RUDOLPH CONTRERAS, United States District Judge.
Plaintiff Mark Baginski was convicted by a Massachusetts state trial court in
For purposes of resolving the government's motion to dismiss, the Court accepts all well-pleaded factual allegations in Baginski's complaint as true, and draws all reasonable inferences in his favor. See, e.g., Doe v. Rumsfeld, 683 F.3d 390, 391 (D.C. Cir. 2012). On January 30, 2004, Baginski was convicted in a Massachusetts trial court of driving a motor vehicle under the influence of alcohol. See 1st Am. Compl. ¶ 7, ECF No. 5. As relevant here, Massachusetts law classifies driving under the influence as a misdemeanor, and provides that anyone convicted of that offense "shall be punished ... by imprisonment for not more than two and one-half years." Mass. Gen. Laws ch. 90, § 24(1)(a)(1); see also, e.g., Commonwealth v. Savage, 430 Mass. 341, 719 N.E.2d 473, 477 & n.6 (1999) (citing section 24 and explaining that "an initial offense of operating a motor vehicle while under the influence of liquor is a misdemeanor," but that "three convictions in ten years for operating while under the influence is a felony"). As a result of his infraction, Baginski was sentenced to one year of probation, lost the ability to drive in Massachusetts for over 200 days, was ordered to pay certain fines and costs, and was ordered to attend an alcohol awareness class. See 1st Am. Compl. ¶ 8. He was not incarcerated. See id.
With the exception of minor traffic violations, Baginski alleges that he has never been convicted of any crime other than his single driving while under the influence offense. See id. ¶ 9. He states that he is "a responsible, law-abiding American citizen," that he "votes and pays his taxes," and represents that he "holds a Connecticut gaming license, and remains employed, as he has since November, 1996 without incident, in positions of significant trust at a casino." Id. ¶ 10. Baginski also alleges that he "has no history of violent behavior, or of any other conduct that would suggest he would pose any more danger by possessing
Despite his criminal conviction, Baginski "desires and intends to possess firearms for self-defense and for defense of his family." Id. ¶ 16. To that end, Baginski sought to purchase a firearm on May 25, 2010 in Rhode Island, where he resides. See id. ¶ 17. After the requisite seven-day waiting period, Baginski learned that the National Instant Criminal Background Check System ("NICS") "had advised that [he] was prohibited from possessing firearms." Id. According to Baginski's complaint, Rhode Island law would not prohibit him from possessing or carrying a firearm. Id. ¶ 12. But federal law, by contrast, makes it a criminal offense for a person "to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person... has been convicted in any court of[] a crime punishable by imprisonment for a term exceeding one year." 18 U.S.C. § 922(d)(1). Under federal law, Baginski is one such person. Federal law defines a "crime punishable by imprisonment for a term exceeding one year" to include all crimes except, as relevant here, state misdemeanor offenses that are "punishable by a term of imprisonment of two years or less." Id. § 921(a)(20)(B). And federal law similarly makes it a crime for individuals convicted of qualifying offenses to ship, transport, possess, or receive firearms or ammunition. Id. § 922(g)(1). As a result of his prior Massachusetts conviction, the firearm transaction was canceled. See 1st Am. Compl. ¶ 17.
Baginski appealed his NICS denial, during the pendency of which Rhode Island state officials again checked Baginski's eligibility to possess a firearm under state law. See id. ¶ 18. He was again cleared. See id. His NICS appeal was denied on September 16, 2010, however, and federal officials "stated that [Baginski] was prohibited from possessing firearms pursuant to 18 U.S.C. § 922(g)(1) on account of his single Massachusetts misdemeanor conviction for driving under the influence." Id. ¶ 19.
Baginski filed this lawsuit on July 29, 2015, against Loretta Lynch, Attorney General of the United States, and Thomas Brandon, Acting Director of the Bureau of Alcohol, Tobacco, Firearms, and Explosives, in their official capacities. See id. ¶¶ 2-3; Compl., ECF No. 1. Baginski seeks injunctive and declaratory relief on two counts. Count I asserts a statutory claim, and Baginski alleges that, pursuant to the plain language of 18 U.S.C. § 921(a)(20)(B), his Massachusetts driving under the influence conviction falls within the safe harbor for misdemeanor convictions capable of being punished by two years of incarceration or less and, therefore, that 18 U.S.C. § 922(g)(1) cannot be applied to him. See 1st Am. Compl. ¶¶ 21-23. Count II alleges a constitutional claim that 18 U.S.C. § 922(g)(1) is unconstitutional under the Second Amendment of the United States Constitution, as applied to his "unique personal circumstances, including but not limited to the nature of his misdemeanor conviction, the passage of time since that conviction, Baginski's generally law-abiding record over the years, his trustworthiness with firearms[,] and the lack of danger that his possession of firearms would pose." See id. ¶ 26.
