Opinion
Civil No. 1:15-CV-1863
07-30-2020
ERIC ZEDONIS, Plaintiff, v. LORETTA E. LYNCH, et al., Defendants.
(Judge Mariani)
( ) REPORT AND RECOMMENDATION
I. Introduction
In this case, the plaintiff, Eric Zedonis, asks this court to determine that his highest-rate DUI conviction, labeled as a first degree misdemeanor under Pennsylvania law, is not sufficiently serious for purposes of 18 U.S.C. § 922(g)(1) to deprive him of his right to own or possess a firearm under the Second Amendment to the United States Constitution. Time has not been kind to Zedonis in this case. It appears that the legal basis upon which Zedonis based his claims has shifted several times during the course of this litigation. Indeed, had this case been resolved before this year, Zedonis might potentially have been able to secure a different result. See Holloway v. Sessions, 349 F. Supp. 3d 451 (M.D. Pa. 2018). Nevertheless, based on recent binding Third Circuit precedent, in which relief was denied to a strikingly similar petitioner with a DUI conviction seeking reinstatement of his right to own or possess a firearm, we find that we are foreclosed from granting the plaintiff's request for relief in this case and will accordingly recommend that his request be denied. See Holloway v. AG United States, 948 F.3d 164 (3d Cir. 2020).
II. Statement of Facts and of the Case
On February 1, 2001, the plaintiff, Eric Zedonis, was arrested for driving under the influence. (Doc. 55). This charge was expunged, however, upon Zedonis' completion of Pennsylvania's Accelerated Rehabilitative Disposition Program ("ARD"). (Id.) Some three years later, on August 21, 2004, at approximately 2:30 a.m., the plaintiff was pulled over for failing to properly stop at an intersection after speeding toward it and braking abruptly. (Doc. 51-1, Ex. A). The officer initiating the stop noted that the plaintiff appeared dazed, smelled of alcohol, and presented with red, bloodshot, and glassy eyes and slurred speech. (Id.) After failing three field sobriety tests, the officer arrested the plaintiff, who consented to a blood test which revealed that his blood alcohol content ("BAC") was 0.302%, well above the legal limit prescribed by state law. (Id.) Thereafter, on January 12, 2005, the plaintiff was convicted of one count of driving under influence of alcohol or controlled substance-highest rate, second offense in violation of 75 Pa.C.S. § 3802(c), a first degree misdemeanor carrying a maximum sentence of five years' imprisonment. (Doc. 1, ¶¶ 8-9). He was sentenced to 3-6 months' confinement, though he was allowed to serve the first three months in a county work release center; 60 months' Intermediate Punishment; 500 hours of community service; and a $1,500 fine. (Id., ¶ 10; Doc. 51-1, Exs. B, C, E).
Several years later, on February 28, 2013, the plaintiff attempted to purchase a firearm. (Doc. 51-1, Ex. E). His application was denied due to his prior conviction for DUI, highest rate, which carried a maximum term of imprisonment of five years, thus precluding him from firearm ownership or possession under 18 U.S.C. § 922(g)(1). (Id.) The plaintiff then brought the instant lawsuit in 2015 against defendants Loretta E. Lynch, acting Attorney General of the United States, and Thomas E. Brandon, acting director of the Bureau of Alcohol, Tobacco, Firearms, and Explosives, alleging that section 922(g)(1) unlawfully infringes upon his Second Amendment right to bear arms and should therefore be declared unconstitutional as applied to him.
Pending before the court are the parties' cross-motions for summary judgment. (Docs. 44, 50). After review of the record, we find that there are no genuine issues of material fact which would preclude the entry of summary judgment with respect to these claims. Accordingly, for the reasons stated below, we recommend that the Government's motion for summary judgment be granted and that the plaintiff's motion be denied.
