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Second Amendment — Emerson Update

April 19, 2008

Second Amendment to the Constitution of the United States

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

As we wait for the U.S. Supreme Court to rule in the District of Columbia v Heller case, giving us their interpretation of the Second Amendment it is timely to review the case of Timothy Joe Emerson, M.D., of San Angelo, Texas. It was Dr. Emerson's case that first led federal courts to rule that the Second Amendment is an individual rather than a collective right.


Synopsis of the Emerson case


The sordid story begins in 1998. As is so common with DV cases, according to court records Dr. Emerson's then wife, Sacha, was having an affair with her hairdresser. At the time Dr. Emerson was operating a private medical practice in San Angelo, population about 88,000 in Tom Greene County, West Texas.

Sacha petitioned for divorce on August 28, 1998, and requested a restraining order against Dr. Emerson, claiming he had threatened her paramour during a telephone call. At the time Dr. Emerson was the lawful owner of approximately 30 firearms of varying types that he had owned both before and all during the marriage. His collection included a 9mm Beretta pistol that he kept in his office. It is fairly common, and prudent for medical doctors in private practice who have many drugs in their offices to also keep a firearm there and this is, or at least was West Texas.

Unbeknownst to Dr. Emerson the state court's order made him immediately subject to 18 U.S.C. § 922(g)(8), the infamous Lautenberg Amendment passed two years earlier in 1996, that makes the possession of any firearm or ammunition while under a restraining order or with a misdemeanor DV conviction a federal felony with a mandatory prison term of up to ten years. Neither the order or the state judge informed Dr. Emerson, who had made the grave mistake of representing himself at the divorce hearing, that he would be subject to federal criminal prosecution merely for possessing a firearm or ammunition while the temporary orders were in effect.

On November 16, 1998, Sacha barged into Dr. Emerson's medical office with their four-year-old daughter, Logan, and refused to leave. After an argument in his private office she contacted San Angelo law enforcement officials alleging that Dr. Emerson had pulled the Beretta on her and pointed it at her and the child.

As a result of Sacha's allegations, charges of aggravated assault with a deadly weapon and endangering a child were brought against Dr. Emerson in Texas court and he was arrested and jailed. Additionally, his firearms collection was seized, and he was charged with a Federal felony. The arrest ended his medical career.

On December 8, 1998, a Federal Grand Jury indicted Dr. Emerson on five counts under 18 U.S.C. § 922(g)(8). Surprisingly, District Judge Sam Cummings, San Angelo, Texas division, granted Dr. Emerson's motion to dismiss the federal case on February 26, 1999, on the basis that his Second and Fifth Amendment rights had been violated. This was the first time any Federal court had confirmed that the Second Amendment is an individual right. But the government, under the Clinton administration and Attorney General Janet Reno of nearby Waco fame, appealed.

However, on October 23, 2000, Dr. Emerson was acquitted by a jury of all charges brought by the State of Texas after a showing that he was defending his business property and patient medical records against criminal trespass. This time he went to court with a competent attorney supported by the Second Amendment Foundation.

Unfortunately, in October, 2001, the Fifth Circuit Court of Appeals in New Orleans affirmed that the Second Amendment is an individual right but remanded Dr. Emerson's case back to the District Court for trial, reversing Judge Cummings dismissal of the case. And those of you who thought double jeopardy was unconstitutional should rethink your position.

Dr. Emerson's case was then appealed to the U.S. Supreme Court the first time. On June 10, 2002, the USSC refused to hear the case. However, then Attorney General Ashcroft stipulated that the Second Amendment is an individual right in the government's response to Dr. Emerson's appeal.

The case was then set for trial in Federal District Court in Lubbock, Texas. In a trial lasting approximately 8 hours, on Monday, October 7, 2002, a Federal jury of six men and six women found Timothy Joe Emerson, M.D., age 45, guilty of three counts of possessing firearms while under a restraining order.

The stress of this injustice had an extremely deleterious effect on Dr. Emerson's health and on October 19, 2002, Dr. Emerson successfully underwent open-heart surgery for a defective heart valve and he is still disabled.

