UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 93-2824
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
VERSUS
CHRISTOPHER SCOTT MURPHY,
Defendant-Appellee.
Appeal from the United States District Court
For the Southern District of Texas
(May 15, 1995)
Before WISDOM, WIENER, and PARKER, Circuit Judges.
PER CURIAM:
The defendant/appellee was charged, under 18 U.S.C. §922(q),
the Gun-Free School Zones Act of 1990, with possession of a firearm
in an area he knew or should have known was a school zone. While
the case against the defendant was still pending, this Court, in
its decision United States v. Lopez, held that 18 U.S.C. §922(q)
was unconstitutional on the ground that it was outside
Congressional power under the Commerce Clause.1 We reserved
1
2 F.3d 1342 (5th Cir. 1993), cert. granted, 114
S.Ct. 1536, 128 L.Ed.2d 189 (1990). A circuit split eventually
resulted when the Ninth Circuit Court decided that Section 922(q)
is constitutional. United States v. Edwards, 13 F.3d 291 (9th Cir.
1993). For a complete discussion of the Lopez decision, see Debra
decision, however, on whether the statute could be constitutionally
applied if the required nexus to interstate commerce were alleged.
As we stated in dicta, "[c]oncievably, a conviction under section
922(q) might be sustained if the government alleged and proved that
the offense had a nexus to commerce".2
The government attempted to salvage its case against Murphy in
reliance on this language when it tried to file a criminal
information which alleged a nexus to interstate commerce.3 The
criminal information alleged:
. . . defendant herein, did knowingly
possess, in and affecting interstate commerce,
in an area that the defendant knew or should
have known was a school zone, a firearm--
specifically, a Mossberg 12 gauge pistol grip
shotgun; In violation of Title 18, United
States Code, Section 922(q).4
The district court refused to file the criminal information and the
government appealed that decision to this Court.
The Lopez decision has since been reviewed by the United
L. Farmer, United States v. Lopez: The Fifth Circuit Declares the
Gun-Free School Zone Act of 1990 an Unconstitutional Extension of
Congressional Power under the Commerce Clause, 68 Tulane L. Rev.
1674 (1994). For a discussion of both the Lopez decision and the
Edwards decision, see James M. Maloney, Shooting for an Omnipotent
Congress: The Constitutionality of Federal Regulation of
Intrastate Firearms Possession, 62 Fordham L. Rev. 1795 (1994).
2
Id. at 1368.
3
The original indictment alleged no nexus to interstate
commerce and was dismissed by the district court. During plea
negotiations, the defendant waived the requirement of an indictment
an agreed to plead guilty to the criminal information. The
government used this waiver to effectively amend the indictment and
allege a nexus to interstate commerce.
4
Appellant's record excerpts, item 5 at 1-2 (emphasis
added).
2
States Supreme Court. The Supreme Court decided to affirm the
decision of this Court and held that the Gun-Free School Zones Act
of 1990 is not within the constitutional power of Congress under
the Commerce Clause.5 The Supreme Court decided that "[t]he
possession of a gun in a local school zone is in no sense an
economic activity that might, through repetition elsewhere,
substantially affect any sort of interstate commerce."6 In light
of this decision, we need not address the question we previously
reserved. We AFFIRM the decision of the district court.
5
United States v. Lopez, 1995 WL 2388424, *2.
6
Id. at *11.
3