III. Discussion
A. Summary Judgment - Standard of Review
The parties have filed cross-motions for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, which provides that the court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). Through summary adjudication, a court is empowered to dispose of those claims that do not present a "genuine dispute as to any material fact," Fed. R. Civ. P. 56(a), and for which a trial would be "an empty and unnecessary formality." Univac Dental Co. v. Dentsply Int'l, Inc., No. 07-0493, 2010 U.S. Dist. LEXIS 31615, at *4 (M.D. Pa. Mar. 31, 2010). The substantive law identifies which facts are material, and "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is genuine only if there is a sufficient evidentiary basis that would allow a reasonable fact finder to return a verdict for the non-moving party. Id., at 248-49.
The moving party has the initial burden of identifying evidence that it believes shows an absence of a genuine issue of material fact. Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 145-46 (3d Cir. 2004). Once the moving party has shown that there is an absence of evidence to support the non-moving party's claims, "the non-moving party must rebut the motion with facts in the record and cannot rest solely on assertions made in the pleadings, legal memoranda, or oral argument." Berckeley Inv. Group. Ltd. v. Colkitt, 455 F.3d 195, 201 (3d Cir. 2006); accord Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). If the non-moving party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden at trial," summary judgment is appropriate. Celotex, 477 U.S. at 322. Summary judgment is also appropriate if the non-moving party provides merely colorable, conclusory, or speculative evidence. Anderson, 477 U.S. at 249. There must be more than a scintilla of evidence supporting the non-moving party and more than some metaphysical doubt as to the material facts. Id., at 252; see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In making this determination, the Court must "consider all evidence in the light most favorable to the party opposing the motion." A.W. v. Jersey City Pub. Schs., 486 F.3d 791, 794 (3d Cir. 2007).
Moreover, a party who seeks to resist a summary judgment motion by citing to disputed material issues of fact must show by competent evidence that such factual disputes exist. Further, "only evidence which is admissible at trial may be considered in ruling on a motion for summary judgment." Countryside Oil Co., Inc. v. Travelers Ins. Co., 928 F. Supp. 474, 482 (D.N.J. 1995). Similarly, it is well-settled that: "[o]ne cannot create an issue of fact merely by . . . denying averments . . . without producing any supporting evidence of the denials." Thimons v. PNC Bank, NA, 254 F. App'x 896, 899 (3d Cir. 2007) (citation omitted). Thus, "[w]hen a motion for summary judgment is made and supported . . ., an adverse party may not rest upon mere allegations or denial." Fireman's Ins. Co. of Newark N.J. v. DuFresne, 676 F.2d 965, 968 (3d Cir. 1982); see Sunshine Books, Ltd. v. Temple University, 697 F.2d 90, 96 (3d Cir. 1982). "[A] mere denial is insufficient to raise a disputed issue of fact, and an unsubstantiated doubt as to the veracity of the opposing affidavit is also not sufficient." Lockhart v. Hoenstine, 411 F.2d 455, 458 (3d Cir. 1969). Furthermore, "a party resisting a [Rule 56] motion cannot expect to rely merely upon bare assertions, conclusory allegations or suspicions." Gans v. Mundy, 762 F.2d 338, 341 (3d Cir. 1985) (citing Ness v. Marshall, 660 F.2d 517, 519 (3d Cir. 1981)).
Finally, it is emphatically not the province of the court to weigh evidence, or assess credibility, when passing upon a motion for summary judgment. Rather, in adjudicating the motion, the court must view the evidence presented in the light most favorable to the opposing party, Anderson, 477 U.S. at 255, and draw all reasonable inferences in the light most favorable to the non-moving party. Big Apple BMW, Inc. v. BMW of North America, Inc., 974 F.2d 1358, 1363 (3d Cir. 1992). Where the non-moving party's evidence contradicts the movant's, then the non-movant's must be taken as true. Id. Additionally, the court is not to decide whether the evidence unquestionably favors one side or the other, or to make credibility determinations, but instead must decide whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented. Anderson, 477 U.S. at 252; see also Big Apple BMW, 974 F.2d at 1363. In reaching this determination, the Third Circuit has instructed that:
To raise a genuine issue of material fact . . . the opponent need not match, item for item, each piece of evidence proffered by the movant. In practical terms, if the opponent has exceeded the "mere scintilla" threshold and has offered a genuine issue of material fact, then the court cannot credit the movant's version of events against the opponent, even if the quantity of the movant's evidence far outweighs that of its opponent. It thus remains the province of the fact finder to ascertain the believability and weight of the evidence.Id. In contrast, "[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal quotation marks omitted); NAACP v. North Hudson Reg'l Fire & Rescue, 665 F.3d 464, 476 (3d Cir. 2011).
