A small-town doctor caught in the cross fire
Right to bear arms could face major test in Texas gun case
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By Ann LoLordo
Sun National Staff

A life on hold: What Timothy Joe Emerson wants to win is the right to
visit his daughter. (Sun photo by Ann LoLordo)

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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 DrPepper 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.

Originally published on May 30 2000