Gun Law in Peril as DOJ Allows Freeing National Security Suspect

Fallout from the Supreme Court’s landmark gun rights expansion last year has forced the Justice Department to abandon a firearms charge against an Iranian American drug user with suspected ties to foreign terrorism.

A 22-minute hearing in Sherman, Texas, Wednesday set the terms for the defendant’s imminent release after six months in jail. It marked the latest twist in an extraordinary yet low-profile case at the intersection of the Second Amendment and national security.

The firearm charge against Ali Hemani, 26, appears to have served the same purpose as when it’s often brought against suspects in terrorism, organized crime, and other complex cases—to keep him in jail while building a more complex investigation.

But the law that allowed Hemani’s February arrest for being a gun-owning drug user has now backfired on the government from an unlikely source: the conservative Second Amendment legal movement.

The arrest came after federal agents had been surveilling Hemani and his family since 2019, when they found evidence he might be plotting a financial crime with Iran’s Islamic Revolutionary Guard Corps, which the US labels a terrorist organization.

The 55-year-old statute he was charged under, USC 922(g)(3), criminalizes the act of possessing a firearm while using illegal and controlled substances.

But last month a federal magistrate judge recommended dismissing Hemani’s charge and nullifying the entire statute based on the high court’s 2022 gun rights decision.

Late Tuesday, a day before Eastern Texas-based federal prosecutors were set to argue before a district court judge that Hemani’s charge remains valid, they wrote to the court: “The government concedes that the dismissal of the indictment is appropriate based on” the US Court of Appeals for the Fifth Circuit’s recent interpretation of the Supreme Court’s new originalist test permitting handguns in public.

But DOJ reserved its right to appeal Hemani’s case—and maintained that the firearm law he was charged with remains “valid under the Second Amendment.”

National Security, Second Amendment

At Wednesday’s hearing, US District Court Judge Amos Mazzant upheld the dismissal of the charge against Hemani, granting his release.

The prosecutors’ 11th-hour admission came just 11 days after they’d urged the court to keep Hemani detained due to the unique nature of the threat he presented.

“Drugs, firearms, and martyrdom are a dangerous combination,” DOJ had written in a brief.

Beyond Hemani’s freedom, the department is faced with far broader law enforcement consequences. DOJ attorneys will now try to persuade courts elsewhere in the US and potentially, the Supreme Court, to keep 922(g)(3), long considered a dependable and provable charge for law enforcement, on the books.

While 922(g)(3) gained widespread recognition this summer from Hunter Biden facing the charge in his since-collapsed plea deal, it is more commonly used to quickly take alleged criminals off the streets. The law, which carries a maximum prison sentence of 10 years, can buy the government time to collect evidence on separate, more intricate wrongdoing.

While many aspects of his case remain a mystery, the government was able to show without refutation that Hemani owned a gun and used drugs.

In addition to his admission to routinely smoking marijuana, agents uncovered cocaine at his home and text messages suggesting he may be addicted to the allergy medicine Promethazine, which can be lethal when combined with other substances.

The US Attorney’s office of the Eastern District of Texas, which is prosecuting the case, did not respond to requests for comment. Hemani’s attorneys declined to comment. A national Department of Justice spokesman also did not provide a statement when asked.

An online petition signed by more than 17,000 individuals contends Hemani, who had no prior arrest record, was “being held without trial simply because of his religious and cultural background.”

Still, the court-ordered release back to his lifelong Texas community will highlight a long-simmering tension between national security and the Second Amendment that’s particularly pronounced in the Lone Star State.

“Losing 922(g)(3) would be a blow to all sorts of investigations,” said Joe Brown, who was the Trump-appointed US attorney in the Beaumont-based Eastern District of Texas.

“Nobody loves their guns more than Texans, but they’re also pro-law enforcement to a great degree,” Brown said. “This is not what you think of when you are protecting your own gun rights.”

2022 Bruen Decision

The gun-and-drugs statute is a relatively provable charge and a simpler case for prosecutors to make than one under the 18 USC 2339 terrorism statute, which typically has to tie the action to support of a US government-designated terrorist group.

The Justice Department has leaned on the gun charge in the past for both international and domestic terrorism investigations. In 2019, it arrested a man in Montana who they say plotted a mass shooting in the name of ISIS.

Prosecutors also relied on the statute to arrest a Coast Guard lieutenant they allege sought to murder elected officials and journalists to advance his racist beliefs.

Judge Mazzant had scheduled the hearing Wednesday morning to consider whether to affirm Magistrate Judge Kimberly Priest Johnson’s recommendation to dismiss Hemani’s case.

It’s unclear if his dismissal also adopted Johnson’s broader findings on the statute, which would eliminate the DOJ tactic—at least initially for the Eastern District of Texas population of 3.5 million.

On July 31, Johnson simultaneously issued one order that Hemani must remain imprisoned pending trial, and a second recommending the case’s dismissal. She held that a firearms ban for drug users violates the Second Amendment based on the US Supreme Court’s 2022 decision in New York State Rifle & Pistol Assn., Inc. v. Bruen guaranteeing the right to carry handguns in public.