Because he has lost his medical practice and income, Texas has taken Dr. Emerson's medical and driver's license away for non-payment of child support. His heart condition prevents him from working in any strenuous occupation. As a result he is indigent and the taxpayers are obliged to pick up his medical and living expenses.

So citizens now pay for his wife's adultery as well.

On December 11, 2002, Dr. Emerson was sentenced to thirty (30) months detention in a Federal penitentiary. Subsequent appeals to the 5 th Circuit and the Supreme Court were denied. On April 21, 2003, Dr. Emerson began serving his sentence at the Fort Worth Federal Penitentiary.

Dr. Emerson has been on supervised release since April 28, 2005, and his supervised parole is up on April 28, 2008, just a few days from now.

After he was paroled he did manage to see his daughter for about an hour. The little girl was visiting her grandmother but when Sacha found out he was there she took a policeman and forced him to leave and never brought the little girl back. He has not seen Logan again to this day.

On a personal note his father, with whom he had been living, died of pneumonia in October of 2005 and Dr. Emerson was left homeless. His mother has developed a seizure disorder and was discovered unconscious and unresponsive in her apartment before Christmas 2005 and Dr. Emerson has had her in a nursing home since early 2006.

Those unfamiliar with Dr. Emerson's saga can find additional information compiled by the Equal Justice Foundation under The Emerson Case . A recent update on his condition is below.

The Equal Justice Foundation has been trying to help him and donations marked "Emerson Fund" can be made through PayPal, or by sending a check to the EJF-Emerson Fund at 455 Bear Creek Road, Colorado Springs, CO 80906-5820. All such donations are tax-deductible and Dr. Emerson receives 100% of your contribution.


Update from Dr. Emerson


Date: Tuesday, 15 April 2008 19:32:28 -0700 (PDT)

From: Tim J. Emerson

Subject: Update

To: Dr. Charles E. Corry


Dear Chuck,

I'm sorry that I haven't been in contact. The last couple of years have been really depressing.

Everything is fine here in San Angelo, it's just no money, no friends, no family, etc. The Attorney General lifted my driver's license revocation several months ago, but I haven't had the money or the desire to get my license back.

I'm still working as a desk clerk at the DunBar Motel, three days a week. The Attorney General's office gets $120 on the first and the sixteenth. Let's do the math, I'm not making squat! I'm on HUD, and until last month I was getting $160+ in food stamps a month, so at least I can eat.

I have two applications in for disability now. My original one was denied by the Administrative Law Judge four or five months ago, and I filed a request for a review by the review board. So far I haven't heard anything on it. According to the Social Security Act, they do not have adequate medical records to claim that I am not disabled, and I know that I can win in federal district court, but that will take how much longer?

Once you have been denied at a hearing, you can apply again for disability, so that's where I am now. My shortness of breath, rapid heart rate, light-headedness, and blackouts have gotten a little worse over the last few years, and it would really be nice to have some kind of medical coverage to allow me to get back in with my family doctor and a cardiologist to see if there is anything that can be done about my heart.

I'm still being seen at Mental Health and Mental Retardation Services and getting my antidepressants from them at no charge. Amazingly I qualify for a maximum of zero ability to pay, if you can imagine that?

I have another thirteen days on my supervised release. Woo-hoo! Not that life will be any different after April 28th, but I guess it's a milestone anyway.

Still no contact with my daughter. She'll be fourteen the last of June. Wow, I guess it has been that long!

Assuming that I get my disability from my original claim, even at the minimum of ~$630/month, they will owe me over $20,000! Apparently I did have some work that applied to my claim, so the amount should be a little higher than that.

I never thought that I would be in a situation like this.

I really miss my dad. My mom is in the Alzheimer's unit at a local nursing home and I'm ashamed to say that I haven't been to see her in I don't know how long.

My car is not inspected, licensed, or insured, a couple of my tires frequently need to be aired up and are near bald anyway, and my right inner tie rod end is all but completely worn out. At $3.29 a gallon for gas, I can't hardly drive it anyway! I have been able to keep it barely above empty, and I'm proud to say that I haven't run out of gas yet! Knock on wood!

I know, it's not legal anyway, so what am I doing driving it? Well, you do what you have to do to survive is my only excuse.

