Firearms Law

Giaramita Law Offices has focused on firearms law since its inception.

Attorney Giaramita is an experienced firearms attorney having litigated issues regarding self-defense, License to Carry Firearms (LTCF) Denials, Pennsylvania Instant Check System (PICS) denials, possessory offenses, firearms preemption (18 Pa.C.S. 6120), the Pennsylvania Constitution (Article I, Section 21) and the United States Constitution (Second Amendment). He is also the co-author of Pennsylvania Gun Law: Armed & Educated and have given over 500 lectures to gun owners and attorneys regarding state and federal firearms laws.

Am I Eligible to Own and Possess Firearms?

Firearms Law Attorney - Giaramita Law Offices, P.C.

 

On a regular basis, people who have no intention to break the law get arrested for possessing firearms. The problem is, people often believe that only those convicted of violent felonies are legally prohibited from possessing firearms. This is far from the case. Prohibitions at the Federal level are primarily based upon 18 U.S.C. 922. Similarly, in Pennsylvania, our prohibitions stem from 18 Pa.C.S. 6105.

Some of the most common, but lesser known prohibitors include those who are convicted of a “crime punishable by more than one year.” 18 U.S.C. 922(g). Under 18 U.S.C. 921, “crime…” means:

(20)The term “crime punishable by imprisonment for a term exceeding one year” does not include—
(A)any Federal or Stateoffenses pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices, or
(B)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.
What constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.

Notice the term “punishable by.” It doesn’t matter whether somebody actually served more than one year (for a felony) or more than two years (for a misdemeanor). The law looks to the maximum sentence the judge could have sentenced for that crime. Most people with old convictions have no idea what the max sentence of their sentence was.

Additionally, those who have been involuntarily examined and treated under Section 302 of the Mental Health Procedures Act are prohibited from possessing firearms. 18 Pa.C.S. 6105(c)(4). Commonly, people refer to this process as being “302’d.” People who have been 302’d are not given express notice that they can no longer lawfully possess firearms. The authorities don’t come into the home and remove firearms, and as a result, some people are unaware that they are even prohibited. Additionally, after receiving treatment, some people are unaware that the treatment was “involuntary” or that it took place under the authority of Section 302.

Under federal law, a prohibited person who ships, transports, possesses or receives firearms or ammunition is subject to up to 10 years imprisonment, and fines of up to $250,000. 18 U.S.C. § 924.
A prohibited person who violates the Pennsylvania laws regarding possession, use, control, sale, transfer or manufacture in the context of the federal provision commits a separate felony of the second degree, punishable by up to 10 years imprisonment.

It would be very convenient if the government gave the citizens access to easily determine whether they are eligible to own and possess firearms. Unfortunately, no such resource presently exists.

If you are unsure as to whether you are eligible to own and possess firearms it is important that you contact an attorney experienced in the firearms laws of your state. Your attorney should conduct a thorough investigation as to whether you are eligible to lawfully own and possess firearms. Ignorance of the law is no excuse. Excuses such as “I didn’t know I was prohibited” or “I didn’t mean to break the law” will have no legal significance as to innocence or guilt.

PICS Denials (Pennsylvania Instant Check System)

Pennsylvania conducts its firearms background checks through the Pennsylvania Instant Check System (PICS). It serves as a point of contact for the National Instant Check System (NICS).

Ideally, one would not submit to a PICS Check without absolute certainty that he or she is eligible to own and possess firearms. Sometimes people try to buy a gun or apply for a License to Carry Firearms (LTCF) just to see what happens or to find out if they’re eligible.

This is a terrible idea! It’s comparable to drinking an unidentified liquid to find out if there’s poison in it.

Under Pennsylvania law, a prohibited person who even attempts to purchase a firearm can be guilty of a separate crime. These crimes generally hinge upon the information one provides on an ATF Form 4473 or a Pennsylvania State Police Application/Record of Sale Form (SP4-113).

These forms require the person furnishing information to affirm that the information contained therein is true and correct.