Johnson was further swayed by a February opinion from the Fifth Circuit that similarly rejected the notion that Second Amendment protections only apply to good citizens. The ruling invalidated the federal prohibition on gun ownership by people subject to domestic violence restraining orders. United States v. Rahimi is headed to the Supreme Court this fall, an outcome Second Amendment watchers believe could also be awaiting Hemani’s gun-and-drugs statute.

Alleged Extremist Ties

Prosecutors only indicted Hemani on the firearms charge, but court proceedings paint the picture of a much more involved national security investigation into him.

A Texas law enforcement official assigned to an FBI Joint Terrorism Task Force raised a number of concerns with releasing Hemani during hearings in February and March. He detailed alleged extremist ties in his family, allegations that Hemani communicated with IRGC members, and purported surveillance evasion techniques.

On the stand, the detective stated that Hemani’s brother is currently studying in Iran at a university that “has been designated as having ties to terrorism.” He also noted that the FBI obtained a news interview with his mother on Iranian television where she allegedly praised Qasem Soleimani.

Soleimani, who commanded the Iranian Quds force, was killed by a US drone strike in January 2020. At the time, the Iranian government promised revenge attacks for his assassination. It’s with that backdrop that Hemani’s mother allegedly traveled to Iran and was interviewed in front of a shrine for Soleimani and banners mourning the slain commander. Law enforcement officials say she told the interviewer on Iranian television that “she prayed that her two sons become like Soleimani” and “become martyrs.”

The March detention hearing also featured testimony regarding the extent of law enforcement surveillance on Hemani. FBI agents followed Hemani and his family on multiple occasions. They also monitored his behavior at an airport and expressed concerns that his actions indicated he was trying to slip any law enforcement surveillance.

Judge Johnson, in a later order, described a review of Hemani’s electronic devices at a 2019 border stop which revealed that he was “in communications with multiple other individuals, believed to be affiliated with Iran’s Islamic Revolutionary Guard Corps (the ‘IRGC’), discussing committing fraud to interfere with financial systems of the United States.” Law enforcement also stated that his phone had messages with “anti-American sentiment” but did not elaborate in greater detail.

Former prosecutors and other law enforcement officials who reviewed the court records had mixed reactions. Some felt the government had a thin case to detain Hemani without the evidence to indict him for terrorism offenses, while others found it a routine use of the firearms statute that may have been justified based on potential sealed evidence of a plot that made it necessary to act with haste.

“We’re talking about their characterization of this family being terrorists and engaging in trade craft and supporting terrorism and that they’re dangerous,” said Carl David Medders, one of Hemani’s attorneys, according to the transcript of a June hearing. “That tone comes down” if the court considered a “full picture” of the evidence.

‘Nightmare’ Scenario

Although shielding overseas violence is not what gun rights advocates intended as they advance arguments in courts across the country that seek to implement the high court’s 2022 decision, it’s the type of scenario long feared by Francesca Laguardia, the former research director at the Center on Law and Security at New York University School of Law.

Now a professor of justice studies at Montclair State University, Laguardia referred to Hemani’s case as her “nightmare.” She’s been warning of the insufficient attention in terrorism discussions paid to expanding Second Amendment protections.

For now, the gun-and-drugs statute allows law enforcement to intervene in response to a concrete action—the purchase of a gun—she said. It’s a useful strategy as international terrorist organizations have increasingly pivoted from hijackings and bombs to smaller scale violence from guns.

“You end up in a situation where you have exactly the ability of the government to step in early if these kinds of statutes exist and if we are allowed to go forward with them. And then it gets sidelined, again, by the Second Amendment argument,” Laguardia said. “And that is I think exactly the risk that we have been waiting for.”

Hemani’s case is unfolding within a multi-jurisdiction wave of Second Amendment litigation supported by gun rights purists hoping to gain further advances from the Supreme Court Bruen decision. The New Orleans-based Fifth Circuit has been the most receptive audience for the right-to-bear-arms advocates.

That’s the appellate court that handed a victory to Zackey Rahimi, who’d been suspected of five Texas shootings from 2020 to 2021 while being under a court-imposed order to avoid an ex-girlfriend. On Aug. 9, just after Johnson’s recommendation for Hemani, a Fifth Circuit panel deemed the firearms statute for drug users unconstitutional when applied to a Mississippi pot smoker who was sober at the time of his arrest.

That latter decision overturned Patrick Daniels Jr.’s lower-court conviction.

Edward Paltzik, who submitted a friend-of-the-court brief for the Second Amendment Foundation supporting Daniels, had never heard of Hemani. But when asked to review his case, Paltzik responded that if the government wanted to charge Hemani as a terrorist, it should’ve done so.

“No, we do not want Ali Hemani or Zackey Rahimi to be the poster children for the Second Amendment,” Paltzik said. But that doesn’t mean they should be “excluded from firearms possession.”

Brown, who served as the Eastern District’s top law enforcement official from 2018 to 2020, described himself as “very pro-Second Amendment.”

“Law-abiding citizens should have full access to protect themselves,” he said. “But this is a good example of how it can hurt law enforcement if we go to an extreme.”