Case 1:15-cv-01225-RC Document 12 Filed 01/11/16 Page 1...

IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLUMBIA

MARK BAGINSKI, ) Case. No. 1:15-CV-1225-RC)

Plaintiff, ))

v. ))

LORETTA LYNCH, et al., ))

Defendants. )_______________________________________________)

MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO

DEFENDANTS’ MOTION TO DISMISS

Now comes Plaintiff Mark Baginski, by and through undersigned counsel, and submits his

Memorandum of Points and Authorities in Opposition to Defendants’ Motion to Dismiss.

Dated: January 11, 2016 Respectfully submitted,

Alan Gura (D.C. Bar No. 453449)Gura & Possessky, PLLC916 Prince Street, Suite 107Alexandria, VA 22314703.835.9085/Fax [email protected]

By: /s/ Alan Gura Alan GuraAttorney for Plaintiff

Case 1:15-cv-01225-RC Document 12 Filed 01/11/16 of 28

TABLE OF CONTENTS

Preliminary Statement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Statement of Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Summary of Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

I. Baginski Has Stated a Valid Statutory Claim. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

A. Ambiguous Criminal Statutes Are Afforded the Most Lenient Construction. . . . . . . 4

B. Courts Must Avoid Constitutional Questions Where Alternative StatutoryInterpretations Raising No Constitutional Concerns Are “Fairly Possible.”.. . . . . . . 5

C. Section 922(g)(1) Does Not Apply to Baginski’s Misdemeanor, As It Was Capable of Being Punished By Less Than Two Years’ Imprisonment. . . . . . . . . . . . 6

II. Baginski Plainly States A Constitutional Claim for Relief Against the Application of Section 922(g)(1) to His Facts and Personal Circumstances.. . . . . . . . . . . . 14

Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

i


TABLE OF AUTHORITIES

Cases

Abramski v. United States, 134 S. Ct. 2259 (2014).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Adirondack Med. Ctr. v. Sebelius, 740 F.3d 692 (D.C. Cir. 2014).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Atl. Cleaners & Dyers, Inc. v. United States, 286 U.S. 427 (1932). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

*Begay v. United States, 553 U.S. 137 (2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

*Binderup v. Holder, No. 13-CV-6750, 2014 U.S. Dist. LEXIS 135110 (E.D. Pa., Sept. 25, 2014). . . . . . . . . . . . . 6, 14, 16, 17, 19

Bond v. United States, 134 S. Ct. 2077 (2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Burrage v. United States, 134 S. Ct. 881 (2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Comm’r v. Lundy, 516 U.S. 235 (1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Crandon v. United States, 494 U.S. 152 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Davis v. United States, 131 S. Ct. 2419 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

District of Columbia v. Heller, 554 U.S. 570 (2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 17

Envtl. Def. v. Duke Energy Corp., 549 U.S. 561 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

In re Mills, 135 U.S. 263 (1890). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

ii


Iselin v. United States, 270 U.S. 245 (1926) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Jones v. United States,529 U.S. 848 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Lamie v. United States Tr., 540 U.S. 526 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Leocal v. Ashcroft, 543 U.S. 1 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Lewis v. City of Chicago, 560 U.S. 205 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Logan v. United States, 552 U.S. 23 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Omega Overseas, Ltd. v. Griffith, No. 13-CV-4202, 2014 U.S. Dist. LEXIS 109781 (S.D.N.Y. Aug. 7, 2014) .. . . . . . . . . . . . . . . . . . . . . . . . . 13

PDK Labs. Inc. v. United States DEA, 362 F.3d 786 (D.C. Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Public Citizen, Inc. v. Rubber Mfrs. Ass’n, 533 F.3d 810 (D.C. Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Russello v. United States, 464 U.S. 16 (1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

*Schrader v. Holder, 704 F.3d 980 (D.C. Cir. 2013).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 9, 10, 16, 17

Sorenson v. Sec’y of Treasury, 475 U.S. 851 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

*Suarez v. Holder, No. 14-CV-968, 2015 U.S. Dist. LEXIS 19378 (M.D. Pa. Feb. 18, 2015). . . . . . . . . . . . . . . . . . 6, 14, 16, 17

United States ex rel. Attorney Gen. v. Delaware & Hudson Co., 213 U.S. 366 (1909). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

iii


United States v. Apel, 134 S. Ct. 1144 (2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

United States v. Augustin, 376 F.3d 135 (3d Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

United States v. Barton, 633 F.3d 168 (3d Cir. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

United States v. Bass, 404 U.S. 336 (1971). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5

United States v. Carpio-Leon, 701 F.3d 974 (4th Cir. 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

United States v. Chester, 628 F.3d 673 (4th Cir. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

United States v. Cleveland Indians Baseball Co., 532 U.S. 200 (2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

United States v. Daugherty, 264 F.3d 513 (5th Cir. 2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

United States v. Denson, 588 F.2d 1112 (5th Cir. 1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

United States v. Denson,603 F.2d 1143 (5th Cir. 1979) (en banc) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

United States v. Duggan, 657 F.3d 998 (9th. Cir. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

United States v. Essig, 10 F.3d 968 (3d Cir. 1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

United States v. Leuschen, 395 F.3d 155 (3d Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

United States v. Locke, 471 U.S. 84 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

United States v. Nieves-Rivera, 961 F.2d 15 (1st Cir. 1992) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 11

iv


United States v. Rehlander, 666 F.3d 45 (1st Cir. 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

United States v. Santos, 553 U.S. 507 (2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

United States v. Smoot, 690 F.3d 215 (4th Cir 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

United States v. Tiger, 538 F.3d 1297 (10th Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

United States v. Torres-Rosario, 658 F.3d 110 (1st Cir. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

