The
Emerson Case
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Background
Tim Emerson, M.D., is engaged in an historical battle for all of
our rights in San Angelo, Texas. His is the most important Second Amendment
trial in more than six decades. Fifth Amendment rights and the unbridled use of
the Commerce Clause by the Congress are also at issue in his case.
The story begins in 1998. According to court records
his then wife, Sacha, was having an affair with her hairdresser and petitioned
for divorce after filing a restraining order against Dr. Emerson.
Prior to filing for divorce Sacha alleged that Dr. Emerson had
threatened her lover in a telephone call and sought a restraining order
against him. Allegations of domestic violence or abuse are a standard tactic in
a divorce as it gives the wife the custody of the children, the house, the car,
the bank account, and the kitchen sink, as such charges did for Sacha, with
virtually no recourse for the husband. And there is no penalty for her perjury.
Note that about 40% of the hundreds of married men who have
contacted the Equal Justice Foundation have been charged with domestic violence
or abuse after finding their wives were having an affair. Under current laws
such false allegations are standard as they give the adulterous wife the house,
the car, the kids, the bank account, and anything else she wants with no
questions asked, i.e., due process is a thing of the past. She will also almost
certainly receive child support even if the child(ren) prove not to be her
husband's.
At that 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. But neither the order or the state judge informed Dr. Emerson of the
extreme consequences of the restraining order.
Unbeknownst to Dr. Emerson, the state court's order made him
immediately subject to 18 U.S.C. § 922(g)(8)
that makes the possession of any firearm or ammunition a federal felony with a
mandatory prison term of up to ten years.
Dr. Emerson was then in the position of being required by court
order to refrain from disposing of any marital property and at the same time
being in violation of Federal Law for possessing this property. But he was not
notified or made aware of those facts.
On November 16, 1998, despite the restraining order, Sacha barged
into Dr. Emerson's medical office with their little girl, and refused to leave
apparently after earlier seeing him entering a cafe with another woman. After
an argument in his private office she contacted San Angelo law enforcement
officials, alleging that Dr. Emerson had pointed a weapon at her and their
daughter.
Trials and appeals
State trial and first
Federal trial
As a result, Dr. Emerson was arrested, his firearms collection
was seized, and he was charged with a Federal felony. Charges of aggravated
assault with a deadly weapon and endangering a child were also brought against
him in Texas court. However, on October 23, 2000, he was acquitted of all charges
brought by the state after a showing that he was defending his business
property and patient medical records against criminal trespass.
District Judge Sam Cummings, San Angelo, Texas division, dismissed the federal case
against Dr. Emerson in February, 1999, on the basis 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.
Consequences
In the meantime, because of the domestic violence charges
resulting from the divorce orders and the consequences of the federal charges:
• Dr. Emerson lost his medical
practice and all means of earning a living, as well as about $50,000 in unpaid
bills due him.
• He lost his office, and all
medical textbooks, instruments, and diplomas.
• Prior to April 3, 2003, he had
spent forty-two days in jail though, until October 7, 2002, he had never been
convicted of any crime.
• Because of the domestic violence
charges, custody of their daughter was given to his adulterous wife.
• Though he has not seen his
daughter in five years, he is forced to pay child support and is now $45,000 in
arrears because he cannot work as a medical doctor. A heart condition, for
which he underwent open-heart surgery on October 19, 2002, made it impossible
for him to work in any strenuous occupation. His current incarceration prevents
him from making the court-ordered payments though the arrears will continue to
accrue.
• Because he is in arrears on
child support, his medical license was suspended. With his conviction of a
federal felony on October 7, 2002, his medical license will be permanently
revoked unless his conviction is reversed on appeal. It is extremely difficult
to find suitable employment, or any employment, when one is a physician not
working in that field, to say nothing of his suffering from a severe heart
condition no doubt aggravated by the pain and suffering the courts are
subjecting him to.