The first separate crime is set forth in 18 Pa.C.S. § 6111(g)(4), which reads in pertinent part:
Any person, purchaser or transferee commits a felony of the third degree if, in connection with the purchase, delivery or transfer of a firearm under this chapter, he knowingly and intentionally:

(i) makes any materially false oral statement;

(ii) makes any materially false written statement, including a statement on
any form promulgated by Federal or State agencies; or

(iii) willfully furnishes or exhibits any false identification intended or likely to deceive the seller, licensed dealer or licensed manufacturer.

Further, although not directly related to firearms, an additional crime often charged in this context is Unsworn Falsification to Authorities. 18 Pa.C.S. § 4904.

Under Section 4904:

Statements “under penalty”.–A person commits a misdemeanor of the third degree if he makes a written false statement which he does not believe to be true, on or pursuant to a form bearing notice, authorized by law, to the effect that false statements made therein are punishable.
As a misdemeanor of the third degree, the crime is punishable by up to one year of imprisonment, and this specific crime carries a minimum fine of $1,000.

If you have received a PICS denial, you may believe that you have been wrongfully denied. It’s important to note that “false positives” do happen. But One should not file a challenge unless they are absolutely certain that they are correct. A challenge requires one to submit an additional form, again certifying that the information provided is true and correct. If the information is in fact inaccurate, the individual may be subject to additional charges.

Those who are uncertain as to why they were denied should seek an experienced firearms attorney to determine the reason for denial, and whether the reason is valid.

The police may contact you after a PICS denial. Do not make any statements to the police, even if you believe you have done nothing wrong. People who try to talk their way out of things or explain their side of the story often make their situation worse. They make statements that are inaccurate or detrimental to their case.

This is another reason why it is important to contact an attorney after a denial. If you have hired an attorney, you can simply tell the police that you’d like to cooperate with their investigation, but that you cannot make any statements without your attorney. Your attorney will communicate with the law enforcement officers and ultimately determine whether making a statement (with counsel) present will be in your best interest.

LTCF Denials (License to Carry Firearms, also referred to as License to Carry a Firearm)

Just like filling out an ATF Form 4473 or SP 4-113 (Pennsylvania State Police Application/Record of Sale) one must be sure to provide accurate information on a LTCF Application.

Pennsylvania law governing eligibility and procedures for obtaining a License to Carry Firearms (LTCF) is found in 18 Pa.C.S. 6109.

Those who are ineligible to own and possess firearms are also ineligible for a License to Carry Firearms. Logically, a LTCF would be useless for those ineligible to even possess firearms.

But a person could be denied a LTCF even if they are eligible to own and possess firearms. For example, a person convicted of an offense under The Controlled Substance, Drug, Device and Cosmetic Act could still be eligible to own and possess firearms in Pennsylvania, so long as the maximum sentence was not greater than one year (if a felony) or greater than two years (it a misdemeanor). A person will be ineligible for a License to Carry Firearms, however, if they have been convicted of any offense under the act of April 14, 1972 (P.L.233, No.64), known as The Controlled Substance, Drug, Device and Cosmetic Act.

Furthermore, Pennsylvania is commonly referred to as a “shall issue” state, meaning a person must be issued a LTCF so long as they are eligible. It is true that a LTCF “shall be issued if, after an investigation not to exceed 45 days, it appears that the applicant is an individual concerning whom no good cause exists to deny the license.”

Whether “good cause” exists, however, consists of at least one extremely discretionary factor. Under 18 Pa.C.S. 6109(e)(1)(i), “A license shall not be issued to … An individual whose character and reputation is such that the individual would be likely to act in a manner dangerous to public safety.”

So if the issuing authority (the Sheriff, or if in Philadelphia, the Chief of Police) determines that your character or reputation meet this criteria, you can be denied a LTCF even if you are not prohibited for any other reason.

One could have no criminal record, or have never been convicted of a crime, but still be denied a LTCF based on this standard. It is the conduct associated with the crime, not the arrest, charge or conviction that is the basis for the denial. Accordingly, Philadelphia often uses the conduct from expunged charges to deny individuals based on the character and reputation standard. If the denial is challenged, the authority will have to prove the conduct occurred. But they will not have to prove it happened “beyond a reasonable doubt” as they would in a criminal case. As a result, people are often denied for conduct that simply did not take place.

