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United States v. Brooks

United States District Court, W.D. Pennsylvania

May 24, 2018

UNITED STATES OF AMERICA,
v.
JAMAL BROOKS, Defendant.

          MEMORANDUM OPINION ON PROCEDURAL MATTERS

          JOY FLOWERS CONTI CHIEF UNITED STATES DISTRICT JUDGE

         I. Introduction

         A federal grand jury returned a one-count indictment against defendant Jamal Brooks (“Brooks”) for possessing a firearm and ammunition while being a convicted felon on August 22, 2017, in violation of 18 U.S.C. § 922(g)(1). (ECF No. 15.) Brooks filed a motion to dismiss[1]arguing, among other things, that 18 U.S.C. § 922(g)(1) is unconstitutional as applied to him because his underlying predicate offense, a misdemeanor conviction for carrying a firearm without a license in violation of 18 Pa. Cons. Stat. § 6106(a)(2), is not a serious offense. (ECF No. 39 at 10.) The Third Circuit Court of Appeals in Binderup v. Attorney General, 836 F.3d 336 (3d Cir. 2016) (en banc), as discussed below, in a plurality opinion, set forth a two-step analysis this court must apply to analyze Brooks' as-applied constitutional attack on § 922(g)(1). That two-step analysis requires the court to consider evidence and legal argument presented by the parties to determine (1) whether § 922(g)(1), a presumptively lawful regulation, burdens Brooks' Second Amendment rights, and, if so, (2) whether § 922(g)(1) satisfies intermediate scrutiny. Binderup, 836 F.3d at 355.

         The Third Circuit Court of Appeals in the plurality opinion in Binderup instructed that a defendant must make a “strong” showing to satisfy its burden at the first step and the government must present “meaningful evidence” to satisfy intermediate scrutiny at the second step. Id. at 347, 354. The court of appeals, however, did not explicitly address whether the district court must apply the Federal Rules of Evidence in its consideration of the evidence. The parties submitted supplemental briefing to address those issues. These important issues having been fully briefed are now ripe for disposition by the court.

         II. Binderup v. Attorney General, 836 F.3d 336 (3d Cir. 2016) (en banc)

         A. Case background

         The court of appeals in Binderup consolidated two district court civil cases for the purpose of the appeals in which the plaintiffs asserted as-applied constitutional attacks against § 922(g)(1).[2] In one of those cases, the plaintiff Daniel Binderup (“Binderup”) had previously pleaded guilty in Pennsylvania state court to corrupting a minor, a misdemeanor subject to a maximum term of imprisonment of five years. Id. at 340 (citing 18 Pa. Cons. Stat. §§ 1104, 6301(a)(1)(I)). Binderup received a sentence of a term of probation of three years and a $300 fine plus court costs and restitution. Id. In the other case, the plaintiff Julio Suarez (“Suarez”) had pleaded guilty in Maryland state court to the misdemeanor of unlawfully carrying a handgun without a license. Id. Suarez's crime was subject to a range of imprisonment of thirty days to three years and a fine range of $250.00 to $2, 500.00. Id. Binderup and Suarez (the “challengers”) were disqualified under Pennsylvania law from possessing firearms in light of their convictions, but they successfully petitioned the Pennsylvania state courts to regain their eligibility. Id.

