## Facts

- Peter Vongxay, a convicted felon, was encountered by a Fresno police officer near a nightclub associated with gang activity and violence.
- The officer observed a group of Asian males in gang-associated attire who retreated upon noticing a marked patrol car.
- On a later foot encounter, the officer questioned Vongxay and observed body positioning and hand movements suggesting concealment at the waist.
- After Vongxay denied having weapons, the officer asked to search him; Vongxay responded nonverbally by placing his hands on his head.
- The officer conducted a pat-down, felt the frame of a handgun, and recovered a firearm from Vongxay’s waistband.
- Vongxay was charged and convicted by a jury in federal district court of being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1).

## Issues

1. Whether 18 U.S.C. § 922(g)(1) violates the Second Amendment after District of Columbia v. Heller.
2. Whether § 922(g)(1) violates equal protection principles embodied in the Fifth Amendment’s Due Process Clause by treating felons as a single class.
3. Whether the firearm should have been suppressed because the stop and pat-down violated the Fourth Amendment.

## Decision

- The Ninth Circuit affirmed the conviction.
- The court held § 922(g)(1) constitutional under the Second Amendment, relying on Heller’s statement that felon-dispossession laws are “presumptively lawful.”
- The court rejected the equal protection challenge, applying rational basis review and relying on precedent upholding similar felon-in-possession prohibitions.
- The court held the pat-down reasonable under the totality of the circumstances, concluding the officer had reasonable suspicion Vongxay was armed and dangerous and that Vongxay’s gesture supported consent to the search.

## Legal Principles

- Under Heller, longstanding prohibitions on firearm possession by felons are treated as presumptively lawful; § 922(g)(1) falls within that category.
- Equal protection challenges to felon-in-possession prohibitions are reviewed under rational basis when no suspect class is involved and the statute is not found to burden a fundamental right as applied; Congress may rationally treat felons as a risk category for firearm restrictions.
- A limited weapons frisk is permitted under Terry v. Ohio when an officer has reasonable suspicion that a person is armed and dangerous, based on specific observations and context, including location and behavior.
- Nonverbal conduct can support a finding of consent to a search when it reasonably communicates permission under the circumstances.

## Conclusion

The Ninth Circuit upheld the federal felon-in-possession statute against Second Amendment and Fifth Amendment equal protection challenges and affirmed denial of suppression because the officer’s pat-down was justified by reasonable suspicion and supported by Vongxay’s nonverbal consent.


United States v. Vongxay, 594 F.3d 1111 (9th Cir. 2010)