United States v. Brooks (341 F. Supp. 3d 566, 2018)

Joy Flowers Conti, Chief United States District Judge

I. Introduction

A federal grand jury returned a one-count indictment against defendant Jamal Brooks ("Brooks") for possessing a firearm and ammunition while being a convicted felon, in violation of 18 U.S.C. § 922(g)(1). (ECF No. 15.) Brooks filed a motion to dismiss arguing, among other things, that 18 U.S.C. § 922(g)(1) is unconstitutional as applied to him because his disqualifying conviction, a misdemeanor conviction for carrying a firearm without a license in violation of 18 PA. CONS. STAT. § 6106(a)(2), was not for a serious offense. (ECF No. 39 at 10.)

II. Case Background

On February 28, 2018, the court held a hearing with respect to Brooks' motion to dismiss and other pretrial motions. The court at the hearing explained that it would apply the two-step analysis set forth by the Third Circuit Court of Appeals in Binderup v. Attorney General, 836 F.3d 336 (3d Cir. 2016) (en banc) to analyze Brooks' as-applied constitutional attack on § 922(g)(1). That two-step analysis requires the court to consider evidence and legal argument presented by the parties to determine (1) whether § 922(g)(1), a presumptively lawful regulation, burdens Brooks' Second Amendment rights, and, if so, (2) whether § 922(g)(1) satisfies intermediate scrutiny. Binderup, 836 F.3d at 355. The court permitted the parties to file supplemental briefing to address the parties' burdens of proof and whether the Federal Rules of Evidence applied to the court's consideration of evidence submitted with respect to the two-part Binderup analysis.

On May 24, 2018, this court issued an opinion on procedural matters and explained that at step one of its Binderup analysis, the court would find the facts and determine whether Brooks satisfied his burden to make a strong showing that his disqualifying conviction was not for a serious offense, i.e., his circumstances are distinguished from the class of persons historically barred from exercising their Second Amendment rights and he can overcome the presumptive lawfulness of § 922(g)(1). If Brooks satisfied his burden, the burden would shift under step two to the government. At step two, the court would find the facts and determine whether the government met its burden to show that prohibiting persons like Brooks from bearing arms under § 922(g)(1) is substantially related to its important interest of promoting public safety and preventing armed mayhem. If Brooks satisfies step one, the government's evidence at step two must be meaningful to strip him of his Second Amendment rights. The court explained that it would not strictly apply the Federal Rules of Evidence to its consideration of the evidence and may consider hearsay evidence. (ECF No. 60 at 25-26.)

On June 25, 2018, and July 10, 2018, the court held a hearing for the parties to present evidence to satisfy their respective burdens under Binderup. Both parties entered into evidence exhibits, and the government presented the testimony of seven witnesses. On August 20, 2018, the parties filed their proposed findings of fact and conclusions of law.

Upon consideration of the parties' submissions, the testimony and documentary evidence presented at the hearing held on June 25, 2018, and July 10, 2018, and the arguments made by counsel, the court makes the following findings of fact and conclusions of law:

III. Findings of Fact

A. Brooks' Relevant Juvenile Conviction

1. On January 22, 2008, Brooks-at the age of fifteen years old-was adjudicated delinquent for possession of heroin, possession of ecstasy, and possession of a small amount of marijuana. (Ex. 1 at 1-2.)

B. The Vehicle Shooting on April 19, 2015

2. Joi Clark ("Clark") and Felicia Johnson ("Johnson") testified with respect to a shooting that occurred on April 19, 2015. (H.T. 6/25/2018 (ECF No. 65) at 32, 42.)

3. Clark and Johnson in the early morning hours of April 19, 2015, were at 5406 Columbo Street, Pittsburgh, Pennsylvania, which was a "row house" amongst three other row houses ("Johnson's row house"). (Id. at 32-33, 44.) Johnson's row house was in the middle of two of the four row houses. (Id. at 44.) Johnson's three minor children also lived at the row house. (Id. at 42.) As of April 19, 2015, Johnson had lived at her row house for two to three years. (Id. at 44.)

4. On April 18, 2015, at about 11:00 p.m., Johnson drove Clark to her row house in Clark's sister's vehicle, a white 2012 Ford Fusion (the "Ford Fusion"), which they parked near Johnson's row house. (Id. at 33, 38.)

5. Shortly after Johnson's and Clark's arrival at Johnson's row house, a neighbor who lived in a row house next to Johnson's row house banged on the door. (H.T. 6/25/2018 (ECF No. 65) at 34-35, 45-46.) Johnson recognized the neighbor; she had seen him "often" prior to April 19, 2015. (Id. at 46.)

6. The following exchange took place between Johnson and the government during the June 25, 2018 hearing with respect to whether Brooks was the neighbor involved in the incident with Clark and Johnson on April 19, 2015:

Q. Do you see that individual here in the courtroom today?

A. You are standing in front of him.

Q. Excuse me?

A. I don't know.

Q. It's okay.

A. He got a haircut and he didn't have a beard.

Q. Are you indicating that the defendant is that person but appeared differently? Do you need some additional time?

A. He just looks different. I don't remember him having a lot of hair or that beard.

Q. The person that you saw at your door that night, what do you recall him looking like?

A. He's like probably two inches taller than me.

Q. How tall are you?

A. I'm only about 5'5?.

Q. Do you recall anything else about him?

A. He was little. He wasn't big. He wasn't a big guy. Like the build seems him. He just looks different with the hair and the beard.

(H.T. 6/25/2018 (ECF No. 65) at 46-47.)

7. Clark was in the living room of Johnson's row house and there were children present in Johnson's row house at the time the neighbor knocked on the door. (Id. at 34-35.)

8. According to Clark, when Johnson opened the door, the neighbor said: "I'm tired of you expletives, dealing with you and this parking[.]" (Id. at 35.) The neighbor drew a firearm from his right pocket, pointed it at Johnson's face, turned around, and shot the Ford Fusion. (Id. at 35, 37, 48.) Clark testified that the firearm was "no more than two feet" from Johnson's face. (Id. at 37.) Johnson testified that the neighbor pointed the gun at her before he shot the Ford Fusion. (Id. at 48.) Clark testified the neighbor "seemed aggressive, angry, upset" and "already enraged[.]" (H.T. 6/25/2018 (ECF No. 65) at 36-37.)

