State v. Terrance Humphries

VERMONT SUPREME COURT Case No. 22-AP-046
109 State Street
Montpelier VT 05609-0801
802-828-4774
www.vermontjudiciary.org
Note: In the case title, an asterisk (*) indicates an appellant and a double asterisk (**) indicates a cross-
appellant. Decisions of a three-justice panel are not to be considered as precedent before any tribunal.
ENTRY ORDER
MARCH TERM, 2022
State of Vermont v. Terrance Humphries* } APPEALED FROM:
} Superior Court, Rutland Unit,
Criminal Division
} CASE NO. 22-CR-01428
Trial Judge: David R. Fenster
In the above-entitled cause, the Clerk will enter:
Defendant Terrance Humphries appeals the superior court's order setting conditions of
release. He argues that the superior court abused its discretion in imposing a condition
prohibiting him from buying, having, or using firearms because the condition is not the least
restrictive means necessary to protect the public and therefore violates his Second Amendment
rights. For the reasons discussed below, I affirm.
Defendant is charged with domestic assault pursuant to 13 V.S.A. § 1042. The charge
arises from an incident on February 16, 2022, in which defendant allegedly struck his wife
(complainant) in the face with a closed fist during an argument while sitting in their vehicle in
her mother’s driveway. Upon being placed under arrest later that day, defendant informed the
police officers that he had a firearm on his person, and an officer removed his firearm without
issue. Complainant did not make any statements to police about the firearm being present, used,
or threatened during the argument.
Defendant denied to the officers that he struck complainant and stated that he did not
know how complainant came to be injured, but he admitted to wanting to hit complainant.
Defendant acknowledged that he and complainant had an argument, during which his firearm
was tucked between the seat and the car’s center console. He asserted that he removed the
firearm from the vehicle and placed it into his front waistband after he and complainant arrived
at their shared residence. Defendant indicated that he brings his firearm with him most places.
At arraignment, the superior court imposed six conditions of release, including condition
thirteen, which orders defendant to “NOT buy, have or use any firearms or dangerous/deadly
weapons.” Defendant objected to condition thirteen during arraignment. The court

2
acknowledged defendant’s objection and that defendant had not used or threatened use of the
firearm during the argument. However, the court also noted that the firearm “was within close
proximity of the alleged assault” and that defendant had taken the firearm with him when he
exited the vehicle. In imposing condition thirteen, the court referenced the significantly
increased risk of deadly violence in domestic-violence situations where firearms are accessible.
Defendant appeals the imposition of condition thirteen.
The order imposing conditions of release “shall be affirmed if it is supported by the
proceedings below.” 13 V.S.A. § 7556(b). “[I]n assessing whether the order is supported by the
proceedings, we recognize that the [superior] court possesses a high degree of discretion in
analyzing the evidence before it . . . [and] reverse only if the court has abused its discretion.”
State v. Bailey, 2017 VT 18, ¶ 9, 204 Vt. 294. When considering conditions of release to protect
the public, the superior court must impose “the least restrictive” conditions “that will reasonably
ensure protection of the public.” 13 V.S.A. § 7554(a)(2). The statute lists several factors for a
court to consider when imposing conditions of release, including “the nature and circumstances
of the offense charged” and the defendant’s “character and mental condition.” Id. § 7554(b)(2).
On appeal, defendant argues that imposing condition thirteen was an abuse of the
superior court’s discretion and was not the least restrictive means necessary of protecting public
safety. He asserts that, despite the firearm’s close physical proximity to the altercation, the
alleged domestic assault did not involve the firearm and therefore does not justify the imposition
of condition thirteen. He questions the court’s reliance on social science establishing the
connection between firearms and lethal domestic violence, stating, “[o]ne cannot . . . assume that
every alleged domestic violence-type situation is more deadly when a firearm is readily
accessible.” Defendant argues that the other imposed conditions sufficiently protect the public,
pointing to the conditions prohibiting him from contacting complainant and the fact that he has
no history of violating court orders. Finally, defendant argues that condition thirteen unduly
burdens his Second Amendment rights.
The record supports the imposition of condition thirteen. At arraignment, the court
considered the circumstances of the alleged domestic assault and the well-established connection
between access to firearms and significantly increased risk of lethal domestic violence.
Although defendant is not accused of a crime involving the firearm in question, he is accused of
having committed an act of domestic violence in close physical proximity to a firearm; based on
the description defendant provided to police, the firearm was in arm’s length of defendant during
the alleged altercation. Further, defendant told police that he took the firearm with him when he
left the vehicle after the argument, and he additionally stated that he brings his firearm with him
most places. Considering the volatile nature of domestic violence and the speed at which an
incident of violence can become lethal when firearms are accessible, the firearm’s presence
during the alleged domestic assault is sufficiently relevant to create a factual nexus. By
defendant’s own admission, the firearm is almost always on his person. In the interest of
protecting public safety, condition thirteen prevents defendant from escalating any further
instances of domestic violence to the level of lethality that access to a firearm can cause.
I now turn to defendant’s Second Amendment arguments. In District of Columbia v.
Heller, 554 U.S. 570, 595 (2008), the United States Supreme Court held that the Second
Amendment protects the right of individuals to keep and bear arms. However, “[l]ike most