B. The Defendants' Motion for Summary Judgment Should be Granted.
The statute which prohibits Zedonis from owning or possessing a firearm is 18 U.S.C. § 922(g)(1), which provides that:
It shall be unlawful for any person—
(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year
. . . .
to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.18 U.S.C. § 922(g)(1). Crimes punishable by imprisonment for a term exceeding one year do not include: "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." 18 U.S.C. § 921(20)(B). Thus, the statute exempts from this federal firearms prohibition crimes which a state classifies as a misdemeanor and that are subject to a maximum penalty of two years or less. See Binderup v. AG of United States, 836 F.3d 336, 341 (3d Cir. 2016).
Were this the end of our inquiry, it would be clear that Zedonis would not be eligible to own or possess a firearm. It is undisputed that Zedonis was convicted of a DUI in 2005 that, while classified as a misdemeanor under Pennsylvania law, was punishable by a maximum of five years' imprisonment. Since his conviction falls outside of the enumerated exceptions to the general prohibition on firearm ownership, the statute is clear that convictions punishable by imprisonment for a term exceeding one year result in forfeiture of Second Amendment rights to own or possess a firearm. Zedonis has not had this conviction expunged, set aside, or pardoned. Therefore, his conviction falls within the scope of this statute, prohibiting him from ever owning or possessing a firearm.
Despite this clear directive from Congress, the Third Circuit has entertained as-applied challenges under the Second Amendment to this statute. See Binderup v. AG of United States, 836 F.3d 336 (3d Cir. 2016); United States v. Barton, 633 F.3d 168 (3d Cir. 2011) (holding that "the prohibition of § 922(g)(1) does not violate the Second Amendment on its face, but . . . that it remains subject to as-applied constitutional challenges"). Thus, our inquiry is not at an end, and we must determine whether Zedonis can maintain an as-applied challenge to 18 U.S.C. § 922(g)(1) under the Second Amendment.
The Second Amendment provides that: "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. The Supreme Court has held that the Second Amendment's protections expand beyond just militia service, providing individuals with the right to possess a firearm "unconnected with militia service" and "in defense of hearth and home." District of Columbia v. Heller, 554 U.S. 570, 582 (2008); McDonald v. City of Chicago, 561 U.S. 742, 778 (2010). However, the Second Amendment right of citizens to bear arms, while broad, is "not unlimited." Binderup, 836 F.3d at 343 (citing Heller, 554 U.S. at 626; United States v. Huitron-Guizar, 678 F.3d 1164, 1166 (10th Cir. 2012); Eugene Volokh, Implementing the Right to Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda, 56 UCLA L. Rev. 1443, 1443 (2009)). As the Third Circuit has explained, there are "exceptions" to Second Amendment rights.