• His driver's license was revoked
as of October 9, 2001 as a result of the delinquent child support payments so
he could not, and did not drive after that date. He had previously worked as a
clerk in a 7/11 convenience store but with his driver's license revoked he
could no longer get to that job.
• Prior to his incarceration he
was living in poverty outside San Angelo, Texas, with his 82-year-old father
solely on his father's military and Social Security retirement pensions.
If all this sounds as though it were taken from a story by Franz
Kafka, welcome to the ways domestic violence and divorce are
intertwined in America today with the consequent destruction of marriage and
families.
However, to his great credit, Dr. Emerson's epic battle has had a
major positive impact on clarifying and strengthening all of our Constitutional
rights.
First appeal
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. An
appeal from that decision to the US Supreme Court failed. However, Attorney
General Ashcroft stipulated
that the Second Amendment is an individual right.
Second trial
In a trial lasting approximately 8 hours, on Monday, October 7,
2002, a Federal jury of six men and six women in Lubbock, Texas found Dr. Tim
Emerson, age 45, guilty of three counts of possessing firearms while under a
restraining order in violation of 18 USC §922(g)(8)
in Case No. 6-98-CR-103-C.
Issues brought out in Dr. Emerson's trial were that a database is
maintained by the Bureau of Alcohol, Tobacco, and Firearms
(BATF) that de facto provides gun
registration and includes names and addresses of virtually
all gun owners in the United States. The BATF is widely perceived
to be a rogue agency that openly ignores the constitutional rights of Americans
and de facto gun registration is simply one more example. Most
citizens probably remember the February
28, 1993, BATF massacre at Waco,
Texas, (scroll down for kid's images) that, with the help of
the FBI,
killed more children than all the school shootings in the United States
combined.
Another issue at Dr. Emerson's trial was jury
nullification. In Dr. Emerson's case the jury was strongly
cautioned that they could only find on the evidence before them under the law
as defined in the jury instructions given them by the judge. That is contrary
to the Sixth Amendment and the practice of English Common Law which has
generally held that juries have a veto power over
bad laws and arbitrary and unjust prosecutions.
After Dr. Emerson's conviction his attorney filed a motion for
acquittal but that was subsequently denied.
Open heart surgery
On October 19, 2002, Dr. Emerson successfully underwent
open-heart surgery for a defective heart valve.
The State of Texas has taken his 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 expenses, including roughly $650 a
month in prescription drugs. So the citizens now pay for his wife's adultery as
well.
Sentencing
On December 11, 2002, Dr. Emerson was sentenced to thirty (30)
months detention in a Federal penitentiary. His case was again been appealed to
the 5 th Circuit Court of
Appeals in New Orleans, which has previously ruled that the Second Amendment is
an individual right in the Emerson case. Emerson's opening brief in his second
appeal was filed with the 5 th
Circuit Court in New Orleans on June 20, 2003.
Subsequent to Dr. Emerson's sentencing the 9 th Circuit Court of Appeals in San
Francisco has ruled that the Second Amendment is instead a collective right and
does not protect individuals rights to keep and bear arms. That ruling works in
Dr. Emerson's favor inasmuch as it makes it likely his case will be heard by
the U.S. Supreme Court. They are the final arbiter when there is a dichotomy
between the circuit courts, as in this case.
Go directly to jail
After his sentencing Dr. Emerson was placed on pretrial release
supervision pending the outcome of his appeal under the following conditions:
"The defendant shall not commit
any offense in violation of federal, state, or local law while on release in
this case."
Back in the infancy of television in the 1950's a man was offered
a substantial amount of cash, $64,000, if he could go 24 hours without breaking
a law. He lasted about five minutes after leaving the studio accompanied by
lawyers. In his nervousness he opened a pack of cigarettes without destroying
the tax stamp as required by federal law.
It is estimated the average driver violates a traffic law once
every four minutes.