         Binderup and Suarez sought similar relief under federal law and each filed a lawsuit in a district court seeking declaratory and injunctive relief. Binderup, 836 F.3d at 340. They claimed, among other things, [3] that §922(g)(1) was unconstitutional as applied to them. Id. The district courts agreed with the challengers and granted them summary judgment. Id. The district court in Binderup's case held that he “‘distinguishe[d] himself from those individuals traditionally disarmed as the result of prior criminal conduct and demonstrate[d] that he poses no greater threat of future violent criminal activity than the average law-abiding citizen.'” Id. (quoting Binderup v. Holder, Civ. Action No. 13-6750, 2014 WL 4764424, at *1 (E.D. Pa. Sept. 25, 2014)). The district court did not analyze the fit between the government's interests and § 922(g)(1) under any means-end scrutiny. Id. The district court in Suarez's case granted summary judgment to Suarez because (1) he demonstrated that “‘he is no more dangerous than a typical law-abiding citizen[, ]'” and (2) § 922(g)(1) failed to satisfy strict scrutiny. Binderup, 836 F.3d at 341 (quoting Suarez v. Holder, 255 F.Supp.3d 573, 586 (M.D. Pa. 2015)). The government appealed both decisions. Id. Separate panels of the court of appeals heard the appeals, which were eventually consolidated by the appellate court for rehearing en banc. Id.

         B. The varying opinions in Binderup

         Fifteen judges on the court of appeals took part in deciding Binderup during the en banc appeal. “Circuit Judges Ambro, Hardiman and Fuentes authored opinions, none of which garnered a precedential majority.” Keyes v. Session, 282 F.Supp.3d 858, 867 (M.D. Pa. 2017). As discussed below, six judges agreed with Judge Ambro who wrote the leading opinion that the two-step framework set forth in United States v. Marzzarella, 614 F.3d 85 (3d Cir. 2010), applied to the challengers' as-applied constitutional attack on § 922(g)(1). There were three different opinions, however, about how the two-part framework applied to the facts of each case.

         At one end of the spectrum, Judge Hardiman, joined by four other judges, viewed the protections afforded the challengers under the Second Amendment as more expansive than the other judges. Binderup, 836 F.3d at 363 (J. Hardiman, concurring in part and concurring in the judgments). He opined that if the challenger satisfied his burden at step one to show the underlying predicate offense is “not serious, ” § 922(g)(1) is unconstitutional as-applied to that challenger. Id. In his view, step two of the analysis is unnecessary. Id. At the other end of the spectrum, however, Judge Fuentes, joined by six other judges, concluded that as-applied challenges to § 922(g)(1) are “unworkable, ” and, therefore, not permissible. Binderup, 836 F.3d at 401 (J. Fuentes, concurring in part, dissenting in part, and dissenting from the judgments). His view of the protections afforded the challengers under the Second Amendment was more restrictive. According to Judge Fuentes, a citizen may be lawfully deprived of his Second Amendment rights under § 922(g)(1) once he or she is convicted of an offense that qualifies as a felony offense under the statute, regardless whether the state that convicted the citizen classified the offense as a felony or misdemeanor. Id. at 380-81. The position of Judge Ambro, joined by two other judges, falls somewhere between Judge Hardiman's expansive view of the protections afforded by the Second Amendment and Judge Fuentes' more restrictive view. Judge Ambro applied the facts of each of the challengers' cases to both steps of the Marzzarella framework.

         Under those circumstances, this court is left in a quandary without clear guidance about how to apply the Marzzarella framework to decide a very important issue in this case. A majority of the court agreed, however, that as-applied challenges to § 922(g)(1) are permissible, and seven judges agreed that the two-step Marzzarella framework is applicable to as-applied constitutional challenges to § 922(g)(1); indeed, it is the “law of our Circuit.” Binderup, 836 F.3d at 356. Thus, to give meaning to that law, both steps of the framework must be applied, and Judge Ambro's application of Marzzarella will be followed here.

         C. As-applied constitutional attacks on 18 U.S.C. § 922(g)(1)

         Judge Ambro in Binderup began his analysis by recognizing the importance of the “‘fundamental'” right to bear arms provided by the Second Amendment to the United States Constitution.[4] Binderup, 836 F.3d at 34 (quoting McDonald v. City of Chicago, 561 U.S. 742, 778 (2010)). The right to bear arms, however, “‘is not unlimited.'” Binderup, 836 F.3d at 343 (quoting District of Columbia v. Heller, 554 U.S. 570, 628 (2008)). There are a number of restrictions, e.g., § 922(g)(1)'s ban on felons possessing firearms, that “constrain” the right to bear arms and are “presumptively lawful…because they affect individuals or conduct unprotected by the right to keep and bear arms.” Binderup, 836 F.3d at 343. It is the law of the Third Circuit that those restrictions pass constitutional muster if they withstand the appropriate level of means-end scrutiny. Id. at 356.

