USA v. McReynolds, et al

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
United States of America,
Plaintiff,
v.
Kashmir Khaliffa McReynolds (1),
Defendant.
Case No. 25-cr-225 (PJS/DJF)
REPORT AND
RECOMMENDATION
This matter is before the Court on Defendant Kashmir Khaliffa McReynolds’ Motion to
Dismiss Counts 2 and 3 of the Indictment (ECF No. 45) (“Motion”). The Motion seeks to dismiss
all charges against Mr. McReynolds on the grounds that: (1.) the Indictment fails to state the
offenses charged; and (2.) the applicable statutes violate the Second Amendment of the United States
Constitution as applied to Mr. McReynolds. 	(Id. at 1; ECF No. 70 at 1.) 	The Court heard the
parties’ oral arguments on the Motion on November 5, 2025. (ECF No. 64.) Based on the parties’
written submissions and the arguments of counsel, the Court recommends Mr. McReynolds’ Motion
be granted in part and denied in part.
BACKGROUND
Mr. McReynolds “worked as armed security for 21 Days of Peace”, “a community-violence-
intervention initiative of Salem Inc., which is a non-profit based in north Minneapolis.” (ECF No. 1
at 1-2.) On the night of March 10, 2025, Mr. McReynolds and Defendant Alvin Anthony Watkins
Jr., another Salem Inc. employee, helped 21 Days of Peace host a community barbecue in North
Minneapolis. (Id. at 3.) At around 9:30 p.m., an unknown person or persons began firing a hail of
bullets in Mr. McReynolds’ and Mr. Watkins’ direction at the barbecue. (Id. at 1, 3.) Mr.
McReynolds was shot in the neck and torso. (Id. at 3.) After being shot, he lay on the ground and
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began to fire back with a pistol he had in his possession. (ECF No. 1 at 3.) Mr. Watkins initially ran
away but then ran back. (Id.) Mr. McReynolds directed Mr. Watkins to “grab my chop, grab my
chop,” a reference to another one of his firearms. (Id. at 4.) When Mr. Watkins asked where it was,
Mr. McReynolds responded, “It’s in my backseat, grab my chop, load that bitch, load that bitch.”
(Id.) Mr. Watkins retrieved the firearm, and both men fired their weapons toward the area from
where they believed the shots originated. (Id. at 4-5.) Afterwards, they then got in their cars and
fled the scene. (Id.)
On June 5, 2025, a federal grand jury indicted Mr. McReynolds and Mr. Watkins for various
criminal offenses. Count 2 of the Indictment charges Mr. McReynolds with disposing a firearm to a
convicted felon in violation of 18 U.S.C. § 922(d)(1). (Id. at 6-7.) Count 3 charges Mr. McReynolds
with possessing a firearm while employed for a felon in violation of 18 U.S.C. §922(h). (Id. at 7.)
The charges are premised on Mr. McReynolds’ alleged disposal of a firearm to Mr. Watkins, and his
professional relationship with Mr. Watkins, who has a felony record. (Id.)1
DISCUSSION
I. 	Failure to State an Offense
A. 	Standard of Review
When determining whether an indictment fails to state the offense charged, a court must
“accept the allegations stated in the indictment as true ... and ask whether they can form the basis of
the charged offense.” 	United States v. Hansmeier, 988 F.3d 428, 436 (8th Cir. 2021). 	For an
indictment to adequately state an offense, it must “contain[] all of the essential elements of the
offense charged.” United States v. Sewell, 513 F.3d 820, 821 (8th Cir. 2008) (citation modified).
“An indictment is normally sufficient if its language tracks the statutory language.” Id.; see also
1 Count 1 of the Indictment applies solely to Mr. Watkins and charges him with being a felon
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Hamling v. United States, 418 U.S. 87, 117 (1974). For an indictment to be insufficient, it must be
“so defective that it cannot be said, by any reasonable construction, to charge the [alleged] offense.”
Sewell, 513 F.3d at 821 (citation modified).