But Dr. Emerson did none of these so far as is known. They had
taken his driver's license, as well as his medical license. His father
adamantly refused to let him drive while his license was suspended. That has
been confirmed by a female friend of the family who, incidentally, was a
classmate of Dr. Emerson's former wife in high school. Mostly he stayed at home
on his computer.
What Dr. Emerson did occasionally was go shopping at Wal-Mart in
company with his father, where there was some flirtation with a check-out
clerk, Ms. Nicole Weber, age 21. (1) As best we can
determine she asked Dr. Emerson to fill out a credit application, which she
lost, and then had him fill out another one for her. She reportedly inquired
about information concerning her rather nasty divorce that she thought was
available on the Internet. (2) Dr. Emerson
found that information for her and brought printed copies to her at the store.
There appears to have been the usual byplay between a man and woman during
these exchanges but no contact between them outside the store. (3)
Dr. Emerson usually went through Ms. Weber's checkout line in
company with his father, Joe Emerson, whose age-related palsy makes it
difficult for him to write legibly. Our understanding is that Nicole Weber,
because of her acquaintance with the Emerson's, would help Joe fill out his
checks to pay for their purchases.
On February 10, 2003, Dr. Emerson's probation terms were modified
to include the condition that he not have any contact with Nicole Weber
directly or indirectly, or with any members of her family. Recall that she was
a checkout clerk at the local Wal-Mart where Dr. Emerson and his father shop
regularly and no notice had been given to them that Wal-Mart no longer wanted
their business. Investigation continues as to how, why, and by whom the
probation terms were modified just two days before Ms. Weber filed a stalking
charge against Dr. Emerson.
On February 12, 2003, at 7:45 PM Ms. Nicole Weber, age 20, notified
the San Angelo, Texas, police department that Dr. Emerson was seen sitting in
his car outside the Hunter Run Apartments at 4404 Southwest Boulevard in San
Angelo. According to the police report:
"The complainant [Nicole Weber]
advised that she was at the location of offense [Hunter Run Apts.] and observed
[Emerson]. She said [Emerson] was sitting across the street from the [Hunter
Run Apts.] in a white vehicle. [Ms. Weber] said she it was facing the [Hunter
Run Apts.] She said she drove away from the location of offense and [Emerson]
pulled in front of her. She said she turned and [Emerson] went another
direction.
[Ms. Weber] advised that this has
been going on for about a month."
On the basis of this unsubstantiated, and unlikely (4)
complaint the San Angelo Police Department notified Dr. Emerson's pretrial
release officer, Gloria H. Ramirez, on April 1, 2003, that he was alleged
to have been driving a motor vehicle. Ms. Ramirez called Nicole Weber and Ms.
Weber further stated that when Dr. Emerson pulled out in front of her she was
forced to slam on the brakes to avoid a collision. Note that the police report
does not contain a car license plate number and no description of Dr. Emerson
by which identification was confirmed by Ms. Weber. Subsequent investigation
also places into question whether Nicole was even living at the Hunter Run
Apartments during January-February of 2003.
Nonetheless, a warrant was issued for Dr. Emerson's arrest and he
was taken into custody on April 3, 2003. A hearing on the revocation of Dr.
Emerson's bond pending appeal was scheduled for 5 PM on Tuesday, April
22, 2003, in the San Angelo Federal District Court in an order signed
by Judge Sam R. Cummings and dated April 3, 2003.
Dr. Emerson's father and friends then arranged for witnesses to
testify about his whereabouts on the date and time of Ms. Weber's complaint.
However, in a move we find common in such cases, at roughly 4 PM on Monday,
April 21, 2003, Dr. Emerson was taken from the Tom Green County Jail
to the Federal courthouse. His attorney met him in the holding cell in the
courthouse and informed him that the judge had already signed the
order revoking his appeal bond. Dr. Emerson's attorney had accidentally met his
father and told him to go to the Federal courthouse about 15 minutes before
this but Dr. Emerson was not allowed to testify or present any other witnesses
at this impromptu and unscheduled "hearing."