United States v. Williams, 616 F.3d 685 (7th Cir. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

United States v. Yancey, 621 F.3d 681 (7th Cir. 2010) (per curiam) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Unites States v. Moore, 666 F.3d 313 (4th Cir. 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Util. Air Regulatory Grp. v. EPA, 134 S. Ct. 2427 (2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Whitman v. United States,135 S. Ct. 352 (2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Statutes and Rules

18 U.S.C. § 921(a)(20). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

18 U.S.C. § 922(g)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

18 U.S.C. § 922(g)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Other Authorities

BALLENTINE’S LAW DICTIONARY (3d. ed. 1969). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

BLACK’S LAW DICTIONARY (10th ed. 2014).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

v


Henry Campbell Black, A DICTIONARY OF LAW (1st ed. 1891). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Norman J. Singer, SUTHERLAND ON STATUTORY

CONSTRUCTION (7th ed. 2008) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5

WEBSTER’S NEW INTERNATIONAL DICTIONARY (3d ed. 1961). . . . . . . . . . . . . . . . . . . . . . . . . 7

vi


MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO

DEFENDANTS’ MOTION TO DISMISS

PRELIMINARY STATEMENT

While Plaintiff Mark Baginski’s constitutional argument is discussed in greater detail on his

cross-motion for summary judgment, this separate brief more directly addresses the Government’s

motion at the level at which it was filed: as a motion to dismiss only.

For purposes of this motion, of course, the facts alleged in the Complaint must be assumed

true and viewed in the light most favorable to Mr. Baginski (though the same facts are conclusively

proven, and not expected to be in significant if any dispute, on summary judgment). The only

question is whether claims are stated. They are.

STATEMENT OF FACTS

The essential facts, as pled in the Complaint, are as follows:

Mark Baginski is

a responsible, law-abiding American citizen. Baginski votes and pays his taxes. He holds aConnecticut gaming license, and remains employed, as he has since November, 1996without incident, in positions of significant trust at a casino—working his way up fromdealer to floor supervisor of table games.

First Am. Complaint (“FAC”) ¶ 10. Baginski shares his Rhode Island home with this mother, for

whom he cares, and would obtain a firearm but for Defendants’ position that he is ineligible to do so

per 18 U.S.C. § 922(g)(1). FAC ¶ 1.

“Baginski has no history of violent behavior, or of any other conduct that would suggest he

would pose any more danger by possessing firearms than an average, law-abiding responsible

citizen.” FAC ¶ 11. He is not barred from possessing firearms under the laws of his state. FAC ¶ 12.

Nor does Baginski have any federal firearms disqualification, FAC ¶ 6, save for one claimed by the

Defendants: a 2004 Massachusetts conviction for driving under the influence of alcohol in violation

1


of Mass. Gen. Law c. 274, § 1. FAC ¶ 7. Save for minor traffic infractions, Baginski has no other

criminal record. FAC ¶ 9. Defendants have frustrated Baginski’s efforts to obtain firearms, FAC ¶¶

17, 19, and he consequently refrains from further efforts to do so, FAC ¶ 20.

SUMMARY OF ARGUMENT

Baginski offers two arguments for relief: that Section 922(g)(1) does not apply to the facts of

his conviction, and that Section 922(g)(1)’s application against him violates his Second Amendment

rights.

The Government offers a plausible (if erroneous) claim for moving to dismiss the statutory

claim. Indeed, as Baginski acknowledges, his statutory claim might well be foreclosed by circuit

precedent, although under the circumstances he is plainly positioned to preserve this claim in good

faith for further review. In contrast, the Government’s motion to dismiss Baginski’s second count,

denying the reality that constitutional relief is available against Section 922(g)(1)’s particular

applications, is specious. It flatly contradicts the precedent of the Supreme Court, the D.C. Circuit,

and numerous other circuits, all of whom have ruled—sometimes, as in the D.C. Circuit, fairly

explicitly—that as-applied challenges to Section 922(g)(1) are available based on one’s personal

circumstances. The Government’s motion to dismiss should be denied.

* * *

Baginski concedes that his statutory claim may be foreclosed, at least in this circuit, by the

same opinion that confirms the availability of his constitutional relief: Schrader v. Holder, 704 F.3d

980 (D.C. Cir. 2013). But Schrader is somewhat ambiguous with respect to the key statutory

definition that controls Baginski’s statutory claim—a claim not offered, and not considered, in

Schrader. If Schrader indeed forecloses Baginski’s statutory claim, Baginski nonetheless

2


respectfully submits his argument in a good faith effort to preserve the claim for higher courts, which

might well reconsider the matter, especially in light of the constitutional avoidance doctrine.

Stated simply, Section 922(g)(1) and its defining provision, Section 921(a)(20), both use the

phrase “punishable by” in referring to various terms of imprisonment. “Punishable by” has at least

two meanings. It can refer to any potential sentence—high, low, or anything in between that a judge

might impose; or it may refer to a maximum sentence. Where Section 922(g)(1) is concerned—and

this is the circumstance typically considered by courts—the two definitions yield the same result,

and any distinction is at best abstract (and thus routinely overlooked by courts). A maximum

sentence is always a possible sentence, and so long as a sentence exceeding a year’s imprisonment

might have been imposed, the crime falls within Section 922(g)(1)’s purview.

But a serious problem arises in cases involving state misdemeanors. Unlike the inclusive

operation of Section 922(g)(1)’s definition, Section 921(a)(20(B) uses “punishable by” to exclude

crimes. The maximum/potential distinction is thus significant. On one hand, if “punishable by”

references a maximum sentence, then any misdemeanor that could have been punished by a

maximum sentence exceeding two years is included within Section 922(g)(1). But if “punishable

by” as used in Section 921(a)(20)(b) means what courts have always held it to mean under Section

922(g)(1)—capable of being punished—the maximum potential sentence is irrelevant, and Baginski

could not be disarmed for a misdemeanor offense that could have been (and indeed, was) punished

by less than two years’ imprisonment.

