Delroy Fischer v. United States — Petition for Writ of Certiorari

Michael Harless Firearms Law, U. S. Supreme Court

Today our firm filed a petition for writ of certiorari in the case of Delroy Fischer v. United States of America in the United States Supreme Court. In this case, petitioner Fischer is asking the Supreme Court to resolve a circuit split over the question whether the use of force element of the predicate misdemeanor in a section 922(g)(9) prosecution is determined by factual findings found in the state court record, or by the text of the relevant misdemeanor statute.

Fischer was indicted for violation of 18 U.S.C. section 922(g)(9). Prior to trial, Fischer moved to dismiss the indictment on the ground that the predicate misdemeanor under which he was convicted — Nebraska Revised Statute (“Neb. Rev. Stat.”) section 28-310(1) — was not a misdemeanor crime of domestic violence (“MCDV”), as defined in 18 U.S.C. section 921(a)(33)(A)(ii). Fischer reserved his right to appeal the denial of his motion to dismiss.

Our petition for writ of certiorari argues that the Fischer decision conflicts with the decisions of six other United States Courts of Appeals. The lower courts confused factual conduct with the legal element. Neb. Rev. Stat. Section 28-310(1)(a) is not a MCDV. Further, the Fischer decision conflicts with two decisions within the Eighth Circuit, sowing confusion among the circuits. Finally, the Fischer decision conflicts with controlling Supreme Court precedents — United States v. Hayes and the categorical approach to predicate criminal offenses. This appendix was also filed with the petition for writ of certiorari.

The case was docketed in the U.S. Supreme Court as No. 11-662.

Link to petition