Litigation Highlight: Third Circuit Begins to Clarify Standard for As-Applied Felon Challenges

The Third Circuit has historically been at the forefront of as-applied litigation challenging the lifetime federal firearms ban for those convicted of felony and felony-equivalent offenses.  The en banc court recently granted such a challenge by a man with a decades-old conviction for food stamp fraud in Garland v. Range (both before, and after (Range II), the Supreme Court’s intervening decision in Rahimi).  The circuit held in Range only that “the Government has not shown that our Republic has a longstanding history and tradition of depriving people like Range of their firearms,” noting also that Range committed his offense decades ago, has no history of violence, and has been a law-abiding citizen since that time.  The court’s decision in Range, however, does not attempt to settle much beyond the narrow question of whether someone with a long-ago conviction for one, indisputably non-violent, offense can recover his gun rights pursuant to the Second Amendment. 

In a new decision, however, the Third Circuit took substantial first steps toward articulating a broader rule for felon-in-possession cases.  In doing so, it highlighted the risk that judges will naturally gravitate toward instinctual judgments that certain criminal offenses are “serious” or “wrong,” rather than neutrally applying historically-supported principles to resolve cases.

In Pitsilides v. Barr, a Third Circuit panel addressed an as-applied challenge by an individual with past gambling-related convictions that met the federal definition of a felony offense and thus imposed the lifetime firearm prohibition in 922(g)(1).  George Pitsilides has past convictions for illegal sports betting, facilitating illegal gambling pools, and allowing gambling to occur on his property. All offenses were state misdemeanors that met the federal definition because they were punishable by more than a year in jail.  Pitsilides brought suit proactively to challenge his federal firearm disqualification—arguing that his offenses were exempt from the federal ban under 18 U.S.C. § 921(a)(20)(A)’s carveout for “offenses pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices,”[1] and that application of the ban to him was unconstitutional under the Second Amendment.  The district court rejected both challenges, and Pitsilides appealed.

The panel first disposed of the “business practices” argument and “ha[d] little difficulty concluding that it does not encompass gambling-related crimes like bookmaking and pool selling.”  The court noted that past decisions construing the carveout focus on whether the offense of conviction involved economic competition or impacted consumers generally.  The panel found that none of Pitsilides’ gambling-related convictions contained, as an essential element, anything related to economic competition.  Pitsilides argued that he had contributed to undercutting a state-sanctioned gambling “market” by running private gambling operations—but the panel limited its analysis to actual elements of the underlying offenses and “not arguable effects on or attenuated relationships to consumers and competition.” 

As to Pitsilides’ Second Amendment challenge, the panel first summarized the Bruen-Rahimi framework that post-dates the district court’s decision in the case.[2]  The opinion characterized Rahimi and Range II as holding that, “at a minimum, disarmament is justified as long as a felon continues to ‘present a special danger of misusing firearms” or a physical danger to others generally.  Because Rahimi and Range II were decided after the district judge denied Pitsilides’ challenge, the panel held “that the record here is insufficient to determine whether § 922(g)(1) is unconstitutional as applied to Pitsilides.”  The panel said that Range II required examining more than just an individual’s criminal history: courts should also consult other evidence that tends to show whether the individual presents a continuing danger of misusing firearms such as “specific characteristics” and “post-conviction” conduct.  The panel approvingly cited the Sixth Circuit’s decision in Williams and explained that:

Courts adjudicating as-applied challenges to § 922(g)(1) must consider a convict’s entire criminal history and post-conviction conduct indicative of dangerousness, along with his predicate offense and the conduct giving rise to that conviction, to evaluate whether he meets the threshold for continued disarmament. As Range II illustrated, consideration of intervening conduct plays a crucial role in determining whether application of § 922(g)(1) is constitutional under the Second Amendment. Indeed, such conduct may be highly probative of whether an individual likely poses an increased risk of “physical danger to others” if armed.

And, importantly, the panel wrote that, “contrary to Pitsilides’ constricted view of what makes a person a sufficient danger to remain disarmed, both history and common sense reflect that this ‘dangerousness’ includes not only direct involvement in physical violence” but also crimes that, based “on the context and circumstances, involve conduct that endangers the physical safety of others.”  The court said that this assessment “necessarily requires individualized factual findings.”  The panel signaled its intuition, however, that the fact that Pitsilides’ illegal gambling operations were often “staffed by security, waitresses, and dealers” suggested something more nefarious (and perhaps “dangerous”) than run-of-the-mill personal gambling.  In the court’s words, this evidence “could imply a known risk of danger and the prospect of violent confrontation.”  But the panel remanded to the district court for further factual development.

Two aspects of Pitsilides are worth highlighting.  First, the Third Circuit appears to have largely embraced the Williams framework for dividing underlying felonies into categories based on relative danger or risk of violence, as well as the Sixth Circuit’s holistic inquiry in as-applied 922(g)(1) challenges.  As I’ve previously written, Williams in practice has been a relatively strict test—with courts in the Sixth Circuit concluding that all manner of non-violent offenses nevertheless were committed in a way that created a risk of possible violence or violent confrontation and thus were a permissible basis for permanent disarmament.  The Third Circuit’s heavy implication here that Pitsilides’ past gambling convictions are likely dangerous enough to reject his as-applied challenge—especially if the context of those offenses suggests some connection to organized crime.  The district court on remand is likely to take the hint and conclude that Pitsilides created a risk of violent confrontation with law enforcement if and when his games were raided.  That’s a relatively tenuous connection to violence or dangerous conduct, and it’s also somewhat tough to square with the panel’s articulation of a test asking “whether Pitsilides poses a special danger of misusing firearms in a way that would endanger others” (emphasis added).  Whatever might be said about the dangerousness of hiring private security for an illegal poker game, it’s hard to interpret that fact as an indication that Pitsilides himself is likely to misuse guns.  On the other hand, the panel’s direction to consider evidence outside of criminal history could open the door to facts suggesting that Pitsilides is not likely to be a responsible gun owner. 

Second, Pitsilides demonstrates how easy it is for judges to graft their own views about the “seriousness” of certain criminal conduct onto the Second Amendment inquiry in 922(g)(1) cases under a system of as-applied challenges.  Comparing Range and Pitsilides, it’s hard to resist the conclusion that the judges simply think of Range as a better and more sympathetic individual than Pitsilides, the chronic gambler—regardless of the legal test or standard being applied.  By opening the door to as-applied challenges in these cases, courts risk allowing substantial judicial discretion to seep into the exercise of categorizing criminal conduct as dangerous or non-dangerous.  That discretion threatens to undermine the development of a principled framework by which to determine whether felons should have their rights restored through the courts.