The government has filed a motion to dismiss both counts of the complaint, contending that the plain language of 18 U.S.C. § 921(a)(20)(B) and binding precedent preclude Baginski's statutory claim and that his constitutional claim fails. See generally Defs.' Mem. P. & A. Supp. Defs.' Mot. Dismiss ("Defs.' Mem. Supp."), ECF No. 10. Baginski opposes the motion to dismiss on both fronts. See generally Pl.'s Mem. P. & A. Opp'n Defs.' Mot. Dismiss
The Federal Rules of Civil Procedure require that a complaint contain "a short and plain statement of the claim" in order to give the defendant fair notice of the claim and the grounds upon which it rests. Fed. R. Civ. P. 8(a)(2); accord Erickson v. Pardus, 551 U.S. 89, 93, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam). A motion to dismiss under Rule 12(b)(6) does not test a plaintiff's ultimate likelihood of success on the merits; rather, it tests whether a plaintiff has properly stated a claim. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), abrogated on other grounds by Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). A court considering such a motion presumes that the complaint's factual allegations are true and construes them liberally in the plaintiff's favor. See, e.g., United States v. Philip Morris, Inc., 116 F.Supp.2d 131, 135 (D.D.C. 2000). Nevertheless, "[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). This means that a plaintiff's factual allegations "must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Twombly, 550 U.S. at 555-56, 127 S.Ct. 1955 (citations omitted). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements," are therefore insufficient to withstand a motion to dismiss. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. A court need not accept a plaintiff's legal conclusions as true, see id. however, nor must a court presume the veracity of the legal conclusions that are couched as factual allegations, see Twombly, 550 U.S. at 555, 127 S.Ct. 1955.
In this memorandum opinion, the Court will address the government's motion to dismiss Baginski's claims on statutory grounds.
Baginski first claims that his predicate driving under the influence conviction is not "a crime punishable by imprisonment for a term exceeding one year," as defined by 18 U.S.C. § 921(a)(20)(B) and, therefore, that section 922(g)(1) is not applicable to him at all. See Pl.'s Opp'n at 6-13. Binding D.C. Circuit precedent, and the language of the statute, both dictate otherwise. Accordingly, the Court will grant the government's motion to dismiss Count I.
As referenced above, section 922(g)(1) makes it unlawful for a person "who has been convicted in any court of[] a crime punishable by imprisonment for a term exceeding one year" to ship, transport, possess, or receive firearms or ammunition. 18 U.S.C. § 922(g)(1). But, as other courts have recognized, "the words of § 922(g)(1) do not always mean what they say." United States v. Essig, 10 F.3d 968, 971 (3d Cir. 1993), superseded on other grounds by United States v. Turner, 677 F.3d 570 (3d Cir. 2012). That is because Congress drew a distinction between those crimes that a state classifies as a felony and those that a state classifies as misdemeanors. Specifically, section 921(a)(20) defines a "crime punishable by imprisonment for a term exceeding one year," in part, by exclusion. See 18 U.S.C. § 921(a)(20). As relevant here, that section states that "[t]he term `crime punishable by imprisonment for a term exceeding one year' does not include ... any State offense classified by the laws of the State as a misdemeanor and punishable by a term of imprisonment of two years or less." Id. § 921(a)(20)(B) (emphasis added).
Drawing on the "commonsense meaning of the term `punishable,'" courts have generally construed Congress's use of the phrase "punishable by" in section 922(g)(1) to refer to "any punishment capable of being imposed." Schrader v. Holder, 704 F.3d 980, 986 (D.C. Cir. 2013) (citing Webster's Third New International Dictionary 1843 (1993)); see Webster's, supra, at 1843 (defining the term "punishable" as: "deserving of, or liable to, punishment: capable of being punished by law or right"). Thus, for purposes of section 922(g)(1), courts look solely to the maximum possible punishment in determining whether a defendant's predicate conviction was for "a crime punishable by imprisonment for a term exceeding one year." 18 U.S.C. § 922(g)(1). For example, the Supreme Court rejected a defendant's claim that he did not fall within the statute because he was sentenced only to a period of probation, finding the actual sentence imposed was "irrelevant." Dickerson v. New Banner Inst., Inc., 460 U.S. 103, 113, 103 S.Ct. 986, 74 L.Ed.2d 845 (1983).