They include, but are not limited to, "longstanding prohibitions on the possession of firearms by felons and the mentally ill, [] laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, [and] laws imposing conditions and qualifications on the commercial sale of arms." Heller, 554 U.S. at 626-27; see McDonald, 561 U.S. at 786. These measures comport with the Second Amendment because they affect individuals or conduct unprotected by the right to keep and bear arms. See Heller, 554 U.S. at 631, 635 (suggesting that one is "disqualified from the exercise of Second Amendment rights" if he is "a felon" or "insane"). For example, bans on "weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns," are permissible because those weapons fall outside the historical "scope of the right." Id. at 625; see United States v. One (1) Palmetto State Armory PA-15 Machinegun Receiver/Frame, Unknown Caliber Serial No. LW001804 , 822 F.3d 136, 141-44 (3d Cir. 2016); Marzzarella, 614 F.3d at 91-93.Binderup, 836 F.3d at 343-44. Thus, while the government may limit individuals' Second Amendment rights, it must meet some form of heightened scrutiny to do so. Id. at 344-45. In addition, a plaintiff challenging a determination that he is not allowed to possess a firearm must present "facts about himself and his background that distinguish his circumstances from those of persons historically barred from Second Amendment protections[.]" Binderup, 836 F.3d at 346 (quoting Barton, 633 F.3d at 174).
To reconcile these two interests, the Third Circuit has created a framework for as-applied constitutional challenges grounded in the Second Amendment based on its precedent in United States v. Marzzarella, 614 F.3d 85 (3d Cir. 2010) and United States v. Barton, 633 F.3d 168 (3d Cir. 2011). This framework provides as follows:
At step one of the Marzzarella decision tree, a challenger must prove, per Barton, that a presumptively lawful regulation burdens his Second Amendment rights. This requires a challenger to clear two hurdles: he must (1) identify the traditional justifications for excluding from Second Amendment protections the class of which he appears to be a member, id. at 173, and then (2) present facts about himself and his background that distinguish his circumstances from those of persons in the historically barred class, id. at 174.Binderup, 836 F.3d at 346-47. To distinguish himself from others within a historically barred class, "a challenger may show that he never lost his Second Amendment rights because he was not convicted of a serious crime; [or] . . . that a challenger who once lost his Second Amendment rights by committing a serious crime may regain them if his 'crime of conviction is decades-old' and a court finds that he 'poses no continuing threat to society.' " Id., at 349 (quoting Barton, 633 F.3d at 174).
No doubt a challenger cannot prevail merely on his say-so. Courts must find the facts to determine whether he has adequately distinguished his circumstances from those of persons historically excluded from Second Amendment protections. Not only is the burden on the challenger to rebut the presumptive lawfulness of the exclusion at Marzzarella's step one, but the challenger's showing must also be strong. That's no small task. And in cases where a statute by its terms only burdens matters (e.g., individuals, conduct, or weapons) outside the scope of the right to arms, it is an impossible one. But if the challenger succeeds at step one, the burden shifts to the Government to demonstrate that the regulation satisfies some form of heightened scrutiny, discussed further below, at step two of the Marzzarella analysis.
While the Third Circuit's opinion in Binderup was a fragmented one, resulting in multiple opinions that did not enjoy the support of a majority of judges as to all parts, the court later clarified its ruling, noting that the following Binderup holdings are controlling for this circuit:
(1) Marzzarella's two-step test—and not the test articulated in Barton—governs Second Amendment challenges, 836 F.3d at 346-47 (Ambro, J.); id. at 387 (Fuentes, J.);Holloway, 948 F.3d at 171. Thus, we will use the Marzzarella two-step framework in this case. In addition, the circuit enumerated a non-exhaustive factors list for determining whether a crime can be considered "serious" for purposes of the Marzzarella framework including: "whether the crime poses a danger or risk of harm to self or others, whether the crime involves violence or threatened violence, the classification of the offense, the maximum penalty, the penalty imposed, and how other jurisdictions view the crimes." Id., at 172 (citing Binderup, 836 F.3d at 351-52).
(2) At Marzzarella step one for challenges to § 922(g)(1), we determine whether an individual has committed a "serious" offense, and thus was an "unvirtuous citizen[]" who was historically barred from possessing firearms and fell out of the Second Amendment's scope, id. at 348-49 (Ambro, J.); id. at 387 (Fuentes, J.);
(3) Barton's focus on whether the challenger's crime was violent or whether the challenger poses a threat of violence is overruled, id. at 348-49 (Ambro, J.); id. at 387 n.72 (Fuentes, J.);
(4) a challenger, otherwise barred from possession by § 922(g)(1), can make a factual showing that he falls outside of the historically barred class, id. at 347 & n.3, 349 (Ambro, J.); id. at 365-67 (Hardiman, J.);
(5) intermediate scrutiny applies at Marzzarella step two, id. at 353 (Ambro, J.); id. at 396-97 (Fuentes, J.).