         Because the constitutional challenges before the court of appeals were as-applied challenges, the court was tasked with considering whether the “particular circumstances” of Binderup and Suarez “remove[d] them from the constitutional sweep of § 922(g)(1).” Binderup, 836 F.3d at 346. The court recognized that its decisions in United States v. Marzzarella, 614 F.3d 85 (3d Cir. 2010), and United States v. Barton, 633 F.3d 168 (3d Cir. 2011), guided the approach to as-applied challenges asserted under the Second Amendment. Id. In Marzzarella, the court of appeals “adopted a framework for deciding facial and as-applied Second Amendment challenges.” Binderup, 836 F.3d at 339 (citing Marzzarella, 614 F.3d at 85). The two-step approach required the district court to consider (1) “‘whether the challenged law imposes a burden on conduct falling within the scope of the Second Amendment's guarantee[, ]” and then (2) whether the law survived intermediate scrutiny. Id. at 346 (quoting Marzzarella, 614 F.3d at 89).

         In Barton, a criminal case, the court of appeals “held that the prohibition of § 922(g)(1) does not violate the Second Amendment on its face…but…remains subject to as-applied constitutional challenges.” Id. (citing Barton, 633 F.3d at 168). With respect to the as-applied constitutional attack asserted by the defendant in Barton, the court held that the defendant did not have a right to bear arms under the Second Amendment because his underlying predicate offense was closely related to violent crime, which disqualified him from exercising his Second Amendment rights. Barton, 633 F.3d at 173. The court of appeals in Barton denied the defendant's as-applied constitutional attack because he failed at step one, i.e., “he presented no facts distinguishing his circumstances from those of other felons who are categorically unprotected by the Second Amendment.” Id.

         Judge Ambro in Binderup-joined by six other judges-synthesized Marzzarella and Barton, explaining:

Read together, Marzzarella and Barton lay out a framework for deciding as-applied challenges to gun regulations. At step one of the Marzzarella decision tree, a challenger must prove, per Barton, that a presumptively lawful regulation burdens his Second Amendment rights. This requires a challenger to clear two hurdles: he must (1) identify the traditional justifications for excluding from Second Amendment protections the class of which he appears to be a member, id. at 173, and then (2) present facts about himself and his background that distinguish his circumstances from those of persons in the historically barred class, id. at 174.
No doubt a challenger cannot prevail merely on his say-so. Courts must find the facts to determine whether he has adequately distinguished his circumstances from those of persons historically excluded from Second Amendment protections. Not only is the burden on the challenger to rebut the presumptive lawfulness of the exclusion at Marzzarella's step one, but the challenger's showing must also be strong. That's no small task. And in cases where a statute by its terms only burdens matters (e.g., individuals, conduct, or weapons) outside the scope of the right to arms, it is an impossible one. But if the challenger succeeds at step one, the burden shifts to the Government to demonstrate that the regulation satisfies some form of heightened scrutiny, discussed further below, at step two of the Marzzarella analysis.

Binderup, 836 F.3d at 346-47. In other words, seven judges viewed Marzzarella and Barton as harmonious decisions that guided the court's analysis of the as-applied constitutional attack asserted against § 922(g)(1) by Binderup and Suarez. Id.

         D. Step one of the Marzzarella framework

         1. Generally

         Judge Ambro, joined by six other judges, explained that the first step of the Marzzarella framework requires a challenger to “prove…that a presumptively lawful regulation burdens his Second Amendment rights.” Id. at 347. “This requires a challenger to clear two hurdles: he must (1) identify the traditional justifications for excluding from Second Amendment protections the class of which he appears to be a member…then (2) present facts about himself and his background that distinguish his circumstances from those of persons in the historically barred class….” Id.