3
rights, the right secured by the Second Amendment is not unlimited.” Id. at 626. The Supreme
Court emphasized “the right of law-abiding, responsible citizens to use arms in defense of hearth
and home.” Id. at 635. This distinction of “law-abiding” is critical; the Second Amendment
does not preclude the government from reasonably restricting (or, as the Supreme Court put it,
“disqualif[ying]”) the right to bear arms for individuals accused or convicted of crimes. Id. at
635.
This Court has not considered Second Amendment rights in the context of pre-trial
conditions of release, so the standard of review is not established in Vermont. As this Court
noted in State v. Misch, “Heller did not specify what standard should apply to challenges under
the Second Amendment.” 2021 VT 10, ¶ 52 (per curiam). We acknowledged that, after Heller,
the majority of federal circuit courts have developed a two-step
framework for addressing Second Amendment claims. This
approach, as the Second Circuit has described, requires courts to
first “consider whether the restriction burdens conduct protected by
the Second Amendment,” and if it does, “determine and apply the
appropriate level of scrutiny,” generally intermediate or strict
scrutiny.
Id. ¶ 53 (quoting N.Y. State Rifle & Pistol Ass’n v. Cuomo, 804 F.3d 242, 254 & n. 49 (2015)).
We also noted that “the Second Circuit has held that ‘heightened scrutiny is appropriate only as
to those regulations that substantially burden the Second Amendment.’ ” Id. ¶ 54 (quotation
omitted).
I need not determine the appropriate level of scrutiny here because defendant fails to
establish that his possession of a firearm as an individual accused of domestic violence is
protected by the Second Amendment. By the nature of the Supreme Court’s precedent in Heller,
an individual who is disqualified from firearm ownership because they are accused of not
obeying the law does not automatically enjoy the more expansive Second Amendment rights
afforded to their law-abiding peers. Defendant, who is here accused of violating the law in close
proximity of a firearm, falls outside of the protected category.
However, even if intermediate scrutiny were required, condition thirteen would survive
this inquiry. The Second Circuit noted that, “[t]hough ‘intermediate scrutiny’ may have different
connotations in different contexts, . . . the key question [in firearm regulation] is whether the
statutes at issue are ‘substantially related to the achievement of an important governmental
interest.’ ” N.Y. State Rifle & Pistol Ass’n, 804 F.3d at 261. It further acknowledged that there
are “substantial, indeed compelling, governmental interests in public safety and crime
prevention.” Id. (quotation omitted). The only remaining question, therefore, is whether
condition thirteen is substantially related to the State’s interest in protecting public safety. I find
that it is.
Condition thirteen’s terms are relevant to the underlying allegations and therefore
substantially related to the State’s interest in ensuring public safety. The condition aims to
ensure public safety in light of the violent nature of the allegations against defendant.
Prohibiting defendant from buying, using, and possessing firearms protects the public from an

4
accused abuser escalating domestic violence to a deadly level. Even if a stricter level of scrutiny
were required, there are no less restrictive means available to prevent defendant from accessing
and using a firearm in a potential future domestic violence situation, particularly given
defendant’s assertion that he ordinarily has the firearm with him most of the time.
Additionally, on its face, condition thirteen is not an overbroad, vague, or otherwise
unduly burdensome restriction. Prohibitions against firearm possession are imposed as a result
of convictions of the very crime defendant is accused of committing. 13 V.S.A. § 4017(a) (“A
person shall not possess a firearm if the person has been convicted of a violent crime”); id.
§ 4017(d)(3) (defining violent crime as listed crime in 13 V.S.A. § 5301(7) with limited
exceptions); id. § 5301(7)(C) (listing domestic assault). Such prohibitions are also imposed in
relief from abuse orders. See Benson v. Muscari, 172 Vt. 1, 6 (2001) (upholding relief-from-
abuse order prohibiting defendant from possessing firearms). Defendant does not challenge the
constitutionality of these statutes, and such a challenge would likely fail considering Heller’s
rationale and resulting precedent.
The trial court gave due weight and consideration to the underlying facts, including the
nature of the allegation and defendant’s lack of criminal history, in deciding to impose condition
thirteen. The record supports its conclusions about the factual nexus between the firearm and the
alleged instance of domestic assault and the increased risks to public safety associated with
access to a firearm in a domestic violence situation.
Affirmed.
FOR THE COURT:
William D. Cohen, Associate Justice