsel to the government.
A Justice Department official confirmed the attorney general is recused from any case in which Cooper or his firm, Cooper & Kirk, is involved.
The case is assigned to U.S. District Judge John D. Bates, appointed by President George W. Bush.
If Reyes’ challenge fails in the lower courts, Cooper said he will keep pursuing the case.
“It is just a matter of time before the Supreme Court has to take up and grapple with this issue,” he said.