CLARK v. LYNCH et al
Filing
29
MEMORANDUM OPINION AND ORDER granting 21 Motion for Summary Judgment and instructing counsel to submit a proposed order within 7 days, as explained therein. Signed by Chief Judge Joy Flowers Conti on 8/21/18. (mh)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
CHRISTOPHER CLARK
Plaintiff,
v.
JEFFERSON B. SESSIONS III,
Attorney General of the United States,
et al.,
Defendants.
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Civil Action No. 16-1804
MEMORANDUM OPINION
Conti, Chief United States District Judge
Before the court is the motion for summary judgment of Plaintiff Christopher
Clark (“Clark”) seeking declaratory and injunctive relief (ECF No. 22). This case
involves an as-applied challenge to the constitutionality of 18 U.S.C. § 922(g)(1), in
which Clark seeks restoration of his Second Amendment right to possess a firearm. The
motion is fully briefed and is ripe for decision. The government does not oppose the
motion, but defers to the “sound discretion” of the court as to whether further inquiry into
the facts is necessary. (ECF No. 24 at 3).
I. BACKGROUND & PROCEDURAL HISTORY
Clark is a citizen of Pennsylvania (ECF No. 22 at 2). He was a combat engineer in
the United States Army, specializing in explosives involving mines and traps, and
received an honorable discharge (ECF No. 25-1 at 34). For the past nineteen years, he has
been employed as a corrections officer at the State Correctional Institution, Mercer (ECF
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No. 22 at 3). He wishes to possess firearms for self-defense and for the defense of his
family.
On May 26, 2002, Clark was convicted under 18 Pa. Cons. Stat. § 6106(a)(2) for
carrying a firearm without a license (ECF No. 22 at 3). He was sentenced to one year of
probation and a fine of two-hundred and forty-two dollars. Although classified as a
misdemeanor under Pennsylvania law, Clark’s conviction under § 6106(a)(2) provided
for a maximum sentence of five years of imprisonment. 18 Pa. Cons. Stat. 106(b)(6).
Federal law prohibits the possession of firearms by any person convicted of “a
crime punishable by imprisonment for a term exceeding one year.” 18 U.S.C. § 922(g).
Because of his 2002 conviction, therefore, Clark is unable to possess a firearm. Violation
of § 922(g)(1) is a felony criminal offense punishable by fine and imprisonment of up to
ten years. See 18 U.S.C. § 924(a)(2).
Clark’s 2002 conviction arose from an altercation with Beth Carvella
(“Carvella”), his then-girlfriend, outside her place of work on September 27, 2001.
According to the criminal complaint, an unnamed witness stated that “the defendant held
the loaded gun to his own head.” (ECF No. 25-1 at 40). Clark was charged with
reckless endangerment in violation of 18 Pa.C.S. § 2705,1 but the charge was withdrawn.
(ECF No. 21-3 at 10). Clark denied holding the gun to his head and testified that he took
the firearm out of his waistband only to put it away in his truck in order to follow his
then-girlfriend into the diner where she worked. (ECF No. 25-1 at 16-17). Following the
arrest, Clark underwent a psychological evaluation by Dr. Meyer that was unremarkable:
it was determined that he was “fit for duty” (ECF No. 25-1 at 34-37). Carvella told Dr.
1
18 Pa.C.S. § 2705 provides: “A person commits a misdemeanor of the second degree if he recklessly
engages in conduct which places or may place another person in danger of death or serious bodily injury.”
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Meyer that “at no time was she intimidated or felt that her life was in danger.” (ECF No.
25-1 at 35).
Clark purchased the firearm in question “sometime between September 1996 and
March 1997” with the intent to carry it for protection2 (ECF No. 24 at 7; ECF No. 25-1 at
6). Despite this, he claims he “didn’t start carrying it until . . . two weeks before” the date
of the crime for which he was convicted because the events on September 11, 2001
troubled him (ECF No. 24 at 7; ECF No. 25-1 at 6). He also purchased a holster on
“[p]robably the same day that [he] bought the handgun” (ECF No. 24 at 8; ECF No. 25-1
at 20). Carvella asserted that “the gun is taken whenever they travel,” but Clark explained
he “would just leave it in [his] truck” and “never wore” the holster (ECF No. 24 at 8;
ECF No. 25-1 at 11).
