A small-town doctor caught in the cross fire

THE BALTIMORE SUN

SAN ANGELO, Texas - In the debate over the constitutional right to bear arms, Timothy Joe Emerson is an unlikely protagonist. He's no Charlton Heston. Not even close.

Broke and living with his 80-year-old dad, Emerson is a physician who bounced from one job to another until he opened a medical practice in this Texas plains town. He's a father trapped in a nasty divorce who has been barred from seeing his daughter for 11 months.

But it is Emerson's possession of a handgun during an argument with his ex-wife and the federal court case that followed that have attracted the attention of legal scholars and historians across the country.

Emerson allegedly threatened his wife with the 9 mm Beretta, in violation of a restraining order commonly issued in divorce cases that precludes spouses from threatening or harassing each other. He was arrested Dec. 10, 1998.

The federal charge upended Emerson's life and set in motion what could become the first Supreme Court review in 61 years of the Second Amendment right to bear arms.

Emerson's court-appointed lawyer argued that the soft-spoken physician had a constitutional right to have the gun. A federal judge in Texas agreed and dismissed the case. The government appealed.

It didn't take long for the gun lobby and anti-gun activists to weigh in. More than 20 groups - including the state of Alabama, the National Network to End Domestic Violence, and Jews for the Preservation of Firearms Ownership - have filed briefs in United States vs. Emerson.

The 5th U.S. Circuit Court of Appeals is to hear the case the week of June 12 in New Orleans. If that court agrees that Emerson does have a constitutional right to his gun, the Supreme Court is likely to hear the case.

Such a review may affect the myriad gun control laws passed since 1939. It also may lead to a review of temporary restraining orders issued in divorce proceedings.

The key issue for the appellate court is the extent of the constitutional right to bear arms. Is it an individual right or one to be exercised as part of a state militia? Does the Second Amendment restrict regulation of firearms by the government?

But the question nagging Timothy Joe Emerson is this: When will my life get back on track?

At the time of his arrest, Emerson didn't know that the mere possession of a gun put him at odds with a 1994 federal law intended to curb domestic violence. His arrest 16 months ago worsened an already difficult time for the 43-year-old physician.

His wife left him for her hairdresser. He was working on a restricted license. He was behind in the office rent.

"It's like a West Texas soap opera. Your business goes to the tanks when the cops come to arrest you," said David Guinn, the court-appointed Texas lawyer who represented Emerson.

Most recently, Emerson spent a couple of nights in jail for failing to pay child support. He's broke and has been for some time. Credit card companies are hounding him. He owes about $17,000 in back taxes. He didn't have the $310 fee to renew his medical license.

If you engage Timothy Joe Emerson in a conversation about the Second Amendment, he can recite only part of it. The adopted son of an insurance salesman and his wife, Emerson grew up in Dallas and got his first gun at age 14. He learned early on that "you don't point a gun, a real gun, a toy gun - any gun - unless you intend to shoot it."

Over the years, he collected about 35 guns - an AK-47 and other military-style weapons among them - and kept them in a safe. Emerson says, "I'm not even going to say the right to bear arms is a good thing. But it's a right we have."

He hasn't been a member of the National Rifle Association in years and years. Anyway, he says, he can't afford the $35 membership fee.

Federal agents arrested him in December 1998 as he was leaving the beauty shop where his girlfriend worked. He spent the night in jail and, he says, missed a morning appointment to purchase the building that housed his medical office.

Since then, Emerson has been alternately depressed, confused and angry. He has been refused visits with his 4-year-old daughter, Logan Ashley, although his parents see her monthly. His ex-wife has moved with the child to a town about 50 miles away.

In a recent letter to her dad, Logan wrote, "I love you. I hope you come back."

Life wasn't always this hard. But it hasn't exactly been a physician's dream.

"I've got one of those resumes that everybody looks at and says 'something's wrong with this guy,'" says Emerson, whose boyish face and casual dress make him appear younger than he is.

After graduating from the University of Texas medical school, Emerson wanted to become a Green Beret doctor. He ended up working as a civilian physician at North Carolina's Fort Bragg. When his contract wasn't renewed, he returned to Texas where he worked in a series of jobs: a medical clinic in San Angelo, several emergency rooms and a student health center.

