Tag: Binderup

Misdemeanants win challenge to federal firearms law

The Third Circuit has held that the federal bar to gun possession by convicted individuals cannot constitutionally be applied to two misdemeanants convicted years ago who were not sentenced to prison.  In a fractured opinion, the Third Circuit sitting en banc ruled that the two challengers never lost their Second Amendment rights, and that the government offered no persuasive justification for depriving them of the right to bear arms.  Five concurring judges thought the ruling too narrow, and would have limited this collateral consequence to individuals posing a public safety risk.  Seven judges would not allow any “as applied” Second Amendment challenges to the federal bar to gun possession by convicted individuals. We plan to post analyses of the opinion in coming days.  In the meantime, here is Gene Volokh’s analysis from the Washington Post: In D.C. v. Heller, the Supreme Court held that the Second Amendment secures an individual right to keep and bear arms. But it described the right as belonging to “law-abiding” citizens and mentioned that some restrictions were “presumptively lawful,” including bans on gun possession by “felons.” Federal law indeed bans gun possession by felons — people who have been convicted of any “crime punishable by imprisonment for a term exceeding one year” (with some exceptions for things such as antitrust violations), except for state crimes that the state calls “misdemeanor[s]” that are “punishable by a term of imprisonment of two years or less.” And this is so even when the actual sentence imposed on the person is very short, likely reflecting the court’s judgment that the actual circumstances of the crime made it not very serious. This brings us to Daniel Binderup and Julio Suarez. When Binderup was 41 (20 years ago), he had a consensual affair with a 17-year-old girl who worked at his bakery. Pennsylvania, like over half the states, sets the age of consent for sex at 16. (About three-quarters of all states set the age at 16 or 17.) Still, Binderup was convicted of “corrupting a minor,” a misdemeanor that had a maximum term of up to five years, but in this instance led only to a $300 fine plus three years’ probation. Binderup has no subsequent criminal record. Julio Suarez was convicted in 1990 for carrying a handgun without a license, a misdemeanor punishable by up to three years; but he was sentenced only to a $500 fine plus a suspended sentence of 180 days in jail, followed by a year of probation. (In 1998, he was convicted of misdemeanor drunken driving, but that apparently didn’t carry a long enough potential sentence to count as a felony.) Suarez has apparently led a law-abiding life since then; indeed, he has a federal security clearance (“Secret”). Binderup and Suarez both challenged the federal ban on their possessing guns, and they just won this morning in the 3rd Circuit (Binderup v. Attorney General). But they won by the barest of margins (the vote was 8 to 7), and the majority opinion supporting their claims was itself split. Here’s a quick summary (necessarily an oversimplification, since the opinions are 174 pages long put together). 1. Three judges (Judges Ambro, Smith and Greenaway) took the view that: a. Felons — including nonviolent felons — can generally be deprived of gun rights because their crimes show that they are not “virtuous citizen[s],” and the Second Amendment was understood as protecting virtuous citizens. b. But this prohibition is only a “presumption,” and the presumption can be rebutted — not by a showing that the crimes were old, but only by a showing that the crimes weren’t that serious in the first place. This is so because of a mix of factors: (i) the crimes were labeled “misdemeanors” under state law; (ii) they didn’t involve violent conduct; (iii) they led to minor sentences; and (iv) “there is no cross-jurisdictional consensus” that the crimes were serious (for instance, because “the vast majority of states” don’t outlaw sex between 41- and 17-year-olds, or at least don’t treat it as a serious crime). c. Even once the presumption that Binderup and Suarez are outside the scope of the Second Amendment altogether (as felons) is rebutted, the government can still defend the prohibition by showing that it passes “intermediate scrutiny” — i.e., by showing that the government is using means substantially related to an important government interest. (Presumably intermediate scrutiny is applied here because, even if Binderup’s and Suarez’s crimes aren’t that serious, Binderup and Suarez still haven’t been fully law-abiding citizens — the opinion doesn’t discuss whether strict scrutiny would apply to bans on gun possession by certain classes of law-abiding citizens.) There is an important government interest in preventing “armed mayhem.” But the government hasn’t shown that denying guns to people like Binderup and Suarez, who have committed fairly minor crimes and haven’t even been sent to jail for them, is sufficiently related to that interest: The government’s studies (which focus on felons whose crimes were serious enough to send them to prison) are just not applicable to Binderup and Suarez. 