IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

Transcription

1 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA JASON MERSCHAT, CIVIL DIVISION Plaintiff Case No v. JEFFERSON B. SESSIONS, III, Attorney General of the United States, in his official capacity; and THOMAS E. BRANDON, Acting Director of the Bureau of Alcohol, Tobacco, Firearms and Explosives, in his official capacity, Defendants. AMENDED CIVIL ACTION COMPLAINT AND NOW, comes Plaintiff, Jason Merschat by and through his undersigned counsel, and respectfully submits: THE PARTIES 1. Plaintiff, Jason Merschat (hereinafter Plaintiff ), is an adult individual, natural person and citizen of the Commonwealth of Pennsylvania and of the United States of America, currently residing in Beaver County. Plaintiff intends to and/or has a desire to purchase a firearm, for the purpose of self-protection, hunting and business which includes work with Proof Research, a client in the gun manufacturing business. Plaintiff is the Founder and President of Advanced Process Optimization, Inc. (APO), a process improvement consulting firm helping companies improve their operational performance and save millions in unnecessary costs. Before forming APO, Plaintiff worked for IBM as a consultant, in nanotechnology as an operations executive, steel industry equipment engineering as a

2 sales executive, a union steelworker for US Steel, and prior to that, a plumber. Plaintiff holds an MBA from Carnegie Mellon s Tepper School of Business and a B.S. in Electro-Mechanical Engineering from Penn State University. 2. Defendant, Jefferson B. Sessions, III (hereinafter Defendant Sessions ), is the current Attorney General of the United States of America. Defendant Sessions is responsible for enforcement of the laws of the United States of America. Defendant Sessions is sued in his official capacity as the Attorney General of the United States of America. 3. Defendant, Byron Todd Jones (hereinafter Defendant Jones ), is the Acting Director of the Bureau of Alcohol, Tobacco, Firearms and Explosives. Defendant Jones is responsible for enforcement of the laws of the United States of America, particularly those involving the purchase, possession and use of firearms. Defendant Jones is sued in his official capacity as the Director of the Bureau of Alcohol, Tobacco, Firearms and Explosives. Byron Todd Jones was the Director of the ATF. Strangely, a Google search for acting director ATF brings up Byron Todd Jones but with a picture of Thomas E. Brandon. It is the ATF that is the true defendant n this matter. JURISDICTION AND VENUE 4. This Honorable Court has jurisdiction of this action pursuant to 28 U.S.C. 1331, 1343, 1346, 2201 and Venue is proper in this Honorable Court pursuant to 28 U.S.C (e)(1)(b) and (C) as Plaintiff resides in the Western District of Pennsylvania and, if permitted to possess a firearm, would primarily possess such in the Western District of Pennsylvania U.S.C permits an action at law or suit in equity to redress the deprivation of any rights, privileges, or immunities secured by the Constitution, including the 2 nd Amendment to the Constitution of the United States of America.

3 FACTUAL BACKGROUND 7. Plaintiff is forty-five (45) years old, is not currently indicted for or charged with any crimes, has never been convicted of a felony, a crime of domestic violence, is not a fugitive from justice, is not presently addicted to controlled substances nor does he have a problem with alcohol, has not been dishonorably discharged from any branch of the military, has never renounced his natural citizenship and has never a had a Protection from Abuse, or similar type of restraining order, entered against him. 5. On August 3, 2010, Plaintiff was found guilty by a jury of, inter alia, Driving Under the Influence (75 Pa.C.S. 3802(c)), which was graded as a misdemeanor of the first degree punishable by a maximum of five (5) years under Pennsylvania law. (Allegheny County CR No ). Plaintiff s blood alcohol content was determined to be.195 % based on a sample of blood taken from Plaintiff within two (2) hours of when he was stopped by a Pennsylvania State Trooper for speeding. Had Defendant s blood alcohol content been above.08% but less than.10%, which could have meant that Plaintiff presented the same or similar, but not identical danger, to other motorists on the night of his arrest (3/19/09), the offense he could have been charged with under Pennsylvania law would have been an ungraded misdemeanor, punishable by a maximum of six (6) months. (75 Pa.C.S. 3804). It is believed that had Plaintiff s blood alcohol content been.159, it is believed that he would not have been convicted of a crime punishable by more than a year. Had Plaintiff been arrested, at a point when his case would still have been active at the time of the decision of the United States Supreme Court in Birchfield v. North Dakota, U.S., 136 S.Ct (2016), the Commonwealth would likely have only been able to obtain a conviction under 75 Pa.C.S.A. 3802(a), as evidence of Plaintiff s blood alcohol content would likely have been suppressed. 6. To further explain this, Pennsylvania s DUI laws are set forth as follows:

