Pitsilides v. Barr

GEORGE PITSILIDES, Plaintiff v. WILLIAM P. BARR, Attorney General of the United States; and THOMAS E. BRANDON, Acting Director, Bureau of Alcohol, Tobacco, Firearms, and Explosives, CHRISTOPHER A. WRAY, Director of the Federal Bureau of Investigation, UNITED STATES OF AMERICA, Defendants

Civil Action No. 3:19-01736

United States District Court, M.D. Pennsylvania

November 19, 2021

MEMORANDUM

MALACHY E. MANNION United States District Judge.

Before the court is plaintiff George Pitsilides's (“Pitsilides”) motion for summary judgment. (Doc 25). Also before the court is defendants William P. Barr (Attorney General of the United States), Thomas E. Brandon (Acting Director, Bureau of Alcohol, Tobacco, Firearms and Explosives), Christopher Wray (Director of the Federal Bureau of Investigation), and the United States of America's (collectively, the “Government”) motion for summary judgment (Doc. 22). For the reasons that follow, the court will grant the Government's and deny Pitsilides's motion for summary judgment.

I. Background

In 1998, Pitsilides pleaded nolo contendere^[1] in the Court of Common Pleas of Schuylkill County to one count of Criminal Conspiracy to Pool Selling and Bookmaking under 18 Pa.C.S §903 and 18 Pa.C.S. §5514-1, and two counts of Pool Selling and Bookmaking under 18 Pa.C.S. §5514-3. (Doc. 24 at ¶6). These offenses are each graded as a misdemeanor of the first degree under Pennsylvania law and punishable by a maximum sentence of five years' imprisonment under 18 Pa.C.S. §§ 106(b)(6) and 1104(1). Id. at ¶9. He was thereafter sentenced to two years of unsupervised probation and ordered to pay fines in the amounts of $30, 000 ($10, 000 per count), $21, 483 in costs to the Office of the Attorney General for a Grand Jury Investigation, and $448, 500 in restitution stemming from the amount involved in his gambling activities. Id. at¶¶10-12.

Since 1998, Pitsilides has also pleaded guilty to two misdemeanor counts of owning a place where illegal gambling was occurring, pursuant to Va. Code §18.2-328. Beyond this, the record does not indicate he has a further criminal history.

On its face, 18 U.S.C. §922(g)(1) prohibits Pitsilides from owning a firearm due to his Pennsylvania convictions.^[2] In a complaint filed in this court on October 4, 2019, Pitsilides seeks this court's declaratory judgment that §922(g)(1) as applied to him violates the Second Amendment. (Doc. 1 at 911). Pitsilides and the Government have each submitted motions for summary judgment, along with responses and replies to the respective motions. (Docs. 22, 25, 30-32, 35-37). As the parties' cross-motions for summary judgment have been fully briefed, they are ripe for discussion.

II- Standard of Review

Summary judgment is appropriate if the “pleadings, depositions answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Turner v. Schering-Plough Corp., 901 F.2d 335, 340 (3d Cir. 1990). A factual dispute is genuine if a reasonable jury could find for the non-moving party, and is material if it will affect the outcome of the trial under governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Aetna Casualty & Sur. Co. v. Ericksen, 903 F.Supp. 836, 838 (M.D. Pa. 1995). The court must consider all evidence and inferences drawn therefrom in the light most favorable to the non-moving party. Andreoli v. Gates, 482 F.3d 641, 647 (3d Cir. 2007).

To prevail on a summary judgment motion, the moving party must affirmatively identify those portions of the record which demonstrate the absence of a genuine issue of material fact. Celotex, ATT U.S. at 323-24. The moving party can discharge the burden by showing that “on all the essential elements of its case on which it bears the burden of proof at trial, no reasonable jury could find for the non-moving party.” In re Bressman, 327 F.3d 229, 238 (3d Cir. 2003); see also Celotex, ATT U.S. at 325. If the moving party meets this initial burden, the non-moving party “must do more than simply show that there is some metaphysical doubt as to material facts, ” but must show sufficient evidence to support a jury verdict in its favor. Boyle v. County of Allegheny, 139 F.3d 386, 393 (3d Cir. 1998) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586 (1986)). However, if the non-moving party “fails to make a showing sufficient to establish the existence of an element essential to [the non-movant's] case, and on which [the non-movant] will bear the burden of proof at trial, ” Rule 56 mandates the entry of summary judgment because such a failure “necessarily renders all other facts immaterial.” Celotex, 477 U.S. at 322-23; Jakimas v. Hoffman La Roche, Inc., 485 F.3d 770, 777 (3d Cir. 2007).

