ADAM D. FRANKS

SARAH GOLD

MITCHELL, WILLIAMS, SELIG, GATES & WOODYARD, PLLC

425 West Capitol Avenue, Suite 1800 Little Rock, Arkansas 72201

Counsel for Petitioners

At approximately 11:56 p.m. on June 13, 2019, Officers Shawn Jones and Logan Kulesa of the Jacksonville Police Department responded to a late- night burglary call at a Jacksonville car dealership after cleaning crew members reported an intruder inside the building. Officers discovered Tramon Savage inside the service department attempting to start vehicles. Despite officers identifying themselves and issuing repeated commands, Savage entered a truck and drove toward the open bay door. Officers perceived that Savage was attempting to strike officers with the vehicle and opened fire. After the truck crashed, Officer Kulesa briefly continued firing because he believed Savage was reaching for a weapon or other object. The shooting lasted less than five seconds. Officers then summoned medical assistance and rendered aid. Savage later died from his injuries.

The questions presented are:

1. Whether the Eighth Circuit wrongly denied qualified immunity to Officers Jones and Kulesa by finding that it did not have jurisdiction to reverse the District Court’s denial of qualified immunity based on its determination that there were disputed facts.
2. Had the Eighth Circuit properly engaged the qualified immunity analysis, would it have found that Officers Kulesa and Jones violated clearly established law.

1

Whether Petitioner was deprived of his right, under the Sixth and Fourteenth Amendments, to a trial by a 12-person jury when the defendant was charged with a felony?

This Court has accepted jurisdiction in Kian v. Florida, No.25-6628 raising the same question presented. This case should at least be held pending resolution of that case.

ii

Since the Court issued its ruling in New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022), frontline defense lawyers and prosecutors, along with district courts, and courts of appeals, have grappled with how the holding applies to § 922(¢)(1). Is the statute facially invalid? Is 1t subject to as-applied challenge? If so, how does that challenge work? Criminal defense lawyers and prosecutors have spent hours upon hours litigating these issues. District courts and appellate courts have expended massive amounts of time and energy ruling on these issues. Defense lawyers cannot stop raising the issue because this Court has not given us any final answers. Without answers from this Court, defense lawyers cannot tell clients that challenging the constitutionality of § 922(g)(1) is frivolous, even if the applicable court of appeals has rejected the argument. So, we must keep filing motions. We are stuck in purgatory, or ground hog day, or whatever metaphor strikes your fancy.

Perhaps the Court needed to flesh out Bruen on lesser used subsections of § 922(¢g) before tackling subsection (g)(1). United States v. Rahimi, 602 U.S. 680 (2024) (§ 922(¢)(8)); United States v. Hemani, 146 8. Ct. 1677 (2026) (§ 922(g)(3)). That’s understandable. But the time has come. We need an answer on § 922(g)(1) and we need it now.

The Question Presented 1s:

Whether 18 U.S.C. § 922(g)(1), the federal statute that prohibits

anyone who has been convicted of “a crime punishable by imprisonment

for a term exceeding one year’ from possessing a firearm, violates the

Second Amendment as applied to Petitioner?

1

1. Were Petitioner’s Fifth, Sixth, and Fourteenth Amendment rights violated when he was subjected to a mandatory life sentence based on the trial court’s finding, rather than a jury finding, that his past offenses were committed within three years of his release from prison?

2. Were Petitioner’s Fifth, Sixth, and Fourteenth Amendment rights violated when he was subjected to an enhanced mandatory minimum sentence based on a finding of a fact by preponderance of the evidence rather than beyond a reasonable doubt?

1

In Borden vy. United States, 593 U.S. 420 (2021), the Court held Tennessee reckless aggravated assault—committed by recklessly causing serious bodily injury to another—did not meet the ACCA’s elements clause because “‘an offense that has an element the use, attempted use, or threatened use of physical force against another” requires more than reckless conduct, namely, a mens rea of purpose or knowledge. Four circuits have since divided over how Borden applies to a common but different type of statute: namely, a dual mens rea offense that requires an intentional act causing great bodily harm, but neither purpose nor knowledge as to the harm caused.

The circuits have disagreed preliminarily on the proper reading of Borden, which has in turn impacted their conclusions on whether the identical federal elements clause in the ACCA and the Guidelines merely requires a mens rea greater than recklessness as to the actus reus of the crime, or also as to the harm caused by the intentional act. Specifically referencing the Model Penal Code definitions of mens rea invoked by the Borden plurality, the Ninth and Tenth Circuits hold the elements clauses requires at least a “subjective awareness” of the “practical certainty” an intentional act will cause harm. By contrast, the Sixth and Eleventh Circuits disregard the Model Penal Code mens rea definitions embraced not only in Borden, but even earlier in Voisine v. United States, 579 U.S. 686, 691-92, 697-98 (2016). They hold an intentional act suffices for the elements clause, even if the harm caused by the intentional act is entirely accidental.

The question presented 1s:

Whether an offense that requires an intentional act, but neither purpose nor knowledge as to the resulting harm, 1s an offense that “has as an element the use, attempted use, or threatened use of physical force against the person of another” as required by the federal elements clause.

1

The courts of Ohio have established a line of authority contrary to that of other states. This conflict between Ohio and other states on the same issues should be reconciled where they are crucial to the justice system.

1. Whether the Confrontation Clause of the Sixth Amendment prohibits a trial court from restricting cross-examination regarding a complaining witness’s bias, motive to fabricate, and prior false accusations by hmiting inquiry to a single question without extrinsic evidence, where the witness’s credibility 1s central to the prosecution and the defense has a good faith basis for the line of questioning.

2. Whether a conviction may stand under the Due Process Clause of the Fourteenth Amendment when the trial court admits opinion testimony on sociological issues of delayed disclosure patterns in child abuse cases under the rubric of “lay” testimony and thereby circumventing the qualification, disclosure, and testing requirements applicable to expert testimony where the testimony’s probative force depends entirely on specialized knowledge rather than everyday reasoning.

3. Whether appellate review comports with due process when an appellate court affirms a conviction by relying on the absence of evidence where that absence resulted from the trial court’s evidentiary rulings that shaped the record available for closing argument and appellate review.

1

Whether Petitioner was deprived of his right, under the Sixth and Fourteenth Amendments, to a trial by a 12-person jury when the defendant was charged with a felony?

This Court has accepted jurisdiction in Kian v. Florida, No.25-6628 raising the same question presented. This case should at least be held pending resolution of that case.

ii

Since its landmark decision in Wong Sun v. United States, 371 U.S. 471 (1963), this Court has held to the basic principle that, with limited exceptions, unlawfully obtained evidence may not be exploited to obtain further evidence, even if the subsequent evidence is itself lawfully obtained. The Court has also held, in Whren v. United States, 517 U.S. 806 (1996), that a law enforcement officer may detain a motorist to investigate a traffic infraction, regardless of whether the officer’s true motive is to investigate a wholly different offense, so long as there is probable cause to believe a traffic violation was committed.

This case lies at the intersection of these two principles. The question presented here is:

Does the fact that a traffic stop is lawful under WAren automatically purge the taint of a location tracking warrant that was not supported by probable cause but led officers to the vehicle, or must a court engage in an individualized analysis of whether the traffic stop was attenuated from, or independent of, the deficient warrant?

1

Whether Petitioner was deprived of his right, under the Sixth and Fourteenth Amendments, to a trial by a 12-person jury when the defendant was charged with a felony?

This Court has accepted jurisdiction in Kian v. Florida, No.25-6628 raising the same question presented. This case should at least be held pending resolution of that case.

ii