9. Johnson testified that the neighbor previously on other occasions asked that she move the car because the neighbor wanted to park his vehicle directly in front of his row house. (H.T. 6/25/2018 (ECF No. 65) at 47.) She testified as follows with respect to her recollection of her interaction with the neighbor on April 19, 2015: "We were getting dressed. I was upstairs. They said someone was knocking on the door and it was the neighbor asking to move the car. By the time I got downstairs, I was saying we're not moving the car until we leave, because we're about to leave." (H.T. 6/25/2018 (ECF No. 65) at 45.) Johnson described the neighbor's demeanor as "very aggressive." (Id. )

10. The Ford Fusion was parked six to ten feet away from Johnson's row house, and bullets from the neighbor's firearm struck the Ford Fusion. (H.T. 6/25/2018 (ECF No. 65) at 38.) Clark testified that the right front headlight and tires "were shot[,]" and there was a total of "about six...holes in the car." (Id. )

11. Clark could see the neighbor, who was a short male, from her position in the living room. (Id. at 35-36.) Clark testified that the neighbor "looked African American" but maybe "was mixed." (Id. ) Clark could not remember whether Johnson moved onto the porch to speak with the neighbor or stood in the doorway of her row house during the altercation. (Id. at 37.) Johnson testified: "Like, he was inside the doorway, so I pushed him outside, and then I shut the screen and he was talking, saying I need to move the car. Went to the grass. I need to move the car, and he shot the car." (H.T. 6/25/2018 (ECF No. 65) at 45.)

12. Johnson called 9-1-1. (H.T. 6/25/2018 (ECF No. 65) at 39.) Police officers with the Pittsburgh Police responded to the scene. (Id. at 40.)

13. Specifically, Pittsburgh Police Officer Aaron Obsenica ("Obsenica") and his partner Gregory Livesey ("Livesey") were dispatched to Johnson's row house at approximately 1:15 a.m. on April 19, 2015. (Id. at 55.) Obsenica was the lead officer at the scene, i.e., "other officers...performed different tasks and reported" to Obsenica at the scene. (Id. at 57.)

14. The officers received "a report of a male shooting the complainant's car." (Id. ) The officers arrived at the scene within three minutes. (Id. ) All other officers that were available at the time were dispatched to Johnson's row house. (Id. )

15. Obsenica was informed by a fellow officer that Johnson stated Brooks fired three shots into the Ford Fusion and he may have entered his row house. (H.T. 6/25/2018 (ECF No. 65) at 56.)

16. Obsenica observed that the Ford Fusion had two bullet holes below the passenger side headlight and one bullet hold through the headlight. (Id. at 58.)

17. Other officers questioned Clark and Johnson, Clark identified the neighbor as the actor, and the officers searched the area for him. (Id. at 40, 50, 57.) According to Obsenica, Johnson reported that Brooks used one silver pistol to shoot the Ford Fusion and pointed a second black pistol at her. (Id. at 58.)

18. The police officers hailed Brooks' girlfriend, R'Vaenita Squires ("Squires") and five or six small children from the row house next to Johnson's row house. (Id. at 56.) The police officers searched that row house, but did not find Brooks at that location. (Id. ) Squires told the officers that Brooks fled from the scene in a white Chevy Tahoe. (Id. )

19. The police officers later determined that Brooks fled in a white Chevy Tahoe. (H.T. 6/25/2018 (ECF No. 65) at 65.) A few minutes after the officers searched Brooks' row house, another Pittsburgh Police Officer recovered Brooks' Chevy Tahoe "[a] couple blocks" away from the scene in the area of "Hillcrest and North Aiken Avenue[.]" (H.T. 6/25/2018 (ECF No. 65) at 58-59.) Obsenica determined the Chevy Tahoe was registered to Brooks. (Id. )

20. The Pittsburgh Police did not locate Brooks on April 19, 2015. (Id. at 60.) Obsenica filed a criminal complaint charging him with, among other felony crimes, "two counts of firearm not to be carried without a license in violation of 6106 of the Pennsylvania Crimes Code" because Brooks did not have a license to carry a firearm on April 19, 2015. (Id. ) Brooks was also charged with aggravated assault because he pointed a gun at Johnson and fired a gun into the vehicle and criminal mischief in light of the damage done to the vehicle by the shots fired. (Id. at 62.) Obsenica obtained an arrest warrant for Brooks at the time he filed the criminal complaint. (Id. ) Brooks was eventually apprehended on the charges filed by Obsenica. (Id. )

21. Clark became aware that the Pittsburgh Police charged an individual with crimes with respect to the incident that took place on April 19, 2015. (Id. at 40.) Clark testified at the preliminary hearing with respect to those charges. (Id. ) Clark was informed that the case was "sent to court[.]" (Id. at 41.) Clark, however, did not appear to testify at the trial of the charges. (Id. )

22. Johnson was summoned to appear in court to testify with respect to the incident. (H.T. 6/25/2018 (ECF No. 65) at 51-52.) She, however, did not appear because she was scared; the neighbor and his girlfriend "were practically still living there." (Id. at 52.)

23. Obsenica testified at the preliminary hearing. (H.T. 6/25/2018 (ECF No. 65) at 63.) The case was held for trial, but the charges were nolle prossed because-despite Obsenica calling Johnson and Clark on the telephone and informing them about the trial-neither Johnson nor Clark attended the trial. (Id. )

24. Johnson testified that the neighbor typically drove a large Chevy truck "SUV." (H.T. 6/25/2018 (EC No. 65) at 52.)

25. Based upon the circumstantial evidence presented by the government, the court finds that on April 19, 2015, Brooks was the neighbor who approached Johnson's row house, pointed a gun at her, fired shots into the Ford Fusion, and fled the scene in a white Chevy Tahoe.

C. May 5, 2015 Incident at Club Taboo

26. On May 5, 2015, Obsenica and Pittsburgh Police Officers Geno Macioce ("Macioce"), Timothy Matson ("Matson"), and Dustin Rummel ("Rummel"), among others, were dispatched to a bar called Club Taboo located in the Homewood area of Pittsburgh, Pennsylvania, in response to a report of an armed robbery in progress. (H.T. 6/25/2018 (ECF No. 65) at 64, 70.)

27. When Macioce arrived on scene, he spoke to a male named Malcom Hill ("Hill"). (Id. at 71.) Hill informed Macioce that he was the disc jockey ("D.J.") at Club Taboo that night. (Id. ) While Hill loaded his D.J. equipment into his car, which was parked directly in front of Club Taboo, he was approached by a short black male wearing a ski mask who brandished a silver revolver and demanded Hill's backpack containing $1,300.00. (Id. ) Hill gave the male the backpack, and the male took off running on Bennett Street toward Conemaugh Street. (Id. )

28. The actor was a black male, had a beard, and was about five foot, five inches tall. (Id. at 72, 79.) The actor's description was put out over the radio to the responding officers. (Id. at 78.)

29. In the direction in which the actor ran, there was a parking lot in which school buses were parked. (H.T. 6/25/2018 (ECF No. 65) at 74.) Matson and Rummel observed a short male with a beard wearing a mask and all dark clothing coming from the area in which the school buses were located. (Id. at 75, 90.) Rummel exited his patrol vehicle to "get closer to the male without him noticing" Rummel. (Id. at 90.) The male, however, saw Rummel and started to flee from his direction. (Id. ) Rummel engaged in a foot pursuit of the actor, i.e., in a "full-out sprint[,]" when they were about fifty to one hundred feet away from each other. (Id. at 91-93.)

