Third Circuit panel skeptical of felon’s right-to-carry claim

PITTSBURGH (CN) — A Third Circuit panel on Thursday appeared likely to side with the government on a 22-year-old's claims he should not have been prosecuted for possessing a stolen firearm while on parole.

Assistant federal public defender Jason Ullman asked a three-person Third Circuit panel Thursday to see his client Tahjair Dorsey like the court had seen Bryan Range in its June 2023 ruling in Range v. Attorney General.

In Range, the court held that the husband and father of three, who had pleaded guilty to making a false statement to obtain food stamps in 1995, could not be stripped of his Second Amendment right to bear arms since his crime was nonviolent. Notably, while the crime was punishable by up to five years in prison, Range didn’t serve time in prison. 

“Range creates a workable, discernable standard that results in Mr. Dorsey’s favor,” Ullman said Thursday.

Dorsey pleaded guilty on charges tied to an incident with police in August 2021. He faced charges for receiving stolen firearms, resisting arrest and attempting to escape police.

When the Lycoming County Narcotics Enforcement Unit pulled a car in Williamsport over for a traffic violation, Dorsey immediately opened the rear passenger door and fled on foot with another man before being apprehended after a short chase where police used a stun gun to stop the suspects.

Dorsey was linked to a loaded 9 mm pistol that he had discarded before the chase that matched with one in a pair of firearms he had posted a picture with on social media. In the caption, he had threatened to “link up with ISIS and blow up the prison.”

Dorsey's DNA was also found on the firearm.

U.S. Department of Justice Attorney William Glaser spoke for the United States Thursday. He brought forward differences in the cases.

“Brian Range was a civil plaintiff with a 25-year-old conviction for food stamp fraud,” the attorney said, while noting Dorsey is a criminal defendant who possessed weapons recently and “admits his parole status and his knowing decision to violate the law.”

U.S. Circuit Judge Thomas Hardiman seemed skeptical that Dorsey’s situation was similar to Range’s. U.S. Circuit Judge Peter Phipps, a Donald Trump appointee, agreed.

“It’s a different offense. It’s not food stamp fraud,” Phipps said.

Dorsey was prohibited from having firearms based on his prior April 2021 conviction for possessing a firearm without a license, a charge to which he pleaded guilty and was sentenced 6 to 24 months in county prison — ultimately serving about 8 months of time. 

This conviction stemmed from a September 2019 arrest in in which police approached Dorsey outside of a home after receiving reports he was carrying a weapon. Dorsey fled, dropping a 9 mm Glock with a fully loaded 30-round extended capacity magazine.

The gun had been stolen in Georgia. Dorsey had said he was from Durham, North Carolina, and that that is where he had found the gun but had moved to Williamsport, Pennsylvania, where his sister also lives. He said the weapon was needed to protect himself against someone who had shot at him days earlier while he was playing basketball.

Ullman also told the panel Dorsey’s case is supported by the U.S. Supreme Court's holding in New York State Rifle & Pistol Association Inc. v. Bruen. The landmark 2022 ruling upended the framework for deciding Second Amendment cases in favor of historical analysis. Ullman said since the government could not point to historical analogues that would support felon-with-a-firearm convictions for someone with a nonviolent felony conviction. 

Hardiman appeared less certain. 

“Your logic is: because the government could not come up with historical analogues to dispossess Range, it therefore follows that every other person who was convicted of a nonviolent felony or misdemeanor equivalent to a felony for punishable purposes would also not be able to be dispossessed?” the George W. Bush appointee asked.

“That’s asking a lot,” U.S. Circuit Senior Judge Brooks Smith, a fellow George W. Bush appointee, agreed. 

Possessing a firearm as a felon carries a maximum of 10 years in prison, a fine of $250,000, and a three-year term of supervised release. 

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