Folajtar v. Attorney Gen. of the U.S.

• Decision Date: 24 November 2020
• Docket Number: No. 19-1687,19-1687
• Parties: Lisa M. FOLAJTAR, Appellant v. ATTORNEY GENERAL OF THE UNITED STATES; Acting Director, Bureau of Alcohol, Tobacco, Firearms, and Explosives; Director of the Federal Bureau of Investigation; United States of America
• Court: U.S. Court of Appeals — Third Circuit

980 F.3d 897

Lisa M. FOLAJTAR, Appellant

v.ATTORNEY GENERAL OF THE UNITED STATES; Acting Director, Bureau of Alcohol, Tobacco, Firearms, and Explosives; Director of the Federal Bureau of Investigation; United States of America

No. 19-1687

United States Court of Appeals, Third Circuit.

Argued November 12, 2019

Opinion filed: November 24, 2020

OPINION OF THE COURT

AMBRO, Circuit Judge Lisa Folajtar asks us to decide whether Congress may prohibit individuals convicted of federal tax fraud from possessing firearms. To answer this question, we rely on the general rule that laws restricting firearm possession by convicted felons are valid. Because we find no reason to deviate from this longstanding prohibition in the context of tax fraud, we reject Folajtar's as-applied constitutional challenge.

Folajtar pled guilty in 2011 to a federal felony: willfully making a materially false statement on her tax returns, which is punishable by up to three years' imprisonment and a fine up to $100,000. 26 U.S.C. § 7206(1).¹ The Court was more lenient, sentencing her to three-years' probation, including three months of home confinement, a $10,000 fine, and a $100 assessment. She also paid the IRS over $250,000 in back taxes, penalties, and interest. Folajtar's conviction left her subject to 18 U.S.C. § 922(g)(1), which prohibits those convicted of a crime punishable by more than one year in prison² from possessing firearms.³ Congress enacted the prohibition in the 1960s, thus expanding substantially a 1938 ban prohibiting those convicted of "crimes of violence"⁴ from receiving a firearm. See Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. No. 90-351, tit. IV, § 925, 82 Stat. 197, 233–34; id. at tit. VII § 1202, 82 Stat. at 236 (codified at 28 U.S.C. § 922(g)(1)).

In 2018, Folajtar filed a lawsuit in the District Court asserting that applying § 922(g)(1) to her violated her Second Amendment right to possess firearms. The Government moved to dismiss Folajtar's suit, arguing that, "[b]ecause Folajtar pleaded guilty to a federal felony, she is categorically excluded from the class of citizens entitled to possess a firearm." App. Vol. II, 26. Applying our precedents in United States v. Marzzarella , 614 F.3d 85 (3d Cir. 2010), and Binderup v. Attorney General , 836 F.3d 336 (3d Cir. 2016) (en banc), the District Court determined that Folajtar did not state a plausible Second Amendment claim because she was convicted of a serious crime. She appeals to us.

The District Court had jurisdiction over Folajtar's constitutional challenge under 28 U.S.C. § 1331. We have appellate jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over the dismissal of Folajtar's complaint under Fed R. Civ. P. 12(b)(6). Phillips v. Cty. of Allegheny , 515 F.3d 224, 230 (3d Cir. 2008). Consistent with our precedents, we hold that the legislature's designation of an offense as a felony is generally conclusive in determining whether that offense is serious. Because we determine the felony here is a serious crime, Folajtar is not protected by the Second Amendment, and her as-applied challenge to § 922(g)(1) fails.

A. Those who commit serious crimes are excluded from the Second Amendment's protections.

The Second Amendment provides: "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. In District of Columbia v. Heller , 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), the Supreme Court interpreted the Amendment's right to bear arms as an individual right, at least for the core purpose of allowing "law-abiding, responsible citizens to use arms in defense of hearth and home." Id. at 635, 128 S.Ct. 2783.

But that right "is not unlimited." Id. at 626, 128 S.Ct. 2783. Heller "did not cast doubt on such longstanding regulatory measures as ‘prohibitions on the possession of firearms by felons.’ " McDonald v. City of Chicago , 561 U.S. 742, 786, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010) (quoting Heller , 554 U.S. at 626–27, 128 S.Ct. 2783 ). To the contrary, among the many "presumptively lawful regulatory measures" that it identified in Heller , the Court included "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."⁵ Id. at 626–27, 128 S.Ct. 2783 ; see also Doe v. Governor of Pennsylvania , 977 F.3d. 270, 274 (3d Cir. 2020) ("We have consistently hewed to the exceptions that Heller preserved."). Indeed, the Supreme Court has repeatedly endorsed the constitutionality of measures prohibiting firearm possession by felons after Heller . See McDonald , 561 U.S. at 786, 130 S.Ct. 3020 ("We repeat [ Heller 's] assurances here."); see also New York State Rifle & Pistol Ass'n, Inc. v. City of New York , ––– U.S. ––––, 140 S. Ct. 1525, 1540–41, 206 L.Ed.2d 798 (2020) (Alito, J., dissenting) (recognizing historical support for constitutionality of banning firearm possession by felons); Vartelas v. Holder , 566 U.S. 257, 271, 132 S.Ct. 1479, 182 L.Ed.2d 473 (2012) (referencing Heller 's approval of laws prohibiting felons from having arms).