ARGUMENT

I. BAGINSKI HAS STATED A VALID STATUTORY CLAIM.

“A court owes no deference to the prosecution’s interpretation of a criminal law.” Whitman

v. United States, 135 S. Ct. 352, 352 (2014) (Scalia, J., concerning denial of certiorari). “The

3


Justice Department, of course, has a very specific responsibility to determine for itself what [a]

statute means, in order to decide when to prosecute; but we have never thought that the

interpretation of those charged with prosecuting criminal statutes is entitled to deference.” Crandon

v. United States, 494 U.S. 152, 177 (1990) (Scalia, J., concurring in the judgment); see United

States v. Apel, 134 S. Ct. 1144, 1151 (2014) (“we have never held that the Government’s reading

of a criminal statute is entitled to any deference”) (citing Crandon); cf. Util. Air Regulatory Grp. v.

EPA, 134 S. Ct. 2427, 2446 (2014) (“an agency may not rewrite clear statutory terms to suit its

own sense of how the statute should operate”).

“The critical point is that criminal laws are for courts, not for the Government, to construe.”

Abramski v. United States, 134 S. Ct. 2259, 2274 (2014). “Whether the Government interprets a

criminal statute too broadly (as it sometimes does) or too narrowly . . . a court has an obligation to

correct its error. . . . Congress [is] the entity whose voice does matter . . . .” Id.

A. Ambiguous Criminal Statutes Are Afforded the Most Lenient Construction.

“[B]ecause of the seriousness of criminal penalties, and because criminal punishment

usually represents the moral condemnation of the community, legislatures and not courts should

define criminal activity.” United States v. Bass, 404 U.S. 336, 348 (1971).

It is an ancient rule of statutory construction that penal statutes should be strictly construedagainst the government . . . and in favor of the persons on whom penalties are sought to beimposed . . . any reasonable doubt about the meaning is decided in favor of anyone subjectedto a criminal statute.

Norman J. Singer, 3 SUTHERLAND ON STATUTORY CONSTRUCTION § 59:3, at 167-75 (7th ed. 2008)

(“SUTHERLAND”) (collecting cases); see also id. at 187-88 (discussing Supreme Court’s adoption of

the rule of lenity). Courts construe ambiguous criminal statutes narrowly to avoid “making criminal

law in Congress’s stead.” United States v. Santos, 553 U.S. 507, 514 (2008).

4


In various ways over the years, we have stated that when choice has to be made between tworeadings of what conduct Congress has made a crime, it is appropriate, before we choose theharsher alternative, to require that Congress should have spoken in language that is clear anddefinite.

Bass, 404 U.S. at 347-48 (quotation omitted). “[A]mbiguity concerning the ambit of criminal

statutes should be resolved in favor of lenity.” Jones v. United States, 529 U.S. 848, 858 (2000)

(quotation omitted).

B. Courts Must Avoid Constitutional Questions Where Alternative StatutoryInterpretations Raising No Constitutional Concerns Are “Fairly Possible.”

As shown below, applying the felon-in-possession ban against Suarez raises serious

constitutional questions. This is reason alone to construe the ban narrowly in light of the two-year

misdemeanor exemption. “[I]t is a well-established principle governing the prudent exercise of this

Court’s jurisdiction that normally the Court will not decide a constitutional question if there is some

other ground upon which to dispose of the case.” Bond v. United States, 134 S. Ct. 2077, 2087

(2014) (quotation and citations omitted). “Where a statute is susceptible of two constructions, by

one of which grave and doubtful constitutional questions arise and by the other of which such

questions are avoided, our duty is to adopt the latter.” United States ex rel. Attorney Gen. v.

Delaware & Hudson Co., 213 U.S. 366, 408 (1909) (citation omitted).

“[T]he fact that one among alternative constructions would involve serious constitutional

difficulties is reason to reject that interpretation in favor of another.” 2A SUTHERLAND § 45.11, at

87 (collecting cases); see United States v. Rehlander, 666 F.3d 45, 49 (1st Cir. 2012) (“statutes are

to be read to avoid serious constitutional doubts”).

Accordingly, “[t]he question is not whether” an alternative statutory interpretation “is the

most natural interpretation of the [law], but only whether it is a ‘fairly possible’ one. As we have

explained, ‘every reasonable construction must be resorted to, in order to save a statute from

5


unconstitutionality.’” Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2594 (2012)

(Roberts, C.J.) (quotations omitted); cf. PDK Labs. Inc. v. United States DEA, 362 F.3d 786, 799

(D.C. Cir. 2004) (Roberts, J., concurring in part and concurring in the judgment) (“if it is not

necessary to decide more, it is necessary not to decide more”).1

C. Section 922(g)(1) Does Not Apply to Baginski’s Misdemeanor, As It Was Capable of Being Punished By Less Than Two Years’ Imprisonment.

With the rule of lenity and the constitutional avoidance doctrine in mind, Baginski’s

statutory claim comes into full view. Courts generally refer to Section 922(g)(1) as the “felon in

possession” statute, though the statute itself does not use that terminology. See, e.g., Davis v. United

States, 131 S. Ct. 2419, 2425-26 (2011) (“possession of a firearm by a convicted felon”). Section

921(g) apparently bars firearms possession by anyone convicted of “a crime punishable by

imprisonment for a term exceeding one year,” implicating all crimes regardless of their classification

as felonies or misdemeanors. But “the words of § 922(g)(1) do not always mean what they say.”