30. Matson and Rummel reported on the radio and later directly to Macioce that "they observed a male fitting the description near the school buses." (Id. at 75.) The man fled through a backyard and the parking lot and onto to Conemaugh Street. (Id. at 75, 92.) At that point, Rummel commanded "Pittsburgh Police, stop[,]" but the actor disregarded Rummel's commands. (Id. at 92.) The actor kept running through an open yard and Rummel could hear what sounded like the actor jumping over a chain link fence. (Id. ) By the time Rummel arrived at Frankstown Avenue, he could no longer see the actor. (Id. at 93.) The area in which Rummel chased the actor was dark. (Id. at 92.)

31. The police officers eventually searched the school buses for other actors, firearms, other weapons, and evidence of a crime. (Id. at 75.) A ski mask was retrieved from the officers' search of the school buses. (Id. ) The ski mask was submitted for "DNA testing" and "no conclusions could be drawn regarding whether...Brooks was a contributor to the DNA on the ski mask[.]" (Id. at 98; Ex. I.)

32. Rummel called out over the police radio that he lost the actor during the foot-chase. (H.T. 6/25/2018 (ECF No. 65) at 64-65.)

33. Obsenica and Rummel canvassed the area around Club Taboo to look for the actor. (H.T. 6/25/2018 (ECF No. 65) at 65, 94.)

34. A firearm was recovered on Conemaugh Street on the path on which the actor ran and a key was recovered in between the two houses in which Rummel chased the actor. (Id. )

35. Specifically, Matson recovered the firearm where the actor first saw Rummel and began to run to the right through a backyard. (Id. at 94.) Matson found the firearm "right on the sidewalk" on the path Rummel was following the actor. (Id. at 103.) Matson packaged the firearm and someone else handled "further investigative work" with respect to the firearm. (Id. at 102-03.)

36. The firearm was a black Taurus nine millimeter semiautomatic handgun loaded with ammunition. (Id. at 77-78.) The firearm recovered on Conemaugh Street was registered to Brooks. (Id. at 78.) Despite Hill's report that the actor brandished a silver firearm, a silver firearm was not recovered on May 5, 2015. (Id. at 85.) Macioce, however, determined that Brooks owned a silver firearm at that time. (Id. at 87.)

37. Rummel determined that the set of car keys he recovered in between the two houses belonged to a white Chevy Tahoe parked next to Club Taboo. (H.T. 6/25/2018 (ECF No. 65) at 65, 80.) The vehicle was registered to Squires, who Obsenica recognized as Brooks' girlfriend, and the registration provided the address at which the officers believed Brooks lived. (Id. ) Obsenica recognized the white Chevy Tahoe as the vehicle Brooks used in connection with the April 19, 2015 shooting. (Id. ) Macioce obtained a search warrant for the white Chevy Tahoe. (Id. )

38. The white Chevy Tahoe was towed. Macioce obtained a search warrant to search the white Chevy Tahoe. (H.T. 6/25/2018 (ECF No. 65) at 82.) Macioce described the items recovered during the search as follows:

I know there was like a wallet found with the initials JB on it. Inside that were several cards that had the name Jamal Brooks on it, as well the license plate was found in the map pocket of the driver's seat, so the pocket that's behind the driver's seat. That license plate was the license plate Officer Obsenica knew from his prior experience with that vehicle, and upon running the registration plate, it returned a record for Jamal Brooks at the address on, I believe, Columbo.

(Id. at 82.) The officers also found a holster molded to fit a revolver and a small amount of marijuana and a smoking pipe in the white Chevy Tahoe. (Id. )

39. Macioce charged Brooks with, among other felony crimes, robbery and firearms not to be carried without a license. (H.T. 6/25/2018 (ECF No. 65) at 83.) Brooks was eventually apprehended on the charges, and Macioce and Hill appeared at the preliminary hearing with respect to those charges. (Id. ) The charges were held for court. (Id. )

40. The charges were nolle prossed because Hill was unable to be located. (H.T. 6/25/2018 (ECF No. 65) at 84.) Macioce went to Hill's home on more than one occasion, he made several telephone calls to Hill, and he made contact with Hill's mother. (Id. ) Macioce believed that Hill's telephone was eventually disconnected. (Id. )

41. The courts finds that based upon the circumstantial evidence presented by the government, Brooks is the individual whom brandished a firearm in the presence of Hill, stole Hill's backpack containing $1,300.00, fled the scene, and engaged Matson and Rummel in a foot chase.

D. Brooks' Disqualifying Conviction, Which Occurred on May 15, 2015

42. On May 15, 2015, Brian Pazak ("Pazak") worked as a patrol sergeant for Frazier Township. (H.T. 6/25/2018 (ECF No. 65) at 22-23.) On that day at around 6:00 p.m., he and fellow officer Daniel Olszewski were dispatched to a Wal-Mart to respond to a complaint of retail theft. (Id. at 23-24.) Upon arriving on scene, Pazak encountered Wal-Mart's loss prevention officer who reported that he had one male and one female in custody for shoplifting. (Id. at 24.)

43. The loss prevention officer informed Pazak that the male and female worked together placing items from the store into a diaper bag and large black purse. (H.T. 6/25/2018 (ECF No. 65) at 22-23.) Pazak learned twenty-seven items were recovered for a total of $114.83 in merchandise. (Id. at 30.)

44. Pazak positively identified the female whose last name was Squires. (Id. at 25.) The male, however, gave a false name and date of birth and was combative with the officers when they asked a second time for his identification. (Id. at 25, 29.) The officers initially were unable to identify him. (Id. at 25.)

45. Pazak spoke with Squires and asked for her cooperation to identify the male. (Id. at 26.) She told Pazak the male was "Jamal Brooks" and his birthdate was November 1, 1991. (H.T. 6/25/2018 (ECF No. 65) at 26.) Pazak confirmed with the Allegheny County dispatch the information he received from Squires. (Id. )

46. Pazak at the hearing held on June 25, 2018, identified Brooks as the male he encountered at the Wal-Mart on June 25, 2018. (Id. at 27.)

47. Pazak placed Brooks under arrest for retail theft and false identification. (Id. at 27.)

48. Brooks was searched incident to arrest and a "black full sized Glock model 21C .45 caliber" was recovered from under his t-shirt in a brown leather holster from his left hip. (Id. at 28.)

49. Pazak learned that Brooks did not have a valid license to carry a concealed firearm, and there was no indication that the firearm was registered to a particular person or was reported stolen. (H.T. 6/25/2018 (ECF No. 65) at 28.)

50. Brooks was charged with (1) one count of carrying a firearm without a license, in violation of 18 PA. CONS. STAT. § 6106 (third-degree felony) ("count one"); (2) one count of providing false identification to law enforcement, in violation of 18 PA. CONS. STAT. § 4914 (third-degree misdemeanor) ("count two"); (3) one count of retail theft, in violation of 18 PA. CONS. STAT. § 3929(a)(1) (summary offense) ("count three"); and (4) one count of criminal conspiracy to commit retail theft, in violation of 18 PA. CONS. STAT. § 903(a)(1) (summary offense) ("count four"). (Ex. B. (ECF No. 55-2 at 1-6); H.T. 6/25/2018 (ECF No. 65) at 28-29.)