Since Heller , we, along with every court to consider the issue, have rejected challenges that § 922(g)(1) on its face violates the Second Amendment. See United States v. Barton , 633 F.3d 168, 172 (3d Cir. 2011), overruled on other grounds by Binderup , 836 F.3d at 349 ; see also United States v. Bogle , 717 F.3d 281, 281–82 (2d Cir. 2013) (per curiam); Schrader v. Holder , 704 F.3d 980, 991 (D.C. Cir. 2013) ; United States v. Moore , 666 F.3d 313, 318 (4th Cir. 2012) ; United States v. Joos , 638 F.3d 581, 586 (8th Cir. 2011) ; United States v. Torres-Rosario , 658 F.3d 110, 113 (1st Cir. 2011) ; United States v. Rozier , 598 F.3d 768, 770–71 (11th Cir. 2010) ; United States v. Williams , 616 F.3d 685, 692 (7th Cir. 2010) ; United States v. Vongxay , 594 F.3d 1111, 1115 (9th Cir. 2010) ; United States v. McCane , 573 F.3d 1037, 1047 (10th Cir. 2009) ; United States v. Anderson , 559 F.3d 348, 352 (5th Cir. 2009) ; cf. United States v. Carey , 602 F.3d 738, 741 (6th Cir. 2010) ("Because Congress's prohibition on felon possession of firearms is constitutional, it follows that the burdens associated with the congressionally-created expungement exception in 18 U.S.C. § 921(a)(20) do not violate the Second Amendment."). Thus § 922(g)(1) is constitutional as written.

We do, however, permit Second Amendment challenges to § 922(g)(1) as applied to individuals, Barton , 633 F.3d at 172–73, which we analyze using a two-pronged approach first announced in Marzzarella , 614 F.3d at 89. See Holloway v. Att'y Gen. , 948 F.3d 164, 171 (3d Cir. 2020) ; Binderup , 836 F.3d at 356. First, the challenger bears the burden of showing that the law hampers "conduct falling within the scope of the Second Amendment's guarantee." Marzzarella , 614 F.3d at 89. Over time we have refined this prong to require the challenger to "(1) identify the traditional justifications for excluding from Second Amendment protections the class of which [she] appears to be a member, and then (2) present facts about [her]self and [her] background that distinguish [her] circumstances from those of persons in the historically barred class." Binderup , 836 F.3d at 347 (citing Barton , 633 F.3d at 173–74 ). If the challenger cannot meet her burden at Step One—i.e. , she cannot distinguish herself from the historically barred class—our inquiry is complete and her challenge fails. But if the challenger can distinguish herself, we continue to Step Two, with the burden shifting to the Government to show that the law can survive heightened scrutiny. Id. at 347–48.

Until now we have not had to decide whether § 922(g)(1) is unconstitutional as applied to a felony conviction. However, we have twice considered whether the provision is unconstitutional as applied to state misdemeanor convictions. See Holloway , 948 F.3d 164 ; Binderup , 836 F.3d 336. As noted, we typically would proceed under the first step of Marzzarella to determine: (1) whether persons with felony convictions fall within the historical class of those barred from Second Amendment protection; and (2) whether Folajtar, as one convicted of a federal tax fraud felony, can distinguish herself from that class. As we explain below, our precedents instruct we can collapse these two questions into one: Has the plaintiff overcome the generally conclusive rule that a felony conviction is serious, so that it falls outside the historical class of offenses that render felons excluded from Second Amendment protections?

In looking to the historical justification for limiting the right to bear arms, we have recognized that many scholars agreed that "the right to bear arms was tied to the concept of a virtuous citizenry[;] ... accordingly, the government could disarm ‘unvirtuous citizens.’ " Binderup , 836 F.3d at 348 (citation omitted); see also Vongxay , 594 F.3d at 1118. Also, "[s]everal of our sister circuits endorse[d] the ‘virtuous citizen’ justification for excluding felons and felon-equivalents from the Second Amendment's ambit." Binderup , 836 F.3d at 348 (collecting cases). We reasoned that people who committed or were likely to commit violent offenses "undoubtedly qualify as ‘unvirtuous citizens’ who lack Second Amendment rights." Id. Further, citing Heller 's "longstanding prohibitions on the possession of firearms by felons," we concluded that "[t]he category of ‘unvirtuous citizens’ is thus broader than violent criminals; it covers any person who has committed a serious criminal offense, violent or nonviolent." Id. (citing Heller , 554 U.S. at 626, 128 S.Ct. 2783 ).

Accordingly, we held that "persons who have committed serious crimes forfeit the right to possess firearms...