Range v. Lombardo: Is the Third Circuit’s Approach to As-Applied Challenges Too Messy?
In the recent case Range v. Lombardo, a federal district court in Pennsylvania rejected an as-applied Second Amendment challenge to the federal felon-in-possession statute, 18 U.S.C. §922(g)(1). The case is significant for understanding the Third Circuit’s evolving approach to Second Amendment challenges; it also highlights the conceptual quagmire of applying Second Amendment protections (or not applying statutory prohibited person status) to those with convictions for nonviolent felonies or misdemeanors. The teacher in me loves this case because it is clear enough to be useful for teaching law students about how courts wrestle with multi-factor tests, tiers of scrutiny, shifting burdens of proof, and 50-state statutory comparisons to ascertain a “consensus” view – sometimes all at once. Note that this case was an action for declaratory judgment rather than a criminal prosecution.
Bryan Range is what lawyers call a “sympathetic plaintiff.” In 1995, he pled guilty to one charge of making a false statement (an omission, in fact) on an application to receive food stamp assistance. At the time, Range was supporting his wife and three children by mowing lawns (earning ~$300/week). His wife applied for food stamps, a need-based government assistance program, but when she completed the application form, she did not include her husband’s meager income from mowing lawns. Both spouses signed the application, though Mr. Range later claimed he did not read it before signing it. Nevertheless, when the government agency discovered the omission, Mr. Range accepted responsibility and acknowledged that it was wrong to understate the family’s income. The state charged Mr. Range, but not his wife, with Pennsylvania’s version of welfare fraud, which at the time was a first-degree misdemeanor carrying a potential sentence of 5 years imprisonment. As part of his plea agreement, the court sentenced Range to three years’ probation and nearly $3000 in restitution, fines, and costs (but no jail time). The judge did not tell Range that he would be ineligible to own a firearm as a result. In the years since, Range had no other criminal history apart from minor traffic and parking infractions and an overdue fee on his fishing license.
At some point, Range tried to buy a firearm from a licensed dealer, but the background check system denied the purchase; the store employee guessed that it must be a “computer error” and suggested he try again another day. Instead, his wife, who had no criminal record, bought a hunting rifle, and gifted it to her husband. A few years later, Range again tried to buy a gun from a local dealer, again failed the background check, and received the same explanation (“…probably a computer error…”) from the store employee. This time, he looked into it and discovered that his misdemeanor conviction from the 1990’s barred him from purchasing any firearms. He sold the one firearm he then owned and brought suit to challenge his firearm disability. (Alan Gura, who argued the Heller case before the Supreme Court, is one of the attorneys representing Range). The court’s opinion from August 30, 2021 is a ruling on cross-motions for summary judgment; the court sides with the government.
The court begins its analysis by mentioning that Heller left several unanswered questions, but overall requires a “delicate” balancing test in Second Amendment cases. It then proceeds to Third Circuit precedent. The Third Circuit, in Binderup v. Attorney General, broke from the majority of circuits on how to handle as-applied challenges to the federal felon-in-possession law, especially as it applies to state misdemeanor convictions (the statute includes those with (most) state misdemeanor convictions that carry a potential sentence of more than two years as a bar to gun possession). Binderup created the impression, I think, that the Third Circuit is more favorable to those with nonviolent criminal convictions who seek to challenge the firearm prohibition in their individual case. The opinion in Range, however, casts some doubt on this idea, and illustrates how complicated the Third Circuit’s approach really is.
Judge Pratter then observes that Binderup had multiple opinions, and no clear majority. Following the Supreme Court’s 1977 decision in Marks v. United States, courts should follow the “median” position in a case where none of the opinions garner a majority of the appellate panel. For Binderup, this means following Judge Ambro’s opinion. The court then proceeds with a complicated series of steps for analyzing a Second Amendment challenge.
First, the court applies the two-step (or two-tiered) approach from United States v. Marzzarella to determine if a the conviction was for a “serious” crime. If the crime was indeed “serious,” then (under Marzzarella) the Second Amendment does not even apply – the individual is outside the scope of protection of the Amendment, because the individual is an “unvirtuous citizen.” On the other hand, if the conviction was for a “non-serious” misdemeanor or felony, the question is whether the law impermissibly infringes on the individual’s Second Amendment rights. Judge Pratter notes that this inquiry involves burden shifting – if the challenger succeeds at the first step, the burden shifts to government to justify law under (some form of) heightened scrutiny.
Marzzarella adopted a four-factor test to determine if crime is “serious”: (1) whether the conviction was classified as a misdemeanor or a felony, (2) whether the criminal offense involves violence or attempted violence as an element, (3) the sentence imposed, and (4) whether there is a cross-jurisdictional consensus as to the seriousness of the crime.” The Third Circuit’s subsequent decision in Holloway v. Attorney General added a fifth: “the potential for physical harm to others.” The government conceded in this case that Range wins on four of the five factors – all except the “consensus of other jurisdictions.” The parties also agreed that around 39 jurisdictions consider food stamp fraud a felony, under a variety of statutory approaches. Range had the burden to show that there is not a consensus among jurisdictions that his crime is “serious.”