Clark asserts that he has remained “law-abiding” since his 2002 conviction.3 The
government disagrees, and contends that: “the legal conclusion that Mr. Clark is ‘lawabiding’ is a fact, material or otherwise, subject to determination through a statement of
material facts.” (ECF No. 23 ¶ 6; ECF No. 25 ¶¶ 6, 8). The government presents one
incident at Clark’s work as evidence of less than law-abiding behavior that, in the
government’s view, should preclude him from possession of a firearm. About “a year and
a half ago,” Clark was disciplined with a “five-day suspension” for “insubordination”
(ECF No. 24 at 8; ECF No. 25-1 at 24-26). Clark testified that a female lieutenant
2
Clark was deposed on March 12, 2018, about why he wanted to carry a handgun. (ECF No. 25-1 at 6). He
answered: “To carry, protection.” Id.
3
Clark states: “Christopher Clark is over the age of 21, is not under indictment, has never been convicted
of a felony or misdemeanor crime of domestic violence, is not a fugitive from justice, is not an unlawful
user of or addicted to any controlled substance, has not been adjudicated a mental defective or committed
to a mental institution, has not been discharged from the Armed Forces under dishonorable conditions, has
never renounced citizenship, and has never been the subject of a restraining order relating to an intimate
partner.” (ECF No. 1).
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confronted him while he was taking “two hamburgers from the inmate dining hall . . . [to]
give . . . to [an] inmate for fixing [his] coat” (ECF No. 24 at 9; ECF No. 25-1 at 24-26).
After she intervened, he “dropped them on the floor and walked away.” Id. Clark
concluded that she “had something personal against” him and is “a bitter, bitter person”
despite having never before interacted with her. Id.
II. STANDARD FOR SUMMARY JUDGMENT
Summary judgment is appropriate where the moving party establishes “that there
is no genuine dispute as to any material fact” and judgment is appropriate “as a matter of
law.” Fed. R. Civ. P. 56(a). A dispute is “genuine” if there is a sufficient evidentiary basis
for a reasonable jury to find for the nonmoving party, and “[a] fact is ‘material’ if, under
substantive law of the case, it is outcome determinative.” Sovereign Bank v. BJ’s
Wholesale Club, Inc., 533 F.3d 162, 172 (3d Cir. 2008); Schoonejongen v. Curtiss-Wright
Corp., 143 F.3d 120, 129 (3d Cir. 1998).
The moving party initially bears the burden of showing the absence of a genuine
dispute of material fact, in which case the burden shifts to the nonmoving party to
identify specific facts evidencing a genuine issue for trial. Guidotti v. Legal Helpers Debt
Resolution, L.L.C., 716 F.3d 764, 773 (3d Cir. 2013) (citing Celotex Corp. v. Catrett, 477
U.S. 317, 314 (1986)). To support their factual assertions, the parties must cite to specific
parts of the record or show “that the materials cited do not establish the absence or
presence of a genuine dispute, or that an adverse party cannot produce admissible
evidence to support the fact.” Fed. R. Civ. P. 56(c)(1).
Typically, “a district court may not make credibility determinations or engage in
any weighing of the evidence” in analyzing a motion for summary judgment. Marino v.
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Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004). Where “common sense dictates
that” certain facts are “incredulous,” however, a district court need not assume that those
are uncontroverted and must be assumed as true. See, e.g., Kach v. Hose, Civ. No. 061216, 2008 WL 4279799 (W.D. Pa. Sept. 12, 2008); cf. Scott v. Harris, 550 U.S. 372,
380 (party’s “version of events” may be rejected where “blatantly contradicted by the
record”). Ultimately, “summary judgment is inappropriate [where] there is a sufficient
quantum of evidence on either side for reasonable minds to differ,” but “the mere
existence of some alleged factual dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment.” Schoonejongen, 143 F.3d at 130;
Layshock ex rel. Layshock v. Hermitage Sch. Dist., 650 F.3d 205, 211 (3d Cir. 2011)
(quoting Anderson, 477 U.S. at 247-48) (internal quotation marks omitted).
