Holloway v. Lynch et al

Filing 30

MEMORANDUM (Order to follow as separate docket entry) re: #11 MOTION for Summary Judgment filed by Raymond Holloway, Jr., #15 MOTION to Strike,, #4 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Loretta Lynch, James B. Comey, Thomas E. Brandon. (See memo for complete details.) Signed by Chief Judge Christopher C. Conner on 7/19/17. (ki) (Main Document 30 replaced on 7/21/2017) (ki).

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
RAYMOND HOLLOWAY, JR.,
Plaintiff
v.
JEFFERSON B. SESSIONS, III,
Attorney General of the United
States, THOMAS E. BRANDON,
Acting Director of the Bureau of
Alcohol, Tobacco, Firearms and
Explosives, ANDREW MCCABE,1
Acting Director of the Federal
Bureau of Investigation, and the
UNITED STATES OF AMERICA,
Defendants

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CIVIL ACTION NO. 1:17-CV-81
(Chief Judge Conner)

MEMORANDUM
Plaintiff Raymond Holloway, Jr. (“Holloway”), commenced this civil rights
litigation raising an as-applied challenge to 18 U.S.C. § 922(g)(1) under the Second
Amendment to the United States Constitution.2 Holloway contends that he has set
forth sufficient allegata under the Third Circuit Court of Appeals‟ recent decision in
Binderup v. Attorney General, 836 F.3d 336 (3d Cir. 2016) (en banc), cert. denied, __
S. Ct. __ (2017), to rebut the presumption that his conviction for driving under the
influence of alcohol (“DUI”) justifies his disarmament under § 922(g)(1).

1

James B. Comey was Director of the Federal Bureau of Investigation
when the instant action was commenced against him in his official capacity. On May 9,
2017, Andrew McCabe succeeded James B. Comey as Acting Director of the Federal
Bureau of Investigation. Pursuant to Federal Rule of Civil Procedure 25(d), Andrew
McCabe is substituted as the defendant in this action. See FED. R. CIV. P. 25(d).
2
Doc. 1.

Before the court is defendants‟ motion to dismiss Holloway‟s complaint
pursuant to Federal Rule of Civil Procedure 12(b)(6).3 Also pending is Holloway‟s
motion for summary judgment pursuant to Federal Rule of Civil Procedure 56 and
defendants‟ motion to strike Holloway‟s summary judgment motion as premature.4
I.

Factual Background and Procedural History
Holloway received his first DUI at the age of 22 in 2003.5 Holloway

participated in Pennsylvania‟s Accelerated Rehabilitative Disposition (“ARD”)
program, and the offense was expunged from his record upon completion of the
program.6 The offense no longer appears on Holloway‟s criminal record.7
Holloway received a second DUI at the age of 24 in early 2005.8 Holloway was
charged with and pled guilty to DUI at the highest rate of alcohol, second offense.9
Under Pennsylvania law, the DUI highest rate offense applies to individuals who
drive, operate, or control a vehicle with a blood alcohol content of 0.16% or higher.10
The state classifies the offense as a first degree misdemeanor punishable by up to
five years in prison.11 Holloway received a sentence of 60 months‟ intermediate
punishment, including 90 days of work release, in addition to court-ordered drug

3

Doc. 4.
Docs. 11, 15.
5
Doc. 1 ¶¶ 8, 19.
6
Id.
7
Id.; see also Doc. 1-2, Ex. A.
8
Doc. 1 ¶¶ 8, 20; see also Doc. 1-2, Ex. A.
9
Doc. 1 ¶¶ 8, 20; see also Doc. 1-2, Ex. A.
10
See 75 PA. CONS. STAT. § 3802(c).
11
See id. § 3803(b)(4); see also 18 PA. CONS. STAT. § 1104(1).
4