B. 	Analysis
1. 	18 U.S.C. § 922(d)(1)
The Court concludes that Count 2 of the Indictment adequately charges Mr. McReynolds
with violating 18 U.S.C. § 922(d)(1). Section 922(d)(1) states: “It shall be unlawful for any person
to sell or otherwise dispose of any firearm or ammunition to any person knowing or having
reasonable cause to believe that such person, including as a juvenile … has been convicted in any
court of, a crime punishable by imprisonment for a term exceeding one year.” The parties dispute
whether Mr. McReynolds “disposed of” his firearm to Mr. Watkins within the meaning of the
statute. The Eighth Circuit has interpreted the statute’s “otherwise dispose of” phrase to include the
moment “a recipient comes into possession … of a firearm.” United States v. Stegmeier, 701 F.3d
574, 579-80 (8th Cir. 2012); see also United States v. Monteleone, 77 F.3d 1086, 1092 (8th Cir.
1996) (citing Huddleston v. United States, 415 U.S. 814, 823 (1974)) (affirming trial court’s jury
instruction defining phrase to mean “to transfer a firearm so that the transferee acquires possession
of the firearm”).
The Indictment states that Mr. McReynolds “knowingly transferred a firearm … to [Mr.
Watkins], knowing and having reasonable cause to believe that [Mr. Watkins] had previously been
convicted of a crime punishable by imprisonment for a term exceeding one year.” (ECF No. 1 at 7.)
The Indictment supports this charge with the allegation that Mr. McReynolds told Mr. Watkins the
firearm in Mr. McReynolds’ car was “in the backseat” and directed Mr. Watkins to “grab my chop,
in possession of a firearm in violation of 18 U.S.C. § 922(g)(1).
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load that bitch, load that bitch.” (ECF No. 1 at 4.) Assuming these allegations are true, as the Court
must, Mr. McReynolds plainly violated the statute when he instructed Mr. Watkins, a person he
knew to be a felon, to take possession of his firearm and load it.
Mr. McReynolds resists this conclusion based on an overly narrow reading of applicable
precedents. 	(ECF No. 70 at 9-11, distinguishing Stegmeier, 701 F.3d 574, and United States v.
Jefferson, 334 F.3d 670 (7th Cir. 2003).) 	He argues the relevant case law did not contemplate
noncommercial transfers as brief as the one alleged here, and therefore, the appellate courts’
interpretations are inapposite. The Court is unpersuaded for several reasons.
First, there is nothing in those decisions to suggest the Eighth Circuit intended to adopt a
temporal requirement in its interpretation of Section 922(d)(1). The defendant in Stegmeier loaned
his RV to a convicted felon and told him there was a handgun in the closet. Stegmeier, 701 F.3d at
577. Mr. McReynolds correctly notes that the felon at issue in that case resided in the RV, and thus
had control over the handgun, for a period of months. (See ECF No. 70 at 10.) But though the court
noted the length of the felon’s residence in passing in concluding the case presented no “host
liability”2 issue, nothing in that decision suggests the Eighth Circuit intended to generally exclude
brief transfers from its interpretation of the statute’s scope. See Stegmeier, 701 F.3d at 580 (“‘Host
liability’ is not raised by the facts of this case. 	Stegmeier did not violate the statute by merely
inviting [the felon] into his home. Rather, he gave [the felon] control of the RV for approximately
three months and specifically disclosed the location of the firearm.”).
Mr. McReynolds also cites the Seventh Circuit’s decision in Jefferson, 334 F.3d 670, in
which the court grappled with whether a firearm transfer had to be both commercial and final to
2 “Host liability” occurs if a defendant is deemed guilty of providing a firearm to a prohibited
person simply by inviting him into a home where there is a gun. 	Stegmeier, 701 F.3d at 580
(suggesting in dicta that host liability would implicate potential Second Amendment concerns).
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satisfy the statute. 	The court ultimately held that neither a commercial exchange nor finality is
required. (Id. at 675, “To exclude … gratuitous, temporary transfers from the reach of § 922(d) …
ill-serves the purposes of the statute.”) In affirming the defendant’s conviction, the court cited to the
“substantial duration of [the defendant’s] transfer [of the firearm to a felon,] his brother[,] and his
brother’s undisputed exclusive control over the firearm.” Though the duration of the transfer was
one factor the Jefferson court considered, it did not reach the conclusion Mr. McReynolds urges
upon the Court here: 	that a brief and temporary transfer of possession can never constitute
“disposal” of a firearm within the meaning of the statute.