2. Five judges (Judges Hardiman, Fisher, Chagares, Jordan and Nygaard) agreed that Binderup and Suarez should have their Second Amendments restored, but for a slightly different reason. They took the view that: a. The Second Amendment, based on its history, excludes only felons who had committed violent crimes, or at least crimes closely associated with violence (such as drug trafficking). b. Even some people who had committed violent crimes long in the past might recover their Second Amendment rights if they have led law-abiding lives since then; but the five judges did not conclusively decide this (as opposed to the three judges who joined the lead opinion, which concluded that someone who commits anything more than a minor felony permanently loses Second Amendment rights). c. Once someone is outside one of the Second Amendment exceptions (such as the one for violent felons), any total ban on his possessing a gun is categorically unconstitutional, with no need for “intermediate scrutiny.” But, if intermediate scrutiny were the right test, the three-judge lead opinion is correct to say that applying the law to Binderup and Suarez doesn’t pass intermediate scrutiny. 3. Seven judges (Chief Judge McKee and Judges Fuentes, Vanaskie, Shwartz, Krause, Restrepo, and Roth) voted against Binderup and Suarez. They took the view that: a. The Second Amendment excludes at least all people that the law has generally labeled as “felons” in recent years, namely people who have been convicted of crimes punishable by more than a year in prison. (The matter might be different if a law banned gun possession by anyone convicted of a crime punishable by, say, six months in prison; but the year dividing line, which has long been used, is permissible.) b. Courts shouldn’t recognize case-by-case exceptions, no matter the nature of the criminal statutes, the circumstances of the particular crime, or the passage of time. c. In any event, the law should pass intermediate scrutiny, because that requires only a general relationship between the ban and the government interests, and the evidence is sufficient to show that felons generally are especially likely to commit gun crimes. An interesting decision, though perhaps not the last word: If the government chooses to petition the Supreme Court for review (a decision that it can wait to make until after the election), it’s likely that the court will agree to hear the case. For those interested in how these decisions split by the party appointing such a judge, there was indeed such a split here, though imperfect. The 3-judge lead opinion, which would protect some felons’ gun rights claims, was 2-1 Democratic appointees. The 5-judge concurrence, which would protect some more felons’ gun rights claims, was 5-0 Republican appointees. And the 7-judge dissent, which would completely reject felons’ gun rights claims, was 6-1 Democratic appointees. Congratulations to Alan Gura, who won Hellerand McDonald v. City of Chicago, and has now also won this case. Read more

Putting teeth in Heller’s promise for people with a conviction: Second Amendment litigation round-up

Author, Alan Gura, describes in this post recent efforts to persuade federal courts that people who have lost their firearms rights by virtue of a criminal conviction may be entitled to claim the protections of the Second Amendment.  Alan himself has spearheaded this litigation for the Second Amendment Foundation, following up his Supreme Court victories in D.C. v. Heller and McDonald v. Chicago.   While successes have to date involved civil rights actions in behalf of people with dated non-violent convictions, these precedents may eventually find their way into felon-in-possession and related prosecutions. They also may portend, like the cases invalidating retroactive registration requirements, a greater willingness by courts to limit the scope of categorical collateral consequences that are considered unreasonable and unfair. Ed. *** When Congress enacted the federal Gun Control Act of 1968, with its broad provisions for the disarmament of potentially dangerous people, the Second Amendment laid dormant. Courts paid the Second Amendment cursory attention, considering the provision only when rubber-stamping it with an erroneous, unexamined “collective right” interpretation that rendered the right to arms a nullity. Some of the Gun Control Act’s Congressional sponsors were happy to parrot that view. S. Rep. 89-1866 at 68 (1966) (individual views). But Congress understood that the Act ensnared many people whose disarmament could not be justified as beneficial to society or basically just. As the title of a leading article on the subject asks, “Why Can’t Martha Stewart Have a Gun?” The task of ferreting out the hard luck and irrational cases fell to the Executive Branch, which would evaluate individual applications for relief based on personal circumstances, with unsuccessful applicants having recourse to judicial relief. 