Courts may resolve cross-motions for summary judgment concurrently. See Holloway v. Sessions, 349 F.Supp.3d 451, 455 (Sept. 28, 2019) (citing Lawrence v. City of Phila., 527 F.3d 299, 310 (3d Cir. 2008)). When doing so, the court must view the evidence in the light most favorable to the nonmoving party with respect to each motion. Id.; Fed.R.Civ.P. 56.

III. Discussion

Pitsilides asserts that 18 U.S.C. §922(g)(1)'s firearm prohibition violates the Second Amendment as applied to him. Alternatively, he argues §922(g)(1) does not apply to him because his convictions are exempt from this prohibition under §921(a)(20)(A).

As an initial matter, §921(a)(20)(A) excludes from §922(g)(1)'s category of crimes punishable by imprisonment for a period exceeding one year, “any Federal or State offenses pertaining to antitrust violations, unfair trade practices, restraints of trade, and other similar offenses relating to the regulation of business practices.” See 18 U.S.C. §921(a)(20)(A). If a defendant's conviction falls within this exemption, he is not subject to §922(g)(1)'s firearm prohibition as a matter of law. Accord U.S. v. Kruckel, No. 92-611(JBS), 1993 WL 765648, at *16 (D.N.J. Aug. 13, 1993).

Pursuant to §922(g)(1), it is unlawful for any person “who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year” to own a firearm. See 18 U.S.C. §922(g)(1). While §922(g)(1) is a “presumptively lawful” firearm regulation, the Third Circuit Court of Appeals has held that individuals may challenge the statute on an as applied basis. See United States v. Barton, 633 F.3d 168, 170, 173 (3d Cir. 2011) (“By describing the felon disarmament ban as “presumptively” lawful, Heller, 554 U.S. at 626-27 n. 26 [...], the Supreme Court implied that the presumption may be rebutted”).

In Binderup, the Third Circuit adopted, with some modifications, Marzzarella's two-step approach to Second Amendment challenges. Binderup v. Attorney Gen. of the U.S., 836 F.3d 336, 345-47 (3d Cir. 2016) (citing U.S. v. Marzarella, 614 F.3d 85 (3d Cir. 2010)). At the first step, a court considers whether the challenger's conduct is sufficiently “serious” for the challenger to lose his Second Amendment rights. Id. at 351-352. If a challenger “makes a strong showing that the regulation burdens his Second Amendment rights and that he has not committed a serious crime, and thus is different from those historically barred from possessing firearms, ” the court's analysis then proceeds to Marzarella's second step. See Holloway, 948 F.3d 164, 172 (citing Binderup, 836 F.3d at 347). At the second step, “the burden shifts to the Government to demonstrate that the regulation satisfies some form of heightened scrutiny.” Binderup, 836 F.3d at 347. Overall, it is the court's duty to determine whether the facts the challenger sets forth adequately distinguishes his circumstances from those of persons historically excluded from Second Amendment protections. Id.

Accordingly, this court will first consider whether Pitsilides's bookmaking and pool selling convictions fall under §921(a)(20)(A) and thus exempt from §922(g)(1)'s firearm prohibition. If his convictions are not exempt, the court will turn to the two-step Marzarella analysis to determine whether his disqualifying convictions strip him of his Second Amendment rights. In doing so, the court will first determine whether Pitsilides's convictions are sufficiently “serious” under Marzerella's first step. If Pitsilides satisfies his burden under Marzarella's first step, this court will consider whether the Government has carried its burden of demonstrating that the regulation satisfies heightened scrutiny under Marzarella's second step.

a. Applicability of §921(a)(20)(A) to Pitsilides

Pitsilides argues that the bookmaking and pool selling offenses he was convicted of constitute “similar offenses relating to the regulation of business practices” under §921(a)(20)(A). This court disagrees.

The Supreme Court and the Third Circuit Court of Appeals have not yet addressed what crimes fall under U.S.C. §921(a)(20)(A) and thus exempted from §922(g)(1)'s firearm prohibition. However, other circuits and a district court in this circuit which have discussed §921(a)(20)(A) generally looked to the plain meaning of the statute and interpreted it to exclude only those offenses “that pertain to antitrust violations, unfair trade practices, restraints of trade, or similar offenses.” See U.S. v. Schultz, 586 F.3d 526, 530 (7th Cir. 2009).

For example, Kruckel held that the exemption did not apply to defendant's tax offense because tax laws do not regulate business practices in the “same direct specific manner that, for example, the antitrust laws do.” See U.S. v. Kruckel, No. 92-611(JBS), 1993 WL 765648,...