2

and alcohol treatment, costs, and a $1,500 fine.12 This is the only offense on
Holloway‟s criminal record.13
In September of 2016, Holloway attempted to purchase a firearm out of
concern for his safety and the safety of his family.14 His application was denied
following an instant background check.15 Holloway challenged the results of the
instant check.16 On October 3, 2016, the Pennsylvania State Police sent Holloway
a letter confirming the instant check as well as the denial of his purchase.17 The
letter cites Holloway‟s 2005 DUI conviction as a prohibiting offense under 18 U.S.C.
§ 922(g)(1).18
Holloway commenced this action with the filing of a one-count complaint
on January 13, 2017.19 The complaint names as defendants the United States of
America; Jefferson B. Sessions, Attorney General of the United States; Thomas
E. Brandon, Acting Director of the Bureau of Alcohol, Tobacco, Firearms and
Explosives; and Andrew McCabe, Acting Director of the Federal Bureau of
Investigation.20 Holloway seeks a declaration pursuant to the Third Circuit‟s
decision in Binderup that § 922(g)(1) is unconstitutional as applied as well as a
permanent injunction barring defendants from applying the firearm ban to him.21

12

Doc. 1 ¶¶ 8, 22; Doc. 1-2, Ex. B.
Doc. 1 ¶ 21; Doc. 1-2, Ex. A.
14
Doc. 1 ¶ 29.
15
Id. ¶¶ 29-30.
16
Id. ¶ 30.
17
See id.; Doc. 1-2, Ex. C.
18
Doc. 1 ¶ 30; Doc. 1-2, Ex. C.
19
Doc. 1.
20
Id. ¶¶ 9-12.
21
Id. at 13.
13

3

Defendants move to dismiss Holloway‟s complaint pursuant to Federal Rule
of Civil Procedure 12(b)(6), contending that Holloway‟s 2005 conviction for DUI
divests him of Second Amendment rights and defeats his as-applied challenge.22
Holloway separately moves for summary judgment on his claim under Federal Rule
of Civil Procedure 56, which motion defendants move to strike as premature.23 The
many issues raised by the parties‟ filings are ripe for disposition.
II.

Legal Standard
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for the

dismissal of complaints that fail to state a claim upon which relief may be granted.24
When ruling on a motion to dismiss under Rule 12(b)(6), the court must “accept all
factual allegations as true, construe the complaint in the light most favorable to the
plaintiff, and determine whether, under any reasonable reading of the complaint,
the plaintiff may be entitled to relief.”25 In addition to reviewing the facts contained
in the complaint, the court may also consider “matters of public record, orders,
exhibits attached to the complaint and items appearing in the record of the case.”26
Federal notice and pleading rules require the complaint to provide “the
defendant fair notice of what the . . . claim is and the grounds upon which it rests.”27

22

See Doc. 4; Doc. 5 at 2, 7-12.
See Docs. 11, 15.
24
FED. R. CIV. P. 12(b)(6).
25
Phillips v. Cty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (quoting Pinker v.
Roche Holdings, Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)).
26
Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n.2 (3d Cir.
1994); Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir.
1993).
27
Phillips, 515 F.3d at 232 (alteration in original) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007)).
23

4

To test the sufficiency of the complaint, the court conducts a three-step inquiry.28 In
the first step, “the court must „tak[e] note of the elements a plaintiff must plead to
state a claim.‟”29 Next, the factual and legal elements of a claim must be separated;
well-pleaded facts are accepted as true, while mere legal conclusions may be
disregarded.30 Once the court isolates the well-pleaded factual allegations, it must
determine whether they are sufficient to show a “plausible claim for relief.” 31 A
claim is facially plausible when the plaintiff pleads facts “that allow[] the court to
draw the reasonable inference that the defendant is liable for the misconduct
alleged.”32
III.

Discussion
Federal law broadly proscribes and criminalizes possession of a firearm by

persons convicted of “a crime punishable by imprisonment for a term exceeding
one year.”33 The ban does not apply to state misdemeanors punishable by two
years‟ imprisonment or less.34 The statute exempts any person whose conviction
has been expunged or set aside, who has been pardoned, or who has had their civil
rights restored.35 The parties agree—as does the court—that Holloway‟s conviction
for DUI highest rate, punishable by up to five years‟ imprisonment, falls within the

28
29

(2009)).