4 75 Pa.C.S.A (a) General impairment. (1) An individual may not drive, operate or be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the individual is rendered incapable of safely driving, operating or being in actual physical control of the movement of the vehicle. (2) An individual may not drive, operate or be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the alcohol concentration in the individual's blood or breath is at least 0.08% but less than 0.10% within two hours after the individual has driven, operated or been in actual physical control of the movement of the vehicle. (b) High rate of alcohol.--an individual may not drive, operate or be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the alcohol concentration in the individual's blood or breath is at least 0.10% but less than 0.16% within two hours after the individual has driven, operated or been in actual physical control of the movement of the vehicle. (c) Highest rate of alcohol.--an individual may not drive, operate or be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the alcohol concentration in the individual's blood or breath is 0.16% or higher within two hours after the individual has driven, operated or been in actual physical control of the movement of the vehicle. (g) Exception to two-hour rule.--notwithstanding the provisions of subsection (a), (b), (c), (e) or (f), where alcohol or controlled substance concentration in an individual's blood or breath is an element of the offense, evidence of such alcohol or controlled substance concentration more than two hours after the individual has driven, operated or been in actual physical control of the movement of the vehicle is sufficient to establish that element of the offense under the following circumstances: (1) where the Commonwealth shows good cause explaining why the chemical test sample could not be obtained within two hours; and (2) where the Commonwealth establishes that the individual did not imbibe any alcohol or utilize a controlled substance between the time the individual was arrested and the time the sample was obtained. 75 Pa.C.S.A (a) Basic offenses.-- Except as provided in subsection (b): (1) An individual who violates section 3802(a) (relating to driving under influence of alcohol or controlled substance) and has no more than one prior offense commits a misdemeanor for which the individual may be sentenced to a term of imprisonment of not more than six months and to pay a fine under section 3804 (relating to penalties). (2) An individual who violates section 3802(a) and has more than one prior offense commits a misdemeanor of the second degree. (b) Other offenses.--

5 (1) An individual who violates section 3802(a)(1) where there was an accident resulting in bodily injury, serious bodily injury or death of any person or in damage to a vehicle or other property, or who violates section 3802(b), (e) or (f) and who has no more than one prior offense commits a misdemeanor for which the individual may be sentenced to a term of imprisonment of not more than six months and to pay a fine under section (2) An individual who violates section 3802(a)(1) where the individual refused testing of blood or breath, or who violates section 3802(c) or (d) and who has no prior offenses commits a misdemeanor for which the individual may be sentenced to a term of imprisonment of not more than six months and to pay a fine under section (3) An individual who violates section 3802(a)(1) where there was an accident resulting in bodily injury, serious bodily injury or death of any person or in damage to a vehicle or other property, or who violates section 3802(b), (e) or (f) and who has more than one prior offense commits a misdemeanor of the first degree. (4) An individual who violates section 3802(a)(1) where the individual refused testing of blood or breath, or who violates section 3802(c) or (d) and who has one or more prior offenses commits a misdemeanor of the first degree. (5) An individual who violates section 3802 where a minor under 18 years of age was an occupant in the vehicle when the violation occurred commits a misdemeanor of the first degree. 75 Pa.C.S.A (a) General impairment.--except as set forth in subsection (b) or (c), an individual who violates section 3802(a) (relating to driving under influence of alcohol or controlled substance) shall be sentenced as follows: (1) For a first offense, to: (i) undergo a mandatory minimum term of six months' probation; (ii) pay a fine of $300; (iii) attend an alcohol highway safety school approved by the department; and (iv) comply with all drug and alcohol treatment requirements imposed under sections 3814 (relating to drug and alcohol assessments) and 3815 (relating to mandatory sentencing). (2) For a second offense, to: (i) undergo imprisonment for not less than five days; (ii) pay a fine of not less than $300 nor more than $2,500; (iii) attend an alcohol highway safety school approved by the department; and (iv) comply with all drug and alcohol treatment requirements imposed under sections (3) For a third or subsequent offense, to: (i) undergo imprisonment of not less than ten days; (ii) pay a fine of not less than $500 nor more than $5,000; and (iii) comply with all drug and alcohol treatment requirements imposed under sections (b) High rate of blood alcohol; minors; commercial vehicles and school buses and school vehicles; accidents.--except as set forth in subsection (c), an individual who