United States v. Essig, 10 F.3d 968, 971 (3d Cir. 1993). “[C]rime punishable by imprisonment for

a term exceeding one year” “does not include . . . (B) any State offense classified by the laws of the

State as a misdemeanor and punishable by a term of imprisonment of two years or less.” Section

921(a)(20).

Baginski’s crime was a misdemeanor for which a person might have received a two-and-a-

half year sentence of imprisonment. But Baginski could— and did—receive a sentence “of two

District courts have rejected the statutory arguments Baginski offers here, before striking1

down Section 922(g)(1) as unconstitutional under the Second Amendment in the contexts of those

cases. Suarez v. Holder, No. 14-CV-968, 2015 U.S. Dist. LEXIS 19378 (M.D. Pa. Feb. 18, 2015);

Binderup v. Holder, No. 13-CV-6750, 2014 U.S. Dist. LEXIS 135110 (E.D. Pa., Sept. 25, 2014).While this Court might well take the same approach, Baginski respectfully avers that the statutoryargument is at least worth preserving because it is correct, and because of the special importance thatthe Supreme Court often places on constitutional avoidance.

6


years or less.” Section 921(a)(20)(B). Whether Baginski’s conviction qualifies for the two-year

exclusion turns on the interpretation of “punishable”—a term lending itself to multiple

understandings.

In general terms, “punishable” is defined as “deserving of, or liable to, punishment : capable

of being punished by law or right.” WEBSTER’S NEW INTERNATIONAL DICTIONARY 1843 (3d ed.

1961). But its meaning is also subject to significant variations. As Black’s Law Dictionary

recognized, “punishable” means “[l]iable to punishment, whether absolutely or in the exercise of a

judicial discretion.” Henry Campbell Black, A DICTIONARY OF LAW 966 (1st ed. 1891). Today

Black’s offers that “punishable” can mean “subject to a punishment” or “giving rise to a specified

punishment.” BLACK’S LAW DICTIONARY (10th ed. 2014) (emphasis added). Ballentine’s adds:

Where statute makes an offense “punishable” in a certain manner, the use of the word is heldto make it a matter of discretion as to whether or not the court will impose the designatedpunishment.

BALLENTINE’S LAW DICTIONARY (3d. ed. 1969).

If “punishable by a term of imprisonment of two years or less” refers to specific terms that

define the sentencing range, Baginski’s offense does not qualify for Section 921(a)(20)(B)’s

exclusion, because his offense carried a maximum two and a half year sentence. But if “punishable”

means “capable of being punished,” then Baginski’s offense comes within the meaning of the

exclusion, because it was “capable of being punished by” a sentence “of two years or less,” as

demonstrated by Baginski’s actual sentence. “Two years or less” is included within “three years or2

less,” “ten years or less,” and “lifetime or less.” Under this view, state misdemeanors come within

Baginski does not claim that the sentence he actually received determines Section2

922(g)(1)’s application. It does not. His sentence merely demonstrates the fact that his convictionwas punishable by less than two years’ imprisonment.

7


the “felon in possession” ban only if they carry a mandatory minimum sentence exceeding two

years, such that they are not “punishable by” a sentence of two years or less.

As to what “punishable” means, the Supreme Court’s exploration of that term in the context

of “punishable . . . by imprisonment at hard labor,” In re Mills, 135 U.S. 263 (1890), stands on-

point.

An offence which the statute imperatively requires to be punished by imprisonment “at hardlabor,” and one that must be punished by “imprisonment,” but the sentence to which

imprisonment the court may, in certain cases, and in its discretion, require to be executedin a penitentiary where hard labor is prescribed for convicts, are, each, “punishable” by

imprisonment at hard labor. The former offence certainly must be thus punished; and as the

latter may, in the discretion of the court, be so punished, it may, also, and not

unreasonably, be held to be “punishable” by imprisonment at hard labor.

Id. at 266 (emphasis added).

[T]he words “punishable . . . by imprisonment at hard labor” . . . embrace offences which,although not imperatively required by statute to be so punished, may, in the discretion of thecourt, be punished by imprisonment in a penitentiary.

Id. at 268.

Similarly, Baginski’s misdemeanor “may, in the discretion of the court, [have] be[en]

punished by imprisonment,” id., for “a term . . . of two years or less,” Section 921(a)(20)(B).

Baginski was “subject to a punishment” of two years or less. His misdemeanor is thus excluded from

Section 922(g)(1)’s scope.

Federal courts tend to follow the Mills approach. “The word ‘punishable’ in ordinary

English simply means ‘capable of being punished.’” United States v. Nieves-Rivera, 961 F.2d 15,

17 (1st Cir. 1992) (citations omitted). The Fifth Circuit once considered a federal statute authorizing

suspended sentences and probation for “any offense not punishable by death or life imprisonment.”

United States v. Denson, 588 F.2d 1112, 1116 (5th Cir.), aff’d in part and modified in part in

8


banc, 603 F.2d 1143, 1145 (1979) (quotation omitted). The court construed this language to mean

that “federal courts are without authority to suspend the imposition or execution of punishment and

to grant probation to defendants . . . who are convicted of offenses for which death or life

imprisonment may be imposed as a sentence.” Id. Indeed, the court thought the matter “so self-

evident that it hardly admits of argument,” id. at 1117 (quotation omitted), basing its decision on the

plain meaning rule of statutory construction.