18 U.S.C. § 925(c). This process more or less worked, for many years, until anti-gun rights forces in Congress defunded the program in the mid-1990s. With the Government unable to print or process applications for relief, a growing number of people convicted of non-violent, sometimes not terribly egregious crimes found themselves forever prohibited from touching firearms. While some states provided an alternative relief process, many did not, and federal offenders could only pray for a presidential pardon to restore their rights. This injustice is nearing its end. In 2008, the Supreme Court clarified that people have an individual right to keep and bear arms. The rational basis test for gun restrictions went out the window. In came a burden on the Government to actually prove, and not merely assert, that each law restricting access to firearms is consistent with a fundamental constitutional right retained by the people. Categorical prohibitions leveled at people convicted of crimes, including the so-called “felon in possession” ban (though it also reaches many misdemeanants), could be upheld in a general sense. But most courts have now realized, just as Congress did in enacting the federal gun control scheme, that the traditional grounds for denying individuals the means of self-defense—dangerousness, untrustworthiness, a serious risk of unlawful violence—are not going to be satisfied when someone lies about having sold Imclone at 60 on insider information, or is convicted of “felony fishing without a license,” or has pled guilty to any misdemeanor that might be punished by over two years in jail (the alleged standard often employed by courts enforcing the “felon in possession” ban). Most of the early cases arose, as Second Amendment cases often do, in the criminal context. Courts had no trouble telling plainly dangerous criminals charged with being felons in possession that the Framers did not have them in mind when ratifying the Second Amendment, but were usually careful to leave the door open, as Congress did in enacting Section 925(c), for people who once erred but are not a threat today, if they ever were. For these individuals, one leading federal appellate case set the task as follows: To raise a successful as-applied challenge, [an individual] must present facts about himself and his background that distinguish his circumstances from those of persons historically barred from Second Amendment protections. For instance, a felon convicted of a minor, non-violent crime might show that he is no more dangerous than a typical law-abiding citizen. Similarly, a court might find that a felon whose crime of conviction is decades-old poses no continuing threat to society. United States v. Barton, 633 F.3d 168, 174 (3d Cir. 2011). The nation’s leading sponsor of landmark gun rights litigation, the Second Amendment Foundation, has tasked me with making full use of this avenue for relief. We are carefully selecting deserving cases to put some teeth behind Heller’s promise, and demonstrate the absurdity of the Government’s shotgun-approach to firearms disabilities. In light of the Supreme Court’s renewed interest in the constitutional avoidance doctrine, some of our cases also challenge the overly-aggressive statutory interpretation of the federal prohibition with which courts have become unfortunately comfortable. There is, after all, no question that the constitutional questions raised by disarming plainly non-threatening individuals are significant. The early results are promising. We’re two for two in Pennsylvania. Suarez v. Holder, No. 14-968-WWC, 2015 U.S. Dist. LEXIS 19378 (M.D. Pa. Feb. 18, 2015); Binderup v. Holder, No. 13-6750-JKG, 2014 U.S. Dist. LEXIS 135110 (E.D. Pa., Sept. 25, 2014). Julio Suarez, a decorated Army veteran, holder of a security clearance, and elder in his church, faced a lifetime prohibition of Second Amendment rights owing to a quarter-century old Maryland misdemeanor conviction for carrying a handgun without a license. Suarez can’t recidivate—his state doesn’t require a license to carry a handgun, and he’s eligible for a license to carry a handgun concealed. But the government claimed that the bad facts of his 1990 arrest—Suarez had a .12 BAC at the time he was stopped (though not convicted of DUI or any other traffic offense)—meant that he should continue to lose his fundamental rights today. Daniel Binderup’s only offense was a misdemeanor charge for “corruption of minors,” stemming from a long ago consensual affair with an employee just shy of her 18th birthday. Obviously, nobody approves of that conduct—including the state of Pennsylvania, which does not consider him a sex offender