6 violates section 3802(a)(1) where there was an accident resulting in bodily injury, serious bodily injury or death of any person or damage to a vehicle or other property or who violates section 3802(b), (e) or (f) shall be sentenced as follows: (1) For a first offense, to: (i) undergo imprisonment of not less than 48 consecutive hours; (ii) pay a fine of not less than $500 nor more than $5,000; (iii) attend an alcohol highway safety school approved by the department; and (iv) comply with all drug and alcohol treatment requirements imposed under sections (2) For a second offense, to: (i) undergo imprisonment of not less than 30 days; (ii) pay a fine of not less than $750 nor more than $5,000; (iii) attend an alcohol highway safety school approved by the department; and (iv) comply with all drug and alcohol treatment requirements imposed under sections (3) For a third offense, to: (i) undergo imprisonment of not less than 90 days; (ii) pay a fine of not less than $1,500 nor more than $10,000; and (iii) comply with all drug and alcohol treatment requirements imposed under sections (4) For a fourth or subsequent offense, to: (i) undergo imprisonment of not less than one year; (ii) pay a fine of not less than $1,500 nor more than $10,000; and (iii) comply with all drug and alcohol treatment requirements imposed under sections (c) Incapacity; highest blood alcohol; controlled substances.--an individual who violates section 3802(a)(1) and refused testing of breath under section 1547 (relating to chemical testing to determine amount of alcohol or controlled substance) or testing of blood pursuant to a valid search warrant or an individual who violates section 3802(c) or (d) shall be sentenced as follows: (1) For a first offense, to: (i) undergo imprisonment of not less than 72 consecutive hours; (ii) pay a fine of not less than $1,000 nor more than $5,000; (iii) attend an alcohol highway safety school approved by the department; and (iv) comply with all drug and alcohol treatment requirements imposed under sections (2) For a second offense, to: (i) undergo imprisonment of not less than 90 days; (ii) pay a fine of not less than $1,500; (iii) attend an alcohol highway safety school approved by the department; and (iv) comply with all drug and alcohol treatment requirements imposed under sections (3) For a third or subsequent offense, to: (i) undergo imprisonment of not less than one year; (ii) pay a fine of not less than $2,500; and