III. ANALYSIS
A. THE SECOND AMENDMENT
The Second Amendment states: “A well regulated Militia, being necessary to the
security of a free State, the right of the people to keep and bear Arms, shall not be
infringed.” U.S. CONST. amend. II. This amendment protects an individual’s right to
possess a firearm “unconnected with militia service,” but that individual right is “not
unlimited.” District of Columbia v. Heller, 554 U.S. 570, 582, 626 (2008). Heller
provided some examples of “presumptively lawful regulatory measures” that can
constrain the right, including “the possession of firearms by felons.” Id. at 626-27. This
measure is codified in 18 U.S.C. § 922(g)(1), which generally prohibits the possession of
firearms by any person convicted in any court of a “crime punishable by imprisonment
for a term exceeding one year.” There is an exception, however, for “[a]ny conviction
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which has been expunged, or set aside or for which a person has been pardoned or has
had civil rights restored.” 18 U.S.C. § 921(a)(20) (emphasis added). In this case, Clark
asks the court to restore his civil rights, so he can lawfully possess a firearm.
B. THE FRAMEWORK FOR AS-APPLIED SECOND AMENDMENT
CHALLENGES
An as-applied challenge “does not contend that a law is unconstitutional as
written but that its application to a particular person under particular circumstances
deprived that person of a constitutional right.” United States v. Mitchell, 652 F.3d 387,
405 (3d Cir. 2011) (quoting United States v. Marcavage, 609 F.3d 264, 273 (3d Cir.
2010)); see Ayotte v. Planned Parenthood of N. New England, 546 U.S. 320, 329 (2006)
(“It is axiomatic that a statute may be invalid as applied to one state of facts and yet valid
as applied to another.” (internal quotation marks omitted)). Accordingly, this review of
Clark’s as-applied challenge requires us to consider whether his particular circumstances
exempt him from § 922(g)(1). The Third Circuit Court of Appeals, in a plurality opinion,
set forth a two-step, burden-shifting analysis this court must apply to analyze Clark’s asapplied challenge to § 922(g)(1). Binderup v. Attorney General, 836 F.3d 336 (3d Cir.
2016) (en banc); see United States v. Brooks, No. 17-250, 2018 U.S. Dist. LEXIS 87591
(W.D. Pa. May 24, 2018) (providing an overview of the background, varying opinions,
and framework for as-applied challenges to § 922(g)(1) from Binderup). The
government acknowledges that the analysis in this case closely parallels Binderup.
First, Clark “must prove . . . that a presumptively lawful regulation burdens his
Second Amendment rights. This requires [him] to clear two hurdles: (1) identify the
traditional justifications for excluding from Second Amendment protections the class of
which he appears to be a member . . . and then (2) present facts about himself and his
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background that distinguish his circumstances from those of persons in the historically
barred class.” Binderup, 836 F.3d at 346-47. For Clark to succeed at this step, the court
“must find facts to determine whether he has adequately distinguished his circumstances
from those of persons historically excluded from Second Amendment protections.” Id. at
347. “Not only is the burden on the challenger to rebut the presumptive lawfulness of the
exclusion, but the challenger’s showing must be strong.” Id.
Second, if Clark succeeds at step one, “the burden shifts to the Government to
demonstrate that the regulation satisfies . . . heightened scrutiny.” Id. The court must
determine “whether the Government has made a strong enough case for disarming a
person found after step one to be eligible to assert an as-applied challenge. This turns in
part on the likelihood that the [c]hallenger[] will commit crimes in the future.” Id. at 354
n.7. Intermediate scrutiny applies to this analysis. Id. at 353; see Brooks, 2018 U.S. Dist.
LEXIS 87591, at *14.