and has long ago restored his gun rights (Binderup received a sentence of probation), and Binderup’s wife, who forgave him. The couple has now been married for over 40 years, and has raised two wonderful kids. Like Suarez, Binderup is a stable and productive member of society. The judges in both cases saw nothing that would indicate either gentleman poses any sort of firearms threat beyond that posed by any other law-abiding, responsible citizen. The Government has appealed its loss in Binderup, and we expect it to do the same in Suarez. In both cases, the Government fails to comprehend what an “as applied” challenge means, citing piles of statistics for the proposition that anyone convicted of a crime, without exception, might recidivate. Its briefing extends the argument even to non-violent property offenses. But so what? Binderup and Suarez’s offenses didn’t involve the threat of force. And even if they had, neither of these individuals are likely to recidivate. If generalized recidivism studies can defeat Binderup and Suarez’s cases, then they can defeat all as-applied challenges, effectively overruling Barton and the growing list of appellate precedents confirming real limits on the scope of categorical prohibitions. The weakness of the Government’s claims is underscored by its resort, at least in Binderup’s case, to argument by ad hominem. I won’t repeat here some of the names the Government called my client in the briefing, but the district court was decidedly unimpressed by that approach, and I don’t believe that the court of appeals will like it any better. Moral disapproval is to be expected when one transgresses the law, but it does not suffice to permanently deprive people of their fundamental rights. Of course, the ultimate solution is for Congress to re-fund Section 925(c)’s administrative relief program. Doing so would not entirely eliminate the Second Amendment cause of action, but it would prevent an onslaught of constitutional challenges that the Government cannot possibly defend. The judiciary, and the civil rights bar, will be sure to drive home this point as frequently as necessary in the immediate future. *** About the Author: Alan Gura practices in the areas of civil and appellate litigation, and civil rights law at Gura & Possessky in Alexandria, Virginia. He successfully argued two landmark constitutional cases before the U.S. Supreme Court, D.C. v. Heller and McDonald v. Chicago, and is currently spearheading efforts to persuade federal courts that people with a criminal conviction may be entitled to claim the protections of the Second Amendment. Read more

Another court invalidates federal felon-in-possession statute on Second Amendment grounds

A second federal court in Pennsylvania has held that the federal felon-in possession statute cannot constitutionally be applied to an individual convicted many years ago of a minor non-violent offense. In Suarez v. Holder, the district court for the Middle District of Pennsylvania held that a man convicted in 1990 of misdemeanor possession of an unregistered handgun and sentenced to probation was “no more dangerous than a typical law-abiding citizen,” and therefore entitled to claim the protection of the Second Amendment.  The Suarez court followed the reasoning of the court in Binderup v. Holder, decided in Pennsylvania’s Eastern District in September.  The government has appealed the Binderup decision, and the government’s brief is due this month. As in Binderup, the court evaluated the constitutionality of 18 U.S.C. § 922(g)(1) under a strict scrutiny standard, and found that it could not constitutionally be applied to someone whose “conviction is decades-old” and who “poses no continuing threat to society.”  In reaching its conclusion that Julio Suarez could not be barred from possessing firearms, the court described his background and circumstances as follows: (1) he has been married for twenty years and is successfully raising three children; (2) he is an elder in his church; (3) he has had no history of violence; (4) a firearm disability imposed under Pennsylvania law was removed by a Pennsylvania Court of Common Pleas; and (5) he maintains “Secret” security clearance in connection with his employment for a government contractor. The court made no attempt to set forth standards for evaluating whether someone is “no more dangerous than a typical law-abiding citizen” beyond the “know it when I see it” picture of a solid citizen it found in Mr. Suarez.   The government may be expected to point this out in its brief to the Third Circuit. The Suarez court suggested that it may be harder for a criminal defendant to claim Second Amendment protection than it is for a law-abiding individual suing civilly.  