United States District Court, E.D. Pennsylvania
MEMORANDUM WITH FINDINGS OF FACT AND CONCLUSIONS OF
evaluating credibility of conflicting trial testimony, we
today address a citizen's Second Amendment right to
possess a gun after he pleaded guilty to possessing an
unlicensed handgun, possessing the same unlicensed handgun in
public in Philadelphia, and simple assault in connection with
a November 7, 2005 physical assault of his girlfriend
concerning temporary custody of their two children. The
evidence adduced during our non-jury trial confirms the
citizen engaged in violence including at least hitting her
during the assault. The legal issue is whether Congress'
prohibition on firearms for those committing serious crimes
is unconstitutional as applied to the citizen's
convictions for crimes punishable by more than two years in
prison as recently guided by our court of appeals in
Binderup v. Attorney General United States of
America. Requiring fact-finding and then working
through the conflicting trial evidence of the November 7,
2005 assault after applying the shifting burdens of proof, we
find the 2005 convictions are for “serious
crimes” which traditionally bar the right to keep and
bear arms. Even if he had met his burden of distinguishing
his crimes from “serious crimes”, the United
States satisfies our intermediate scrutiny of the prohibition
as applied. We enter judgment following trial against the
citizen seeking a gun.
Findings of Fact
the late 1990s, Philadelphian Scott Gurten purchased a
handgun with a license to carry.
handgun carry license expired before November 7, 2005.
not holstered on his body, Mr. Gurten kept his handgun with
him in his pick-up truck or in a lock box or secure safe in
his home which he shared with his longtime girlfriend Tracy
Scarlota and their two children, aged nine and four years
Following recurring domestic troubles, Ms. Scarlota would
leave Mr. Gurten's home from time to time to stay with
Scarlota described Mr. Gurten as abusive although she swore
not knowing of his handgun until November 7, 2005 when he
allegedly used it against her.
Gurten described Ms. Scarlota as suffering from addiction to
heroin, prescription drugs and alcohol in the mid-2000s. He
described his efforts, along with her family (whom he viewed
as a second family), to intervene with rehabilitation.
Sometime shortly after Halloween night 2005, Ms. Scarlota
left their home with their children.
Scarlota drove away in a car owned by Mr. Gurten.
Gurten believed Ms. Scarlota and the children again went to
Ms. Scarlota's parents' nearby home for several days.
Scarlota testified she went to her parents' home.
After a few days, Ms. Scarlota's late father, Frank
Scarlota, told Mr. Gurten the children were not living with
Gurten did not know where to find his children. He expressed
concern for their safety fearing Ms. Scarlota's abuse of
heroin, prescription pills, and alcohol.
of November 7, 2005
November 7, 2005, Frank Scarlota, Ms. Scarlota's father,
told Mr. Gurten he believed Ms. Scarlota and the two children
were staying at 7403 Dorcas Street.
Scarlota testified she went to visit a friend, Lee DeSousa,
who lived at 7403 Dorcas Street. Ms. Scarlota testified she
visited Mr. DeSousa with her nine year old son Frank but not
her four year old daughter whom she believed remained with
her (Ms. Scarlota's) parents.
Scarlota testified she did not drink alcohol on November 7,
2005 but had taken her Xanax as prescribed, one milligram
pill three times a day. Ms. Scarlota testified this Xanax
dosage did not impair her.
Gurten testified he, Mr. Scarlota (Ms. Scarlota's
father), Ian Dougherty (Ms. Scarlota's brother-in-law),
and Mr. Gurten's friend, Nick Blank, went to 7403 Dorcas
Street around 5:00 PM on November 7, 2005 to retrieve his two
Dougherty and Mr. Blank did not testify. We evaluated
testimony regarding the November 7, 2005 altercation through
the distant recollections of Mr. Gurten and Ms. Scarlota,
along with a police officer who later arrested Messrs. Gurten
Gurten testified he asked the three men to join him because
Mr. DeSousa was a “big guy, ” “not a nice
guy, ” and a “badass.” Mr. Gurten also
needed a second driver to drive the car taken by Ms.
Gurten drove his pick-up truck to the address given to him by
Mr. Scarlota. Mr. Gurten testified his unlicensed handgun
remained under the driver's seat.
Gurten testified he left his unlicensed handgun in the
pick-up truck and Mr. Scarlota remained with his pick-up
Gurten testified he knocked on the front door of the
apartment building door because he was unsure where to find
Mr. DeSousa's apartment in the four unit apartment
building. An unknown man walked him to the front door of Mr.
police reported a witness showed Mr. Gurten to Mr.