51. On April 14, 2016, defendant in the Court of Common Pleas of Allegheny County entered into a negotiated guilty plea. (Ex. H at 7.) The presiding judge granted the Commonwealth's motion to reduce count one from a felony in the third degree to a misdemeanor in the first degree. (Id.; ECF No. 55-2 at 2 ("The Commonwealth moves to amend counts [sic] # 1 to a (M1) Motion Granted By The Court").)

52. Brooks pleaded guilty to count one, as amended, as well as to counts two through four. (Exs. A, B, H at 8.) Brooks was sentenced to a term of probation of one year at count one, which was graded as a misdemeanor in the first degree, and "[a] determination of guilty without further penalty" was entered against Brooks at counts two through four. (ECF No. 55-2 at 6.)

53. On a form entitled "Pennsylvania Commission on Sentencing" (the "sentencing form") there is a handwritten note that provides: "Ct 2,3,4-WD[.]" (Ex. B (ECF No. 55-2) at 5.) In the section of the sentencing form entitled "Offense Name/Description" the only offense listed is "Firearms-carried w/o license: ineligible (loaded ammo/available)." (Id. )

54. In the same handwriting on the sentencing form there are alterations that reflect a change in the grade of the offense from "F-3" to "M1" and a change in the range of imprisonment from 42 to 84 months to 30 to 60 months. (Id. )

55. The sentencing form also shows that a term of probation of twelve months was imposed and Brooks was convicted via a negotiated guilty plea. (Id. ) The sentencing form was signed by the judge presiding over Brooks' state court criminal case. (Id. )

56. The "Order of Sentence" issued by the Court of Common Pleas of Allegheny County provides that:

- Brooks was sentenced to a term of probation of one year at count one for the crime of "Firearm Not to be Carried W/O License-No Crim Viol (M1)[;]"

- with respect to counts two, three, and four, "[a] determination of guilty without further penalty[;]"

- with respect to count five, entitled "Firearms Not to Be Carried W/O License (M3)[,]" "Offense Disposition: Charge Changed[;]" and

- with respect to "[c]ount 9,999[,]" "Firearm Not to Be Carried W/O License-No Crim Viol ( )[,]" "Offense Disposition: Withdrawn (Lower Court)."

(Ex. B. (ECF No. 55-2) at 6.)

E. Robbery at the Residence of Tia Collins and Cordell Collins on July 23, 2017

57. On July 23, 2017, at 3:28 a.m., Adam Quinn ("Quinn") and Adam Lawrence ("Lawrence"), police officers with the Penn Hills Police Department were dispatched to a residence on Leechburg Road for a reported robbery in progress during which one of the actors shot one of the victims. (H.T. 7/10/2018 (ECF No. 67) at 3-4, 18-19.)

58. When Quinn arrived on scene, he saw Tia Collins, the person who called 9-1-1, and her husband, Cordell Collins. (H.T. 7/10/2018 (ECF No. 67) at 5.) Tia Collins was lying on the ground "in obvious pain" in the front yard, and Cordell Collins was kneeling next to her. (Id. )

59. Quinn learned that Tia Collins had been struck in the head. Tia Collins was conscious but dizzy when he encountered her. (H.T. 7/10/2018 (ECF No. 67) at 6.) Quinn requested "EMS assistance" to treat Tia Collins. (Id. ) Penn Hills EMS arrived on scene, rendered aide to Tia Collins, and transported her to Forbes Hospital. (Id. ) Cordell Collins accompanied Tia Collins to the hospital. (Id. at 9-10.)

60. Before Tia Collins was transported to the hospital, she spoke with Quinn for "[a]pproximately five minutes." (H.T. 7/10/2018 (ECF No. 67) at 7.) She told him that she left her husband's nightclub, i.e., Club Elegance, and parked her vehicle in her driveway. (Id. at 6.) Upon exiting her vehicle, she saw two men approach her vehicle from a van, which they parked perpendicular to her vehicle. (Id. at 7-8.) Tia Collins told Quinn that the two men were African-American and wore masks; one man was wearing a blue t-shirt and the other man wore a black hooded sweatshirt. (Id. at 7.) The men approached her, drew a pistol, and dragged her to the front porch by her throat. (Id. ) She was struck in the back of the head with a pistol, which rendered her unconscious. (Id. at 7.)

61. Tia Collins reported that her purse, which contained her "SIG Sauer" pistol with serial number F309749, was taken from her possession during the course of the alleged robbery. (Id. at 7, 52, 70.)

62. At some point after July 23, 2017, Tia Collins told Jonathan Duthinh ("Duthinh"), an agent with the Bureau of Alcohol, Tobacco, and Firearms, that one of the actors was "six feet or above" and put her into a headlock and the other actor was shorter, i.e., "between 5'5? and 5'7,? " and held a pistol to her head. (H.T. 7/10/2018 (ECF No. 67) at 70.) Tia Collins told Duthinh that the shorter actor hit her on the head with the pistol. (Id. )

63. Quinn also spoke to Cordell Collins. (H.T. 7/10/2018 (ECF No. 67) at 7-8.) Cordell Collins told Quinn that he left Club Elegance ten minutes after his wife's departure. (Id. at 8.) He reported that "[h]e returned home, parked his vehicle in the driveway, started to approach his front porch when a bright light hit him in the face, which he presumed to be a flashlight." (Id. at 8.)

64. Cordell Collins asked the person on his porch "[w]hat do you want?" (Id. at 8.) The person responded: "[y]ou know what we want." (Id. ) Cordell Collins reported to Quinn that at that point, he fled the property, tripped across the street, fell over, and one of the actors shot at him twice from about five yards away. (Id. ) Cordell Collins could not provide a description of the actors because of the bright light he encountered upon exiting his vehicle. (Id. )

65. Quinn's police report with respect to the incident on July 23, 2017, provided, in pertinent part:

Cordell was also unable to provide a description of the actors. I observed that Cordell, who is a heavy set male, was not sweating despite the extremely high humidity causing myself and other officers to sweat. I also observed that Cordell's clothing was not wet despite the grass where he stated he fell being wet from recent rainfall. Cordell was also calm while speaking with the PD.

(H.T. 7/10/2018 (ECF No. 67) at 15.)

66. Tia Collins and Cordell Collins told Quinn the actors left their property in a vehicle, but they could not provide a vehicle description. (H.T. 7/10/2018 (ECF No. 67) at 8.)

67. During the time Tia Collins was being treated by the EMS, a neighbor approached one of the other police officers on the scene and told him that he or she heard two gun shots in the area of the front yard. (Id. at 9.)

68. After Tia Collins and Cordell Collins were transported to Forbes Hospital, Quinn and another police officer canvassed the area for shell casings, but no shell casings were located. (Id. at 9-10.) Quinn then "went to the active perimeter scene taking place in Verona." (Id. at 10.)