See Santiago v. Warminster Twp., 629 F.3d 121, 130-31 (3d Cir. 2010).
Id. at 130 (alteration in original) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 675

30

Id. at 131-32; see Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009).
Iqbal, 556 U.S. at 679 (citing Twombly, 550 U.S. at 556); Twombly, 550 U.S. at 556.
32
Iqbal, 556 U.S. at 678.
33
18 U.S.C. § 922(g)(1).
34
See id. § 922(a)(20)(b).
35
Id. § 921(a)(20).
31

5

ambit of § 922(g)(1).36 The conviction has not been expunged or set aside, and
Holloway has not been pardoned or had his civil rights reinstated.37
Holloway entreats this court to declare the federal firearm prohibition
unconstitutional as applied to him. He maintains that his DUI conviction is not
sufficiently “serious” to deprive him of his Second Amendment right to bear arms.38
Defendants‟ rejoinder is twofold: first, that Holloway‟s DUI conviction annuls his
Second Amendment rights; and, second, assuming arguendo that Holloway‟s right to
bear arms persists intact, the proscription of § 922(g)(1) is reasonably calculated to
advance the government‟s substantial interest in public safety.39
The parties‟ arguments concenter upon application of the Third Circuit‟s
recent decision in Binderup v. Attorney General, 836 F.3d 336 (3d Cir. 2006) (en
banc). In Binderup, the en banc court debated the proper paradigm for resolving
as-applied challenges to § 922(g)(1).40 A majority of the court agreed that to apply
§ 922(g)(1) to plaintiffs therein—convicted of nonviolent state law misdemeanors—
would transgress the Second Amendment.41 Two opinions support the judgments:
a lead opinion authored by Judge Ambro, and a partial concurrence and partial
dissent authored by Judge Hardiman. The two blocs diverge sharply in their ratio

36

Doc. 5 at 2; Doc. 6 at 6; see also 18 PA. CONS. STAT. § 1104(1); 75 PA. CONS. STAT. §
3803(b)(4).
37
See generally Doc. 1.
38
Doc. 1 ¶¶ 42, 44, 57.
39
See Doc. 5 at 2.
40
See Binderup, 836 F.3d at 339.
41
See id. at 356-67 (Ambro, J., plurality opinion, joined by two judges); id. at 357
(Hardiman, J., concurring in part and concurring in the judgments, joined by four judges).

6

decidendi,42 and a dissent authored by Judge Fuentes critiques both approaches.43
The instant dispute tasks the court to discern a prevailing standard from these
constituent opinions.44
Binderup is epitomic among fractured decisions. Indeed, of fifteen judges,
only three join the lead opinion in extenso and support the outcome-determinative
analysis. To apply its guidance, we must first endeavor to extract “a single legal
standard” that “produce[s] results with which a majority of the [judges] . . . would
agree.”45 We may combine votes of dissenting justices with plurality and concurring
votes to establish a majority consensus.46 When no one rationale enjoys majority
support, we adopt the view of the members concurring in the judgment on the
“narrowest grounds.”47 Judge Ambro sets forth these tenets in closing his lead
opinion, enumerating six principles which reflect the “law of our Circuit” postBinderup.48 Bald application of Judge Ambro‟s formulation is difficult, however,
given that only two judges joined this conclusion.49 Accordingly, we independently

42

Compare id. at 350-57 (Ambro, J., plurality opinion, joined by two judges) with id.
at 358-80 (Hardiman, J., concurring in part and concurring in the judgments, joined by four
judges).
43
See id. at 387-411 (Fuentes, J., concurring in part, dissenting in part, and
dissenting in the judgments, joined by six judges).
44
Fortunately, we do not write upon a blank slate. In a matter mirroring this
action in all material respects, our colleague, the Honorable William W. Caldwell, carefully
distilled and applied the divided decision. See Zedonis v. Lynch, __ F. Supp. 3d __, 2017
WL 511234 (M.D. Pa. Feb. 8, 2017). We are guided by Judge Caldwell‟s thorough
disquisition passim.
45
United States v. Donovan, 661 F.3d 174, 182 (3d Cir. 2011) (first alteration in
original) (quoting Planned Parenthood of Se. Pa. v. Casey, 947 F.2d 682, 693 (3d Cir. 1991),
rev‟d on other grounds, 505 U.S. 833 (1992)).
46
See id. (citations omitted).
47
Id.
48
See Binderup, 836 F.3d at 356 (Ambro, J., plurality opinion, joined by two judges).
49
Id. at 339, 356.