Critically, the D.C. Circuit has adopted the potentiality approach in defining the phrase

“crime punishable by imprisonment for a term exceeding one year,” at least as used in Section

922(g)(1). In 1968, Navy enlistee Jeff Schrader was convicted of common-law misdemeanor assault

in Maryland, owing to a scuffle with a gang member who had previously assaulted him. Over forty

years later, the Government disarmed Schrader under Section 922(g)(1), arguing that the common

law’s lack of statutory sentencing provisions meant that only the Eighth Amendment limited

Schrader’s potential sentence. Schrader sued, arguing inter alia that “punishable” refers to specific

statutory terms, and thereby does not extend to common law crimes.

Rejecting that argument, the D.C. Circuit held that the “common-sense meaning of the term

‘punishable,’ . . . refers to any punishment capable of being imposed, not necessarily a punishment

specified by statute.” Schrader, 704 F.3d at 986 (citation omitted); accord United States v.

Leuschen, 395 F.3d 155, 158 (3d Cir. 2005) (“the only qualification imposed by § 922(g)(1) is that

the predicate conviction carry a potential sentence of greater than one year of imprisonment”)

(emphasis added). Because Schrader might even have been executed for his common-law offense,

his crime was “punishable by” over a year’s imprisonment.

This finding would have led to tension with imposing Section 922(g)(1) against Schrader,

considering Section 921(a)(20)(B)’s use of “punishable” in an exclusion. But confusingly, the D.C.

9


Circuit adopted the different, maximum-sentence based approach for defining “punishable” in

Section 921(a)(20)(B). “[B]ecause [common law] offenses are also capable of being punished by

more than two years’ imprisonment, they are ineligible for section 921(a)(20)(B)’s misdemeanor

exception.” Schrader, 704 F.3d at 986 (emphasis added).

Under the “capable of being punished” approach adopted by the D.C. Circuit for Section

922(g)(1), id., Schrader should have prevailed—a common-law offense is “capable of being

punished,” id., by “two years or less,” Section 921(a)(20)(B), as demonstrated by Schrader’s no-jail

sentence. The Court did not explain why it adopted two different definitions for “punishable by.”

Baginski fully acknowledges that this may be the D.C. Circuit’s issue to resolve, but he cannot be

accused of failing to preserve this argument. 3

Applying the long-held understanding of “punishable by” as referencing a potential outcome

enjoys the benefit of not adding words to Congress’s statute. Section 921(a)(20)(B) does not exclude

from the “felon” ban those misdemeanors “punishable only by a term of imprisonment of two years

or less,” such that if a misdemeanor is also punishable by a term exceeding two years, it falls outside

the exclusion. Rather, the text quite plainly provides that the scheme excludes misdemeanors

“punishable by” two years or less. Period, full stop.

In dicta, the Supreme Court referenced Section 921(a)(20(B) for the proposition that “[a]n3

offense classified by a State as a misdemeanor . . . may qualify as a ‘violent felony’ forACCA-enhancement purposes (or as a predicate for a felon-in-possession conviction under § 922(g))

only if the offense is punishable by more than two years in prison.” Logan v. United States, 552

U.S. 23, 27 (2007) (emphasis added). But then, such an offense may not qualify if it is also

punishable by less than two years’ imprisonment. In any event, this was all dicta, because (unlikehere) the matter was not contested. Logan should have pressed the matter, but instead, he“acknowledge[d]” that his earlier convictions “facially qualifie[d] as violent felonies under §

921(a)(20)(B) (2000 ed.).” Logan, 552 U.S. at 30 (citing Petitioner’s Brief). “Thus the sole matter

in dispute” was whether his rights had been sufficiently restored. Id. at 30-31.

10


Courts cannot “engage in a statutory rewrite” by “insert[ing] the word ‘only’ here and there .

. . .” Adirondack Med. Ctr. v. Sebelius, 740 F.3d 692, 699 (D.C. Cir. 2014); Public Citizen, Inc. v.

Rubber Mfrs. Ass’n, 533 F.3d 810, 817 (D.C. Cir. 2008) (footnote omitted) (“Congress knows well

how to say that disclosures may be made only under specified provisions or circumstances, but it did

not do so here”).

What the Government asks is not a construction of a statute, but, in effect, an enlargement ofit by the court, so that what was omitted, presumably by inadvertence, may be includedwithin its scope. To supply omissions transcends the judicial function.

Iselin v. United States, 270 U.S. 245, 251 (1926) (citations omitted). But “[w]ith a plain,

nonabsurd meaning in view, we need not proceed in this way. There is a basic difference between

filling a gap left by Congress’ silence and rewriting rules that Congress has affirmatively and

specifically enacted.” Lamie v. United States Tr., 540 U.S. 526, 538 (2004) (quotation omitted).

A “nonabsurd meaning” is plainly “in view.” Indeed, the law makes more sense as written

than it would as the Government would rewrite it. The law reflects the familiar concept that serious

crimes carry mandatory minimum sentences. If a misdemeanor can be punished by two years or less,

there is no prohibition. If a misdemeanor cannot be punished by two years or less, e.g., because it is

extremely serious and warrants a mandatory minimum sentence of at least two years, then “felon”

treatment applies. Cf. Nieves-Rivera, 961 F.2d at 17 (“It makes sense to read the ‘sentence

suspension’ statute as applying only to crimes not ‘capable of being punished’ with a life term, i.e.,

crimes not serious enough to warrant life imprisonment.”).

This outcome may not provide as harsh a result as the Government might prefer, but it is

what Congress has prescribed. “The role of th[e] [c]ourt is to apply the statute as it is written— even

if we think some other approach might ‘accor[d] with good policy.’” Burrage v. United States, 134

11


S. Ct. 881, 892 (2014) (quoting Comm’r v. Lundy, 516 U.S. 235, 252 (1996)) (third alteration in

original); see also Lewis v. City of Chicago, 560 U.S. 205, 217 (2010) (“[I]t is not our task to

assess the consequences of each approach [to interpreting a statute] and adopt the one that produces

the least mischief. Our charge is to give effect to the law Congress enacted.”); United States v.