Thus, if the phrase "punishable by" as used in the misdemeanor exclusion similarly refers to the maximum possible punishment, the exception for misdemeanor offenses only excludes those predicate offenses for which the maximum possible sentence is two years or less — and for which there is thus no possibility that an individual can be sentenced to a term of imprisonment exceeding two years. In Baginski's case, the Massachusetts misdemeanor driving under the influence offense for which he was convicted carries a potential penalty of up to two and a half years imprisonment. See Mass. Gen. Laws ch. 90 § 24(1)(a)(1). As a result — because the crime for which Baginski was convicted was punishable by a term of imprisonment for more than two years — section 922(g)(1) would appear to apply to him.
Nevertheless, Baginski claims that the phrase "punishable by" does not refer solely to the maximum penalty — at least in the misdemeanor context. He concedes that the phrase refers to the predicate crime's potential punishment, but he argues that a crime's "potential" punishment and a crime's "maximum" punishment only align perfectly when the statute references the upper end of a sentencing range — as it does when section 922(g)(1) refers to crimes punishable by imprisonment for a term exceeding one year. See Pl.'s Opp'n at 3. Baginski claims, however, that because the misdemeanor exclusion refers to crimes for which a possible sentence falls below a particular term of imprisonment, the statute excludes all misdemeanors for which the court retains discretion to sentence a defendant — and thus the defendant is capable of being sentenced — to a term of imprisonment of two years or less. See id.; see also id. at 7-8. Despite the fact that Massachusetts provides for a potential term of imprisonment of up to two and a half years for driving under the influence, Baginski contends that the offense is still "`capable of being punished by' a sentence of `two years or less,'" as his own sentence of probation demonstrates. Id. at 7. Moreover, because courts always retain discretion to impose a sentence below the maximum possible penalty in the absence of a statutory mandatory minimum, Baginski claims that section 921(a)(20)(B) excludes any misdemeanor offense for which there is no mandatory minimum. See id. at 7-8.
Baginski's reading has some superficial appeal when the phrase "punishable by" is equated simply with "capable of being imposed" and is viewed only in the abstract. Nonetheless, the Court ultimately disagrees with Baginski's reading for several reasons. Most importantly, as Baginski acknowledges, his argument is "foreclosed, at least in this circuit." Pl.'s Opp'n at 2. In Schrader v. Holder, the D.C. Circuit concluded that a defendant's predicate conviction for a common law misdemeanor fell within section 922(g)(1)'s definition, even though the offense did not have a statutorily proscribed maximum penalty. 704 F.3d 980, 984-88 (D.C. Cir. 2013). In the course of its discussion, and as relevant here, the circuit stated that the term "punishable," as used in the misdemeanor exclusion, "refers to the maximum potential punishment a court can impose." Id. at 986 (emphasis added). To be sure, Baginski's exact argument was not before the circuit. But it is instructive that the circuit read "punishable by" to refer to the predicate crime's maximum penalty. In the same vein, the Supreme Court indicated (albeit in a case where the petitioner did not dispute the meaning of the phrase) that it similarly reads the statute to make a misdemeanor "a predicate for a felon-in-possession conviction" under section 922(g)(1) "only if the offense is punishable by more than two years in prison." Logan v. United States,
Even though Baginski's specific statutory argument was not advanced in most of the cases listed above, the Court hastens to add that several considerations confirm that these courts' reading of the misdemeanor exclusion is the correct one. First, while the phrase "punishable by" certainly refers to a predicate crime's potential penalty, in American legal parlance the phrase is typically used more specifically to connote only the maximum potential penalty. This is true even where, like here, reference is made to all crimes for which the maximum sentence falls below a particular threshold. For example, the Supreme Court recently employed the phrase in the course of describing its Sixth Amendment case law. As the Court explained, the right to a jury trial does not attach to petty offenses. See S. Union Co. v. United States, 567 U.S. 343, 132 S.Ct. 2344, 2351, 183 L.Ed.2d 318 (2012). Whether an offense is petty is "measured by the `severity of the maximum authorized penalty,'" and the Court has established a rebuttable presumption that "offenses punishable by six months' imprisonment or less are petty." Id. (emphasis added) (quoting Blanton v. City of North Las Vegas, 489 U.S. 538, 541, 109 S.Ct. 1289, 103 L.Ed.2d 550 (1989)). The D.C. Circuit has similarly referred to misdemeanors as "offenses punishable by imprisonment for one year or less" — which, under Baginski's understanding of the phrase, would oddly encompass all offenses also punishable by more than a year that lack a mandatory minimum. See Franklin v. District of Columbia, 163 F.3d 625, 632 (D.C. Cir. 1998). A third example is provided in the Federal Rules of Criminal Procedure, which also uses "punishable by" in combination with a particular term of imprisonment in the same way. Rule 7(a)(2) states that "[a]n offense punishable by imprisonment for one year or less may be prosecuted in accordance with Rule 58(b)(1)" — that is, by way of a criminal information or complaint, in lieu of an indictment — while an offense punishable by "imprisonment for more than one year" must proceed by way of an indictment unless the defendant waives prosecution by indictment. Fed. R. Crim. P. 7(a)(2), (b); see also Fed. R. Crim. P. 58(b)(1).