7

apply the interpretive rules described ante to ascertain Binderup‟s controlling
standards. Our view ultimately aligns with that articulated by Judge Ambro.
The Binderup result turned in large part on the Third Circuit‟s earlier
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). In Marzzarella, the court developed a
framework for evaluating challenges to firearm regulations levied via the Second
Amendment.50 At the first step, the court determines whether a challenged law
burdens conduct protected by the Second Amendment.51 If the answer is “yes,” the
court proceeds to step two and assesses the law “under some form of means-end
scrutiny.”52 The law is constitutional if it survives the applicable level of scrutiny at
step two.53
The Court of Appeals decided Barton the following year. Relying on the
Supreme Court‟s decision in District of Columbia v. Heller, 554 U.S. 570 (2008), the
plaintiff in Barton claimed that § 922(g)(1) violated his right to “use arms in defense
of hearth and home.”54 The three-judge Third Circuit panel emphasized that Heller
carved an unequivocal exemption for “longstanding prohibitions on the possession
of firearms”—including the prohibition against possession by felons—which Heller

50

Marzzarella, 614 F.3d at 89.
Id.
52
Id.
53
Id.
54
Barton, 633 F.3d at 170 (quoting Heller, 554 U.S. at 635).
51

8

deemed “presumptively lawful.”55 The court thus held that § 922(g)(1) does not, on
its face, transgress the Second Amendment.56
Turning to Barton‟s as-applied challenge, the court found that Heller‟s
use of the word “presumptively” with respect to the lawfulness of the felon-inpossession statute “implied that the presumption may be rebutted.”57 The court
resolved that a successful as-applied challenge to § 922(g)(1) requires would-be
firearm owners to distinguish themselves from those “historically barred” from
possessing arms.58 The court identified two examples: an individual convicted of a
“minor, non[]violent crime” who shows that he or she “is no more dangerous than a
typical law-abiding citizen,” or an individual whose conviction is so dated that he or
she “poses no continuing threat to society.”59 Because Barton‟s prior convictions
were “closely related to violent crime,” the court rejected his as-applied challenge.60
Binderup presented a much closer question. The plaintiffs were convicted
of nonviolent state law misdemeanors, each carrying a maximum sentence above
the § 922(g)(1) threshold.61 Plaintiffs challenged the statutory prohibition as applied
to them, stressing the nonviolent nature of their offenses and their relatively minor
sentences.62 Of the fifteen-judge panel, eight judges concluded that the firearm ban

55

Id. at 170-71 (quoting Heller, 554 U.S. at 626-27 & n.26).
Id. at 172.
57
Id. at 173 (quoting Heller, 554 U.S. at 626-27 n.26).
58
Id. at 174.
59
Id.
60
Id.
61
See Binderup, 836 F.3d at 340.
62
See id. at 339.
56

9

was unconstitutional as applied to the plaintiffs.63 Two-thirds of the court agreed
that Marzzarella governs challenges to § 922(g)(1), but disagreed as to the result
worked by that standard.64 Because a majority of the court held that Marzzarella
applies, albeit to different ends, we follow its two-step framework seriatim.
A.

Step 1: The Historically-Barred Class

Step one of the Marzzarella-Binderup sequence tasks plaintiffs to identify the
historical justifications for denying the right to bear arms to members of their class
and then to distinguish themselves and their background from the typical person in
that class.65 Rebutting the presumed lawfulness of § 922(g)(1) requires far more
than a plaintiff‟s ipse dixit assertion that he or she is nonviolent.66 A plaintiff must
instead make a “strong” showing distinguishing his or her circumstances “from
those of persons historically excluded from Second Amendment protections.”67

63

See id.
Compare id. at 346-47 (Ambro, J., plurality opinion, joined by six judges) and
id. at 387 (Fuentes, J., concurring in part, dissenting in part, and dissenting in the
judgments, joined by six judges) with id. at 358, 365-66 (Hardiman, J., concurring in part
and concurring in the judgments, joined by four judges). Judge Hardiman‟s concurrence
opines that Barton alone provides the exclusive test for constitutional attacks on § 922(g)(1),
eliminating Marzzarella‟s second step and holding that Congress can never deprive persons
who commit “non-serious” crimes of the right to bear arms. Id. at 358, 365-66 (Hardiman,
J., concurring in part and concurring in the judgments, joined by four judges). At the other
end of the spectrum, Judge Fuentes agrees that Marzzarella governs § 922(g)(1) challenges
but finds all crimes constituting “felonies” within the meaning of the statute are “serious”
by definition—and necessarily carry Second Amendment implications. See id. at 387-96
(Fuentes, J., concurring in part, dissenting in part, and dissenting in the judgments, joined
by six judges). In other words, Judge Fuentes would foreclose all as-applied challenges at
step one. See id.
65
Binderup, 836 F.3d at 346-47 (Ambro, J., plurality opinion, joined by six judges)
(citing Barton, 633 F.3d at 173-74).
66
Id.
67
Id.
64