DeSousa's apartment, and then saw Mr. Gurten raise up his
shirt and show a gun followed by Mr. Gurten calling inside
the apartment, “It's enough, it's over!”
The witness immediately left the building and called 911 for
emergency police response.
Gurten testified he knocked on Mr. DeSousa's
apartment's front door and no one answered. Mr. Gurten
then opened the unlocked front door and he, Mr. Dougherty,
and Mr. Blank entered the apartment. Mr. Gurten testified
both of the children were seated on the living room couch
watching television but he did not see anyone else in the
Scarlota testified she was in the apartment watching
television with her son Frank and Mr. DeSousa when Mr. Gurten
“barged” into the apartment without knocking. Ms.
Scarlota testified Mr. Gurten entered the apartment alone
without mentioning her brother-in-law Mr. Dougherty or Mr.
Gurten testified once they entered the apartment, the
children jumped off the couch and came towards him. Mr.
Dougherty, their uncle, picked up the two children and left
the apartment to bring them to his home.
Scarlota testified her father, Mr. Scarlota, removed her son
Frank from the Mr. DeSousa's apartment but she did not
see this happen.
Scarlota testified when Mr. Gurten entered the apartment she
jumped up and ran to the bathroom because she was scared. She
testified Mr. DeSousa followed her to the bathroom which is
off the bedroom - in a room separate from the room with the
television and couch.
While most of the testimony is contradictory, the mother and
father both agree no children saw the physical altercation
between Mr. Gurten, Ms. Scarlota and Mr. DeSousa. Mr. DeSousa
never spoke to Ms. Scarlota after this night and did not
appear for trial.
Gurten testified, after the children left the apartment, Ms.
Scarlota and Mr. DeSousa then came out of the apartment's
bathroom and towards him. Mr. Gurten testified Ms. Scarlota
came after him screaming “you don't know who you
are fucking messing with” and “we'll send
people to your house and to fuck with you.” She
appeared aggravated and slurring her words. Mr. Gurten
testified he knew Ms. Scarlota was not sober having seen her
high “over 100 times.” Mr. DeSousa also yelled
“get the fuck out of my house.” Mr. Gurten
testified a physical scuffle ensued with Mr. Blank attempting
to pull him out the apartment while Ms. Scarlota was slapping
and hitting him and Mr. DeSousa grabbed his shirt. Mr. Gurten
testified he said “I'm taking the kids, this is the
Scarlota offered conflicting testimony as to what happened
after she ran to the bathroom. On direct examination, she
testified she exited the bathroom quickly after going in
because she was not going stay in there all night. On
cross-examination, she testified Mr. Gurten came in and
physically removed her from the bathroom. Ms. Scarlota
testified Mr. Gurten then “put a gun to her head”
and threatened to kill her. Ms. Scarlota could not recall the
color of the gun but believed it was a handgun. Ms. Scarlota
also had difficulty recalling where Mr. Gurten placed the gun
but recalls he placed the barrel of the gun against her right
temple. Ms. Scarlota testified she told Mr. Gurten
“shoot me.” Ms. Scarlota does not recall Mr.
Gurten saying anything to her. Ms. Scarlota does not recall
Mr. DeSousa's location when Mr. Gurten placed the gun to
Gurten testified the scuffle ended when he shoved Ms.
Scarlota to get away and she fell to the floor. Ms. Scarlota
testified the altercation ended because Mr. Gurten hit her
but she does not know if he hit her with his fist or the
Gurten testified after he pushed Ms. Scarlota to the ground,
he and Mr. Blank left the apartment. We have no evidence
concerning Mr. DeSousa's whereabouts.
Scarlota testified after Mr. Gurten hit her she landed on the
ground and then awoke ten to fifteen minutes later. Ms.
Scarlota testified being “obviously” visibly
injured from Mr. Gurten hitting her.
Gurten testified Mr. Blank and he drove back to Mr.
Blank's house at 451 Tyson Avenue which took about ten to
fifteen minutes. Mr. Gurten testified they planned to go to
Mr. Dougherty's house to get his children but he feared
going there after Ms. Scarlota's and Mr. DeSousa's
threats to come after him, even though he believed his
children were in the home Ms. Scarlota and Mr. DeSousa
threatened to come after.
Gurten testified he called 911 from Mr. Blank's home to
report his altercation with Ms. Scarlota and Mr. DeSousa.
only other testimony is offered by the arresting officer.