Second, as a matter of statutory interpretation, there is no temporal requirement, or even a
suggestion of one, in the plain language of the statute. See Bates v. United States, 522 U.S. 23, 29
(1997) (“[W]e ordinarily resist reading words or elements into a statute that do not appear on its
face.”); Ace Elec. Contractors, Inc. v. Int’l Broth. Of Elec. Workers, Local Union No. 292, A.F.L.-
C.I.O., 414 F.3d 896, 902 (8th Cir. 2005) (“We will not infer limitation on the plain language of the
statute absent some indication that the legislature intended such a result.”). The Court declines Mr.
McReynolds’ invitation to read an element into the statute that is not stated in its text.
Third, narrowing the scope of the statute would run contrary to Congress’ intent. 	In
interpreting earlier versions of Section 922(d)(1), the Supreme Court concluded that Congress
wanted to provide “maximum coverage” and limit the transfer of firearms to prohibited persons as
much as possible. Huddleston, 415 U.S. at 825-26. Following that decision, Congress has expanded
the statute to proscribe even more kinds of transfers. See Jefferson, 334 F.3d at 674-75 (reciting
legislative history). 	These amendments are consistent with the Supreme Court’s assertion that
Congress’ intended to provide “maximum coverage” and further undermine Mr. McReynolds’
argument that Congress meant for its broad criminal statute to be subject to an implied and
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amorphous temporal limit. Moreover, to inject such a limit into the statute would predictably lead to
absurdities: A person could avoid liability in loaning his gun to a known felon with express criminal
intent so long as the felon only held it long enough to fire it. Particularly when, as in this case, the
defendant knowingly directed a felon to load his gun with the apparent intent that the felon use it, the
duration of the felon’s possessory interest lacks meaningful relevance.
Finally, imposing a temporal requirement would be judicially imprudent and exceed the
power of this Court. In the absence of clear congressional guidance, the Court would be forced to
engage in arbitrary line-drawing to define when possession has lasted long enough to fall within the
statutory prohibition. 	Mr. McReynolds offers no legal principle from the text of the statute or
legislative history that could provide any basis for defining such a temporal requirement. In effect,
Mr. McReynolds invites the Court to rely on its own judgment in deciding when a firearm has been
transferred long enough for the transfer to be deserving of punishment. 	The Court declines to
engage in policymaking that is beyond its authority and ought to be left to elected representatives.
See United States v. Davis, 588 U.S. 445, 451 (2019) (“Only the people’s elected representatives in
the legislature are authorized to ‘make an act a crime.’”) (quoting United States v. Hudson, 7 Cranch
32, 34 (1812)). For these reasons, the Court concludes Count 2 of the Indictment adequately states
an offense under 18 U.S.C. § 922(d)(1).
2. 	18 U.S.C. § 922(h)
In contrast, the Court concludes Count 3 of the Indictment fails to adequately state an offense
under 18 U.S.C. § 922(h). Section 922(h) provides that it is unlawful for a person, with knowledge,
“while being employed for” a felon and “in the course of such employment,” to possess a firearm
affecting interstate commerce. The parties dispute whether the Indictment alleges Mr. McReynolds
was “employed for” a felon as the statute requires.
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Count 3 parrots the statutory elements, alleging that: (1.) Mr. McReynolds, “while being
employed for” Mr. Watkins; (2.) who to Mr. McReynolds’ knowledge was a felon; (3.) “in the
course of such employment” knowingly possessed a firearm; (4.) affecting interstate commerce.
(ECF No. 1 at 7.) But the Indictment also alleges that: nonprofit organization Salem, Inc. operates
21 Days of Peace, which is funded by the Minnesota Legislature (id. at 1-2); Mr. McReynolds was
paid by Salem, Inc. to work “as armed security for the 21 Days of Peace violence interrupters” (id. at
2); and “[i]n his role as armed security, [Mr.] McReynolds carried firearms to protect the violence
interrupters” (id .). The Indictment further alleges, in relevant part, that Mr. McReynolds “knew that
[Mr.] Watkins and other 21 Days of Peace violence interrupters were legally prohibited from
carrying and possessing firearms due to prior felony convictions” (id. at 2-3).
