Holloway v. Attorney Gen. United States

948 F.3d 164

Raymond HOLLOWAY, Jr.

v.ATTORNEY GENERAL UNITED STATES of America; Deputy Director Bureau of Alcohol Tobacco Firearms & Explosives; Director Federal Bureau of Investigation; United States of America, Appellants

No. 18-3595

United States Court of Appeals, Third Circuit.

Argued October 2, 2019

Filed: January 17, 2020

OPINION

SHWARTZ, Circuit Judge.

Drunk driving is a dangerous and often deadly crime. "Approximately a quarter million people are injured annually in alcohol-related crashes," Begay v. United States, 553 U.S. 137, 156-57, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008) (Alito, J., dissenting), and the number "who are killed ... by drunk drivers is far greater than the number of murders committed" during many other violent crimes, id. at 157 & n.4, 128 S.Ct. 1581. "[F]rom 1982 to 2016, alcohol-related accidents took roughly 10,000 to 20,000 lives in this Nation every single year. In the best years, that would add up to more than one fatality per hour." Mitchell v. Wisconsin, ––– U.S. ––––, 139 S. Ct. 2525, 2536, 204 L.Ed.2d 1040 (2019) (emphasis omitted) (citations omitted).

Today, we consider whether Pennsylvania’s driving under the influence ("DUI") law, which makes a DUI at the highest blood alcohol content ("BAC") a first-degree misdemeanor that carries a maximum penalty of five years’ imprisonment, see 18 Pa. Cons. Stat. Ann. § 1104 ; 75 Pa. Cons. Stat. Ann. §§ 3802(c), 3803(b)(4), constitutes a serious crime that requires disarmament. Plaintiff Raymond Holloway, Jr., was convicted under this statute, and by the terms of 18 U.S.C. § 922(g)(1), he is prohibited from possessing a firearm. Holloway claims this prohibition violates his Second Amendment rights. The District Court agreed and enjoined applying § 922(g)(1) to him. Because Holloway was convicted of a serious crime as contemplated by Binderup v. Attorney General United States of America, 836 F.3d 336 (3d Cir. 2016) (en banc), applying § 922(g)(1) to him does not offend the Second Amendment. Therefore, we will reverse the District Court’s order and remand for the entry of judgment in favor of the Government.

I

In 2002, Holloway was convicted of a DUI at the highest BAC, but the charge was dismissed upon his completion of an accelerated rehabilitation program. In 2005, Holloway was again arrested for driving under the influence and registered a BAC of 0.192%. Holloway pled guilty to violating 75 Pa. Cons. Stat. Ann. § 3802(c) for driving under the influence at the highest BAC (greater than 0.16%). He received a sentence of 60 months’ "Intermediate Punishment," including 90-days’ imprisonment that allowed him work release, a $1,500 fine, and mandatory drug and alcohol evaluation.

In 2016, Holloway sought to purchase a firearm but was unable to do so because of his disqualifying DUI conviction. Holloway sued the Attorney General of the United States and other federal officials (the "Government") in the United States District Court for the Middle District of Pennsylvania, claiming that § 922(g)(1) is unconstitutional as applied to him and seeking declaratory and permanent injunctive relief. The parties filed cross-motions for summary judgment.

The District Court granted Holloway’s motion for summary judgment, awarded him a declaratory judgment, and entered a permanent injunction barring the Government from enforcing § 922(g)(1) against him. Holloway v. Sessions, 349 F. Supp. 3d 451, 463 (M.D. Pa. 2018). Applying Binderup, the Court held that § 922(g)(1) is unconstitutional as applied to Holloway because (1) Holloway’s DUI offense was a non-serious crime that has not historically been a basis for the denial of Second Amendment rights, id. at 459-60, and (2) the Government failed to demonstrate that disarmament of individuals like Holloway would promote the public safety, particularly given his decade of crime-free behavior, id. at 460-62. The Government appeals.

II¹

A

The sole issue on appeal is whether applying 18 U.S.C. § 922(g)(1)² to Holloway, which makes it unlawful for him to possess a firearm due to his prior conviction, violates his Second Amendment rights.

In District of Columbia v. Heller, the Supreme Court held that the Second Amendment protects the right of "law-abiding, responsible citizens to use arms in defense of hearth and home." 554 U.S. 570, 635, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008). This right, however, "is not unlimited." Id. at 626, 128 S.Ct. 2783. Indeed, the Court cautioned that "nothing in [its] opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons." Id. The Court described the felon ban as just one "example[ ]" of "presumptively lawful regulatory measures." Id. at 627 n.26, 128 S.Ct. 2783.