Locke, 471 U.S. 84, 95 (1985) (“[T]he fact that Congress might have acted with greater clarity or

foresight does not give courts a carte blanche to redraft statutes in an effort to achieve that which

Congress is perceived to have failed to do”).

Indeed, whatever “punishable” means, it must mean the same thing in Section 922(g)(1) that

it means in Section 921(a)(20)(B). A “basic canon of statutory construction [holds] that identical

terms within an Act bear the same meaning.” Estate of Cowart v. Nicklos Drilling Co., 505 U.S.

469, 479 (1992) (citations omitted). Just as “differing language” in “two subsections” of a statute

should not be given “the same meaning,” Russello v. United States, 464 U.S. 16, 23 (1983),

“[u]ndoubtedly, there is a natural presumption that identical words used in different parts of the

same act are intended to have the same meaning,” Atl. Cleaners & Dyers, Inc. v. United States, 286

U.S. 427, 433 (1932).

Of course, “[t]here is . . . no effectively irrebuttable presumption that the same defined term

in different provisions of the same statute must be interpreted identically. Context counts.” Envtl.

Def. v. Duke Energy Corp., 549 U.S. 561, 575-76 (2007) (quotation omitted). “[T]he presumption

is not rigid, and the meaning [of the same words] well may vary to meet the purposes of the law.”

United States v. Cleveland Indians Baseball Co., 532 U.S. 200, 213 (2001) (quotations omitted).

But “[w]here two statutes operate in the same area of the law . . . the general rule remains that

12


similar language should be interpreted similarly.” Omega Overseas, Ltd. v. Griffith, No. 13-CV-

4202, 2014 U.S. Dist. LEXIS 109781, at *17-*18 (S.D.N.Y. Aug. 7, 2014) (citations omitted).

And here, the context of Sections 922(g)(1) and 921(a)(20)(B) is identical. Both statutes

work together to delineate crimes included —and excluded—from the “felon” ban’s scope. It is not

enough for the Government to respond that “context matters”—that much is known. But it is known

as an exception to the common sense presumption that identical terms in the same act relating to the

same subject share an identical meaning. The Government bears the burden of (1) showing that

these two provisions exist in different contexts, and (2) explaining how those different contexts

would inform completely different meanings of the term “punishable by.”

This much, the Government cannot do. The provisions exist in the same context—indeed,

one defines the other—and they mean the exact same thing. Cf. Sorenson v. Sec’y of Treasury, 475

U.S. 851, 860 (1986) (“that both subsections concern the tax-refund treatment of ‘[overpayments]’

is especially damaging to any claim” of different contextual meanings). It cannot be that

“punishable” means “capable of being punished” when looking to include offenses in a criminal

prohibition, but refers to specific terms of punishment when defining an exclusion from that same

prohibition. And while either definition achieves the same effect if used in Section 922(g)(1), which

speaks of a “term exceeding one year” (emphasis added), the different definitions yield different

results when utilized in Section 921(a)(20)(B)’s context, referring to “a term of imprisonment of two

years or less” (emphasis added).

Section 922(g)(1) does not apply to Mark Baginski’s misdemeanor DUI conviction.

13


II. BAGINSKI PLAINLY STATES A CONSTITUTIONAL CLAIM FOR RELIEF AGAINST THE

APPLICATION OF SECTION 922(G)(1) TO HIS FACTS AND PERSONAL CIRCUMSTANCES.

The Government offers a fine argument defending the facial constitutionality of Section

922(g)(1). The possession of firearms by people convicted of serious crimes endangers public safety,

and prohibitions such as Section 922(g)(1) are properly tailored under the Second Amendment.

There is just one problem with the argument: it doesn’t respond to anything in Baginski’s

complaint.

Baginski does not challenge the basic concept underlying Section 922(g)(1) or the statute’s

facial validity. He challenges only the application of this provision against him, based on his

particular circumstances. Although courts have repeatedly corrected it on this point, Suarez v.

Holder, No. 14-CV-968, 2015 U.S. Dist. LEXIS 19378 (M.D. Pa. Feb. 18, 2015); Binderup v.

Holder, No. 13-CV-6750, 2014 U.S. Dist. LEXIS 135110 (E.D. Pa., Sept. 25, 2014), the

Government professes not to understand what an “as-applied” challenge is. It argues that a law such

as Section 922(g)(1) survives intermediate scrutiny even if its “fit” is not perfectly tailored to every

individual. Well, yes—and that much is true of every law that survives any level of constitutional

scrutiny. Even strict scrutiny does not require a 100% perfect fit for every individual circumstance.

But that is why courts accept “as applied” challenges, which ask whether a law, as applied to

an individual, is constitutional. And courts—including the D.C. Circuit—accept “as applied”

challenges to Section 922(g)(1).

In upholding the individual right to bear arms, the Supreme Court explained that “nothing in

our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms

by felons,” which it termed “presumptively lawful.” District of Columbia v. Heller, 554 U.S. 570,

626-27 & n.26 (2008). Virtually every court to have considered the matter has determined that by

14


describing felon disarmament laws as “presumptively lawful,” the Supreme Court allowed for as-

applied challenges.

“By describing the felon disarmament ban as ‘presumptively’ lawful, the Supreme Court

implied that the presumption may be rebutted.” United States v. Barton, 633 F.3d 168, 173 (3d Cir.

2011). “Heller referred to felon disarmament bans only as ‘presumptively lawful,’ which, by

implication, means that there must exist the possibility that the ban could be unconstitutional in the

face of an as-applied challenge.” United States v. Williams, 616 F.3d 685, 692 (7th Cir. 2010).