Mr. McReynolds argues Count 3 fails to state an offense because the Indictment expressly
states that he worked for 21 Days of Peace, not Mr. Watkins. (ECF No. 45 at 8.) The government
contends the Indictment is adequate because: (1.) its recitation of the elements is sufficient (ECF No.
53 at 11); and (2.) the “employed for” phrase in the statute only requires the government to prove
Mr. McReynolds possessed a firearm “in the service of” Mr. Watkins, not that Mr. Watkins was Mr.
McReynolds’ employer. (ECF No. 76 at 24, quoting United States v. Weaver, 659 F.3d 353, 357
(4th Cir. 2011); ECF No. 76 at 24-27; ECF No. 64 at 112.) The Court rejects both the government’s
contentions.
i. 	Recital of the Elements
The Indictment faithfully recites the elements of the offense when it accuses Mr.
McReynolds of violating Section 922(h) in Count 3. (See ECF No. 1 at 7.) But though “[i]t is
generally sufficient that an indictment set forth the offense in the words of the statute itself,”
Hamling, 418 U.S. at 117, this general rule of thumb has limitations. In construing an indictment, a
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court must take all its allegations into account, and when an allegation necessary to support an
element of the charge conflicts with other allegations in an indictment, the indictment may fail
despite its recitation of the elements. See United States v. Perkins, 748 F.2d 1519, 1524 (11th Cir.
1984) (“The validity of an indictment is determined from reading the indictment as a whole and by
practical, not technical considerations.”) (quoting United States v. Markham, 537 F.2d 187, 192 (5th
Cir. 1976) (citation modified)).
In United States v. Vesaas, the Eighth Circuit concluded the indictment failed to properly
state the charged offense of making false statements under oath, even though the indictment recited
the statutory elements. 586 F.2d 101, 103-04 (8th Cir. 1978). The court based its conclusion on
finding the indictment itself alleged facts demonstrating the defendant’s statements could not have
been false. 	Id. 	The court thus confirmed that an indictment can fail to state an offense despite
reciting the elements of the offense when its own allegations demonstrate that, as a legal matter, the
defendant could not have committed the offense charged.
Here, the Indictment states that Mr. McReynolds worked for 21 Days of Peace, an initiative
funded by the Minnesota Legislature. (ECF No. 1 at 1-2.) It further unequivocally states that 21
Days of Peace was an initiative of the nonprofit Salem, Inc., which paid Mr. McReynolds for his
work. (ECF No. 1 at 2.) Nowhere does the Indictment state that either 21 Days of Peace or Salem,
Inc. was managed, operated, directed or controlled by a felon. Nor does the Indictment claim that
Mr. Watkins was Mr. McReynolds’ employer or suggest that 21 Days of Peace was an alter ego of
Mr. Watkins. Indeed, at oral argument the government disclaimed that Mr. McReynolds was Mr.
Watkins’ employee. (ECF No. 64 at 112.) The Indictment is further devoid of any suggestion that
Mr. Watkins in any way supervised, directed, led, or otherwise controlled Mr. McReynolds in his
work. It follows that the Indictment fails to state an offense, notwithstanding its bare recital of the
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elements, if Section 922(h) requires the felon and the accused to have an employer-employee
relationship or any relationship at all involving at least some element of control by the felon over the
conduct of the accused.
ii. 	The Meaning of “Employed For”
The sufficiency of the Indictment therefore turns on interpretation of the statutory phrase
“employed for”. When interpreting a statute, the Court begins with the text itself. See United States
v. Alvarez-Sanchez, 511 U.S. 350, 356 (1994); United States v. S.A., 129 F.3d 995, 998 (8th Cir.
1997). Black’s Law Dictionary defines “to employ” as: (1.) “To make use of”; (2.) “To hire”; (3.)
“To use as an agent or substitute in transacting business”; (4.) “To commission and entrust with the
performance of certain acts or functions or with the management of one’s affairs.” Black’s Law
Dictionary (12th ed. 2024). 	These definitions align with the Court’s own understanding that
employing someone involves directing the person to perform some task or function. Therefore, “to
be employed for a person” is to be under that person’s management, direction or control for a
particular task or function.
