The Volokh Conspiracy

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Second Amendment Right Regained, Despite 20-Year-Old Conviction

Federal law treated the conviction -- for altering a motor vehicles department certificate that allowed the owner to have tinted windows on his car -- as a felony, because the maximum penalty was five years in prison. But state law treated it as a misdemeanor, and the defendant was sentenced only to a year's probation.


From yesterday's decision in Miller v. Sessions (E.D. Pa.):

The background of this case revolves around a 1998 misdemeanor conviction. Miller was pulled over for having window-tint on his car that, according to the patrolman who stopped him, was too dark. He had previously received an exemption from the Pennsylvania Department of Transportation ("PennDOT") for tinted windows on a previously owned car. Miller did not apply for a new exemption for his new car. Instead, with the aid of a typewriter, white-out, and a scanner, Miller replaced his previously owned car's Vehicle Identification Number ("VIN") on the exemption certificate with the VIN of his new car.

Miller presented this altered PennDOT certificate to the Magisterial District Justice at his hearing regarding the window-tint violation. Based on the asserted authenticity of this certificate, he was found not guilty of the window-tint violation. After the hearing, the patrolman who had originally stopped Miller requested a copy of the PennDOT certificate that Miller had proffered to the court. When the patrolman attempted to verify its authenticity, PennDOT informed him that Miller had never obtained a window-tint exemption for his new car. PennDOT informed the patrolman that Miller had only ever received a window-tint exemption for his previously owned car. It then became apparent that the certificate evidencing the window-tint exemption proffered in court had been altered and was not authentic.

As a result, Miller was charged with and later pleaded guilty to possessing and using documents issued by PennDOT that he knew were altered in violation of 75 Pa. Cons. Stat. § 7122(3). Miller was sentenced to a year of probation, which he completed successfully, and has had a spotless record ever since.

Pennsylvania misdemeanors, unlike misdemeanors in most states, are punishable by up to five years in prison, which makes them felonies for federal firearm disqualification purposes. But that, the court says, violates the Second Amendment in this case:

In Binderup v. Att'y Gen. (3d Cir. 2016) (en banc), [Judge Ambro's plurality opinion] identified four factors to consider when determining if a challenger has been convicted of a serious crime. Specifically, the Court looks to (1) whether the state legislature classifies the offense as a felony or a misdemeanor; (2) whether the offense was violent; (3) the actual punishment imposed; and (4) any cross-jurisdictional consensus regarding the offense's seriousness….

As to the first factor, Pennsylvania has classified Miller's crime as a misdemeanor. It is punishable by imprisonment for up to five years, and although the "maximum possible punishment is 'certainly probative' of the offense's seriousness," the classification by the state legislature as a misdemeanor is an important consideration. Indeed, such a classification is "a powerful expression of [the state legislature's] belief that the offense is not serious enough to be disqualifying." Although labeling an offense as a misdemeanor is not conclusive, it is important in the Second Amendment context because it reflects the legislature's assessment of the seriousness of the offense. As the D.C. Circuit has observed, "[w]hen the legislature designates a crime as a felony, it signals to the world the highest degree of societal condemnation for the act, a condemnation that a misdemeanor does not convey." Here, given that the legislature has classified this type of offense as a misdemeanor, this factor weighs in Miller's favor.

As to the second factor, the Court must consider whether the offense had a violent element. In the instant case, the crime was wholly non-violent. Although "it is possible for nonviolent crimes to be serious, the lack of a violence element is a relevant consideration." Again, here, this factor weighs in Miller's favor.

As to the third factor, the Court considers the actual punishment imposed. As the label of a misdemeanor reflects the legislature's assessment of the offense, the actual punishment imposed reflects a judicial assessment of the gravity of the offense. Here, Miller was sentenced to a year of probation, which he completed successfully. Just as it was important in Binderup that the challengers each received minor sentences, it is important in Miller's case, too. As the Third Circuit noted, "severe punishments are typically reserved for serious crimes." Accordingly, this factor also weighs in Miller's favor.

As to the fourth factor, the Court considers whether there is cross-jurisdictional consensus regarding the seriousness of the offense. In Binderup, the challengers could not show that numerous states considered their crimes to be non-serious, but they did show a lack of consensus across jurisdictions. Here, Miller has also not shown a cross-jurisdictional consensus that many states consider his crime to be non-serious. On the other hand, the Government's fifty-state survey suggests that many states punish similar crimes by more than one year of imprisonment and label similar crimes as a felony. Miller, however, disputes the similarity of a number of the other states' crimes, pointing out, for example, that his offense only required possession and use of an altered PennDOT document while many of the offenses in the Government's survey require the offender to alter or forge a document. Whatever the relative merits of the parties' arguments, the Court need not compare the similarities and differences between Miller's crime and the crimes in the Government's survey because even if this factor is given some weight in the Government's favor, it does not outweigh the other three factors that weigh in Miller's favor.

Thanks to Prof. Glenn Reynolds (InstaPundit) for the pointer.