Turning to the Marzzarella framework and its application to this case, we are guided by Third Circuit precedent in Holloway v. AG United States, 948 F.3d 164 (3d Cir. 2020), which contains facts strikingly similar to those at issue in this case. In its opening paragraph of Holloway, the Third Circuit described drunk driving as follows:
We recognize that Holloway serves as an intervening legal event which occurred after the briefing closed in 2018 in the present case. Thus, neither party has had the opportunity to discuss this potentially dispositive Third Circuit case in pleadings before the court. Recognizing that this case has remained pending for some time during the course of at least two changes in the law, rather than delay the case further, we issue this Report and Recommendation cognizant that the parties will have a full and complete opportunity to discuss Holloway before the district court in any objections to our Report and Recommendation.
Drunk driving is a dangerous and often deadly crime. "Approximately a quarter million people are injured annually in alcohol-related crashes," Begay v. United States, 553 U.S. 137, 156-57, 128 S. Ct. 1581, 170 L. Ed. 2d 490 (2008) (Alito, J., dissenting), and the number "who are killed . . . by drunk drivers is far greater than the number of murders committed" during many other violent crimes, id. at 157 & n.4. "[F]rom 1982 to 2016, alcohol-related accidents took roughly 10,000 to 20,000 lives in this Nation every single year. In the best years, that would add up to more than one fatality per hour." Mitchell v. Wisconsin, 139 S. Ct. 2525, 2536, 204 L. Ed. 2d 1040 (2019) (emphasis omitted) (citations omitted).Holloway, 948 F.3d at 167.
Much like Zedonis, Holloway received two DUIs, the first of which was dismissed after he completed an accelerated rehabilitation program, and the second of which resulted in a conviction and sentence for "60 months' 'Intermediate Punishment,' including 90-days' imprisonment that allowed him work release, a $1,500 fine, and mandatory drug and alcohol evaluation." Id., at 168. Both DUIs were a result of Holloway choosing to drive when his BAC registered above 0.16%. After establishing that Holloway's DUIs were otherwise disqualifying under 18 U.S.C. § 922(g)(1), the court turned to the question of whether Holloway had committed a crime serious enough to strip him of his Second Amendment rights. On this score, the court determined that:
A crime that presents a potential for danger and risk of harm to self and others is "serious." See "Serious," Black's Law Dictionary (11th ed. 2019) (defining "serious" as, among other things, "dangerous; potentially resulting in death or other severe consequences"). "There is no question that drunk driving is a serious and potentially deadly crime . . . . The imminence of the danger posed by drunk drivers exceeds that at issue in other types of cases." Virginia v. Harris, 558 U.S. 978, 979-80, 130 S. Ct. 10, 175 L. Ed. 2d 322 (2009) (Mem.) (Roberts, C.J., dissenting from denial of writ of certiorari); see Mitchell, 139 S. Ct. at 2541 (Sotomayor, J., dissenting) ("[D]runk driving poses significant dangers that [states] must be able to curb."); Begay, 553 U.S. at 141 ("Drunk driving is an extremely dangerous crime.").
All three branches of the federal government have recognized as much. The Supreme Court has described individuals "who drive with a BAC significantly above the . . . limit of 0.08% and recidivists" as "the most dangerous offenders." Birchfield v. North Dakota, 136 S. Ct. 2160, 2179, 195 L. Ed. 2d 560 (2016). Congress and the Executive Branch have also recognized the dangers posed by drunk driving. Congress requires states to implement highway safety programs "to reduce
injuries and deaths resulting from persons driving motor vehicles while impaired by alcohol." 23 U.S.C. § 402(a)(2)(A)(iii). The Secretary of Transportation conditions the receipt of certain highway-related funds on states' implementation of programs with impaired driving countermeasures that will "effective[ly]" "reduce driving under the influence of alcohol." § 405(a)(3), (d). Thus, all branches of the federal government agree that DUIs are dangerous, and those who present a danger may be disarmed.Holloway, 948 F.3d at 173.