However, though Dr. Emerson's witnesses were not notified of the
change in hearing date and time, Ms. Weber was. According to the April
22, 2003 San Angelo Times:
The woman [Nicole Weber] testified
in federal court Monday that Emerson came through her line [at Wal-Mart] almost
every day, often reciting intimate facts about the woman and her family, like the
name of her physician, her living arrangements with her husband, the make and
model of her car and the type of child care she was using. One day, Emerson
toted in printouts of the woman's divorce filings and paperwork related to her
husband's probation.
''That's none of his or anyone
else's business. I felt scared that he would even want to know that,'' the
woman said in court Monday. "He had just told me so much information
and I was getting scared to death."
However, Dr. Emerson writes from prison that personal information
about Ms. Weber was given to him by her during the course of several
conversations they had. And according to Dr. Emerson's mother Ms. Weber quit
her job at Wal-Mart two days later.
The San Angelo Times reporter makes no mention of the alleged
stalking incidents outside the Hunter Run Apartments in Ms. Weber's testimony
in Federal court. As a result, however, Dr. Emerson now resides in the Federal
penitentiary in Fort Worth and should be out sometime late in 2005. His release
from prison will probably be about the time his case is heard by the U.S.
Supreme Court, as there is no appeal from a bond revocation. He has filed a
writ of habeas corpus but our experience is that probably won't serve to set
him free.
Once again the unsubstantiated word of a woman has served to
place a man behind bars and we have many similar cases where the man is
sentenced to 6, 8, 12, and 14 years. Thirty months in the gulag is almost
nothing by the standards of Big Sister today. As Erin Pizzey has famously noted:
"Any country that has tried to create a political solution to human
problems has ended up with concentration camps and gulags."
Note that Dr. Emerson has not been convicted of anything
except having a gun collection that he owned both before and during his
marriage. He was alleged to have threatened his wife's lover during a
phone conversation with her during their divorce for which his estranged wife
was given a restraining order to cover her adultery. However, he was acquitted
of that charge in Justice of the Peace Steve Floyd's court before his wife
filed for divorce. Dr. Emerson has been acquitted of all state charges
against him. He is alleged to have been stalking a woman who provides
no evidence and which Dr. Emerson's father and friends deny ever occurred. And
Nicole Weber has since admitted she has no idea who was driving the car she
claims was stalking her although she came so close to that car "she
was forced to slam on the brakes to avoid a collision." Or perhaps it
is now a crime to shop at Wal-Mart and go through the same checkout clerk's
line more than once, and talk with the checkout clerks? But if, and only if,
you are male!
As a result of the stress caused by the grave injustices done his
son, his 82-year-old father, a retired military veteran, has twice been
hospitalized for pneumonia and complications since Dr. Emerson's arrest in
early April 2003. Pneumonia is always dangerous but doubly so for a man in his
80's. One wonders whether the father will live to see his son a free man again?
Does Ms. Weber sleep well at night knowing the damage she has
done? One can only speculate as to her motives and it is not unreasonable to
speculate that she may be a BATFE agent. Our understanding is that she no
longer works at the San Angelo Wal-Mart, and apparently only worked there a few
months. Just long enough to wreak further havoc with a man's life.
In December 2003 the Equal Justice Foundation made arrangements
with Blue
Moon Investigations of Houston, Texas, to investigate the
circumstances of the allegations made by Ms. Nicole Weber that Dr. Emerson was
stalking her. Bobbi Sue Bacha, a licensed private investigator and vice
president of Blue
Moon Investigations has been doing the necessary research pro
bono. Donations by EJF members and subscribers have been made to cover her
travel costs to San Angelo for an on site investigation during March 2004. She
hopes to have a complete report by the end of March and it appears to date that
the stalking allegations were based on supposition and were made without merit.
With the PI report in hand the EJF will seek to restore Dr. Emerson's release
on bond while his current appeal goes forward.
