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Everytown for Gun Safety Files Brief Asking U.S. Supreme Court to Grant Review in Major Second Amendment Case


WASHINGTON – Everytown for Gun Safety, the country’s largest gun violence prevention organization, has filed an amicus brief in the U.S. Supreme Court urging the Court to hear the federal government’s appeal of an erroneous decision by the U.S. Court of Appeals for the Third Circuit that calls into question wide swaths of federal law prohibiting possession of firearms by dangerous people.

The brief, prepared for Everytown by Davis Polk & Wardwell LLP and filed late yesterday, urges the Supreme Court to grant a writ of certiorari to review the Third Circuit’s unworkable opinion in Binderup v. Attorney General. If left intact by the Supreme Court, the opinion by the Third Circuit would impose overwhelming burdens on the background check system, the courts and federal and state prosecutors.


“Keeping guns away from dangerous people is the single most effective policy to protect public safety and save lives. It is imperative that the Supreme Court grant the government’s petition and correct the Third Circuit’s dangerous decision, which if left intact would throw the background check system into chaos, overwhelm the courts with litigation and make it more difficult to prosecute criminals and other dangerous people for illegally possessing firearms.”


The Binderup case involves the federal law that prohibits gun possession by a person convicted of a misdemeanor crime punishable by more than two years’ incarceration, 18 U.S.C. §§ 922(g)(1); 921(a)(20)(b). The individuals in the case were prohibited by federal law from possessing firearms because they had previously been convicted of crimes that under state law are labeled misdemeanors, but are punishable by more than two years in prison. The plaintiffs – one who had been convicted of corrupting a minor stemming from his relationship with a teenage employee, and one of whom was convicted of illegally carrying a handgun without a permit after he was stopped on suspicion of driving under the influence – challenged their federal prohibitions as a violation of the Second Amendment as applied to them and were both successful at the District Court. The United States Court of Appeals for the Third Circuit heard the cases en banc and affirmed the District Court judgments in a deeply divided decision, in which no opinion garnered a majority of the court.

The Everytown amicus brief urges the Supreme Court to grant the review sought by the U.S. Department of Justice. The brief focuses on the dangerous effects the Third Circuit’s decision could have on the background check system, criminal prosecutions and the efficiency of the courts.

The Davis Polk legal team included Antonio J. Perez-Marques, Kevin Osowski, Antonio M. Haynes, Erika A. James, Sean Stefanik, and Dan Amzallag. Everytown lawyers Mark Anthony Frassetto, William A. Rosen and Elizabeth D. Ingles joined the brief.


  • Federal law prohibits gun possession by anyone who has been convicted in any court of a crime punishable by more than a year imprisonment or, if the crime is labeled a misdemeanor, by more than two years.” 18 U.S.C. §§ 922(g)(1), 921(a)(20)(A).
  • In the district court cases that were consolidated in this appeal, two plaintiffs had been previously convicted of state level misdemeanors which carried possible sentences of over two years, which disqualified them from possessing firearms. They challenged the prohibition as applied to them under the Second Amendment and were both successful in separate District Court cases. E.D. Pa. No. 5-13-cv-06750; M.D. Pa. 1-14-cv-00968.
  • The cases were consolidated for en banc review and a fractured 8-7 majority of the Third Circuit affirmed the lower court decisions and in doing so created a highly problematic test for which crimes are “serious” enough to warrant loss of Second Amendment rights. Instead of relying on the standard laid out by Congress in judging the seriousness of a crime, the court made up its own test which by its own admission has “no fixed criteria” and “changes over time.”
  • The Everytown brief urges the Supreme Court to grant certiorari to correct the Third Circuit’s highly problematic decision. The brief criticizes the “seriousness” standard applied by the Third Circuit and discusses the major problems it would create, including: making it extremely difficult to administer the background check system; creating a flood of as-applied litigation in federal district courts and making it much more burdensome to prosecute federal and state laws that prohibit criminal offenders from possessing guns.