Sergeant Uitz testified he and his partner received a
dispatch to respond to a 911 call for a “person with a
gun” at 7403 Dorcas Street.
Sergeant Uitz and his partner started towards Mr.
DeSousa's apartment but then received a second dispatch
the offender from 7403 Dorcas Street went to a second
location, 451 Tyson Avenue - Mr. Blank's house.
Sergeant Uitz and his partner went to 451 Tyson Avenue where
they saw Mr. Gurten and Mr. Blank. Per police protocol when
facing a situation where the target may have a weapon, they
exited the squad car with weapons drawn ordering Mr. Gurten
and Mr. Blank onto the ground. The men complied.
Gurten exited Mr. Blank's house when he saw the police
vehicle arrive but then realized something was wrong because
“a lot” of police cars arrived and drove onto the
lawn. The officers jumped out with their guns drawn saying
“get on the ground.” Mr. Gurten obeyed and the
officers began questioning him and he tried to explain the
“misunderstanding.” 40. Ms. Scarlota testified
the police officers, notwithstanding her alleged head
injuries from being hit or her fall to the ground after being
pushed, took her to identify Mr. Gurten at Mr. Blank's
apartment. Ms. Scarlota testified she does not recall
speaking to the officers because she was in shock.
Sergeant Uitz testified in his practice he would, depending
on the severity of the victim's injuries, ordinarily take
the victim to identify the assailant before going to the
Gurten testified he told the officers he had a gun in his
pick-up truck. Sergeant Uitz does not recall Mr. Gurten
telling him where his gun was located but recalled Mr. Gurten
gave a detective consent to search the truck and the
detective discovered Mr. Gurten's handgun there.
Scarlota identified Mr. Gurten as the man who had a gun and
attacked her. Ms. Scarlota then testified police officers
took her to the hospital where she was admitted for head and
elbow injuries. The parties did not proffer medical or
Gurten testified the officers arrested him, placed him in a
squad car, and took him into custody. The police officers
described the crime as “aggravated assault - domestic
abuse by handgun.”
Philadelphia District Attorney charged Mr. Gurten with
aggravated assault, carrying firearms without a license,
carrying firearms in public in Philadelphia, possessing
instruments of crime, terroristic threats, simple assault,
and recklessly endangering another person.
some point, Ms. Scarlota decided she did not want to testify
against Mr. Gurten because she wanted to “try and keep
the family together.”
Gurten pleaded guilty to carrying a firearm without a
license, carrying the unlicensed firearm in public in
Philadelphia, and simple assault. We have no record of his
plea colloquy. The only contemporaneous evidence is a police
report, admitted into evidence without objection, describing
part of Ms. Scarlota's claim of gun use. In the arrest
report, Ms. Scarlota gives different, though not incompatible
facts. Ms. Scarlota told the officers Mr. Gurten pulled her
out of the bathroom and threw her to the floor with no
mention of a gun but later told officers Mr. Gurten grabbed
her by her arm and pointed a gun at her and took their two
children when she identified him at Mr. Blank's house.
arrest report recounts interviews with two witnesses. Witness
one told officers he was in the bathroom with Ms. Scarlota
when Mr. Gurten pulled out a gun and pointed it at them.
Witness one stated Mr. Gurten hit Ms. Scarlota with his fist,
not his gun and knocked her to the ground. Sergeant Uitz
testified witness one is Glenn Bernstein. Based on the
testimony of Mr. Gurten and Ms. Scarlota, this witness is Lee
DeSousa, not Mr. Bernstein.
Witness two told the officers he was leaving Mr.
DeSousa's apartment when he encountered Mr. Gurten
entering the building. Mr. Gurten told witness two he wanted
to see Mr. DeSousa and witness two went back towards Mr.
DeSousa's apartment with Mr. Gurten following behind.
Witness two stated he turned around to look at Mr. Gurten and
Mr. Gurten pulled his shirt up to reveal a handgun then
yelled into Mr. DeSousa's apartment “[it's
enough, it's over.” Witness two fled the apartment
building, drove a block away, and then called 911 to report
Mr. Gurten had a gun. Sergeant Uitz testified witness two is
Lee DeSousa. Based on witness two's recount and the
testimony together, witness two is Mr. Bernstein, not Mr.
sentencing judge classified Mr. Gurten's convictions for
carrying a firearm without a license and carrying a firearm
in public as misdemeanors in the first degree punishable by
up to five years imprisonment and his simple assault
conviction as a misdemeanor in the second degree punishable
by up to two years imprisonment. The judge sentenced Mr.
Gurten to probation for three years, twenty hours of