Second appeal
Dr. Emerson's conviction was appealed again to the 5 th Circuit Court of Appeals in New
Orleans. Oral arguments were heard on January 8, 2004, and a decision was
handed down on January 28 th .
As anticipated, the unpublished opinion
affirmed the district court conviction.
Dr. Emerson's attorney, David Guinn, is now preparing a petition
for a writ of certiorari with the US Supreme Court, which is due by the end of
March 2004.
As the 5 th Circuit and 9 th Circuit Courts of Appeal have issued differing opinions on the meaning and application of the Second Amendment, there is a good chance the Supreme Court will hear Emerson's case.
U. S. SUPREME COURT denies certiorari
The Equal Justice Foundation has just learned from Dr. Tim Emerson's attorney that the
U.S. Supreme Court has denied him certiorari. He has thus exhausted all his
appeals and will remain in prison until his 30-month sentence is completed in
September 2005.
Blue Moon Investigations did an
incredible job of proving the testimony that resulted in his appeal bond being
revoked in April 2003 was false. The EJF will post that evidence together with
the rest of Dr. Emerson's sad saga
on our web site in the near future. Unfortunately, the net result of the
woman's perjury was that he began his prison term earlier and will thus be
released sooner.
Justice doesn't always
triumph and it will likely be sometime until another challenge to the draconian
Lautenberg Amendment can be brought forward.
We do wish to extend our
heartfelt thanks to all those who contributed to the efforts of both the Second Amendment Foundation
and the Equal Justice Foundation to help Dr.
Emerson during his long ordeal.
Days are
long in prison and outside contact is always valued. So he'd be glad to hear
from you. Our understanding is that letters can be sent to Dr. Emerson at the
following address:
Timothy Joe Emerson, 32526-077
Fort Worth Unit, Federal Medical Center, P.O. Box 15330, Fort Worth, Texas
76119
NOTE ADDED BY MICHAEL A. S.
GUTH. THIS ARTICLE HAS BEEN POSTED ON
THIS michaelguth.com WEBSITE WITH THE PERMISSION OF DR. CHARLES CORRY.
______________________________________________
Charles E. Corry, Ph.D., F.G.S.A.
President, Equal Justice Foundation http://www.ejfi.org/
455 Bear Creek Road
Colorado Springs, Colorado 80906-5820
Telephone: (719) 520-1089
Domestic violence against men in Colorado: http://www.dvmen.org
Personal home page: http://corry.ws
Curriculum vitae:
http://www.marquiswhoswho.net/charleselmocorry/Default.aspx
Footnotes:
1. Dr. Corry wonders how long he would be imprisoned for the
level of flirting that led to Nancy or Pouting Pretty
Girl?
2. Nicole Erwin, age 18, married Zachary Weber, age 19, on
July 1, 2000. At the time Nicole had a child, Todd, from a previous
relationship. She had an additional child during the marriage. On September 26,
2001, Nicole Weber filed injury of a child (apparently her first child) with
intent to commit bodily injury, a 3 rd
-degree felony, against her then husband Zachary Weber. On February 6, 2002,
Mr. Weber pled guilty and on March 3, 2002, he was placed on 10-years probation
with 160 hours or community service. He was also fined $2,500 plus court costs
and spent 20 days in jail. The couple were granted a divorce on December 19,
2003. As of February 2004 Mr. Weber is reported to be living in a Salvation
Army shelter in San Angelo, his life destroyed.
3. Somewhere it needs to be remembered that joking, teasing,
kidding, and flirting with waitresses, barmaids, and cashiers in public
establishments is an old western tradition that makes everyone's lives a bit
more enjoyable out here. Any damnyankees reading this should recall that San
Angelo is in West Texas, not Boston.
4. Ask anyone you may know who has been stalked how likely it
is that they would leave the safety of their home or apartment after seeing
their stalker parked across the street?
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Dr. MICHAEL A. S. GUTH
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