7 (iii) comply with all drug and alcohol treatment requirements imposed under sections (c.1) Violation involving minor occupant.--an individual who violates section 3803(b)(5) (relating to grading), in addition to any penalty imposed in this chapter, shall be sentenced as follows: (1) For a first offense, to: (i) pay a fine of not less than $1,000; and (ii) complete 100 hours of community service. (2) For a second offense, to: (i) pay a fine of not less than $2,500; and (ii) undergo imprisonment of not less than one month nor more than six months. (3) For a third or subsequent offense, undergo imprisonment of not less than six months nor more than two years. In Commonwealth v. Giron, 155 A.3d 635 (Pa.Super ), the Pennsylvania Superior Court held that it was unconstitutional to punish a DUI offender to higher penalties (mandatory minimum and grading) if they refused chemical testing of blood. In Commonwealth v. Evans, 153 A.3d 323 (Pa.Super. 2017), the Pennsylvania Superior Court held that a blood sample, given upon threat of enhanced criminal penalties for refusing to provide such, must be suppressed. It is debatable whether blood alcohol content must be suppressed if obtained upon threat of enhanced criminal penalties for refusing to provide. A prosecutor might still contend that, under the totality of the circumstances, the blood was obtained voluntarily. It is doubtful this contention would have merit though. 7. On November 3, 2010, Plaintiff was sentenced to not less than ninety (90) nor more than one hundred eighty (180) days with four (4) years of probation. 8. Plaintiff filed a timely appeal, but his judgment of sentence was affirmed by the Pennsylvania Superior Court. Plaintiff filed a timely petition for post-conviction relief, which was denied. The order denying Plaintiff post-conviction relief was affirmed by the Pennsylvania Superior Court.

8 9. Plaintiff completed his sentence without incident. As part of said sentence, Defendant completed the Alcohol Highway Safety School on June 18, 2011 and satisfactorily completed outpatient treatment at Pyramid Healthcare on October 10, (Attachment A ). THE LAW WHICH PREVENTS PLAINTIFF FROM POSSESSING OR PURCHASING A FIREARM U.S.C. 922(g)(1) prohibits the possession of a firearm by any person convicted of a crime punishable by imprisonment for a term exceeding one year. A person convicted of violating 18 U.S.C. 922(g)(1) is guilty of a felony punishable by up to ten (10) years in prison. 18 U.S.C. 924(a)(2). 11. The 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. 18 U.S.C. 921(a)(20). 12. It is clear then that had Plaintiff s blood alcohol content on the night of his arrest been determined to be less than.10, he would never have been convicted of a crime punishable by imprisonment for a term exceeding one year. It is also clear that had Plaintiff s blood alcohol content been less than.16, even as high as.159, he may not have been convicted of crime punishable by imprisonment for a term exceeding one year. Plaintiff avers that a right as important as that granted to him by the 2 nd Amendment of the Constitution of the United States of America should never be denied or interfered with by such arbitrary factors U.S.C. 921(d)(1) prohibits anyone from transferring a firearm to anyone the transferor has reason to know has been convicted of a crime punishable by imprisonment for a term exceeding one year.

9 14. If one wishes to purchase a firearm in the Commonwealth of Pennsylvania, he or she must complete ATF Form 4473 which asks the purchaser [h]ave you ever been convicted in any court of a felony, or any other crime, for which the judge could have imprisoned you for more than one year? A purchaser in the Commonwealth of Pennsylvania must also complete Pennsylvania State Police Form SP-4-113, which asks a similar question. The PSP Form asks the applicant have you ever been convicted of a crime enumerated in section 6105 (c) or do any conditions under 6105 (c) apply to you? Answering yes to either of said questions will result in the firearm not being sold or transferred. See Bureau of Alcohol, Tobacco and Firearms FFL Newsletter, May, 2001, Issue I, at 14 and Bureau of Alcohol, Tobacco and Firearms FFL Newsletter, September, 1999, Issue II, at 2. Answering no, where the appropriate answer should be yes, even when the somewhat vague questions and accompanying definitions and explanations contained in either form are considered, can subject one to criminal prosecution under federal and state law. See 18 Pa.C.S.A. 6111(g)(4)(ii) and 18 Pa.C.S.A. 4904(b). 15. Plaintiff cannot possess or purchase a firearm due to his 2009 DUI conviction. 16. Plaintiff, at the present time, cannot utilize 18 Pa.C.S.A. 6105(d)(3), to remove the disability as such requires both that ten (10) years have elapsed from conviction and the [t]he Secretary of the Treasury of the United States has relieved the applicant of an applicable disability imposed by Federal law upon the possession, ownership or control of a firearm as a result of the applicant's prior conviction, except that the court may waive this condition if the court determines that the Congress of the United States has not appropriated sufficient funds to enable the Secretary of the Treasury to grant relief to applicants eligible for the relief. Moreover, there is no Pennsylvania law that itself prohibits Plaintiff from possessing or purchasing a firearm. COUNT ONE PLAINTIFF S CLAIM FOR INJUNCTIVE RELIEF AS APPLIED CHALLENGE TO 18 U.S.C. 922(g)(1)