Since Heller, we have been called upon to determine whether various laws unlawfully infringe the Second Amendment. Some of these laws regulate who can possess firearms, see, e.g., Beers v. Att’y Gen. U.S., 927 F.3d 150, 155-56 (3d Cir. 2019) (ban on possession by those adjudicated mentally defective or committed to mental institution); Binderup, 836 F.3d 336 (ban on possession by certain convicts). Other laws regulate the type of firearms that may be possessed. See, e.g., Ass’n of N.J. Rifle & Pistol Clubs, Inc. v. Att’y Gen. N.J. (N.J. Rifle ), 910 F.3d 106 (3d Cir. 2018) (large capacity magazines). In each instance, we examined the challenged law by applying the two-part test first articulated in United States v. Marzzarella, 614 F.3d 85 (3d Cir. 2010). Under that test, we first "ask whether the challenged law imposes a burden on conduct falling within the scope of the Second Amendment’s guarantee." Id. at 89. "If it does not, our inquiry is complete." Id. If it does, we move to the second step: we evaluate the law under some form of heightened scrutiny. See id. at 96-97.

After Marzzarella, we addressed a constitutional challenge to § 922(g)(1) in United States v. Barton, 633 F.3d 168 (3d Cir. 2011). Barton recognized that § 922(g)(1) was one of the "presumptively lawful" measures referenced in Heller, id. at 172, 128 S.Ct. 2783, but that individuals could challenge § 922(g)(1) on an as-applied basis, id. at 173. Barton, however, did not expressly apply Marzzarella’s two-step framework. Id. Rather, Barton held that a challenger could rebut the presumption that § 922(g)(1) constitutionally applied to him by "present[ing] facts about himself and his background that distinguish his circumstances from those of persons historically barred from Second Amendment protections." Id. at 174. The "historically barred" class, Barton concluded, was individuals "likely to commit violent offenses." Id. at 173-74. Thus, Barton held that if an individual could show that he posed no threat of future violence, then § 922(g)(1) could not constitutionally apply to him. Id. at 174.

We revisited Barton and as-applied challenges to § 922(g)(1) as an en banc Court in Binderup. Binderup resulted in several opinions from fifteen judges: (1) an opinion by Judge Ambro, joined in full by two judges and joined additionally in part by four other judges; (2) an opinion by Judge Hardiman, joined in full by four judges, and which concurred in part with Judge Ambro and concurred in the judgment; and (3) an opinion by Judge Fuentes, joined by six judges (some of whom joined parts of Judge Ambro’s opinion), which concurred in part, dissented in part, and dissented from the judgment.

There are no specific rules for how to identify the holdings and legal standards from split circuit opinions. We can, however, look to the rules we use to identify such standards in fractured Supreme Court opinions, as set forth in Marks v. United States, 430 U.S. 188, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977), and its progeny.³ We need not conduct an explicit Marks analysis of the Binderup opinions here because we already recited its holdings, as expressed by Judge Ambro’s controlling opinion, in Beers, 927 F.3d at 155-56 ;⁴ see also N.J. Rifle, 910 F.3d at 130 (Bibas, J., dissenting) (describing Judge Ambro’s Binderup opinion as the "controlling opinion"), and it binds us.⁵

Mateo v. Att’y Gen. U.S., 870 F.3d 228, 231 n.6 (3d Cir. 2017) (prior panel’s precedential opinion "binding on subsequent panels"); see also Jackson v. Danberg, 656 F.3d 157, 165 n.10 (3d Cir. 2011) (applying a legal standard derived from a previous panel opinion’s Marks analysis as the law of our Circuit).

Nevertheless, both Beers and Marks reveal the following relevant Binderup holdings agreed to by a majority of judges:

(1) Marzzarella’s two-step test—and not the test articulated in Barton—governs Second Amendment challenges, 836 F.3d at 346-47 (Ambro, J.); id. at 387 (Fuentes, J.);⁶

(2) At Marzzarella step one for challenges to § 922(g)(1), we determine whether an individual has committed a "serious" offense, and thus was an "unvirtuous citizen[ ]" who was historically barred from possessing firearms and fell out of the Second Amendment’s scope, id. at 348-49 (Ambro, J.); id. at 387 (Fuentes, J.);⁷

(3) Barton’s focus on whether the challenger’s crime was violent or whether the challenger poses a threat of violence is overruled, id. at 348-49 (Ambro, J.); id. at 387 n.72 (Fuentes, J.);

(4) a challenger, otherwise barred from possession by § 922(g)(1), can make a factual showing that he falls outside of the historically barred class, id. at 347 & n.3, 349 (Ambro, J.); id. at 365-67 (Hardiman, J.);⁸

(5) intermediate scrutiny applies at Marzzarella step two, id. at 353 (Ambro, J.); id. at 396-97 (Fuentes, J.).⁹

Thus, as we said in Beers, 927 F.3d at 155, Binderup held that "the two-step Marzzarella framework controls all Second Amendment challenges, including as-applied challenges to § 922(g)(1)," 836 F.3d at 356 (Ambro, J.). At step one, the challenger must "identify the traditional justifications for excluding from Second Amendment protections the class of which he appears to be a member[.]" Id. at 347. When the class at issue is historically excluded...