                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 13-3078
                        ___________________________

                             United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                                Larry Lewis Cooney

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

                     Appeal from United States District Court
                 for the Eastern District of Arkansas - Little Rock
                                  ____________

                             Submitted: April 18, 2014
                               Filed: July 22, 2014
                                  [Unpublished]
                                 ____________

Before WOLLMAN, BYE, and SHEPHERD, Circuit Judges.
                          ____________

PER CURIAM.

       Larry Lewis Cooney entered a conditional guilty plea to one count of being a
felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). He appeals,
arguing that the district court1 erred in prohibiting him from presenting a justification
defense. We affirm.

                                    I. Background

       As a convicted felon, Cooney is prohibited from possessing firearms. In 2011,
Cooney lived in a duplex with his fifty-year-old brother Warren Cooney (Warren) and
his brother’s family. Warren had a long history of health problems, including two
heart attacks.

       On October 27, 2011, Warren and nineteen-year-old Dwight Avance began to
argue in the Cooney duplex. As the argument escalated and became physical, the two
men took the fight outside, while Cooney remained within the residence. Once
outside, Warren and Avance wrestled on muddy ground, near which several loose
bricks were lying. Several onlookers had gathered, and some were concerned that
Avance might strike Warren with one of the nearby bricks. Avance had gained the
upper hand in the fight and had pinned Warren to the ground. After attempts to quell
the fight proved unsuccessful, Warren’s wife, Ressie, sent an onlooker into the duplex
with instructions to tell Cooney to retrieve Ressie’s gun from Warren’s bedroom and
to come outside to break up the fight. Moments later, Cooney exited the duplex,
carrying the gun and yelling at the men to stop fighting. The men ignored the
commands, whereupon Cooney ended the fight by firing a single gunshot into the air
or into the ground. Warren’s injuries from the fight consisted of a cut lip and a few
scratches on his arms and hands.

       Cooney was charged with one count of being a felon in possession of a firearm.
Prior to trial, Cooney filed a notice of defense in which he disclosed his intent to


      1
       The Honorable Susan Webber Wright, United States District Judge for the
Eastern District of Arkansas.

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present a justification defense, specifically, the defense of others. In response, the
government filed a motion in limine seeking to preclude Cooney from arguing such
a defense. Following an evidentiary hearing, the district court granted the
government’s motion, after which Cooney entered a conditional guilty plea, reserving
the right to appeal the district court’s ruling on the government’s motion. The district
court sentenced Cooney as an armed career criminal, see 18 U.S.C. § 924(e)(1), and
imposed the statutory mandatory minimum sentence of 180 months’ imprisonment.

                                    II. Discussion

       “We review de novo a district court’s decision whether there is sufficient
evidence to submit an affirmative defense to a jury.” United States v. El-Alamin, 574
F.3d 915, 925 (8th Cir. 2009) (quoting United States v. Hudson, 414 F.3d 931, 933
(8th Cir. 2005)). We have previously declined to “recognize[ ] a defense of legal
justification to a violation of § 922(g).” Id. (quoting Hudson, 414 F.3d at 933). We
have indicated, however, that if we were to recognize the defense, we would require
proof of the following four elements:

      (1) that defendant was under an unlawful and “present, imminent, and
      impending [threat] of such a nature as to induce a well-grounded
      apprehension of death or serious bodily injury,” (2) that defendant had
      not “recklessly or negligently placed himself in a situation in which it
      was probable that he would be [forced to choose the criminal conduct],”
      (3) that defendant had no “reasonable, legal alternative to violating the
      law, ‘a chance both to refuse to do the criminal act and also to avoid the
      threatened harm,’” and (4) “that a direct causal relationship may be
      reasonably anticipated between the [criminal] action and the avoidance
      of the [threatened] harm.”

United States v. Poe, 442 F.3d 1101, 1103-04 (8th Cir. 2006) (alterations in original)
(quoting United States v. Stover, 822 F.2d 48, 50 n.3 (8th Cir. 1987)). “To be entitled
to a jury instruction on a justification defense, a defendant must show ‘an underlying

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evidentiary foundation as to each element of the defense,’ such that a reasonable
person could conclude that the evidence supported the defendant’s position.” Id. at
1104 (internal quotation marks omitted) (quoting Hudson, 414 F.3d at 933).

       Cooney contends that he can establish an underlying evidentiary foundation as
to all four elements of the justification defense. He thus asks us to recognize a
justification defense to a § 922(g)(1) charge and to allow him to present the defense
to a jury. Even if we were to recognize a justification defense in the context of this
case, however, it would not be available to Cooney because he cannot establish all
of the required elements.

        At a minimum, Cooney cannot show that he had no reasonable, legal
alternative to violating the law. First, Cooney could have called the police. We have
held that a defendant cannot establish that he had no reasonable, legal alternative to
violating the law if the record reflects that he could have called the police. See
El-Alamin, 574 F.3d at 926; United States v. Blankenship, 67 F.3d 673, 678 (8th Cir.
1995). Aside from calling the police, Cooney could have attempted to break up the
fight without using the gun. When Cooney exited the duplex, Warren and Avance
were wrestling in the mud. Neither man had a weapon of any kind, and Cooney
testified that he never saw Avance reach for a brick. Because no reasonable person
could conclude that the evidence supports Cooney’s claim that he lacked a
reasonable, legal alternative to using the gun to break up the fight, the district court
did not err in precluding Cooney from presenting a justification defense.

       Alternatively, Cooney argues that the four-part test is too stringent in light of
the United States Supreme Court’s holding in District of Columbia v. Heller, 554 U.S.
570 (2008), that the Second Amendment protects an individual’s right to keep and
bear arms for the purpose of self-defense. The Court clarified, however, that this
right was not without limitation, stating that “nothing in our opinion should be taken
to cast doubt on longstanding prohibitions on the possession of firearms by felons[.]”

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Id. at 626. Nothing in Heller indicates that we should apply a different test in
determining whether Cooney should have been allowed to present a justification
defense, and thus we reject his argument to the contrary.

                                   III. Conclusion

      The judgment is affirmed.

BYE, Circuit Judge, concurring in the result.

      I agree we should affirm the district court's decision prohibiting Cooney from
presenting a justification defense. I write separately because I do not agree entirely
with the reasons the court gives for affirming.

       The court concludes one of Cooney's reasonable, legal alternatives to using a
firearm to break up his brother's fight was to call the police. Under the circumstances
involved in this case, I disagree calling the police was a reasonable alternative. I do
not understand how calling the police would have solved the imminent problem
facing Cooney when he exited the duplex, the sight of Avance having close access
to weapons (the bricks) that could have caused his brother serious injury or death.
Neither the government nor our court explains how calling the police under those
circumstances would have removed the immediate threat of serious injury facing
Cooney's brother.

       I do believe, however, Cooney had other reasonable, legal alternatives to
protect his brother other than to possess and discharge a firearm. One alternative was
simply to remove the bricks from Avance's reach by picking them up or kicking them
out of reach. Another reasonable alternative was to use a weapon other than a firearm
to attempt to break up the fight between the two men, such as a knife. For example,
in United States v. El-Alamin, 574 F.3d 915 (8th Cir. 2009), we affirmed a district

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court's rejection of a justification defense where the defendant entered his home and
grabbed a knife because he feared an intruder was inside, but then swapped the knife
for a firearm. In relevant part, we said the defendant could have chosen not to
upgrade his weapon from a knife to a gun. Id. at 926. Similarly, in this case, Cooney
could have first tried to break up the fight between his brother and Avance with a
weapon other than a gun.

      I concur in the result.
                       ______________________________




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