1. STEP ONE
(a) PRESUMPTION
Although § 922(g)(1) bars possession of firearms by those convicted of “a crime
punishable by imprisonment for term exceeding one year,” its prohibition excludes those
convicted of a “State offense classified by the laws of the State as a misdemeanor” unless
it is punishable by more than two years imprisonment. 18 U.S.C. § 921(a)(20)(B). Clark
was convicted of a misdemeanor subject to § 922(g)(1): his misdemeanor conviction
under 18 Pa.C.S. § 6106(a)(2) was punishable by up to five years imprisonment. Clark is
subject to a firearm ban that is, per Heller, “presumptively lawful.”
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(b) TRADITIONAL JUSTIFICATION
“[M]ost scholars of the Second Amendment agree that the right to bear arms was
tied to the concept of a virtuous citizenry and that, accordingly, the government could
disarm ‘unvirtuous citizens.’” Binderup, 836 F.3d at 348 (quoting United States v.
Yancey, 621 F.3d 681, 684-85 (7th Cir. 2010)). Unvirtuous citizens include those
“persons who have committed serious crimes.” Id. at 348-49.
The class of persons who have committed serious crimes (i.e. unvirtuous citizens)
“forfeit the right to possess firearms much the way they ‘forfeit other civil liberties,
including fundamental constitutional rights.’” Id. at 349 (quoting Barton, 633 F.3d at
175). Based on his 2002 conviction, Clark appears to be a member of this class.
(c) APPLICATION TO PLAINTIFF
Clark has a burden to overcome the presumptive lawfulness of § 922(g)(1) by
showing that his conviction under 18 Pa. Cons. Stat. § 6106(a)(2) was not a serious
crime, i.e., to distinguish his circumstances from the historically barred class of
unvirtuous citizens. To determine whether a crime is “serious,” the court may consider,
among other factors:4
the statutory maximum penalty of the crime;
whether the crime is a misdemeanor;
whether use of force is an element of the crime;5
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The parties in this case did not address any other factors.
These first three factors – “the elements of the offense, the actual sentence, and the state of the law” – are
“objective indications of seriousness . . . well within the ambit of judgment exercised daily by judges.”
Bimderup, 836 F.3d at 353 n.5.
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the sentence actually imposed upon the challenger; and
whether there is consensus among the states about the seriousness of the offense.
Id. at 351-53. This analysis is irrespective of whether the crime is violent or not. Id. at
349. “[E]vidence of a challenger’s rehabilitation or his likelihood of recidivism is not
relevant to the step-one analysis.” Id. at 356. The court will consider each of the factors
identified in Binderup.
(i) The statutory maximum penalty of the crime
18 Pa. Cons. Stat. § 6106(a)(2) allows for a maximum penalty of five years
imprisonment.
(ii) Whether the crime is a misdemeanor
18 Pa. Cons. Stat. § 6106(a)(2)6 is a misdemeanor that prohibits carrying a firearm
without a license. It applies to persons otherwise eligible to possess a firearm and to
persons who have not committed any other criminal violation.
(iii) Whether use of force is an element of the crime
Use of force is not an element of this crime.
(iv) The sentence actually imposed upon the challenger
Clark was sentenced to one year of probation and a fine of two-hundred and fortytwo dollars, which is a minimal sentence.
In Binderup, the court restored the Second Amendment rights of two challengers
(“Binderup” and “Suarez”) who received tougher sentences following their convictions
than Clark. Id. at 340. Binderup was convicted under Pennsylvania law for corrupting a
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18 Pa. Cons. Stat. § 6106(a)(2) provides: “A person who is otherwise eligible to possess a valid license
under this chapter but carries a firearm in any vehicle or any person who carries a firearm concealed on or
about his person, except in his place of abode or fixed place of business, without a valid and lawfully issued
license and has not committed any other criminal violation commits a misdemeanor of the first degree.”