“[G]iven the ‘presumptively lawful’ reference in Heller—the Supreme Court may be open to claims

that some felonies do not indicate potential violence and cannot be the basis for applying a

categorical ban. Possibly it might even be open to highly fact-specific objections.” United States v.

Torres-Rosario, 658 F.3d 110, 113 (1st Cir. 2011). “[T]he phrase ‘presumptively lawful

regulatory measures’ suggests the possibility that one or more of these ‘longstanding’ regulations

‘could be unconstitutional in the face of an as-applied challenge.’” United States v. Chester, 628

F.3d 673, 679 (4th Cir. 2010) (quoting Williams, 616 F.3d at 692)) (emphasis in Chester); id. at

687 (“Chester can plainly challenge the statute as applied to him”) (Davis, J., concurring in the

judgment); United States v. Smoot, 690 F.3d 215, 221 (4th Cir 2012); United States v. Moore,

666 F.3d 313, 319 (4th Cir. 2012).

[W]e do not hold that any person committing any crime automatically loses the protection of

the Second Amendment. The Heller Court’s holding that defines the core right to bear armsby law-abiding, responsible citizens does not preclude some future determination thatpersons who commit some offenses might nonetheless remain in the protected class of“law-abiding, responsible” persons.

United States v. Carpio-Leon, 701 F.3d 974, 981 (4th Cir. 2012).4

Notably, the Supreme Court upheld the presumptive validity of disarming felons, not4

misdemeanants, a point developed further on Plaintiff’s cross-motion for summary judgment.

15


[I]f a challenger can show that his circumstances place him outside the intended scope of [afelon disarmament provision], he establishes . . . that he is the “law-abiding citizen”

identified in Heller. And if he is a law-abiding citizen, the possession of a firearm forprotection of hearth and home is not just conduct protected by the Second Amendment, it isthe core of the Second Amendment’s guarantee.

Suarez, 2015 U.S. Dist. LEXIS 19378, at *17-*18.

Courts have thus denied motions to dismiss similar as-applied challenges. In Suarez, the

Middle District of Pennsylvania denied the Government’s motion to dismiss an as-applied challenge

brought by a non-violent misdemeanant, who, like Baginski, enjoyed a stable family life, lacked any

history of violence, had his gun rights honored by his state of residence, and was afforded a position

of trust in his employment (in Suarez’s case, a government security clearance). Suarez, 2015 U.S.

Dist. 19378, at *21-*23. Indeed, in Suarez, the district court granted the plaintiffs’ motion for

summary judgment. Similarly, the Eastern District of Pennsylvania upheld the as-applied Second

Amendment challenge to Section 922(g)(1) brought by a gentleman convicted of corruption of

minors for his role in an illicit affair with an underage employee. The offense was non-violent, and

like Baginski, the plaintiff’s possession of firearms posed no obvious danger to society. Binderup,

2014 U.S. Dist. LEXIS 135110.

The D.C. Circuit is no exception. In Schrader, having rejected a categorical challenge to

Section 922(g)(1)’s application against common-law misdemeanors, the D.C. Circuit observed that

Schrader might have been entitled to as-applied relief. Were his allegations true, “we would hesitate5

to find Schrader outside the class of ‘law-abiding, responsible citizens’ whose possession of

firearms is, under Heller, protected by the Second Amendment.” Schrader, 704 F.3d at 991

The District Court had granted the Government’s motion to dismiss, so Schrader’s5

allegations should have been presumed to be true. Moreover, Schrader declared to the basic facts ofhis case, which the Government did not contest.

16


(citation omitted). Indeed, observing that Congress has defunded the statutory mechanism for

seeking as-applied relief from Section 922(g)(1), the D.C. Circuit warned that

Without the relief authorized by section 925(c), the federal firearms ban will remainvulnerable to a properly raised as-applied constitutional challenge brought by an individualwho, despite a prior conviction, has become a “law-abiding, responsible citizen[]” entitled to“use arms in defense of hearth and home.”

Schrader, 704 F.3d at 992 (quoting Heller, 554 U.S. at 635). Alas, the Court construed Schrader’s

complaint narrowly, and found that he did not technically assert an as-applied claim. Counsel

emphatically disputed the matter, but that much is no longer relevant. Baginski’s complaint leaves

absolutely no question whatsoever that his is an as-applied constitutional challenge to Section

922(g)(1)’s application based on his personal circumstances, under the as-applied theory elucidated

in Schrader, in virtually every federal appellate court to consider the matter, and as proved

successful in cases such as Suarez and Binderup.

The Government’s citation to Schrader is highly selective. It cites the two-step balancing

parts of Schrader upholding the statute against a generalized, categorical challenge, but buries any

discussion of Roman IV, which very emphatically and specifically acknowledged the availability of

fact-based, personal challenges to Section 922(g)(1). Respectfully, Schrader terminates this motion

to dismiss by confirming that Section 922(g)(1) “remain[s] vulnerable to a properly raised

as-applied constitutional challenge brought by an individual who, despite a prior conviction, has

become a ‘law-abiding, responsible citizen[]’ entitled to ‘use arms in defense of hearth and home.’”

Schrader, 704 F.3d at 992 (quoting Heller, 554 U.S. at 635).

The Government’s argument that “Plaintiff’s history of negligently and dangerously driving

an automobile—another dangerous instrumentality that may kill when handled with insufficient

care—is substantially related to Congress’s intent ‘to keep firearms out of the hands of

17


presumptively risky people,’” Gov’t Br. at 15, is absurd on numerous grounds. First, it is positively

unhinged from any common-sense limiting principle: would a conviction for speeding

constitutionally authorize total lifetime disarmament? What about making an unsafe lane change?