         Judge Ambro explained that the “traditional justification for denying felons the right to arms” is that the government could disarm “unvirtuous citizens, ” and “unvirtuous citizens” are citizens who have committed serious crimes. Binderup, 836 F.3d at 348. In other words, “persons who have committed serious crimes forfeit the right to possess firearms.” Id. at 349. If a challenger has committed a serious crime that falls within the ambit of § 922(g)(1), the district court should conclude that he or she is “subject to a firearm ban that is…‘presumptively lawful.'” Id. at 348 (quoting Dist. of Columbia v. Heller, 554 U.S. 570, 627 n.26 (2008)). “Serious crimes” includes violent or nonviolent crimes. Id. at 348.

         A challenger can show that he is entitled to Second Amendment protection by showing that he did not commit a serious crime. Id. at 348-49. According to Judge Ambro, to determine whether a crime is “serious” the court may consider, among other relevant factors: (1) the statutory maximum penalty of the crime; (2) whether the crime is a misdemeanor; (3) whether use of force is an element of the offense;[5] (4) the sentence actually imposed upon the challenger; and (5) whether there is consensus among the states about the seriousness of the offense. Id. at 351-53.

         Judge Ambro, joined by four other judges, instructed that with respect to the first prong of the Marzzarella framework the challenger must make a “strong” showing to rebut the “presumptive lawfulness” of his exclusion from Second Amendment protections. Id. at 346 (emphasis added). This means the challenger cannot “prevail merely on his say-so[;]” rather, “Courts must find the facts to determine whether he has adequately distinguished his circumstances from those of persons historically excluded from Second Amendment protections.” Id. “[E]vidence of a challenger's rehabilitation or his likelihood of recidivism is not relevant to the step-one analysis.” Id. at 356.

         2. Step one of the Marzzarella framework applied to Binderup and Suarez by Judge Ambro[6]

         “Section 922(g)(1) bars the possession of firearms by anyone convicted of ‘a crime punishable by imprisonment for a term exceeding one year.'” Binderup, 836 F.3d at 347-48. This includes all felonies and misdemeanors punishable by a term of imprisonment of more than two years. Id. at 348. Each of the crimes committed by Binderup and Suarez were state-law misdemeanors punishable by a term of imprisonment of more than two years. Id. The § 922(g)(1) ban on their possession of firearms was, therefore, presumptively lawful. Id. Under those circumstances, Binderup and Suarez each had a burden to overcome the presumptive lawfulness of § 922(g)(1) by showing that their crimes were not serious crimes, i.e., to distinguish their circumstances from the historically barred class of unvirtuous citizens. Id. Judge Ambro found that Binderup and Suarez each satisfied their burden, explaining the states in which they were convicted classified their offenses as misdemeanors, which “traditionally have been…considered less serious than felonies.” Binderup, 836 F.3d at 350. He also noted that no element of either crime consisted of violence and each challenger received “a minor sentence by any measure[, ]” which is relevant consideration because “severe punishments are typically reserved for serious crimes, ” and the actual sentence reflects “the sentencing judges' assessment of how minor the violations were.” Id. at 352.

         Judge Ambro found relevant that there was “no cross-jurisdictional consensus regarding the seriousness of the Challengers' crimes.” Binderup, 836 F.3d at 351. The challengers showed that “many states consider their crimes to be non-serious[, ]” which made “their showing at step one…that much more compelling.” Id. Judge Ambro concluded:

[T]he Challengers have carried their burden of showing that their misdemeanors were not serious offenses despite their maximum possible punishment. This leads us to conclude that Binderup and Suarez have distinguished their circumstances from those of persons historically excluded from the right to arms. That, in turn, requires the Government to meet ...

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