The government argues that the statute should be read more broadly, to include scenarios
when the accused possesses a firearm for a felon’s benefit, even when the felon has no control over
how the accused uses it. (ECF No. 76 at 24.) The government principally relies on two cases for
this proposition: Weaver, 659 F.3d 353; and United States v. Lahey, 967 F. Supp. 2d 731 (S.D.N.Y.
2013). These cases are inapposite, however.
The defendants in Weaver were alleged members of a motorcycle gang who were ordered by
its vice president, a felon, to carry firearms to protect him. 	659 F.3d at 355. 	In upholding the
indictment, the Fourth Circuit stressed that the charges “stemmed from orders” the defendants
received from the vice president, and that “[b]y virtue of his position in the [gang’s] hierarchy, [the
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vice president] was able to issue orders to lower-ranking [gang] members.” Id. In this context, the
court rejected a lower court’s ruling that the “employed for” element of Section 922(h) implicitly
imposed a requirement that the accused receive monetary compensation from the felon. 659 F.3d
353, 358. The court rested its conclusion in part on the grounds that: (1.) a monetary compensation
requirement would frustrate Congress’ purpose in attempting to prevent “convicted-felon gang
leaders” from ordering their “subordinates” to carry firearms on their behalf, id. at 357 (emphasis
added); and (2.) employment relationships can exist in the absence of monetary compensation, id. at
357-358. Both grounds assume that at least an informal employer-employee or leader-subordinate
relationship must exist for the statute to apply, as appeared to be the case in Weaver. 	Here, in
contrast, there is nothing to suggest that Mr. McReynolds was employed by Mr. Watkins, following
Mr. Watkins’ orders, or otherwise in any way subordinate to Mr. Watkins.
Lahey involved circumstances very similar to those in Weaver. 967 F. Supp. 2d at 735-37.
The Lahey defendants were members of a motorcycle gang who were ordered by felon gang leaders
to serve as armed security to facilitate its criminal activities. Id. Quoting Weaver, the court rejected
the defendants’ contention that a showing of compensation was necessary to satisfy Section 922(h)
but confirmed that a leader-subordinate relationship still must exist. Id. at 41 (“[C]onstruing the
statute in the manner suggested by the Moving Defendants would allow ‘gang leaders to exploit the
loophole that § 922(h) aimed to close by exerting control over their underlings without paying
them.’”) (emphasis added). These cases do not support the government’s broad application of the
statute to a person such as Mr. McReynolds, who carried a weapon under the direction of a perfectly
legal enterprise (indeed, one funded with public support). 	Rather, they underscore that to be
“employed for” a felon, the defendant must be directed or controlled by the felon himself.
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The legislative history also supports the Court’s reading of the statute.3 Congress passed the
original version of Section 922(h) as part of the Gun Control Act of 1968, Pub. L. No. 90-351, §
1201, 82 Stat. 236-237 (1968). It provided that any person who knowingly possessed a firearm
affecting commerce “while being employed by” a felon committed a felony offense. 	Id. 	The
“employed by” phrase strongly indicated that the accused must be the employee of the felon.
Though the phrase was later changed to the “employed for” language contained in the current
version of Section 922(h), the legislative history behind that alteration makes it clear that this change
was not intended to have any significant impact on how the statute ought to be understood. In 1986,
Congress passed the Firearms Owners’ Protection Act, Pub. L. No. 99-308, 100 Stat. 449 (1986),
which amended the Gun Control Act of 1968. 	During the legislative process, Representative
McCollum of Florida noted that the Firearms Owner’s Protection Act had inadvertently omitted the
existing prohibition on persons possessing firearms while employed for a felon. See 132 Cong. Rec.
H1689-03 (statement of Rep. McCollum). 	Upon noting the error, Representative McCollum
proposed adding the prohibition back into the Act with the language now found in Section 922(h).
Id. After he presented this technical amendment, a colloquy between Representative Volkmer of
Missouri, the Act’s sponsor, and Representative McCollum ensued:
Rep. Volkmer: 	The purpose of this language is to make it a crime for the employee of
a felon to ship, transport, or possess a firearm in the course of his
employment. Is this correct?