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minor, a misdemeanor subject to imprisonment for up to five years, and was sentenced to
three years probation and a three-hundred dollar fine.7 Id. at 340; 18 Pa. Cons. Stat. §§
6301(a)(1)(I). Suarez was convicted under Maryland law for carrying a handgun without
a license, which is a misdemeanor subject to imprisonment for “not less than 30 days and
not [more than] three years or a fine of not less than $250 and not [more than] $2,500 or
both.” Id. at 340; Md. Code. Ann. Art. 27, §36(B)(b) (1990) (now codified at Md. Code
Ann. Crim. Law § 4-203). Suarez received a suspended sentence of 180 days of
imprisonment, a $500 fine, and a year of probation. Id. at 340.8
(v) Whether there is consensus among the states about the seriousness of the offense
There is no consensus regarding the seriousness of carrying a firearm without a
license among the states. Thirty-eight states punish the unlicensed carrying of a
concealed weapon. See Law Ctr. to Prevent Gun Violence, Concealed Weapons
Permitting, http://smartgunlaws.org/gun-laws/policy-areas/firearms-in-publicplaces/concealed-weapons-permitting/ (last visited July 5, 2018). Although some states
classify this as a serious crime, “more than half prescribe a maximum sentence that does
not meet the threshold of a traditional felony (more than one year in prison) and others do
not even require a specific credential to carry a concealed weapon.” Binderup, 836 F.3d
at 352 (citing to Thomson Reuters, 50 State Survey: Right to Carry a Concealed Weapon
(Statutes) (October 2015); U.S. Gov’t Accountability Off., States’ Laws and
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Despite Binderup receiving a tougher sentence than Clark, the court in Binderup called his sentence a
“colloquial slap on the wrist.” Binderup, 836 F.3d at 340.
8 Eight years after the conviction for carrying a firearm without a license, Suarez was convicted for the
state-law misdemeanor of driving under the influence of alcohol. Id. This conviction, however, was not
subject to § 922(g)(1). Id.
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Requirements for Concealed Carry Permits Vary Across Nation 73-74 (2012) available
at http://www.gao.gov/assets/600/592552.pdf (last visited Aug. 7, 2018)).
(vi) Summary and Application of the Step One Factors
The 2002 crime has a maximum penalty of five years, the crime is a
misdemeanor, use of force is not an element of the crime, Clark received a relatively light
sentence, and there is no consensus regarding the crime’s seriousness. Accordingly, it is
evident that Clark adequately and compellingly demonstrated the factual grounds
necessary to satisfy step one. In Binderup, the court determined that crimes of Binderup
and Suarez were not serious enough to place them with the class of “unvirtuous” citizens
that § 922(g)(1) was intended to restrain. Since Clark’s crime was treated less seriously
than the challengers in Binderup, it is not serious enough for his claim to fail at step one.
2. STEP TWO
There is “[n]o doubt that § 922(g)(1) is intended to further the government
interest of promoting public safety by ‘preventing armed mayhem.’” Binderup, 836 F.3d
at 353 (citing United States v. Skoien, 614 F.3d 638, 642 (7th Cir. 2010) (en banc)).
“Against that important government interest [this court] must consider whether banning
the challenger from possessing firearms and ammunition is substantially related to that
purpose.” Brooks, 2018 U.S. Dist. LEXIS 87591, at *14 (citing Binderup, 836 F.3d at
341, 353). This court must balance “the Challengers’ total disarmament [with] the
promotion of public safety.” Binderup, 836 F.3d at 354. The government must “present
some meaningful evidence, not mere assertions, to justify its predictive . . . judgments”
regarding the challenger’s potential future commitment of crimes. Id. “Parties may use
statistics to show that people who commit certain crimes have a high (or low) likelihood
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of recidivism that warrants (or does not warrant) disarmament, even decades after a
conviction.” Id. at 355.
The government bears the burden of persuasion at step two. The government must
present some meaningful evidence, not mere assertions, to justify its predictive judgment
that Clark is likely to misuse a firearm. Binderup, 836 F.3d at 354. Here, the
government presented only the circumstances surrounding Clark’s 2002 conviction and a
recent work-related incident as evidence of his potential to commit crimes in the future.
The fact that the 2002 conviction stemmed from an argument is potentially troublesome.