10 16. Plaintiff incorporates paragraphs one (1) through fifteen (15) as though set forth at length herein. 17. Plaintiff desires to purchase a firearm for self-protection, hunting and to aid him in his business endeavors. 18. Plaintiff is a responsible, law-abiding American citizen. He has no history of violent behavior. There is no legitimate reason to believe that he, at the present time, would pose any greater danger from possessing a firearm than the average law-abiding citizen who is permitted to possess such. In fact, Plaintiff presents, at the present time, less of a risk than many who are lawfully permitted to possess and purchase a firearm. Plaintiff s disability comes from a DUI conviction. Under Pennsylvania s DUI scheme, those with three (3) or more DUI convictions, whether due to timing in between such, the blood alcohol content or other factors involved, can lawfully possess a firearm, however, Plaintiff cannot. 19. Plaintiff s 2 nd Amendment rights are being interfered with arbitrarily due to Pennsylvania s DUI statutory scheme. Had Plaintiff s blood alcohol content been eighteen (18) to twenty (20) percent lower on the night of his DUI arrest (3/19/09), whether because he had one (1) or two (2) less drinks or because the arresting officer would have obtained his blood sample earlier or later, Plaintiff would likely not be prohibited from possessing a firearm. Had it been lower than.10 then clearly he would not be prohibited from possessing a firearm. 20. It is difficult to ascertain what the justifications are for excluding from 2 nd Amendment protections the class of which Plaintiff appears to be a member. Pennsylvania s current DUI statute was implemented in For a period of time long before 2004, all DUIs were charged as misdemeanors of the second degree punishable by no more than two (2) years. See 75 Pa.C.S. 3731(e). Pennsylvania itself has not deemed Plaintiff a person not permitted to possess a firearm. Historically, felons have been

11 prohibited from possessing and purchasing firearms. Such is clearly lawful and presents no 2 nd Amendment concerns. See District of Columbia v. Heller, 554 U.S. 570, 626 & 627 n.26 (2008). The 2 nd Amendment has not only been interpreted to not be violated when felons are stripped of their right to bear arms but also unvirtuous citizens. See United States v. Vongxay, 594 F.3d 1111, 1118 (9th Cir. 2010). 21. Plaintiff is not an unvirtuous citizen. 22. Depending on how one defines historically, Plaintiff is not part of a class of people that have historically lost or forfeited their 2 nd Amendment rights. Plaintiff avers that he should never have lost his 2 nd Amendment rights and, even if he should have, at the present time, he is a person deserving of having such restored. 23. Plaintiff committed a crime, but it is not one that should be considered a serious crime compared to those crimes which have historically resulted in forfeiture of the right to bear arms. 24. Plaintiff s crime was not serious enough to permanently strip him of his Second Amendment rights. Plaintiff has not surveyed the DUI laws of every state but it appears, for instance, that in West Virginia, a second DUI offense, with no death or serious bodily injury, can never be greater than a misdemeanor punishable by more than one (1) year. See W. Va. Code, 17C-5-2. In New Jersey, it appears that a person convicted of a second DUI offense cannot be punished for more than ninety (90) days. See N.J.S.A. 39: It is a violation of Plaintiff s right to bear arms under the 2 nd Amendment to prohibit him from lawfully possessing a firearm under all of the aforementioned circumstances. 18 U.S.C. 922(g)(1), as applied to Plaintiff, is unconstitutional in that it violates the rights granted to him by the 2nd Amendment.