Rep. McCollum: 	That is how I read this provision and the current law. It is my intent
by offering this amendment to maintain existing law.
Id. (emphasis added). The amendment was approved shortly thereafter, and the statute now contains
Representative McCollum’s amended language. Id. As this colloquy makes plain, Section 922(h) is
3 When the text of a statute is plain and unambiguous, the Court does not need to “look to
legislative history as a guide to its meaning.” Tennessee Valley Authority v. Hill, 437 U.S. 153, 184
n.29 (1978). The Court nonetheless does so here because legislative history bolsters what is obvious
from the text.
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intended to apply when a person is the employee of a felon and possesses a firearm in the course of
that employment. 	It is not, as the government urges, intended to apply simply because a felon
derives some protective benefit from the accused possessing a firearm as part of his employment for
someone other than the felon.
Not only is the government’s interpretation inconsistent with the text and legislative history
of Section 922(h), but it would lead to absurd results. “[I]nterpretations of a statute which would
produce absurd results are to be avoided if alternative interpretations consistent with the legislative
purpose are available.” Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 575 (1982). If the Court
adopted the government’s interpretation of Section 922(h), then private security officers protecting
large corporate campuses would face criminal liability risk upon learning that any single employee
has a felony conviction. United States Marshals and other federal law enforcement officials would
also violate the statute whenever they transported or guarded a group of felons in protective custody.
These kinds of outcomes are absurd and plainly not within the intent of Congress.
The government denies that such absurd results would arise from its interpretation because
Mr. McReynolds was specifically charged with protecting “a small group of felons.” (ECF No. 76 at
27.) 	But this does not distinguish Mr. McReynolds from the U.S. Marshals in the Court’s
hypothetical. 	More importantly, the government offers no basis in the text of the statute for a
numerical limitation on the number of felons a person may protect without violating the law. See
Bates, 522 U.S. at 29. (“[W]e ordinarily resist reading words or elements into a statute that do not
appear on its face.”). The Court is therefore unpersuaded.
Finally, the government’s far-reaching interpretation would raise serious constitutional
questions concerning the statute as applied to Mr. McReynolds. “[W]here an otherwise acceptable
construction of a statute would raise serious constitutional problems, [courts] will construe the
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statute to avoid such problems unless such construction is plainly contrary to the intent of Congress.”
Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Const. Trades Council, 485 U.S. 568, 575
(1988).
The Second Amendment states: “A well regulated Milita, being necessary to the security of a
free State, the right of the people to keep and bear Arms, shall not be infringed.” In New York State
Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1, 24 (2022), the Supreme Court fundamentally altered
how courts assess whether a statute violates the Second Amendment. The Court prescribed a new,
two-pronged test that asks first whether the Second Amendment’s “plain text” covers the conduct the
statute regulates, and if so, whether the government can “justify its regulation by demonstrating that
it is consistent with the Nation’s historical tradition of firearm regulation.” Id.
The government concedes, as it must, that Section 922(h) regulates conduct covered by the
Second Amendment’s plain text (see ECF No. 64 at 113), but it argues the Eighth Circuit’s decision
in United States v. Jackson, 110 F.4th 1120 (8th Cir. 2024), identified a historical tradition
supporting its interpretation of Section 922(h). (ECF No. 76 at 32; ECF No. 64 at 114.) In Jackson,
the court upheld the federal felon-in-possession statute, 18 U.S.C. § 922(g), because it concluded
that statute was consistent with the Nation’s historical tradition of disqualifying categories of
“persons who deviated from legal norms or persons who presented an unacceptable risk of
dangerousness” from possessing firearms. Id. at 1129. The government argues Section 922(h) is a
natural extension of the same tradition because it prevents a felon from constructively possessing a
firearm through another person. (ECF No. 76 at 32; ECF No. 64 at 114.)