I've had to "borrow from Peter, to pay Paul" for quite a few months now, and it's about to catch up with me in a really bad way. Maybe my disability will get approved? Yeah, right.

At this point, I'm at the point that if there was some quasi-legal/illegal way of getting some money, I would probably do it, as long as I didn't have to hurt anyone in anyway.

I'm really at the point that I see even less of a reason to live, but darn my antidepressants, I just couldn't do that! It sure would be nice to just "check out."

I pretty much stay in my apartment the majority of the time. I make it to the grocery store maybe once a week and to the Salvation Army Thrift Store occasionally to shop for those things that I can't live without! Actually a friend of mine, read female, works there, and I visited with her when I went, but I guess that we aren't speaking now. She got a boyfriend, and I just fizzled to no contact. C'est la vie.

I've been out to the club a couple of times on the get in free before 8:00 nights, and the .50 and .75 specials until 10:00/10:30, and I love to country western dance, but with my extremely easy fatigability I'm lucky if I can dance a whole song before having to sit and "breathe" as I call it. Man it sucks to be me, huh? At least I can still joke about it! I might as well be in a decent mood as I go down the tubes!

Well, so much for my continued tale of woe. Actually San Angelo has been pretty decent to me, but then what else is there to do to me?

Another couple of years, and Logan will have her license, and who knows, she may come see me. One can always hope!

I hope that everything is going well there. I will do my best to stay in better contact. I wish you the best.



The Equal Justice Foundation has been trying to help Dr. Emerson and donations marked "Emerson Fund" can be made through PayPal, or by sending a check to the EJF-Emerson Fund at 455 Bear Creek Road, Colorado Springs, CO 80906-5820. All such donations are tax-deductible and Dr. Emerson receives 100% of your contribution.


A strange follow up


With Dr. Emerson completing his sentence it appears authorities in Tom Greene County and San Angelo are seeking new headlines by persecuting a religious sect. They have now raided a polygamist colony and taken some 416 children into custody with the aim of placing them in foster homes, where they would likely be even more abused. All based on a phone call allegedly by a 16-year-old girl claiming rape and abuse. Guess we can be thankful they didn't burn them up like they did the kids at Waco. Sure looked like they were prepared to.

However, the headline story in today's Rocky Mountain News suggests the phone call was actually made by 33-year-old Rozita Swinton of Colorado Springs, Colorado, who has a history of making false reports by telephone.

Here in Colorado Springs we are no strangers to false allegations. Local cases of DV and restraining orders run two to three times the state average and a large fraction of those are false. All too commonly the wife is having an affair and wants her husband gone while she keeps the house, the car, the kids, the bank accounts, and everything else he had. One 911 call does the trick, or a trip to TESSA to get a restraining order. Sure worked for Sacha Emerson. The problem is especially ugly here given the huge military concentration and with so many of our troops deployed.

But apparently Colorado Springs police are on to Rozita and she has had to expand her horizons. Wouldn't surprise me a bit, however, to learn Ms. Swinton was working with TESSA, CASA, or one of the other redfem outfits here at the base of Pikes Peak before she pulled this stunt.

Police in San Angelo and Tom Greene County sure gained new headlines with this false report. One wonders what they'd do, however, if they had to deal with real outlaws rather than medical doctors, women and children? I sure hope none of them are Aggies as it would be a disgrace to my alma mater.

The law West of the Pecos doesn't look so good and they should be just right proud of themselves for abusing children and putting a medical doctor in jail because his wife was having an affair with her hairdresser.

And my guess is that in the District of Columbia v Heller case the Supreme Court will rule the Second Amendment is indeed an individual right but put so many restrictions on it that anything more dangerous than a smooth-bore musket will be outlawed. And those won't even be allowed if you have a DV conviction or a restraining order against you.

With disgust,

Charles E. Corry, Ph.D., F.G.S.A.



| EJF Home | More newsletters | Get EJF newsletter | Find Help | Join the EJF | Comments? |

Issues The Equal Justice Foundation Deals With

| Civilization | Families and Marriage | Domestic Violence | Domestic Violence Against Men in Colorado | Emerson story |

| Prohibition & War On Drugs | Vote Fraud & Election Issues |