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  • PA:  Can a DUI conviction in Pa. prevent you from having a gun? Yes, divided U.S. court says

PA:  Can a DUI conviction in Pa. prevent you from having a gun? Yes, divided U.S. court says

PA:  Can a DUI conviction in Pa. prevent you from having a gun? Yes, divided U.S. court says


By Matt Miller

January 20, 2020

Can a drunken driving conviction in Pennsylvania trigger a lifelong federal ban on possessing a gun?

Under certain circumstances, yes, a divided panel of the U.S. Court of Appeals for the 3rd Circuit has decided.

The court majority reached that precedential decision in an opinion by Judge Patty Shwartz in the case of Raymond Holloway Jr.

Holloway, a Pottstown resident, filed suit in 2017, claiming a 12-year-old DUI conviction in Cumberland County was wrongly preventing him from buying guns for self-protection.

The case hinged on the fact that Holloway was convicted in 2005 of DUI at the highest rate, meaning his blood-alcohol level when he was pulled over exceeded 0.16 percent. That means his blood-alcohol level was at least twice the legal limit.

That was the second time Holloway had been charged with DUI. A 2003 charge was wiped from his record when he entered the Accelerated Rehabilitative Disposition program in Montgomery County, Shwartz noted.

In the 2005 Cumberland County case, Holloway pleaded guilty and spent 90 days behind bars. Most importantly for his gun ownership argument, the conviction was a first-degree misdemeanor under Pennsylvania law that carries a maximum possible maximum jail term of 5 years.

When Holloway tried to buy guns in 2016, he was told that federal law barred him from possessing firearms because his 2005 DUI conviction constituted a “serious crime.”

Under federal statutes, a serious crime that triggers a firearms prohibition is defined as an offense that carries a potential state prison sentence of at least 2 years, Shwartz noted.

Holloway first challenged his gun ban in U.S. Middle District Court. He won at that level when Chief Judge Christopher C. Conner overturned it. The U.S attorney general’s office, the federal Bureau of Alcohol Tobacco Firearms and Explosives and the FBI then appealed to the circuit court.

In overturning Conner’s ruling, Shwartz stated that, “Drunken driving is a dangerous and often deadly crime.” She noted that more people are killed by drunken drivers than are murdered in the U.S. every year.

So, Shwartz and Judge Julio M. Fuentes found Holloway’s conviction rises to a level of seriousness that calls a federal gun ban into play “All three branches of the federal government agree that DUIs are dangerous, and those who present a danger may be disarmed,” Shwartz wrote.

The dissenting opinion was filed by Judge D. Michael Fisher, who insisted Holloway should not have been stripped of his Second Amendment right to bear arms.

There is no doubt that DUI is a “significant” offense, Fisher found, but he questioned whether it meets the legal definition of “seriousness” in the Holloway dispute.

He noted Holloway received only a 3-month prison term for his 2005 DUI, not the maximum 5-year sentence the law allowed. “The sentencing judge imposed the lightest penalty that the law allowed,” Fisher wrote.

There is a major problem with fairness as well, he contended. Because some other states and the District of Columbia don’t grade or punish Holloway’s offense the same way as Pennsylvania, some people convicted of an identical crime in another state would not be subject to federal gun possession prohibitions, Fisher noted.

That, he found, means the federal statute is actually “underinclusive” in that it doesn’t affect all identical offenders equally. “Congress has drawn no distinction between different types of conduct – the same behavior may activate (the federal gun ban) or not based merely on where that behavior occurred,” he wrote.

The result, Fisher concluded, is that the feds are “curtailing the constitutional rights of some and not others for the exact same conduct.” Basing the federal gun ban penalty on the varying punishments imposed under the differing state laws simply isn’t fair, he argued.

“If Congress wants to bar all individuals convicted of a second DUI offense with a BAC above 0.16 percent of owning a firearm, then it must do so through the ordinary channels of democratic lawmaking,” Fisher wrote. “At least then all persons’ constitutional right will be treated equally.”