69. Quinn did not personally observe the suspects and could not describe them based upon his personal observations. (Id. at 12.) Quinn did not know whether the area was processed by a mobile crime lab. (Id. at 16.) As of July 10, 2018, charges were not filed and no one had been arrested or convicted with respect to the incident. (Id. )

70. Prior to being dispatched to the Collins' residence, Lawrence was at a gas station with other police officers. (H.T. 7/10/2018 (ECF No. 67) at 19.) Once the officers received the call with respect to the incident at the Collins' residence, they drove to the call. Lawrence's police car was the last in a line of police cars heading in the direction of the Collins' residence. (Id. )

71. While the other police cars drove straight on Verona Road, Lawrence took an alternate route via Shannon Road to "cover more area and maybe encounter suspects fleeing[.]" (Id. )

72. Once Lawrence turned right off Second Street onto Shannon Road, he saw a vehicle in his lane of travel, i.e., driving in the opposing lane of travel. (H.T. 7/10/2018 (ECF No. 67) at 20.) Lawrence explained:

They just had passed a vehicle, and this is a two lane road, one lane in each direction. They just passed a vehicle coming to the end of the roadway which is a T intersection with the stop sign. The stop sign is on their end, and I had to lock up my brakes, stop to avoid a head-on collision with them, and they proceeded past me and ran the stop sign and turned left on to 2nd Street.

(Id. ) The vehicle observed by Lawrence was a "newer" gray sedan with an Ohio registration plate and had two occupants, i.e., a driver and front seat passenger. (Id. ) Lawrence described the driver as a "light skinned black male with black dreadlocks." (Id. at 23.) Lawrence could not describe the passenger of the vehicle. (Id. ) Lawrence testified that Brooks "is not a light skinned black male[.]" (Id. at 49.)

73. Lawrence explained that the vehicle, which almost struck his police vehicle, appeared to be "trying to quickly get away from a certain area" and was coming from the direction of the Collins' residence. (H.T. 7/10/2018 (ECF No. 67) at 24.) He suspected that the vehicle was involved in the alleged robbery that had taken place at the Collins' residence. (Id. ) Lawrence, therefore, turned his police vehicle around and began to pursue the gray sedan. (Id. )

74. Lawrence pursued the gray sedan as it drove down various streets in the area, and he observed several traffic violations during the pursuit. (H.T. 7/10/2018 (ECF No. 67) at 25.) For example, the gray sedan did not have its lights on, which made it more difficult for the vehicle to be detected. (Id. at 25.) The gray sedan was travelling at a rate of forty to fifty miles per hour on side streets and residential streets, which have speed limits of twenty-five miles per hour. (Id. at 26.)

75. Lawrence eventually lost sight of the gray sedan because he could not see the vehicle's taillights. (H.T. 7/10/2018 (ECF No. 67) at 26.)

76. A few moments after Lawrence lost sight of the gray sedan, a police officer with the Verona Police Department located the vehicle crashed nearby at the intersection of Penn Street and Allegheny Avenue. (H.T. 7/10/2018 (ECF No. 67) at 27.) The vehicle was wrecked into a fence of a parking lot, there were no occupants inside the vehicle, the engine was running, and the vehicle was partially on the roadway. (Id. at 27.)

77. Lawrence determined the vehicle was registered to Enterprise Rental Car. (H.T. 7/10/2018 (ECF No. 67) at 28.) The vehicle was rented by Brooks. (Id. at 52, 72.)

78. Lawrence and other police officers with the assistance of two police service dogs searched the area in which the gray sedan was crashed in an attempt to locate its occupants. (Id. at 28-29.) Lawrence briefly participated in the search and inventoried the vehicle. (Id. )

79. Lawrence, while taking an inventory of the crashed gray sedan, made a list of the items that were taken out of the vehicle and a property record was completed by a Penn Hills Police Department detective. (Id. )

80. A "SIG Sauer 22 caliber pistol with the serial number of F309749" was recovered inside a blue grocery store bag on the floorboard in front of the driver's seat of the crashed gray sedan. (H.T. 7/10/2018 (ECF No. 67) at 31-32; Ex. 4 at 1.) That pistol was registered to Tia Collins. (H.T. 7/10/2018 (ECF No. 67) at 32, 73.) A magazine that corresponds to the "SIG Sauer 22 caliber pistol" that had ten, twenty-two caliber cartridges in it was also found in the crashed gray sedan. (H.T. 7/10/2018 (ECF No. 67) at 32; Ex. 4 at 1.)

81. A stainless steel "Taurus 357 caliber revolver with the serial No. GY69526" with "five 357 cartridges inside the cylinder on the revolver" was recovered from inside a red duffel bag that was found in the trunk of the crashed gray sedan. (H.T. 7/10/2018 (ECF No. 67) at 32-33; Ex. 4 at 1.) The "Taurus 357 caliber revolver with the serial No. GY69526" was registered to Brooks. (H.T. 7/10/2018 (ECF No. 67) at 73.)

82. A "Ruger .22 Pistol 36521861" was found in the center console of the crashed gray sedan. (H.T. 7/10/2018 (ECF No. 67) at 33; Ex. 4 at 1.) A magazine containing .22 caliber ammunition was located inside the "Ruger .22 Pistol" and one round was chambered in the firearm. (H.T. 7/10/2018 (ECF No. 67) at 34-35.) Another magazine containing .22 caliber ammunition was recovered from inside a red and black bag found in the backseat of the crashed gray sedan. (Id. at 35.)

83. A "Taurus 9mm Pistol" with serial number "TJN07656" and a corresponding magazine with eight nine millimeter cartridges was located in a blue grocery store bag on the floorboard in front of the driver's seat. (H.T. 7/10/2018 (ECF No. 67) at 34.) The "Taurus 9mm Pistol" with serial number "TJN07656" was registered to Vanessa Blumming. (Id. ) Duthinh did not contact Vanessa Blumming. (Id. )

84. A "Mossberg 12 Gauge Shotgun" with serial number "T738540" and four twelve-gauge shotgun shells were inside the red duffel bag that was found in the trunk of the crashed gray sedan. The red duffel bag also contained the stainless steel Taurus revolver. (H.T. 7/10/2018 (ECF No. 67) at 34.) The "Mossberg 12 Gauge Shotgun" with serial number "T738540" was registered to Brooks. (Id. at 74.)

85. A nine millimeter pistol extended magazine with nine millimeter cartridge inside it was located in a black nylon backpack in the backseat of the crashed gray sedan. (H.T. 7/10/2018 (ECF No. 67) at 36.) A number of items were inside the black nylon backpack with the nine millimeter cartridge, including:

- a bag of plastic zip ties;

- a set of handcuffs;

- black gloves;

- a black face mask;

- a red knife;

- a silver flashlight;

- a black tossle cap; and

- a small black flashlight.

86. A "knotted plastic bag containing multiple cartridge casings" and one, nine millimeter cartridge were inside a Taurus box that was found in the trunk of the crashed gray sedan. (H.T. 7/10/2018 (ECF No. 67) at 36.) The cartridge casings were empty, meaning they were not live ammunition and did not contain a projectile. (Id. at 36-37.)