10

The Binderup court spoke at length to the traditional justifications for
disarming convicted felons.68 Judge Ambro‟s plurality opinion explored both
jurisprudential and academic authorities and described § 922(g)(1)‟s justification in
terms of “virtue.”69 The court observed that disarmament of persons who commit
serious crimes dates to our Founders, who perceived serious criminal offenders as
“unvirtuous.”70 The court acknowledged that those who commit “violent offenses”
are a particular concern, but resolved that the class of “unvirtuous citizens” has
traditionally been much broader.71 Hence, the court held that deprivation of
Second Amendment rights has been justified historically for all who commit “a
serious criminal offense, violent or nonviolent.”72

68

See id. at 348-49.
See id. (citations omitted). Judge Ambro‟s opinion on this subject reflects the
views of six other judges, including Judge Fuentes. It is unclear whether Chief Judge
McKee, Judge Restrepo, and Judge Shwartz (each of whom joined Judge Fuentes‟ dissent)
would concur in Judge Ambro‟s assessment. The stated basis for not joining this portion of
the opinion is their position that Marzzarella cannot be reconciled with Barton, and that
Barton must be overruled in its entirety. See id. at 339 n.1. Nonetheless, the trio joined in
Judge Fuentes‟ dissent, which cited with approval authorities concluding that the firearm
prohibition is tethered to notions of a “virtuous citizenry.” See id. at 389-90 (Fuentes, J.,
concurring in part, dissenting in part, and dissenting in the judgments) (citations omitted).
We deem this portion of Judge Ambro‟s opinion to be supported by a majority of the en
banc court.
70
Id. at 348-49 (Ambro, J., plurality opinion, joined by six judges).
71
See id. at 348 (citing Heller, 554 U.S. at 626).
72
Id. In the course of this analysis, the court overruled Barton in part, finding its
holding that those who commit serious crimes can regain their Second Amendment rights
over time to be inconsistent with the historical relationship between serious criminal
conduct and forfeiture of the right to bear arms. See id. at 349-50 (Ambro, J., plurality
opinion, joined by six judges); id. at 339 n.1 (noting that three judges joining in Judge
Fuentes‟ dissent vote to overrule Barton entirely); id. at 387 n.72 (Fuentes, J., concurring in
part, dissenting in part, and dissenting in the judgments) (voting to overrule Barton at least
to the extent it states that as-applied challenges to § 922(g)(1) are permissible).
69

11

The question at step one therefore becomes whether a challenger
was convicted of a sufficiently “serious” criminal offense.73 That is, “only the
seriousness of the purportedly disqualifying offense determines the constitutional
sweep of statutes like § 922(g)(1).”74 Judge Ambro developed a non-exhaustive list
of factors to assist courts in determining if a crime is so “serious” as to vitiate
Second Amendment rights: first, whether the state classifies the offense as a felony
or misdemeanor; second, whether the offense has actual or attempted violence as an
element; third, the severity of the sentence actually imposed; and fourth, whether
there is cross-jurisdictional consensus on the “seriousness” of the offense.75 Courts
must presume that any offense within the ambit of § 922(g)(1) is disqualifying unless
the challenger offers a “strong reason” to conclude otherwise.76
Binderup arose in a summary judgment posture. As such, the opinion does
not address proper application of the enumerated factors at the Rule 12 stage.
Several factors—viz., state classification of the offense, whether the offense has
violence as an element, and any consensus among states as to seriousness—are
ostensibly legal issues amenable to resolution at the pleading stage.77 The severity
of punishment, however, raises factual issues seemingly unsuited for Rule 12
disposition.78 We view the factors identified by Judge Ambro as establishing a
threshold pleading requirement: if a challenger pleads facts sufficient to tip the

73

Id. at 349-50 (Ambro, J., plurality opinion, joined by six judges).
Id. at 350.
75
Id. at 351-53.
76
Id. at 351.
77
See Zedonis, 2017 WL 511234, at *7-9 nn. 7-9.
78
See id. at *9 n.9.
74