Addressing the government’s argument that Suarez’s situation was similar to that of the losing challenger in the leading Third Circuit case, U.S. v. Barton, the court pointed out that Barton presented no facts showing that his circumstances placed him outside the scope of the felon-in-possession statute, “[n]or was he capable of doing so, since he had just been indicted for selling firearms with obliterated serial numbers.” On the way to its constitutional holding, the court denied Mr. Suarez’s argument that because he was convicted of a misdemeanor rather than a felony he was not barred from gun possession by § 922(g)(1).  But the definition of a triggering offense in 18 U.S.C. § 921(a)(20) includes any misdemeanor that is “punishable by” a prison sentence exceeding two years, a standard plainly satisfied by the Maryland law under which Mr. Suarez was convicted. As soon as the government files its appeals brief in Binderup we will post it here with comments.  Perhaps by then we will have persuaded Alan Gura, who represents both Mr. Binderup and Mr. Suarez, to take time out from his busy litigation schedule to bring us up to date on the national picture of constitutional challenges to a collateral consequence that is more important than any other to many Americans. Read more

Second Amendment challenges to felon-in-possession laws

Below is another excerpt from the second edition of Love, Roberts & Klingele, Collateral Consequences of Criminal Conviction: Law, Policy & Practice (West/NACDL, 2d ed. 2015)(forthcoming), this one about challenges to firearms-related collateral consequences based on the constitutional right to bear arms.  Criminal defense lawyers representing clients on felon-in-possession charges, and anyone seeking restoration of firearms rights after conviction, will be interested to know that the government has appealed the district court’s decision in Binderup v. Holder cited in note 8, discussed here a few weeks ago. Binderup is a civil rights action in which the federal court in the Eastern District of Pennsylvania held that the federal felon-in-possession statute could not constitutionally be applied to an individual convicted of a non-violent sex offense in 1998 and sentenced to probation.  This case, the first in which a federal court invalidated a federal statute on Second Amendment grounds, is likely to provide an early opportunity for the court of appeals to consider an issue that most commentators and some courts believe was left unresolved by the Supreme Court in D.C. v. Heller. Alan Gura, who represents Mr. Binderup and argued both Heller and McDonald v. City of Chicago in the Supreme Court, has promised to give us a comment about the Binderup appeal and other pending Second Amendment challenges to felony dispossession laws involving people with dated non-violent convictions.  The tricky and fascinating question presented by these as-applied challenges is what criteria should be used to test whether an individual with a criminal conviction is within the class “historically barred barred from Second Amendment protections” or is “no more dangerous than a typical law-abiding citizen.” U.S. v. Barton, 633 F.3d 168, 174 (3d Cir. 2011). (Note from ML: I was told several years ago that a substantial percentage of the requests for presidential pardon pending in the Justice Department — perhaps as many as half — are from people seeking restoration of firearms privileges.  Judging from my own clientele, this seems about right.  It strikes me as exceedingly strange that people with dated non-violent federal convictions should have to petition the president himself to regain what we may soon learn are their constitutional rights, but that is the situation the Supreme Court left us with its dubious 1995 decision in Beecham v. U.S. and its equally dubious decision 13 years later in Heller.  He should hope the courts will relieve him of this burden, and instruct his Attorney General to stand down on Binderup.)   2:36. Firearms restrictions– Second Amendment challenges to felony dispossession laws In 2008, the Supreme Court held in District of Columbia v. Heller[1] that the Second Amendment confers a personal, fundamental right to possess a firearm, thus opening an entirely new basis for defending against the application of statutes making it a crime for convicted felons to possess firearms.[2] Heller itself anticipated and sought to deflect constitutional challenges to conviction-based firearms restrictions by declaring them to be “longstanding” and “presumptively lawful”[3] but some lower courts have characterized this statement as dictum, and scholars have questioned its historical accuracy.[4] While every federal court to have considered the issue post-Heller has rejected a Second Amendment challenge to the federal statute barring convicted felons from possessing firearms,[5] three federal courts of appeal have suggested that categorical firearms bans may not survive rational basis review as applied to individuals convicted of nonviolent felonies.