In addressing the other factors to determine whether Holloway's crime was sufficiently serious, the court determined that "[w]hile use or the threatened use of violence is not an element of a DUI offense, . . . . the fact that an offense does not include the use or threatened use of violence does not mean it is not serious." Id., at 174. In addition, the court noted that Holloway's DUI "carried a three-month mandatory minimum prison term and a five-year maximum prison term." Id. Thus, while labeled as a misdemeanor, the court noted that this label was not dispositive on the issue of seriousness. By way of example, the court noted that:
"numerous misdemeanors involve conduct more dangerous than many felonies." Garner, 471 U.S. at 14. Indeed, giving dispositive weight to the felony/misdemeanor nomenclature for determining whether an offense is serious would mean that the following offenses, labeled under Pennsylvania law as misdemeanors and carrying a five-year maximum penalty (the maximum Holloway faced), 18 Pa. Cons. Stat. Ann. § 1104(1), would not qualify as serious crimes: involuntary manslaughter, § 2504(b), terrorism, § 2717(b)(1), assaulting a child, § 2701(b)(2), abusing a care-dependent person, § 2713.1(b)(1), making terroristic threats, § 2706(d), threatening to use weapons of mass destruction, § 2715(b)(1), shooting a fire bomb into public transportation, § 2707(a), indecent assault by forcible compulsion, § 3126(a)(2), concealing the murder of a child, § 4303(a), luring a child
into a motor vehicle or structure, § 2910(a), restraining a person "in circumstances exposing him to risk of serious bodily injury," § 2902(a)(1), and stalking, § 2709.1(c)(1).Id., at 175.
Finally, the court examined the maximum penalty that could have been imposed for Holloway's offense, finding this factor probative of the offense's seriousness, and found that other states treated this offense with a similar degree of severity. Id., at 175-77. The court concluded that the confluence of these factors in Holloway's case dictated that his crime placed him within the class of "persons historically excluded from Second Amendment protections[,]" id., at 177 (quoting Binderup, 836 F.3d at 347, thus making him ineligible for relief. After finding that Holloway had committed a serious offense, the court found it unnecessary to take up an intermediate scrutiny analysis at step two of the Marzzarella framework. Id., at 177, n.16.
To this end, the court conducted a review of the legislative history regarding DUI offenses, noting that:
"[T]he category of serious crimes changes over time as legislative judgments regarding virtue evolve," id. at 351, and here, the Pennsylvania legislature has demonstrated an evolution in judgment. Pennsylvania's DUI laws were amended in 2003 when state legislators observed that "[t]oo many people have been injured and killed on our highways," H.R. Legis. Journal, 187th Gen. Assemb., Reg. Sess. 1443 (Pa. 2003) (statement of Rep. Turzai), and unlike in other states, which saw an eleven percent decrease in deaths caused by drunk drivers, such deaths "continue to rise" in Pennsylvania with a five percent increase, H.R. Legis. Journal, 187th Gen. Assemb., Reg. Sess. 1444 (Pa. 2003) (statement of Rep. Harper); S. Legis. Journal, 187th Gen. Assemb., Reg. Sess. 981 (Pa. 2003) (statement of Sen. Williams). At the time of the amendment, thirteen individuals were killed every two weeks in Pennsylvania from alcohol-related accidents. H.R. Legis. Journal, 187th Gen. Assemb., Reg. Sess. 1445 (Pa. 2003) (statement of Rep. Harper). "[M]ore than half of all fatal alcohol-related accidents [were] caused by hardcore drunken drivers, those people whose BACs are .16 or above," H.R. Legis. Journal, 187th Gen. Assemb., Reg. Sess. 1444 (Pa. 2003) (statement of Rep. Harper), and "one-third of drunk driving arrests involve[d] repeat offenders," S. Legis. Journal, 187th Gen. Assemb., Reg. Sess. 981 (Pa. 2003) (statement of Sen. Williams). To address this "very serious matter," H.R. Legis. Journal, 187th Gen. Assemb., Reg. Sess.1445 (Pa. 2003) (statement of Rep. Harper), the legislature "provid[ed] for tough civil and criminal penalties together with mandatory treatment," H.R. Legis. Journal, 187th Gen. Assemb., Reg. Sess. 1443 (Pa. 2003) (statement of Rep. Turzai), to "mak[e] it clear that if you are under the influence of alcohol or drugs and behind the wheel in Pennsylvania, you will be punished," H.R. Legis. Journal, 187th Gen. Assemb., Reg. Sess. 1445 (Pa. 2003) (statement of Rep. Harper). Therefore, despite the misdemeanor label, Pennsylvania's decision to impose a mandatory minimum jail term and a maximum penalty of up to five years' imprisonment for a second DUI at the highest BAC reflects the seriousness of the offense.Holloway, 948 F.3d at 175-76.
Based on this outcome in Holloway, we find that Zedonis should face a similar result in this case. To distinguish his circumstances from those of "persons historically barred from Second Amendment protections," Binderup, 836 F.3d at 346 (quoting Barton, 633 F.3d at 174), Zedonis must show either that his crime was not serious or that his " 'crime of conviction is decades-old' and . . . that he 'poses no continuing threat to society.' " Id., at 349 (quoting Barton, 633 F.3d at 174). In light of the circuit's holding in Holloway, we find that Zedonis is unable to meet either of these thresholds.
Initially, we note that much like Holloway, Zedonis received two DUIs, one in 2001 that was resolved through ARD, and one in 2004 that resulted in a sentence of 3-6 months' confinement, the first 90 days of which could be served in a county work release facility; 60 months' Intermediate Punishment; 500 hours of community service; and a $1,500 fine. (Doc. 1, ¶ 10; Doc. 51-1, Exs. B, C, E). Zedonis' second DUI was for the highest rate of alcohol, resulting in a first degree misdemeanor charge after his voluntary blood test yielded a BAC of 0.302%. Thus, his crime was substantially similar to Holloway's. Based on the Third Circuit's ruling in Holloway v. AG United States, 948 F.3d 164 (3d Cir. 2020), we would be hard-pressed to conclude that Zedonis' crime was not serious. Indeed, both the federal and state legislatures have deemed driving under the influence to be an extremely dangerous act with potentially grave consequences for those on the road and behind the wheel. See Holloway, 948 F.3d at 173 (collecting cases). As the Third Circuit has stated, " 'There is no question that drunk driving is a serious and potentially deadly crime . . . . The imminence of the danger posed by drunk drivers exceeds that at issue in other types of cases.' " Id. (quoting Virginia v. Harris, 558 U.S. 978, 979-80, 130 S. Ct. 10, 175 L. Ed. 2d 322 (2009) (Mem.) (Roberts, C.J., dissenting from denial of writ of certiorari)).
Zedonis appears to put great weight into the fact that he did not serve jail time as a result of his conviction and was instead approved to serve his three month sentence "at the county work release center." (Doc. 52). However, "although he was permitted to work, he received a custodial sentence unlike either of the challengers in Binderup, 836 F.3d at 352 ('With not a single day of jail time, the punishments here reflect the sentencing judges' assessment of how minor the violations were.'). The legislature's mandate that repeat DUI offenders receive at least three months in jail reflects its judgment that such offenses are serious." Holloway, 948 F.3d at 176. Thus, the fact that Zedonis was given a custodial sentence indicates the legislative judgment that his offense was serious.