12

balance in his or her favor, they have satisfied their Rule 12 burden. We review
Holloway‟s instant complaint through this prism.
Holloway alleges that his 2005 DUI conviction is not sufficiently “serious” to
carry Second Amendment implications. In this regard, we find Judge Caldwell‟s
decision in Zedonis v. Lynch, __ F. Supp. 3d __, 2017 WL 511234 (M.D. Pa. Feb. 8,
2017), to be particularly instructive. The challenger in Zedonis was convicted in the
same year of the same crime as Holloway—DUI at the highest rate of alcohol under
Pennsylvania law.79 Applying Binderup‟s factors, Judge Caldwell observed that
Pennsylvania classifies the offense as a misdemeanor80; that the state does not
prohibit persons convicted of the offense from owning firearms81; that the offense
does not necessarily have violence or attempted violence as an element82; and that
Zedonis‟s sentence of three to six months‟ confinement could be deemed relatively
“minor.”83 Judge Caldwell also surveyed the 50 states‟ laws and observed that while
all states criminalize DUI, there is no consensus in classification or in severity of
punishment.84
These observations led Judge Caldwell to conclude that Zedonis articulated
a plausible as-applied challenge to § 922(g)(1).85 Judge Caldwell acknowledged
defendants‟ counterarguments concerning the dangers inherent in DUI and the

79

See id. at *7.
Id. (citing 18 PA. CONS. STAT. § 1104(1)).
81
Id. (citing 18 PA. CONS. STAT. § 6105(b), (c)(3)).
82
See id. at *7-8 (citing Begay v. United States, 553 U.S. 137, 147 (2008)).
83
Id. at *9.
84
See id. at *10 (citing NATIONAL SURVEY OF STATE LAWS: PART II: CRIMINAL LAWS:
SECTION 8: DRUNK DRIVING 127 (Richard A. Leiter ed., 7th ed. 2015)).
85
See id. at *10.
80

13

nature of Zedonis‟s actual conduct—specifically, his blood alcohol content of more
than three times the legal limit—but resolved that such additional proof was
premature at the Rule 12 stage.86 Hence, Judge Caldwell found that Zedonis
satisfied step one of the Marzzarella-Binderup framework.
We reach the same result sub judice. Holloway was convicted of DUI at the
highest rate under Pennsylvania law, a misdemeanor of the first degree which does
not have violence as a requisite element.87 He received a minor sentence compared
to Zedonis: he was not incarcerated, but served 60 months‟ intermediate
punishment, completed drug and alcohol treatment, and paid costs and a $1,500
fine.88 We further note that no consensus has actualized among the 50 states
concerning classification or punishment of the offense since Judge Caldwell
canvassed the states‟ law in Zedonis.
Defendants asseverate that highest rate DUI is categorically “serious”
because it reflects manifest disregard for public safety.89 We do not discount this
assertion, which is borne out by the number of individuals killed in DUI crashes
annually—10,265 in 2015 alone.90 Defendants will have full opportunity to advance
this point following discovery. At this stage, we consider only whether Holloway
pleads sufficient facts to make out a plausible claim—not whether defendants can

86

See id. at *8-10.
See Doc. 1 ¶¶ 8, 20, 42, 44; see also 75 PA. CONS. STAT. §§ 8302(c), 8303.
88
See Doc. 1 ¶¶ 8, 20; Doc. 1-2, Ex. B.
89
See Doc. 5 at 7-10; Doc. 13 at 3-4. Defendants rely on this assertion almost
exclusively, and to the neglect of the Binderup factors. See Doc. 5 at 7-10; Doc. 13 at 3-4.
90
See U.S. DEP‟T OF TRANSP., NAT‟L HIGHWAY TRAFFIC SAFETY ADMIN., 2015 MOTOR
VEHICLE CRASHES: OVERVIEW 1, 9 (2016).
87

14

rebut them. For purposes of Rule 12, Holloway has adequately pled that his DUI
offense was not “serious” in the meaning of Marzzarella and Binderup.
The challenger maintains the ultimate burden of proving that his crime of
conviction is not “serious.” Whether the probata will substantiate Holloway‟s
allegata remains to be determined. We also emphasize that Binderup‟s four-factor
test is not exhaustive, and no one factor is dispositive. Judge Ambro made clear
that there are “no fixed criteria for determining whether crimes are serious enough
to destroy Second Amendment rights.”91 Discovery may reveal additional
information which does not fit neatly within any one of the four factors but
nonetheless evinces that Holloway‟s underlying DUI offense was indeed serious.
At this juncture, we hold only that Holloway has sufficiently stated a plausible
challenge to § 922(g)(1).92
B.