[6]    In U.S. v. Barton, the Third Circuit noted that a successful “as applied” challenger must present facts about himself and his background that distinguish his circumstances from those of persons historically barred from Second Amendment protections. For instance, a felon convicted of a minor, non-violent crime might show that he is no more dangerous than a typical law-abiding citizen. Similarly, a court might find that a felon whose crime of conviction is decades-old poses no continuing threat to society.[7] The first case to sustain an as-applied challenge to the federal felon-in-possession statute relied upon this language from Barton in finding that an individual convicted of a non-violent sex offense and sentenced to probation sixteen years before could not be prosecuted under it.[8]  Earlier,  the North Carolina Supreme Court relied upon the “right to bear arms” provision of its state constitution in refusing to apply a newly enacted categorical dispossession statute to an individual whose conviction was decades old, whose firearms rights had been restored under an earlier law, and who had long since demonstrated his rehabilitation.[9]   [1] District of Columbia v. Heller, 554 U.S. 570, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008). [2] Cf. §3:11 (Substantive challenges based on rights guaranteed by the Constitution—Right to bear arms). [3] See Heller, 554 U.S. at 626-27 (“nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons”). But see id. at 722 (Breyer, J., dissenting) (noting that there is no factual basis for the assertion that such prohibitions are “longstanding”). [4] See Alexander C. Barrett, Taking Aim at Felony Possession, 93 B.U.L. Rev. 163, 194-196 (2013)(“even if some felons were historically understood to be barred from possessing firearms, the common law term ‘felony’ applied to only a few select categories of serious crimes at the time the Second Amendment was ratified, while in modern times, vast categories of ‘non-dangerous’ activities qualify as felonious”); ; Nelson Lund, Two Faces of Judicial Restraint (or Are There More?) in McDonald v. City of Chicago, 63 Fla. L. Rev. 487, 502 (2011) (observing that the dictum was “casually tossed off by Justice Scalia” and has “no basis in prior Supreme Court case law and [was] not supported by evidence of the original meaning of the Second Amendment”); C. Kevin Marshall, Why Can’t Martha Stewart Have a Gun?, 32 Harv. J.L. & Pub. Pol’y 696, 699 (2009) (observing that “a lifetime ban on any felon possessing any firearm is not ‘‘longstanding’’ in America”); Carlton F.W. Larson, Four Exceptions in Search of a Theory: District of Columbia v. Heller and Judicial Ipse Dixit, 60 Hastings L.J. 1371, 1374 (2009) (“[S]o far as I can determine, no colonial or state law in eighteenth-century America formally restricted the ability of felons to own firearms.”); Adam Winkler, Heller’s Catch 22, 56 UCLA L. Rev. 1551, 1561, 1563 (2009) (“Bans on ex-felons possessing firearms were first adopted in the 1920s and 1930s, almost a century and a half after the Founding.”). [5] 18 U.S.C.A. §922(g). [6] See U.S. v. Smoot, 690 F.3d 215, 221 (4th Cir. 2012), cert. denied, 133 S. Ct. 962, 184 L. Ed. 2d 747 (2013) (dispossession would be improper if a litigant could demonstrate that he fell within “the scope of Second Amendment protections for ‘law-abiding responsible citizens to use arms in defense of hearth and home’”); U.S. v. Barton, 633 F.3d 168, 173 (3d Cir. 2011)(“As the Government concedes, Heller’s statement regarding the presumptive validity of felon gun dispossession statutes does not foreclose Barton’s as-applied challenge.”); U.S. v. Williams, 616 F.3d 685, 692 (7th Cir. 2010) (“[T]here must exist the possibility that [a firearm] ban could be unconstitutional in the face of an as-applied challenge.”); see also U.S. v. McCane, 573 F.3d 1037, 1049 (10th Cir. 2009) (Tymkovich, J., concurring) (“Non-violent felons, for example, certainly have the same right to self-defense in their homes as non-felons.”). But see U.S. v. Skoien, 614 F.3d 638 (7th Cir. 2010), cert. denied, 131 S. Ct. 1674, 179 L. Ed. 2d 645 (2011) (en banc) (explaining why §922(g) may constitutionally be applied to an individual repeatedly convicted of misdemeanor domestic violence). [7] U.S. v. Barton, 633 F.3d at 174. [8] See Binderup v. Holder, 2014 U.S. Dist. LEXIS 135110 (E.D. Pa. 2014).  Perhaps significantly, this successful as-applied challenge to 18 U.S.C. § 922(g)(1) was brought as a civil rights action under the Declaratory Judgment Act, rather than raised as a defense to a criminal prosecution. [9] See Britt v. State, 363 N.C. 546, 681 S.E.2d 320 (2009).  Following the Britt decision, North Carolina amended its firearms law to permit individuals who have lived in North Carolina for at least one year, who have a single non-violent felony conviction and no violent misdemeanors, to petition the court in their county of residence twenty years after their civil rights were restored for restoration of firearms rights.  N.C. Gen Stat. § 14-415.4.     Read more