If the government had drawn its interpretation of Section 922(h) so narrowly, the Court might
be persuaded. 	But in order to subject Mr. McReynolds to criminal liability, the government
advances an interpretation that extends much further than constructive possession. “Constructive
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possession is established when a person, though lacking physical custody, still has the power and
intent to exercise control over the object.” Henderson v. United States, 575 U.S. 622, 626 (2015)
(emphasis added). In contrast, the government’s interpretation of Section 922(h) would call for the
disarmament of otherwise law-abiding, responsible citizens who: (1.) use firearms to provide
physical security for felons for legitimate purposes; and (2.) are not under any felon’s employment
or control. 	In other words, its interpretation would apply when the felon neither actually nor
constructively possesses a firearm. The statute does not require that the accused himself be deviant
or dangerous. Thus, in the absence of constructive possession by a felon, Section 922(h) cannot
withstand Second Amendment scrutiny based on the tradition of disarming deviants and dangerous
people. See United States v. Rahimi, 602 U.S. 680, 692 (2024) (“Even when a law regulates arms-
bearing for a permissible reason …, it may not be compatible with the right [to bear arms] if it does
so to an extent beyond what was done at the founding.”).
The government identifies no other historical basis to conclude that law-abiding citizens
during the founding era were prohibited from using firearms to protect felons. Therefore, if the
Court adopted the government’s interpretation of the statute, it would be inclined to find the law
unconstitutional as applied to Mr. McReynolds because “the Second Amendment’s plain text
covers” the conduct regulated by Section 922(h) and the government has failed to rebut the
presumption that the Constitution “protects that conduct.” 	Bruen, 597 U.S. at 24. 	The Court’s
narrower construction of the statute avoids this constitutional predicament and is consistent with
Congress’ evident intent. The Court accordingly declines to adopt the government’s interpretation
of the statue. See Edward J. DeBartolo Corp., 485 U.S. at 575.
For all the above-stated reasons, the Court concludes that Section 922(h) liability requires
that the accused be an employee or subordinate acting under a felon’s direction or control. The
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Indictment explicitly states that Mr. McReynolds was an employee of 21 Days of Peace and
possessed a firearm as part of his employment for 21 Days of Peace, and it further fails to allege that
he otherwise worked or carried a gun under a felon’s direction or control. The Indictment therefore
fails to state a violation of Section 922(h) because no “reasonable construction” of it could be
understood to state the elements of the offense. 	Sewell, 513 F.3d at 821. 	Thus, the Court
recommends that Count 3 of the Indictment be dismissed.
II. 	Second Amendment
Mr. McReynolds argues that both charges against him violate the Second Amendment as
applied to his conduct. (ECF No. 45 at 2-5; ECF No. 70 at 2-3.) Because the Court recommends
that Count 3 of the Indictment be dismissed for failure to state an offense, it declines to address Mr.
McReynolds’ as-applied challenge to that charge. 	As to Count 2, the Court recommends Mr.
McReynolds’ Motion be denied without prejudice because the Court cannot resolve the issue at the
pretrial stage.
Rule 12 of the Federal Rules of Criminal Procedure allows a court to dismiss an indictment
before trial when the court can resolve the issues presented “without a trial on the merits.” “In
considering a motion to dismiss, a district court may not make factual findings when an issue is
inevitably bound up with evidence about the alleged offense itself.” United States v. Grubb, 135
F.4th 604, 607 (8th Cir. 2025) (citation modified). Mr. McReynolds argues no trial on the merits is
required because “the only reasonable interpretation of Mr. McReynolds’s words and actions”
alleged in the Indictment is that he was acting in self-defense, which is a fundamental right that the
Second Amendment aims to secure. 	(ECF No. 70 at 3, 5-6; see also ECF No. 81 at 7, “[T]he
government must justify this prosecution by identifying a consistent historical tradition of
criminalizing a non-felon’s emergency request for assistance that results in a prohibited person’s
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momentary handling in the midst of self-defense.”) 	The Court disagrees. 	Though Mr.
McReynolds’s actions, as alleged in the Indictment, might reflect that he was acting in self-defense
and was therefore justified in disposing of his firearm to Mr. Watkins, that is not the only reasonable
inference to be drawn from the facts alleged.