Are not many, if most infractions, backed by a public safety rational? Second, the case cited for the

proposition, United States v. Daugherty, 264 F.3d 513 (5th Cir. 2001), involved a person

“imprisoned” for “delivery of marihuana and injury to a child,” id. at 514, and had nothing to do

with either as-applied relief under the Second Amendment or driving a car.

Third, the D.C. Circuit (like apparently all courts to have considered the matter) understands

that a properly prohibited person can “become” entitled to Second Amendment rights “despite a

prior conviction,” 704 F.3d at 992, something that might be said of a person who made one bad

decision with a car over a dozen years ago. People convicted of DUI sometimes lose the ability to

drive, but only for a short time. Massachusetts barred Baginski from its roads for 225 days, not

forever. No state permanently and without possible relief bans all one-time DUI offenders from

driving.

Fourth, the Supreme Court has explained that DUI convictions are not related to a

propensity for committing gun violence:

[A] prior crime’s relevance to the possibility of future danger with a gun—crimes involvingintentional or purposeful conduct (as in burglary and arson) are different from DUI, astrict-liability crime. In both instances, the offender’s prior crimes reveal a degree ofcallousness toward risk, but in the former instance they also show an increased likelihoodthat the offender is the kind of person who might deliberately point the gun and pull thetrigger.

Begay v. United States, 553 U.S. 137, 146 (2008); see also Leocal v. Ashcroft, 543 U.S. 1 (2004)

(DUI not a violent crime for immigration purposes); United States v. Tiger, 538 F.3d 1297 (10th

Cir. 2008) (DUI not a violent crime under sentencing guidelines).

18


Perhaps more to the point, the question is not whether Baginski was dangerous with firearms

in 2004. The question is whether there is any reason to disarm him today. And on this point, the

Government’s argument that a total, no-relief firearm disabilty is what Congress had in mind for

someone convicted of a single DUI is impossible in light of the Gun Control Act’s text. Congress is

well-aware of alcohol’s challenges, but despite (or perhaps because of) that knowledge, Section

922(g)(3) imposes a disability only for the abuse of controlled substances. Moreover,

Congress chose to criminalize firearm possession by any person “who is an unlawful user[.]”[Section 922(g)(3)] (emphasis added). The use of the present tense was not idle. Quitesimply, Congress intended the statute to cover unlawful drug use at or about the time of thepossession of the firearm, with that drug use not remote in time or an isolated occurrence.

United States v. Augustin, 376 F.3d 135, 138 (3d Cir. 2004) (footnote omitted). “[O]ne must be an

unlawful user at or about the time he or she possessed the firearm and . . . to be an unlawful user,

one needed to have engaged in regular use over a period of time proximate to or contemporaneous

with the possession of the firearm.” Id. at 139; cf. United States v. Yancey, 621 F.3d 681, 686 (7th

Cir. 2010) (per curiam) (“unlike those who have been convicted of a felony or committed to a

mental institution and so face a lifetime ban, an unlawful drug user . . . could regain his right to

possess a firearm simply by ending his drug abuse “); United States v. Duggan, 657 F.3d 998, 999

(9th. Cir. 2011) (same). Had Baginski spent the entire decade of the 2000s high on drugs but lived

clean today, federal law would not impede his access to guns.

Because as-applied challenges focus on an individual claimant’s personal circumstances,

generalized statistics and surveys are irrelevant. Suarez, at *35. But even here, the Government’s6

Binderup extensively debunked the relevance of the Government’s cited study on the6

efficacy of denying gun purchases by people with extensive criminal records. See Binderup, at *83-*85.

19


claims are astonishing, suggesting that even people convicted of non-violent property offenses

should forever lose their Second Amendment rights without any hope of relief. Gov’t Br., at 15 n.5.

Finally, Baginski notes that the Government has repeatedly suggested that a person fitting

Baginski’s description would have a valid as-applied claim. Arguing its appeal in Binderup, the

Government was asked what circumstances might establish a successful as-applied challenge. It

responded: “If someone was convicted of a crime that . . . was just over that two year line, and the

state was an outlier, that other states didn’t view that crime as equally serious, maybe that would be

the sort of crime that you could treat as differently.” Argument recording, Binderup v. Attorney

General, Third Cir. No. 15-1975, available at http://www2.ca3.uscourts.gov/oralargument/audio/

14-454950Binderupv.AttorneyGeneral.mp3, at 7:23. It repeated this position in arguing Suarez,

where the Third Circuit ordered that an argument transcript be prepared. See Exh. A, Transcript, at

p.5, l. 24-p. 6, l. 5; p. 9, l. 21- p. 10, l.

Of course, the Government erred in framing the as-applied challenge as being focused

exclusively on the facts of the conviction, which it can always describe as serious. The conviction’s

facts are relevant, but courts (including the D.C. Circuit) have made clear that the individual’s

personal history and circumstances are critical. In any event, even under the view that the

Government repeatedly expressed to the Third Circuit, Baginski has stated a valid as-applied claim.

Massachusetts appears to be the only jurisdiction whose DUI law triggers Section 922(g)(1) (under

the Government’s view of Section 921(a)(20)(B)), and even then, only by six months.

20


CONCLUSION

The motion to dismiss should be denied.

Dated: January 11, 2016 Respectfully submitted,

Alan Gura (D.C. Bar No. 453449)Gura & Possessky, PLLC916 Prince Street, Suite 107Alexandria, VA 22314703.835.9085/Fax [email protected]

By: /s/ Alan Gura Alan GuraAttorney for Plaintiff

21


Case 1:15-cv-01225-RC Document 12 Filed 01/11/16 Page 1...

Documents

Transcript of Case 1:15-cv-01225-RC Document 12 Filed 01/11/16 Page 1...