Step 2: Government Justification

The burden at step two of the Marzzarella-Binderup framework shifts to the
government to establish that § 922(g)(1) satisfies intermediate scrutiny.93 The law

91

Binderup, 836 F.3d at 351 (Ambro, J., plurality opinion, joined by two judges).
In his concurring opinion, Judge Hardiman suggested that the appropriate metric
is not “seriousness” but “dangerousness.” Binderup, 836 F.3d at 358, 367-71 (Hardiman, J.,
concurring in part and concurring in the judgments). More specifically, he opined that the
proper test is whether the challenger “would present a danger to the public if armed.” Id.
at 369. Judge Hardiman would look more broadly to the nature of the offense, its historical
treatment, and the challenger‟s propensity to violence, as demonstrated by the offense itself
or otherwise. See id. at 374-77. The instant complaint would satisfy this standard as well.
At present, there is no indication in the record that Holloway has a propensity toward
violence, nor is there any suggestion that his crime involved an element of violence.
Consequently, we could not conclude at this juncture that Holloway “has been, or would
be, dangerous, violent, or irresponsible with firearms.” Id. at 377.
93
See id. at 353-56 (Ambro, J., plurality opinion, joined by two judges) (citing
Marzzarella, 614 F.3d at 97); id. at 397-98 (Fuentes, J., concurring in part, dissenting in part,
and dissenting in the judgments, joined by six judges).
92

15

survives intermediate scrutiny if the government shows a “substantial fit” between
the disarmament of the plaintiff effected by § 922(g)(1) and its compelling interest in
“preventing armed mayhem.”94 The standard requires “some meaningful evidence,
not mere assertions,” to substantiate the government‟s justification.95
Defendants aver broadly that disarming those convicted of DUI promotes the
government‟s compelling interest in public safety.96 In requesting that we dismiss
Holloway‟s complaint at step two, defendants cite a 2016 study which found a link
between DUI and increased risk of violence among certain handgun purchasers in
California between 1977 and 1991.97 Preliminarily, we are hesitant to dismiss a
complaint on the basis of such narrowly-tailored and dated empirical evidence.
Moreover, we find this argument to be premature. There may well be cases where
the government‟s justification is so obvious as to be a matter of “common sense.”98
But this is not such a case, and the court requires a more thoroughly developed
record before testing the strength of the government‟s justification.99 We will
accordingly deny defendants‟ motion to dismiss.

94

Id. at 353-56 (Ambro, J., joined by two judges); see also id. at 397-98, 402 (Fuentes,
J., joined by six judges).
95
Id. at 354 (Ambro, J., joined by two judges) (citation omitted).
96
Doc. 5 at 13-14; Doc. 13 at 7-9.
97
Doc. 5 at 13-14 n.6 (citing Garen J. Wintemute, et al., Firearms, Alcohol and Crime:
Convictions for Driving Under the Influence (DUI) and Other Alcohol-Related Crimes and
Risk for Future Criminal Activity Among Authorised Purchasers of Handguns, 22 INJURY
PREVENTION 302 (2016)); Doc. 13 at 8-9 n.8 (same).
98
See Binderup, 836 F.3d at 354 (Ambro, J., joined by two judges).
99
See Zedonis, 2017 WL 511234, at *10.

16

IV.

Conclusion
In his dissent in Binderup, Judge Fuentes surmised that the plurality‟s

challenger-specific approach would invite a deluge of as-applied constitutional
litigation by disarmed felons.100 This case and the others pending throughout the
Third Circuit incarnate that prediction.
Given the multitude of factual considerations which inform the analysis at
both steps of the Marzzarella-Binderup framework, we are compelled to deny
defendants‟ motion to dismiss. We will also deny Holloway‟s motion for summary
judgment as premature and deny defendants‟ motion to strike same as moot. An
appropriate order shall issue.

/S/ CHRISTOPHER C. CONNER
Christopher C. Conner, Chief Judge
United States District Court
Middle District of Pennsylvania
Dated:

100

July 19, 2017

See Binderup, 836 F.3d at 380, 407-11 (Fuentes, J., concurring in part, dissenting
in part, and dissenting in the judgments).