Moreover, Congress's use of "punishable by" in section 921(a)(20)(B) to refer to misdemeanors for which the maximum incarcerative
Beyond his argument concerning section 921(a)(20)(B), Baginski does not identify a single instance in which Congress used the phrase "punishable by" untethered from a predicate crime's maximum punishment. He does invoke the "basic canon of statutory construction that identical terms within an Act bear the same meaning." Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469, 479, 112 S.Ct. 2589, 120 L.Ed.2d 379 (1992). Yet, as already explained, Baginski's argument extends the definition of "capable of being imposed" too far. Given the consistent usage of "punishable by" to connote the predicate offense's maximum possible punishment, Congress's use in 922(g)(1) and 922(a)(20)(B) is consistent. Nor does the Court believe that Congress's use of the qualifier "or less," rather than "exceeding" commands a different interpretation. The qualifier merely indicates that the term of imprisonment identified in section 921(a)(B)(20) operates as a ceiling, rather than a floor. Thus, while a predicate offense must be subject to a maximum term of imprisonment of no less than a year to be "punishable by a term exceeding one year," a predicate misdemeanor offense must be subject to a maximum term of imprisonment for no more than two years, to be "punishable by two years or less." In either case, Congress tasked courts with comparing the predicate offense's term of imprisonment with the relevant term identified in section 921(a)(20): two years for misdemeanors, and one year for other offenses. In either case, the relevant comparison point is the maximum potential penalty of the predicate crime.
Ultimately, the Court does not lightly assume that, when Congress employed the phrase "punishable by" in section 921(a)(20)(B), it intended to depart from the consistent usage of that phrase. And even if there existed some marginal doubt about Congress's intended meaning, the legislative history resolves it. The House of Representatives Conference Report for the Gun Control Act of 1968, which discussed this provision, indicates that the House and Senate versions of the legislation initially sought to apply the firearm possession proscription to different sets of predicate crimes. See H.R. Rep. No. 90-1956, at 28-29 (1956) (Conf. Rep.), as reprinted in 1968 U.S.C.C.A.N. 4426, 4428. The House proposal applied to all crimes
Having found the statute clear, the rule of lenity and the canon of constitutional avoidance are inapplicable. See, e.g., Voisine v. United States, ___ U.S. ___, 136 S.Ct. 2272, 2282 n.6, 195 L.Ed.2d 736 (2016) (explaining that "neither of those arguments can succeed if the statute is clear"). Moreover, the mere possibility that an as-applied constitutional challenge might succeed under some limited circumstances does not counsel in favor of reading the statute, generally, in the manner Baginski urges. See Reno v. Flores, 507 U.S. 292, 314 n.9, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993) ("Statutes should be interpreted to avoid serious constitutional doubts, not to eliminate all possible contentions that the statute might be unconstitutional." (internal citation omitted)).
Baginski's predicate misdemeanor driving under the influence offense qualifies as a crime "punishable by imprisonment for a term exceeding one year," as that phrase is defined in section 921(a)(20)(B), because Massachusetts law makes that offense punishable by a term of imprisonment that exceeds two years. Accordingly, the government's motion to dismiss Count I is granted.
However, Baginski has plausibly pled facts which, if proven, might show that he falls within the core of the Second Amendment's protection and outside the presumptively lawful scope of section 922(g)(1). See Schrader, 704 F.3d at 988-89, 991. Therefore, Defendants' motion to dismiss is denied with respect to Count II.
Baginski has also filed a motion for summary judgment, of which the Court deferred consideration until it was able to assess the government's motion to dismiss. In its motion to stay summary judgment briefing, the government indicated that "if Plaintiff's claims survive a motion to dismiss, [those claims] may require further factual development before the parties can meaningfully brief summary judgment." Defs.' Mot. Stay Summ. J. Briefing & Extension Time at 3, ECF No. 15. The government raised the possibility that it might seek to pursue discovery concerning Baginski's personal circumstances. Id. at 4. In light of the Court's determination that an analysis of Baginski's personal circumstances — and whether he is a "`law-abiding, responsible citizen[]' whose possession of firearms is, under District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), protected by the Second
For the foregoing reasons and those stated during the January 10, 2017 status conference, the government's motion to dismiss (ECF No. 10) is