87. A "Federal Ammunition Box Containing Fifteen .22 Caliber Cartridges" was inside a black nylon small carrying bag located in the front section of the vehicle. (H.T. 7/10/2018 (ECF No. 67) at 37.) That ammunition could function with the "Ruger .22 Pistol" that was in the center console of the crashed gray sedan. (Id. at 37.)

88. A cardboard box containing a 50-round capacity nine millimeter drum-style magazine was in the red duffel bag found in the trunk of the crashed gray sedan. (Id. at 37.)

89. Assorted ammunition and magazines for ammunition for firearms were found throughout the crashed gray sedan. (H.T. 7/10/2018 (ECF No. 67) at 34; Ex. 4 at 1, 3, 4.)

90. Assorted clothing, including black gloves and blue latex gloves, was also found in the crashed gray sedan. (H.T. 7/10/2018 (ECF No. 67) at 38.)

91. Three Pennsylvania State Police records of sale, a receipt from a gun purchase, and warranty cards for Taurus firearms listed in Brooks' name were found inside the crashed gray sedan. (H.T. 7/10/2018 (ECF No. 67) at 39; Ex. 4 at 4.) A grocery store receipt was also found inside the crashed gray sedan. (Id. ) The documentation for the Taurus firearms contained Brooks' name and address and was consistent with the Taurus .357 caliber firearm found in the crash gray sedan. (Id. at 40.) The address provided for Brooks was "literally down the road from where the vehicle was found crashed." (Id. at 40.)

92. The following items were also found in the crashed gray sedan:

- Monroeville Dodge key chain;

- Chrysler key fob;

- handcuff key;

- house key;

- Giant Eagle card bearing the number 433813500113, registered to Squires;

- Dick's Sporting Goods card bearing the number "L -- 0 or O -- 1TB22KSPTW, registered to Squires;"

- Louis Vuitton monogram wallet with the initials JMB embroidered on it, which contained driver's license for "Jamal Martel Brooks" and two credit cards in Brooks' name;

- Enterprise Rental Car business card with a Cranberry office address on it;

- Anthony Arms membership card;

- Crown Royal bag, which contained an e-cigarette and metal grinder; and

- cellular telephone, the number for which was registered to Brooks at 1204 Wade Street.

(H.T. 7/10/2018 (ECF No. 67) at 40-41, 75-76; Ex. 4 at 4.)

93. The court finds that based upon the evidence presented by the government, Brooks was the shorter male who pointed a firearm at Tia Collins and hit her over the head with the firearm, which knocked her unconscious. Brooks fled the scene as a passenger in the gray sedan, which was the target of Lawrence's police chase and contained numerous firearms (some of which were registered to Brooks and one of which was registered to Tia Collins), ammunition, and other indicia of Brooks being present in the vehicle.

F. Search Warrant Executed at 1204 Wade Street on August 22, 2017

93. On August 22, 2017, Duthinh executed a search warrant at 1204 Wade Street in Aliquippa, Pennsylvania. (H.T. 7/10/2018 (ECF No. 67) at 60.) The search warrant was a part of the investigation of the July 23, 2017 robbery at the Collins' residence. (Id. at 69.)

94. Duthinh believed Brooks and his girlfriend, Squires, lived at 1204 Wade Street in Aliquippa, Pennsylvania. (Id. at 60-61.)

95. Brooks, Squires, and their two children were present at the residence when the search warrant was served. (Id. at 61.) Mail addressed to Brooks and Squires was found in the home. (Id. )

96. Three firearms were recovered from the home. (H.T. 7/10/2018 (ECF No.

67) at 61.) A "Glock model 26, serial No. RLE509" and a "Glock model 43, serial No. BDYW586" were found in the closet of the master bedroom of the home, and a "Smith & Wesson rifle, serial No. TF39028" was found in the basement of the home. (Id. at 61-62.) Photographs were taken of the firearms in the areas in which they were initially located. (Id. at 62.)

97. The "Glock model 26, serial No. RLE509" was registered to Brooks' mother. (H.T. 7/10/2018 (ECF No. 67) at 66.)

98. The "Glock model 43, serial No. BDYW586" and the "Smith & Wesson rifle, serial No. TF39028" were registered to Squires. (Id. )

99. Various caliber ammunition, a quantity of marijuana, two digital scales, and "[a] number of gun boxes" were also seized from the residence. (Id. at 66, 68.) One of the gun boxes was for a Taurus brand pistol with serial number TG043889, that was registered to Brooks and recovered on May 5, 2015, during the attempted robbery at Taboo Nightclub. (Id. at 67-68.) The Taurus pistol with serial number TG043889 was not reported stolen to law enforcement. (Id. )

100. Law enforcement also seized "large duffel bags containing dark colored clothes, tools [they]...believe to be involved in home invasions, for instance, like saws, picks, hammers." (H.T. 7/10/2018 (ECF No. 67) at 68.) "[A] bandana, propane tanks, hammer, screwdriver, and bolt cutters in additional to ammunition" were found in one backpack inside the home. (Id. at 69.)

101. Nine millimeter pistols, like the two recovered from the closet at 1204 Wade Street, are "popular among Americans." (H.T. 7/10/2018 (ECF No. 67) at 85; Ex. K.) For example, "4,720,075 pistols were manufactured and distributed into commerce in 2016," which includes 2,281,450 nine millimeter pistols. (Id. at 86-87; Ex. J at 1.) "Glock" was the manufacturer of 368,140 pistols in 2016, 213,751 of which were nine millimeter pistols. (Id. at 87.)

102. The "Smith & Wesson rifle, serial No. TF39028" is a semiautomatic rifle, which is sometimes referred to as a sporting rifle, and is "a popular firearm in the United States." (H.T. 7/10/2018 (ECF No. 67) at 88; Ex. K.)

IV. Conclusions of Law

A. Case background of Binderup

1. The court of appeals in Binderup consolidated two district court civil cases for the purpose of the appeals in which the plaintiffs asserted as-applied constitutional attacks against § 922(g)(1). Binderup, 836 F.3d at 341.

2. In one of those cases, the plaintiff Daniel Binderup ("Binderup") had previously pleaded guilty in Pennsylvania state court to corrupting a minor, a misdemeanor subject to a maximum term of imprisonment of five years. Id. at 340 (citing 18 PA. CONS. STAT. §§ 1104, 6301(a)(1)(I) ). Binderup received a sentence of probation for a term of three years and a $300.00 fine plus court costs and restitution. Id.

3. In the other case, the plaintiff Julio Suarez ("Suarez") had pleaded guilty in Maryland state court to the misdemeanor of unlawfully carrying a handgun without a license. Id. Suarez's crime was subject to a range of imprisonment of thirty days to three years and a fine range of $250.00 to $2,500.00. Id.

4. Binderup and Suarez (the "challengers") were disqualified under Pennsylvania law from possessing firearms in light of their convictions, but they successfully petitioned the Pennsylvania state courts to regain their eligibility. Binderup, 836 F.3d at 340.