12 26. It is a violation of Plaintiff s right to Due Process to prohibit him from lawfully possessing a firearm under all of the aforementioned circumstances. The basis for the disability imposed on Plaintiff is an arbitrary DUI statutory scheme that does not bear any relation to the actual danger imposed by a DUI violator to the public at large. This is particularly true with respect to utilizing such to determine if Plaintiff s 2 nd Amendment rights should be interfered with or forfeited. WHEREFORE Plaintiff, Jason Merschat, respectfully requests the following: (a) (b) (c) (d) A declaration or order that 18 U.S.C. 922(g)(1) cannot be applied to or against Plaintiff, Jason Merschat, on account of his 2010 DUI conviction; A declaration or order that application of 18 U.S.C. 922(g)(1) against Plaintiff, Jason Merschat, on account of his 2010 DUI conviction violates the 2 nd Amendment; A declaration or order to the Pennsylvania State Police that Plaintiff may lawfully purchase and possess a firearm and that any answer of no to any question on an application to purchase or carry a firearm to a question that asks Plaintiff if he has been found guilty of a disabling offense shall be deemed correct; and Other relief as is just and proper. length herein. COUNT TWO AS APPLIED AND FACIAL CHALLENGE TO 18 U.S.C. 922(g)(1) EQUAL PROTECTION 27. Plaintiff incorporates paragraphs one (1) through twenty-six (26) as though set forth at 28. Defendant was conceited of a second offense DUI, which was graded as a misdemeanor of the first degree under applicable Pennsylvania law. 29. It is believed that had Plaintiff committed the same acts in California, Maryland, Ohio, Texas, West Virginia and elsewhere in the United States, and was convicted of a second offense DUI, it is believed that he would not be prohibited from purchasing or possessing a firearm by 18 U.S.C.

13 922(g)(1). Many who committed acts similar to Plaintiff and were convicted of DUI in other states are not prohibited from purchasing or possessing a firearm by 18 U.S.C. 922(g)(1). 30. Had Plaintiff had committed the same acts in Pennsylvania prior to February of 2004, he would not be prohibited from purchasing or possessing a firearm by 18 U.S.C. 922(g)(1). Many who committed acts similar to Plaintiff and were convicted of DUI in Pennsylvania, prior to February of 2004 are not prohibited from purchasing or possessing a firearm by 18 U.S.C. 922(g)(1). 31. Defendant s right to bear arms and right to equal protection under the laws is being violated by 18 U.S.C. 922(g)(1). WHEREFORE Plaintiff, Jason Merschat, respectfully requests the following: (a) (c) (c) (d) A declaration or order that 18 U.S.C. 922(g)(1) cannot be applied to or against Plaintiff, Jason Merschat, on account of his 2010 DUI conviction; A declaration or order that application of 18 U.S.C. 922(g)(1) against Plaintiff, Jason Merschat, on account of his 2010 DUI conviction violates the 4th Amendment; A declaration or order to the Pennsylvania State Police that Plaintiff may lawfully purchase and possess a firearm and that any answer of no to any question on an application to purchase or carry a firearm to a question that asks Plaintiff if he has been found guilty of a disabling offense shall be deemed correct; and Other relief as is just and proper. /s/ Robert E. Mielnicki, Esquire Attorney for Plaintiff PA ID No Suite Forbes Avenue Pittsburgh, PA (412) rmielnick@comcast.net

14 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA JASON MERSCHAT, Case No Plaintiff v. JEFFERSON B. SESSIONS, III, Attorney General of the United States, in his official capacity; and THOMAS E. BRANDON, Acting Director of the Bureau of Alcohol, Tobacco, Firearms and Explosives, in his official capacity, Defendants PROOF OF SERVICE The undersigned counsel hereby certifies that on January 12, 2018, a true and correct copy of the Amended Complaint was served by certified mail on the following: Attorney General Jefferson B. Sessions, III United States Department of Justice 950 Pennsylvania Avenue Washington, D.C Acting Director Thomas E. Brandon Bureau of Alcohol, Tobacco, Firearms and Explosives 99 New York Avenue, N.E. Washington, D.C United States Attorney for the Western District of Pennsylvania 700 Grant Street Suite 400 Pittsburgh, PA /s/ Robert E. Mielnicki, Esquire Robert E. Mielnicki, Esquire