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Analysis of U.S. v. Emerson
by Donald Ray Burger
Attorney at Law

U.S. v. Emerson, 270 F.3d 203 (5th Cir. 2001), cert. denied, 536 U.S. 122 (2002).

Summary of Case:

Emerson is widely known as the U.S. Court of Appeals decision by the Fifth Circuit that recognized that the Second Amendment applies to individuals (as opposed to militias). But, as in all cases, an individual was also affected by the decision. That individual was Dr. Timothy Emerson.

Dr. Emerson was going through a divorce. He had not retained an attorney at the time his wife asked the state District Court to enter a temporary restraining order. He appeared for that hearing pro se. That means he was representing himself. After a hearing a TRO was entered. That TRO was essentially a form order frequently used in Texas divorce cases. It contained standard language prohibiting Dr. Emerson from engaging is various financial transactions and from making threatening communications or actual attacks upon his wife during the pendency of the divorce case. Specifically, there was no finding by the Court that Dr. Emerson had threatened his wife (although it was alleged he threatened her paramour). Dr. Emerson was not told he would be subject to federal criminal prosecution merely for possessing a firearm or ammunition while the TRO was in effect.

However, that is what happened. Under 18 USC 922(g) the US Government has made it a federal crime to possess a firearm or ammunition while being under a "court order" that was issued after a hearing of which the person received actual notice, and at which such person had an opportunity to participate, and that court order restrains such person from "harassing, stalking or threatening an intimate partner of the person." The statute also applies to actual use of force or threatened use of force against the intimate partner. But the important thing to note is that 922(g) is triggered simply by a "court order" restraining a person from harassing or threatening an intimate partner. You don't have to be married to the "intimate partner" to fall within the statute. You don't have to be in the middle of a divorce to face such a court order. And the "court order" does not have to be a protective order. The requirement is simply a court order that "restrains" the prohibited conduct. A temporary restraining order or a temporary injunction issued by the court qualifies.

And 18 USC 922(g) prohibits possession of not just a firearm, but also of ammunition. Family law practitioners must warn their clients of the far ranging consequences of 18 USC 922(g).

The correct cite for Emerson is:
U.S. v. Emerson, 270 F.3d 203 (5th Cir. 2001), cert. denied, 536 U.S. 122 (2002).
The case was decided on October 16, 2001. It is 71 pages long.

The United States Supreme Court refused to hear the case (writ of certiorari denied) on June 10, 2002. 536 U.S. 122, 122 S.Ct.2d 2362, 153 L.Ed.2d 184 (2002).

The United States District Court (Northern District of Texas) decision cite is:
46 F. Supp.2d 598 (N.D. Tex. 1999), rev'd, 270 F.3d 203 (5th Cir. 2001), cert. denied, 536 U.S. 122 (2002).

To read important additional information about Emerson (such as the Fifth Circuit decision, and the actual temporary orders), click here

For the Second Amendment Foundation's website on the Emerson case, click here.

Case analyzed as of 1/23/04

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