5. Binderup and Suarez sought similar relief under federal law and each filed a lawsuit in a district court seeking declaratory and injunctive relief. Id. They claimed, among other things, that § 922(g)(1) was unconstitutional as applied to them. Id.

6. The district courts agreed with the challengers and granted them summary judgment. Id.

7. The district court in Binderup's case held that he " 'distinguishe[d] himself from those individuals traditionally disarmed as the result of prior criminal conduct and demonstrate[d] that he poses no greater threat of future violent criminal activity than the average law-abiding citizen.' " Id. (quoting Binderup v. Holder, Civ. Action No. 13-6750, 2014 WL 4764424, at *1 (E.D. Pa. Sept. 25, 2014) ). The district court did not analyze the fit between the government's interests and § 922(g)(1) under any means-end scrutiny. Binderup, 836 F.3d at 341.

8. The district court in Suarez's case granted summary judgment to Suarez because (1) he demonstrated that " 'he is no more dangerous than a typical law-abiding citizen[,]' " and (2) § 922(g)(1) failed to satisfy strict scrutiny. Id. (quoting Suarez v. Holder, 255 F.Supp.3d 573, 586 (M.D. Pa. 2015) ).

9. The government appealed both decisions. Id. Separate panels of the court of appeals heard the appeals, which were eventually consolidated by the appellate court for rehearing en banc. Id.

B. The varying opinions in Binderup

10. Fifteen judges on the court of appeals took part in deciding Binderup during the en banc appeal. "Circuit Judges Ambro, Hardiman and Fuentes authored opinions, none of which garnered a precedential majority." Keyes v. Sessions, 282 F.Supp.3d 858, 867 (M.D. Pa. 2017).

11. As discussed below, six judges agreed with Judge Ambro who wrote the leading opinion that the two-step framework set forth in United States v. Marzzarella, 614 F.3d 85 (3d Cir. 2010), applied to the challengers' as-applied constitutional attack on § 922(g)(1). There were three different opinions, however, about how the two-part framework applied to the facts of each case.

12. At one end of the spectrum, Judge Hardiman, joined by four other judges, viewed the protections afforded the challengers under the Second Amendment as more expansive than the other judges. Binderup, 836 F.3d at 363 (J. Hardiman, concurring in part and concurring in the judgments). He opined that if the challenger satisfied his burden at step one to show the predicate offense is "not serious," § 922(g)(1) is unconstitutional as-applied to that challenger. Id. In his view, step two of the analysis is unnecessary. Id.

13. At the other end of the spectrum, however, Judge Fuentes, joined by six other judges, concluded that as-applied challenges to § 922(g)(1) are "unworkable," and, therefore, not permissible. Binderup, 836 F.3d at 381 (J. Fuentes, concurring in part, dissenting in part, and dissenting from the judgments). His view of the protections afforded the challengers under the Second Amendment was more restrictive. According to Judge Fuentes, a citizen may be lawfully deprived of his Second Amendment rights under § 922(g)(1) once he or she is convicted of an offense that qualifies as a felony offense under the statute, regardless whether the state that convicted the citizen classified the offense as a felony or misdemeanor. Id. at 380-81.

14. The position of Judge Ambro, joined by two other judges, falls somewhere between Judge Hardiman's expansive view of the protections afforded by the Second Amendment and Judge Fuentes' more restrictive view. Judge Ambro applied the facts of each of the challengers' cases to both steps of the Marzzarella framework.

15. While Binderup does not provide clear guidance about how to apply the Marzzarella framework to decide whether § 922(g)(1) is unconstitutional as applied to Brooks, a majority of the court of agreed that as-applied challenges to § 922(g)(1) are permissible, and seven judges agreed that the two-step Marzzarella framework is applicable to as-applied constitutional challenges to § 922(g)(1) ; indeed, it is the "law of our Circuit." Binderup, 836 F.3d at 356.

16. Thus, to give meaning to that law, both steps of the framework must be applied, and Judge Ambro's application of Marzzarella will be followed here.

C. As-applied constitutional attacks on 18 U.S.C. § 922(g)(1)

17. Judge Ambro in Binderup began his analysis by recognizing the importance of the " 'fundamental' " right to bear arms provided by the Second Amendment to the United States Constitution. Binderup, 836 F.3d at 343 (quoting McDonald v. City of Chicago, 561 U.S. 742, 778, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010) ).

18. The right to bear arms, however, " 'is not unlimited.' " Id. (quoting District of Columbia v. Heller, 554 U.S. 570, 628, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008) ). There are a number of restrictions, e.g., § 922(g)(1)'s ban on felons possessing firearms, that "constrain" the right to bear arms and are "presumptively lawful...because they affect individuals or conduct unprotected by the right to keep and bear arms." Id. at 343. It is the law of the Third Circuit that those restrictions pass constitutional muster if they withstand the appropriate level of means-end scrutiny. Id. at 356.

19. Because the constitutional challenges before the court of appeals in Binderup were as-applied challenges, the court was tasked with considering whether the "particular circumstances" of Binderup and Suarez "remove[d] them from the constitutional sweep of § 922(g)(1)." Id. at 346.

20. The court recognized that its decisions in United States v. Marzzarella, 614 F.3d 85 (3d Cir. 2010), and United States v. Barton, 633 F.3d 168 (3d Cir. 2011), guided the approach to as-applied challenges asserted under the Second Amendment. Binderup, 836 F.3d at 345-46.

21. In Marzzarella, the court of appeals "adopted a framework for deciding facial and as-applied Second Amendment challenges." Id. at 339 (citing Marzzarella, 614 F.3d at 85 ). The two-step approach required the district court to consider (1) " 'whether the challenged law imposes a burden on conduct falling within the scope of the Second Amendment's guarantee[,]" and (2) whether the law survived intermediate scrutiny. Id. at 346 (quoting Marzzarella, 614 F.3d at 89 ).

22. In Barton, a criminal case, the court of appeals "held that the prohibition of § 922(g)(1) does not violate the Second Amendment on its face...but...remains subject to as-applied constitutional challenges." Id. (citing Barton, 633 F.3d at 168 ). With respect to the as-applied constitutional attack asserted by the defendant in Barton, the court held that the defendant did not have a right to bear arms under the Second Amendment because his underlying predicate offense was closely related to violent crime, which disqualified him from exercising his Second Amendment rights. Barton, 633 F.3d at 173. The court of appeals in Barton denied the defendant's as-applied constitutional attack because he failed at step one, i.e., "he presented no facts distinguishing his circumstances from those of other felons who are categorically unprotected by the Second Amendment." Id.

23. Judge Ambro in Binderup-joined by six other judges-synthesized Marzzarella and Barton, explaining:

Read together, Marzzarella and Barton lay out a framework for deciding as-applied challenges to gun regulations. 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.

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.

Binderup, 836 F.3d at 346-47. In other words, seven judges viewed Marzzarella and Barton as harmonious decisions that guided the court's analysis of the as-applied constitutional attack asserted against § 922(g)(1) by Binderup and Suarez. Id.