In 1991, Emerson was charged with sexually touching a minor and received probation before judgment. He was ordered to undergo psychiatric counseling. As a result of the court action, Emerson's medical license was suspended.

Emerson's life turned upside down. His wife divorced him. He became depressed and had suicidal thoughts, according to state medical records. Stripped of his medical license, he returned to college in pursuit of a doctorate. He taught biology as a graduate assistant and worked in a convenience store. There he met Sacha, a petite brunette 15 years his junior. They married Nov. 27, 1993, with wedding bands that cost $59. Things were looking up.

In August of that year, the Texas medical board agreed to return Emerson's medical license; he had successfully attended counseling and was a model probationer. He could resume his medical practice, provided he attended continuing medical education courses, underwent a psychiatric evaluation and saw patients in the presence of a female professional, the board ruled.

Emerson went to work at a family clinic in McAllen, Texas, then took a job working for an insurance firm in San Antonio. He also practiced with a medical school friend. In 1996, he returned to San Angelo with his family and opened a small practice. He borrowed money from relatives to buy used equipment and office furnishings. His wife worked as his assistant; a friend was the receptionist.

"We started out with zero patients a day. It slowly built to where we saw 10 patients a day on a good day. We did a little bit of everything," including body piercing, Emerson said.

But in 1998, Emerson's marriage fell apart. His wife, Sacha, began seeing more and more of a family friend who was her hairdresser. She filed for divorce that August. Then she accused Emerson of threatening her boyfriend, and she got a restraining order against him.

Meanwhile, Emerson's small medical practice limped along. To help pay for food, he said he repeatedly hocked six or eight of his guns at the local pawnshop. His wife, who worked at a nursing home, continued to pay the car insurance and he reimbursed her.

It was during a November 1998 visit to his medical office to collect an insurance payment that Sacha Emerson claims her ex-husband pulled out a gun in a threatening manner. She accused him of pointing the gun at her in the presence of their young daughter.

Emerson won't talk about the circumstances of that day, except to say he bought the Beretta at a local gun show and brought it to the office after an outburst by a patient whom he suspected of abusing his pain medication.

His possession of the gun violated a state restraining order, which triggered a little-known provision in federal domestic abuse law. Federal agents arrested Emerson on Dec. 10, 1998.

The next day, his medical office was padlocked. The landlord sold off his medical equipment and donated the furniture to a Christian group, Emerson said. His wedding band was in a desk drawer. His physician's certificate, medical books, patient charts, accounts receivable - all gone, he says.

Emerson's lawyer - a public defender - challenged the doctor's indictment on the federal gun charge almost immediately. Guinn's argument that the restraining order violated Emerson's constitutional right to have a gun was just one among many arguments he presented to the judge.

But it was the one seized on by Judge Sam R. Cummings.

"It is absurd that a boilerplate state court divorce order can collaterally and automatically extinguish a law-abiding citizen's Second Amendment rights, particularly when neither the judge issuing the order, nor the parties nor their attorneys are aware of the federal criminal penalties arising from firearm possession after entry of the restraining order," Cummings wrote in his April 1999 ruling. "That such a routine civil order has such extensive consequences totally attenuated from divorce proceedings makes the statute unconstitutional," he wrote. "There must be a limit to government regulation on lawful firearm possession. This statute exceeds that limit, and therefore it is unconstitutional."

Emerson still lives with his father in a small, unkempt rancher with a collection of old cars, trucks and boats and an aging motorcycle in the yard.

He remains unemployed. He stopped taking his anti-depression medicine because he has no health insurance.

"I kind of went on a diet 'cause I got bored eating," says Emerson, whose one indulgence is Dr Pepper soda. "There have been three or four days I've just sat in my room and not gone outside. You have to have ambition enough to do stuff. Today I just don't care.

"I don't know if I really care about getting my life back. But I want my daughter back. I can honestly say I want my wife back, but I'm smart enough to know what's real.

"When my marriage broke up, Logan was my family," he says of his daughter. "I'll work in a car wash. I'll clean toilets. I'll dig ditches. When they took her away, they took part of me."

The Emerson case could become the legal gunfight of the age. But for Tim Emerson, it's a chance to be reunited with his only child.

"If this was not a big constitutional-rights case, I'd be sunk," he says.

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