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September 29, 2014

District Court embraces as-applied Second Amendment limit on federal felon-in-possession prohibtion

As long-time readers know, ever since the Supreme Court's Second Amendment Heller ruling, I have long thought federal criminal law's threat of severe sentences on any and all felons in possession of any and all firearms is constitutionally questionable. Now, thanks to this post by Eugene at The Volokh Conspiracy, I see that one federal district court has finally held that there are as-applied Second Amendment problems with the federal felon-in-possession criminal statute.

The notable Second Amendment ruling comes in Binderup v. Holder, No. 13-cv-06750 (E.D. Pa. Sept. 25, 2014) (available here).  Interestingly (and perhaps not surprisingly),  Binderup is a civil rights suit brought by a relatively sympathetic individual with a minor criminal past, not a case involving a federal criminal defendant claiming the Second Amendment precludes his prosecution.  And here are excerpts from the start and end of the lengthy opinion:

As further discussed below, plaintiff distinguishes himself from those individuals traditionally disarmed as the result of prior criminal conduct and demonstrates that he poses no greater threat of future violent criminal activity than the average law-abiding citizen. Therefore, he prevails on his as-applied challenges to § 922(g)(1) on Second-Amendment grounds under the framework for such claims set forth by the United States Court of Appeals for the Third Circuit in United States v. Barton, 633 F.3d 168 (3d Cir. 2011)....

Because plaintiff’s statutory claim fails, I reach his alternative constitutional claim asserted in Count Two. For the reasons expressed above, I conclude that plaintiff has demonstrated that, despite his prior criminal conviction which brings him within scope of § 922(g)(1)’s firearm prohibition, he poses no greater risk of future violent conduct than the average law-abiding citizen. 

Therefore, application of § 922(g)(1) to him violates the Second Amendment to the United States Constitution under the framework set for the by the United States Court of Appeals for the Third Circuit in United States v. Barton, 633 F.3d 168 (3d Cir. 2011). Accordingly, plaintiff is, and defendants are not, entitled to summary judgment on plaintiff’s as-applied constitutional challenge asserted in Count Two of the Complaint.

It now will be real interesting to see if the feds will appeal this ruling to the Third Circuit or instead just leave it be.

September 29, 2014 at 05:27 PM | Permalink


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The sex with a minor charge fits a general concern on this blog.

I would find it reasonable to think the feds would determine it best to let this case lie. It has bad facts for their purposes and if appealed might lead to a result that goes further than these fairly facts. It does suggest how merely committing a crime alone should not negate 2A rights.

Posted by: Joe | Sep 29, 2014 5:53:08 PM

Although different than the case you are reporting on, I have seen a very interesting Second Amendment situation here locally in Lexington, Kentucky. A local man had a single, non-violent state felony conviction in the 1950s. He pleaded guilty and did his time. In 1975, Governor Wendell Ford (D. Ky.) (who subsequently served as a U.S. Senator too) granted him a full pardon. That was in the "old days" before Kentucky pardons carved out gun rights and refused to restore them. Despite his parson, the man couldn't buy a gun, because his old conviction kept showing up in the Federal background check system. He used his Pardon as the basis for filing a Petition for Expungement in the Fayette Circuit Court. The local Commonwealth's Attorney opposed the Petition, and won, so the convictions were not expunged. Section 922(g)(1) presents many problems. How does a citizen with a valid Governor's Pardon get past the Federal Background Check System, to buy a gun he is legally entitled to own?

Locally, I have also seen another strange gun case, where the local Sheriff would not return a man's 11 guns after the Domestic Violence Restraining Order obtained by his former girl friend was dismissed. Notably, in January of 2012, Mr. Laubis and his former girl friend obtained an Order from the Circuit Judge ordering and directing the Sheriff to return his guns (which had been seized when the DVO was originally issued). The Sheriff (following advice from the Federal ATF) has taken the position that it would violate section 922(g)(9) for her to return his guns. Laubis has a 2007 Kentucky conviction for "harassment with contact", in violation of KRS section 525.070(1) (a). Traditionally, local defense lawyers have plea bargained 4th degree (misdemeanor) assault charges down to harassment, and advised their clients that they can still possess a firearm. The main issue is that neither Congress nor the ATF has ever promulgated a state-by-state list of which misdemeanor convictions are disqualifying crimes under section 922(g)(9). The Feds have deliberately left section 922(g)(9)hazy and uncertain, which effectively denies citizens fair notice about exactly what conduct is being criminalized. See, Eric Laubis v. Kathy H. Witt, Sheriff, et al., Civil Action No. 5:13-CV-164-KKC (E.D.Ky.)(Defendant's Motion to Dimsiss Granted 3/20/14), which I believe is now on appeal to the Sixth Circuit. Chief District Judge Karen Caldwell took the position that Laubis's section 1983 civil rights action seeking to have his guns returned failed to state a claim upon which relief could be granted). It appears to me that she punted to an appellate court, and just really didn't want to resolve the problem. Mr. Laubis should not have to pay thousands of dollars of attorney's fees and go thru years of litigation just to find out whether he really has a misdemeanor conviction that disqualifies him from possessing a firearm. Laubis may also have an "as applied" challenge to section 922(g).

Posted by: Jim Gormley | Sep 30, 2014 2:50:04 PM

A side light to Mr. Laubis's case is that it is not clear whether Sheriff Witt still possesses Mr. Laubis's 11 guns. Two years ago, Sheriff Witt fired two of her Deputies (who were subsequently prosecuted) over guns that were missing from the Sheriff's property room. It was discovered that the Deputies had pawned guns that they had stolen from the evidence room. At the time, no mention was made of Mr. Laubis's 11 guns. When one reviews the Complaint in Mr. Laubis's section 1983 case, however, he finds as an Exhibit a hand-written list of guns and their serial numbers, which one of the fired and prosecuted Deputies gave Mr. Laubis when he seized those guns after a DVO was issued. Sheriff Witt has never disclosed whether those guns were ever logged into her evidence room, and whether they safely remain there. Some here believe that the Sheriff, who is up for re-election on November 4th, actively litigated and defended Mr. Laubis's case so that she wouldn't have to admit that she really doesn't have Mr. Laubis's guns. Maybe in time (after the election) we will find out the answer.

Posted by: Jim Gormley | Sep 30, 2014 2:59:16 PM

from where I sit if a court has ordered the sheriff to return the weapons. This man now has the legal right to get a new gun show up at the sheriff's office and demand them immediately. Failure would result in the sheriff getting shot between the eyes light ANY OTHER THIEF.

Posted by: rodsmith | Oct 1, 2014 1:23:15 AM

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