Citizens who turn to violence following arguments would present a clear danger to the
community. There is no evidence, however, that Clark used the firearm threateningly in
2002. Clark testified, without dispute, he was simply putting it away in his truck before
following his girlfriend into the restaurant to continue the verbal argument. He made a
conscious, responsible decision to put the gun in safekeeping despite being in the midst
of an argument. Following the incident, Carvella still described Clark as her “best friend”
and told Dr. Meyer that she never felt endangered during the incident. (ECF No. 25-1 at
35). Dr. Meyer opined that Clark was fit for duty and did not present a significant danger
to others. (ECF No. 25-1 at 36). The couple broke up about a year after the incident, but
Clark has since married and had no issues of domestic violence. The government offered
no contrary evidence. 9
9
The statement of an anonymous witness in a criminal complaint cannot defeat summary judgment. See
Damascus Bakery, Inc. v. Elwell, No. CIV. 08-1568 WJM, 2010 WL 3359526, at *5 (D.N.J. Aug. 25,
2010) (“Evidence derived from this criminal complaint, however, is hearsay, and “[h]earsay statements that
would be inadmissible at trial may not be considered for purposes of summary judgment”); accord Graham
v. Jersey City Police Dep't, No. CIV.A. 11-7326, 2014 WL 7177362, at *3 (D.N.J. Dec. 16, 2014)
(“statements made to police from a witness are inadmissible hearsay where, as in this case, Defendants are
offering the police report to establish the truth of the matters set forth in the report”).
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The length of time between Clark’s conviction and the filing of this action in 2018
is significant. He has had no encounters with law enforcement since September 2001. In
Binderup, Judge Ambro discounted the government’s estimate of the likelihood of
recidivism because Binderup’s and Suarez’s offenses were, respectively, 20 and 26 years
old. Binderup, 836 F.3d at 353-54. The court cited a study that explained: “[g]enerally,
the risk of recidivism was highest during the first year after admission to probation,” and
that “[a]s released prisoners and probationers age, they tend to exhibit lower rates of
recidivism.” Id. at 354 (citing Iowa Div. of Crim. & Juvenile Justice Planning, Recidivism
Among Iowa Probationers 2 (July 2005), available at http://publications.iowa.gov/15032/
(last visited July 30, 2018)). Approximately seventeen years have passed since the
incident that led to Clark’s conviction. His risk of recidivism has, statistically speaking,
significantly diminished.
The incident of alleged insubordination at work is not evidence of behavioral
patterns with a likelihood of recidivism or unsuitability to possess a firearm. Dropping
cheeseburgers on the floor and walking away during an argument with a superior officer
does not evince that Clark would mishandle a firearm if similarly frustrated.
Clark expresses a legitimate reason for desiring firearms and the government
presented insufficient evidence to show he is at risk of recidivism. Upholding the ban on
his possession of firearms and ammunition does not substantially further the government
interest of preventing armed mayhem. Clark met his burden at step one; the government
failed to meet its burden at step two.
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IV. CONCLUSION
Clark brought an as-applied challenge to 18 U.S.C. § 922(g)(1), which is
governed by the Binderup framework. He adequately and compellingly demonstrated the
factual grounds necessary to satisfy step one by showing that his crime was not serious
enough to include him in the historically barred class. At step two, the government did
not present enough evidence to show that restoring Clark’s Second Amendment rights
substantially impairs the legitimate government interest of preventing armed mayhem.
Accordingly, Clark’s motion for summary judgment will be granted.
Clark did not submit a proposed order with his motion, as required by the court’s
Local Rules. Within seven days, counsel for Clark shall meet and confer with defense
counsel and submit a proposed order to restore Clark’s civil rights under the Second
Amendment.
An appropriate order follows.
Dated: August 21, 2018
/s/ Joy Flowers Conti
Joy Flowers Conti
Chief United States District Judge
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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
CHRISTOPHER CLARK
Plaintiff,
v.
JEFFERSON B. SESSIONS III,
Attorney General of the United States,
et al.,
Defendants.
)
)
)
)
)
)
)
)
)
)
Civil Action No. 16-1804
ORDER
And now this 21st day of August, 2018, in accordance with the memorandum
opinion, the motion for summary judgment is GRANTED. Within seven days, plaintiff’s
counsel shall meet and confer with defense counsel and submit a proposed order to
restore Christopher Clark’s civil rights under the Second Amendment.
/s/ Joy Flowers Conti
Joy Flowers Conti
Chief United States District Judge
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