Range tried to overcome this unfavorable ledger by arguing that the court should use as comparison only those states that specifically criminalize “false statement regarding food stamps,” rather than including it under general theft or fraud statutes; this would have removed 15 of the 39 unfavorable states, leveling the comparison from his perspective. He could offer no legal authority to support such a move, but instead argued from the standpoint of fairness, compassion for the poor, etc. The court expressed sympathy with this idea, but explained:
But under our system of government it is within the prerogative of every state to choose between having a more complex criminal code that defines its statutes narrowly, and more general criminal statutes that are accompanied by a greater range of possible punishments. Nothing in Binderup, or any opinion applying its multifactor test, provides that a state’s choice to classify conduct like Mr. Range’s as a felony is irrelevant merely because the drafters of the laws in any given state choose to define crimes with more general language.
In a section of the opinion that I would find useful as a teaching tool in the classroom, the court then discusses a perennially thorny issue with multi-factor tests: whether one factor can outweigh all the others (“a set of elements that all petitioners must meet”), or if the factors constitute a balancing test, such that courts should weigh how the factors line up in a given case. On this issue, Judge Pratter clarifies that even though the original Binderup plurality described this as a “balancing test,” more recent Third Circuit decisions in Holloway and Folajtar v. Attorney General allowed the government to prevail by winning on just one of the factors, thus making a single factor dispositive. In a sense, this is the classic “rules-versus-standards” problem with judge-made law; through the lens of that rubric, the court here concludes that the five factors are rules, not standards.
Finally, Range argued that even if one factor could cancel out all the others, that factor should be Pennsylvania’s own classification of the original crime as a felony or misdemeanor, as the court did (in the government’s favor) in Folajtar. The court again disagrees; even though the Folajtar majority found this one factor dispositive enough to reject a Second Amendment challenge, it did not address whether this was because the factor was singularly important compared to the others, or if the plaintiff simply needs to prevail on all five factors – as this court concludes. In the end, the court decided that Range’s previous crime puts him outside the protection of the Second Amendment, so the firearm disqualifier applies.
The treatment of the factors as elements – that is, each one being independently dispositive – is a significant step in the development of Second Amendment doctrine in the Third Circuit, if the Court of Appeals upholds it. A second significant doctrinal development in this case is the recognition of a sixth factor (inferred from Folajtar): “And it is not merely each state’s determination of a statute’s seriousness that the Court is considering. Congress has also determined that the conduct in question was sufficiently serious to justify disarmament. This fact operates as a powerful “sixth factor” present in every case, weighing in favor of the Government.” The difference between Range and Folajtar is that the latter involved a felony conviction for violating a federal law, so it was possible to read the language in Folajtar about Congress designating the crime as “serious” as relating to federal criminal statutes, but not necessarily state law violations. Range involves a prior conviction under Pennsylvania state law. The “Congress-says-it’s-serious” language in Range refers to the felon disarmament statute itself, even as applied to state-law convictions. If nothing else, Range crystalizes the rule in Folajtar in a way that seems to make as-applied challenges to §922(g)(1) inoperative in the Third Circuit, at least for felony convictions.
I argue in a forthcoming article (discussed on this blog here) that analyzing these cases based on whether an individual’s conviction was for a “serious” crime or a “crime of violence” is an unworkable approach requiring overly-complex cross-jurisdictional statutory comparisons, and this case seems to illustrate my point nicely. The arguments raised by Range – and the rebuttal points by the government and Judge Pratter – are reminiscent of the arguments that arise in cases under the ACCA, §924(c), and the sentencing guidelines for classifying offenses as “crimes of violence,” with often inconsistent and counter-intuitive results. The ambiguity in the text and difficulty in the task are among the reasons the Supreme Court has struck down the so-called residual clauses in ACCA and §924(c) in recent years. The district court here had to apply a two-step process under Marzzarella to get to a five-factor test, one of which requires a 50-state comparison of statutes, with wide variation in how states structure their criminal codes. Some codify crimes in standalone code sections, while many others include a range of possible offenses under general headings like “theft” and “fraud.” States have incompatible systems for both gradation of offenses (e.g., “Class A” or “Class B” versus “First Degree” or “Second Degree”) and classification of felonies versus misdemeanors. For this reason, I am skeptical about jurisprudential attempts to narrow, or find exceptions for, the federal prohibited person laws under §922(g). In the end, even an arguably sympathetic petitioner like Range will often fail to obtain the desired relief, but the courts must wander through an analytical maze to reach the same conclusion that it would have reached by simply accepting and applying the federal statute at face value – and relying on Heller’s presumption that longstanding prohibited person laws are valid under the Second Amendment.