D. Step one of the Marzzarella Framework

24. Judge Ambro, joined by six other judges, explained that the first step of the Marzzarella framework requires a challenger to "prove...that a presumptively lawful regulation burdens his Second Amendment rights." Id. at 347.

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...then (2) present facts about himself and his background that distinguish his circumstances from those of persons in the historically barred class....

Id.

25. Judge Ambro explained that the "traditional justification for denying felons the right to arms" is that the government could disarm "unvirtuous citizens," and "unvirtuous citizens" are citizens who have committed serious crimes. Id. at 348. In other words, "persons who have committed serious crimes forfeit the right to possess firearms." Binderup, 836 F.3d at 349. If a challenger has committed a serious crime that falls within the ambit of § 922(g)(1), the district court should conclude that he or she is "subject to a firearm ban that is...'presumptively lawful.' " Id. at 348 (quoting Heller, 554 U.S. at 627 n.26, 128 S.Ct. 2783 ). "Serious crimes" includes violent or nonviolent crimes. Id. at 348.

26. A challenger can show that he is entitled to Second Amendment protection by showing that he did not commit a serious crime. Id. at 348-49. According to Judge Ambro, to determine whether a crime is "serious" the court may consider, among other relevant factors: (a) whether the crime is a misdemeanor; (b) whether use of force is an element of the offense; (c) the sentence actually imposed upon the challenger; and (d) whether there is consensus among the states about the seriousness of the offense. Id. at 351-53.

27. Judge Ambro, joined by four other judges, instructed that with respect to the first prong of the Marzzarella framework the challenger must make a "strong " showing to rebut the "presumptive lawfulness" of his exclusion from Second Amendment protections. Binderup, 836 F.3d at 346 (emphasis added). This means the challenger cannot "prevail merely on his say-so[;]" rather, "Courts must find the facts to determine whether he has adequately distinguished his circumstances from those of persons historically excluded from Second Amendment protections." Id."[E]vidence of a challenger's rehabilitation or his likelihood of recidivism is not relevant to the step-one analysis." Id. at 356.

E. Step one of the Marzzarella framework applied to Binderup and Suarez by Judge Ambro

28. " Section 922(g)(1) bars the possession of firearms by anyone convicted of 'a crime punishable by imprisonment for a term exceeding one year.' " Id. 347-48. This includes all felonies and misdemeanors punishable by a term of imprisonment of more than two years. Id. at 348.

29. Each of the crimes committed by Binderup and Suarez were state-law misdemeanors punishable by a term of imprisonment of more than two years. Binderup, 836 F.3d at 348. The § 922(g)(1) ban on their possession of firearms was, therefore, presumptively lawful. Id. Under those circumstances, Binderup and Suarez each had a burden to overcome the presumptive lawfulness of § 922(g)(1) by showing that their crimes were not serious crimes, i.e., to distinguish their circumstances from the historically barred class of unvirtuous citizens. Id.

30. Judge Ambro found that Binderup and Suarez each satisfied their burden, explaining the states in which they were convicted classified their offenses as misdemeanors, which "traditionally have been...considered less serious than felonies." Id. at 350. He also noted that no element of either crime consisted of violence and each challenger received "a minor sentence by any measure[,]" which is a relevant consideration because "severe punishments are typically reserved for serious crimes," and the actual sentence reflects "the sentencing judges' assessment of how minor the violations were." Binderup, 836 F.3d at 352.

31. Judge Ambro found relevant that there was "no cross-jurisdictional consensus regarding the seriousness of the Challengers' crimes." Id. at 351. The challengers showed that "many states consider their crimes to be non-serious[,]" which made "their showing at step one...that much more compelling." Id. Judge Ambro concluded:

[T]he Challengers have carried their burden of showing that their misdemeanors were not serious offenses despite their maximum possible punishment. This leads us to conclude that Binderup and Suarez have distinguished their circumstances from those of persons historically excluded from the right to arms. That, in turn, requires the Government to meet some form of heightened scrutiny at the second step of the Marzzarella framework.

Id. at 353.

F. Step one of the Marzzarella framework applied to Brooks

32. At step one, the court must: (1) find facts about Brooks' disqualifying conviction, and (2) determine whether in light of those facts, the offense which resulted in the disqualifying conviction is a serious crime.

33. Brooks' showing that his underlying predicate offense was not a serious crime must be "strong." The "strong" burden of proof requires something more than the preponderance of the evidence but something less than the clear and convincing standard requested by the government.

34. Brooks cannot rely upon his say-so to satisfy this burden. The court will consider the factors Judge Ambro found to be relevant to the analysis to determine whether Brooks satisfied his burden to distinguish himself from the class of persons historically barred from possessing firearms in accordance with the Second Amendment.

a. Whether Brooks' Disqualifying Conviction is a Misdemeanor or Felony

35. Judge Ambro in Binderup explained that the grading of an offense is a relevant consideration because "[m]isdemeanors are, and traditionally have been, considered less serious than felonies." Id. at 351.

36. The parties in this case dispute whether the court should consider the offense with which Brooks was convicted a misdemeanor or felony. That distinction is important because Judge Ambro noted in Binderup that a challenger convicted of a felony would have a "extraordinarily high" burden, "perhaps even insurmountable" to show his or her crime was not serious. Binderup, 836 F.3d at 353 n.6 ; United States v. Irving, 316 F.Supp.3d 879, 889 (E.D. Pa. 2018) ("Thus, although Judge Ambro acknowledged that some state misdemeanors can rise to the level of being 'serious,' conversely, his opinion all but foreclosed the possibility that a state felony could be non-serious.").

37. The government argues that Brooks' underlying predicate offense, i.e., carrying a firearm without a license, is a serious offense because-despite the state court grading the offense as a misdemeanor at sentencing-the Pennsylvania legislature has determined that when an individual carries a firearm without a license under the circumstances present in this case "the conduct, as a matter of law, should be considered serious and graded as a felony." (ECF No. 72 at 16.) The government explains that "based on the specific facts at issue here and...[Brooks'] criminal history," his underlying predicate offense "is a felony under Pennsylvania law." (ECF No. 72 at 6.)

38. The Pennsylvania state legislature in section 6106 grades the offense of carrying a firearm without a license a misdemeanor (as opposed to a felony) only if the defendant (a) "is otherwise eligible to possess a valid license[;]" and (b) "has not committed any other criminal violation" at the same time. 18 PA. CONS. STAT. § 6106(a)(2).

39. Here, Brooks pleaded guilty to committing three other crimes at the time he violated section 6106, i.e., a third-degree misdemeanor and two summary offenses, and he was not otherwise eligible to obtain a license to carry a concealed firearm because of his juvenile adjudication of delinquency on January 22, 2008.

40. All the evidence received by this court, however, shows that Brooks pursuant a negotiated plea agreement pleaded guilty to violating section 6106(a)(2), and the court at sentencing graded the offense as a misdemeanor in the first degree. The "Order of Sentence" provides that the felony in the third degree count was "[c]hanged" and Brooks was sentenced only at the count containing the misdemeanor in the