Another possibility is that Mr. McReynolds unreasonably overreacted in firing back and
directing Mr. Watkins to retrieve the firearm and join him. “If a person acts in self-defense [he] is
not guilty of the charged offenses.” United States v. Earth, 984 F.3d 1289, 1299 (8th Cir. 2021). A
person acts in self-defense if he “reasonably believes” his actions are “necessary to protect [himself]
from what [he] reasonably believes to be unlawful physical harm about to be inflicted by another.”
Id. 	But “after the danger has ceased to exist,” his actions “cannot be justified on the basis of
reasonable belief.” United States v. Thomas, 946 F.2d 73, 77 (8th Cir. 1991); see also United States
v. Bordeaux, 570 F.3d 1041 1048 (8th Cir. 2009) (quoting Thomas). The Indictment alleges an
unknown individual or individuals fired an “initial hail of gunfire,” and then never fired again. (ECF
No. 1 at 5.) It also alleges Mr. McReynolds and Mr. Watkins “recklessly fired approximately 43
bullets in the dark, at no one in particular.” (Id. at 1.) The Indictment is silent as to the passage of
time between the initial gunfire and Mr. McReynolds’ response, but depending on the trial evidence,
a jury might find that at least some of his actions, including the transfer of his firearm to Mr.
Watkins, occurred “after the danger ha[d] ceased to exist.” Thomas, 946 F.2d at 77. Under that
interpretation of the facts, Mr. McReynolds’ actions would not have been justified under a theory of
self-defense. See United States v. El-Alamin, 574 F.3d 915, 926 (8th Cir. 2009) (affirming lower
court’s refusal to allow defendant to present justification defense to felon-in-possession charge
because he failed to demonstrate possession of a firearm was necessary); Bordeaux, 570 F.3d at 1048
(concluding that even if some actions may have been justified by self-defense, the jury did not
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necessarily have to conclude that all actions were so justified).
In the face of competing interpretations of the Indictment’s allegations that are central to Mr.
McReynolds’ constitutional challenge, the Court cannot conclude that a trial on the merits is
unnecessary to resolve it. See Grubb, 135 F.4th at 607; United States v. Bromwich, No. 3:24-cr-
30016 (ECS/MAM), 2024 WL 5395627, at *5-6 (D.S.D. Dec. 20, 2024) (concluding defendant’s
self-defense claims were better left for trial because “whether a defendant acted in self-defense
incorporates questions of fact”), report and recommendation adopted as modified, 2025 WL 326387
(D.S.D. Jan. 29, 2025). The Court cannot resolve Mr. McReynolds’ as-applied challenge to Count 2
at this stage because, in the event the jury concludes Mr. McReynolds did not act in self-defense, his
Second Amendment self-defense argument necessarily will fail. 	See Grubb, 135 F.4th at 608
(affirming decision to delay ruling on as-applied constitutional challenge to 18 U.S.C. § 922(g)(3)
because court could not “say definitively that trial of the facts surrounding the commission of the
alleged offense would be of no assistance in determining the validity of the defense”). 	For this
reason, the Court recommends that the Motion with respect to Mr. McReynolds’ as-applied
challenge to Count 2 of the Indictment be denied without prejudice.
RECOMMENDATION
Based on the foregoing, and on all the files, records, and proceedings here, IT IS HEREBY
RECOMMENDED that Defendant Kashmir Khaliffa McReynolds’ Motion to Dismiss Counts 2
and 3 of the Indictment (ECF No. 45) be GRANTED IN PART and DENIED IN PART as
follows:
1. 	Count 3 of the Indictment (ECF No. 1) be DISMISSED for failure to state an
offense; and
2. 	The Motion be DENIED WITHOUT PREJUDICE in all other respects.
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Dated: April 10, 2026 	s/ Dulce J. Foster
Dulce J. Foster
United States Magistrate Judge
NOTICE
Filing Objections: This Report and Recommendation is not an order or judgment of the
District Court and is therefore not appealable directly to the Eighth Circuit Court of Appeals.
Under Local Rule 72.2(b)(1), “a party may file and serve specific written objections to a
magistrate judge’s proposed finding and recommendations within 14 days after being served a copy”
of the Report and Recommendation. A party may respond to those objections within 14 days after
being served a copy of the objections. See Local Rule 72.2(b)(2). All objections and responses must
comply with the word or line limits set forth in Local Rule 72.2(c).
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