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Gurten v. Sessions

United States District Court, E.D. Pennsylvania

January 3, 2018



          KEARNEY, J.

         After 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.[1] 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.

         I. Findings of Fact

         1. In the late 1990s, Philadelphian Scott Gurten purchased a handgun with a license to carry.

         2. His handgun carry license expired before November 7, 2005.

         3. When 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 old.

         4. Following recurring domestic troubles, Ms. Scarlota would leave Mr. Gurten's home from time to time to stay with her parents.

         5. Ms. 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.

         6. Mr. 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.

         7. Sometime shortly after Halloween night 2005, Ms. Scarlota left their home with their children.

         8. Ms. Scarlota drove away in a car owned by Mr. Gurten.

         9. Mr. Gurten believed Ms. Scarlota and the children again went to Ms. Scarlota's parents' nearby home for several days.

         10. Ms. Scarlota testified she went to her parents' home.

         11. After a few days, Ms. Scarlota's late father, Frank Scarlota, told Mr. Gurten the children were not living with them.

         12. Mr. 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.

         Events of November 7, 2005

         13. On 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.

         14. Ms. 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.

         15. Ms. 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.

         16. Mr. 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 children.

         17. Mr. 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 and Blank.

         18. Mr. 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. Scarlota.

         19. Mr. 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.

         20. Mr. Gurten testified he left his unlicensed handgun in the pick-up truck and Mr. Scarlota remained with his pick-up truck.

         21. Mr. 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. DeSousa's apartment.

         22. The 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.

         23. Mr. 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 apartment.

         24. Ms. 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. Blank.

         25. 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.

         26. Ms. Scarlota testified her father, Mr. Scarlota, removed her son Frank from the Mr. DeSousa's apartment but she did not see this happen.

         27. Ms. 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.

         28. 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.

         29. Mr. 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 end.”

         30. Ms. 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 her temple.

         31. Mr. 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 unlicensed handgun.

         32. Mr. 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.

         33. Ms. 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.

         34. Mr. 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.

         35. Mr. Gurten testified he called 911 from Mr. Blank's home to report his altercation with Ms. Scarlota and Mr. DeSousa.

         36. The 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.

         37. 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.

         38. 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.

         39. Mr. 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.

         41. 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 hospital.

         42. Mr. 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.

         43. Ms. 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 hospital records.

         44. Mr. 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.”

         45. The 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.

         46. At some point, Ms. Scarlota decided she did not want to testify against Mr. Gurten because she wanted to “try and keep the family together.”

         47. Mr. 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.

         48. The 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.

         49. 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. DeSousa.

         50. The 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 community ...

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