We note that Zedonis' BAC was significantly higher than Holloway's at the time of his second DUI. While both still fall within the highest rate of alcohol label under Pennsylvania law, we note that the government's reports indicate that an "alcohol-naïve" individual with a BAC as high as Zedonis' often yields an "inability to walk unassisted or speak coherently—possibly followed by a loss of consciousness or even a state of coma." (Doc. 45-1, Ex. 1 at 7). In our view, this high rate of alcohol in Zedonis' system at the time of his voluntary blood test gives us great pause and exacerbates the seriousness of his crime—choosing to drive while his BAC was at a level which could cause many alcohol-naïve individuals to lose consciousness.
In addition, the fact that violence is not an element of a DUI charge is of no moment, see Holloway, 948 F.3d at 174, and the fact that Zedonis received a misdemeanor matters in name only. Id. at 175 ("numerous misdemeanors involve conduct more dangerous than many felonies.") (citing Garner, 471 U.S. at 14). In contrast, the fact that Pennsylvania chose to impose a five-year maximum sentence for repeat DUI offenders indicates its intent to consider a highest-rate DUI as a serious offense; indeed, an offense as serious as involuntary manslaughter, shooting a fire bomb into public transportation, and concealing the murder of a child, among others. Id., at 175-76. Moreover, "Pennsylvania is not alone in its decision to severely punish repeat DUI offenders." Id., at 176-77 (citing Mitchell, 139 S. Ct. at 2536 ("[M]any States . . . have passed laws imposing increased penalties for recidivists or for drivers with a BAC level that exceeds a higher threshold." (citations omitted)).
By way of example, the following crimes are labeled misdemeanors under Pennsylvania law which also carry a five-year maximum sentence: "involuntary manslaughter, § 2504(b), terrorism, § 2717(b)(1), assaulting a child, § 2701(b)(2), abusing a care-dependent person, § 2713.1(b)(1), making terroristic threats, § 2706(d), threatening to use weapons of mass destruction, § 2715(b)(1), shooting a fire bomb into public transportation, § 2707(a), indecent assault by forcible compulsion, § 3126(a)(2), concealing the murder of a child, § 4303(a), luring a child into a motor vehicle or structure, § 2910(a), restraining a person 'in circumstances exposing him to risk of serious bodily injury,' § 2902(a)(1), and stalking, § 2709.1(c)(1)." Holloway, 948 F.3d at 175.
In sum, we agree with the Third Circuit that the offense at issue in this case—driving under the influence at the highest rate of alcohol—constitutes a serious offense which under Holloway disqualifies Zedonis from Second Amendment protections. In addition, the fact that Zedonis' conviction is now 16 years old does not change this outcome. The Third Circuit has held that "Barton was overruled to the extent it suggested that . . . 'the passage of time or evidence of rehabilitation will restore the Second Amendment rights of people who committed serious crimes[.]' " Holloway, 948 F.3d at 171, n.9 (citing Binderup, 836 F.3d at 349 (Ambro, J.)). Thus, the passage of time since Zedonis' offense does not serve to redeem his Second Amendment rights. We therefore recommend that Zedonis' request for relief be denied and summary judgment be granted in favor of the Government in this case.
In any event we are constrained to note that the temporal gap between Holloway's disqualifying conviction and his attempted firearms possession was 11 years, a passage of time which was not deemed legally significant by the court of appeals. Holloway v. Attorney Gen. United States, 948 F.3d 164, 168 (3d Cir. 2020). In contrast, in the instant case only 8 years passed between Zedonis' disqualifying conviction in 2005, and his 2008 attempted firearms purchase.
IV. Recommendation
For the foregoing reasons it is RECOMMENDED that the defendants' motion for summary judgment, (Doc. 44), be GRANTED and the plaintiff's motion for summary judgment, (Doc. 50), be DENIED.
The parties are hereby placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings, recommendations, or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall
witnesses, or recommit the matter to the magistrate judge with instructions.
Submitted this 30th day of July 2020.
S/Martin C . Carlson
Martin C. Carlson
United States Magistrate Judge