Although it is important to bring a timely challenge to a wrongful LTCF denial, much like a PICS denial in the context of firearms transfers, it is a bad idea to submit a challenge a LTCF denial unless you are 100% certain that the information you are providing is accurate. Those who provide inaccurate responses on challenge forms are often charged with Unsworn Falsification to Authorities, as described above.

Restoration of Rights

Many people have lost their rights because of things that have happened many years ago.

Unfortunately, some of them believe the myth that your rights are automatically restored after a certain period of time. People mistakenly believe that something that occurred so long ago couldn’t possibly affect their rights today.

Several of these people have since accomplished a great deal and would consider themselves a different person. Hard-working, family-oriented, law-abiding citizens are often haunted by decades-old mishaps.

You may be eligible to have your rights restored.

Pardon

Those unfamiliar win the process often believe a Pardon (“Governor’s Pardon” or “Executive Clemency”) to be impossible or extremely unlikely.

This is simply not the case. While every case is different, and the success of a Pardon is never guaranteed, it is by no means impossible for a proper candidate to obtain a Pardon.

The Pennsylvania Board of Pardons publishes statistics at: http://www.bop.pa.gov/Statistics/Pages/Statistics-by-Year.aspx

The statistics provided for 2014 – 2016 are shown below:

One Two
Clemency Applications Received: 548
Cases Merit Reviewed: 397
Public Hearings Held: 133
Pardons Denied: 49
Commutation of Life Denied: 0
Pardons Recommended: 84
Commutation of Life Recommended: 0
Min/Max Recommended: 0
Min/Max Granted by Governor: 0
Pardons Granted by Governor: 81
Pardons Denied by Governor: 3
Commutation of Life Granted by Governor: 0
One Two
Clemency Applications Received: 503
Cases Merit Reviewed: 450
Public Hearings Held: 152
Pardons Denied: 38
Commutation of Life Denied: 0
Pardons Recommended: 112
Commutation of Life Recommended: 1
Min/Max Recommended: 0
Min/Max Granted by Governor: 0
Pardons Granted by Governor: 107
Pardons Denied by Governor: 1
Commutation of Life Granted by Governor: 1
One Two
Clemency Applications Received: 521
Cases Merit Reviewed: 502
Public Hearings Held: 363
Pardons Denied: 72
Commutation of Life Denied: 0
Pardons Recommended: 287
Commutation of Life Recommended: 2
Min/Max Recommended: 0
Min/Max Granted by Governor: 0
Pardons Granted by Governor: 78
Pardons Denied by Governor: 0
Commutation of Life Granted by Governor: 1
One Two
Clemency Applications Received: 159
Cases Merit Reviewed: 49
Public Hearings Held: 0
Pardons Denied: 0
Commutation of Life Denied: 0
Pardons Recommended: 0
Commutation of Life Recommended: 0
Min/Max Recommended: 0
Min/Max Granted by Governor: 0
Pardons Granted by Governor: 0
Pardons Denied by Governor: 0
Commutation of Life Granted by Governor: 0

Although an attorney is not required to file an application for a Pardon, having an experienced attorney can make the process more manageable, and can even increase your likelihood of success. Pardon Applications that do not include the proper documentation will be rejected.

While a Pardon constitutes forgiveness of the conviction, note that an individual must proceed with additional filings to get the conviction expunged (erase the record completely, as if it never occurred).

Expungement of Criminal Records

Expungement is generally not available for convictions. Under very limited circumstances, an expungement will be available for convictions in Pennsylvania.

These limited circumstances include:

  • An individual who is the subject of the information reaches 70 years of age and has been free of arrest or prosecution for ten years following final release from confinement or supervision.
  • An individual who is the subject of the information has been dead for three years.
  • An individual who is the subject of the information petitions the court for the expungement of a summary offense and has been free of arrest or prosecution for five years following the conviction for that offense.

18 Pa.C.S. § 9122.

An individual who has successfully obtained a Pardon is also eligible for an expungement.

So, unless you are 70 years of age or older, you are applying on behalf of a dead person, your conviction was a summary offense, or you have obtained a Pardon, you are ineligible to expunge a conviction. Only if you meet one of these three criteria can we examine if you are truly eligible to expunge a conviction.

Individuals may be able to expunge charges that did not result in a conviction.

An individual will be ineligible to expunge a nonconviction if the defendant successfully completed Accelerated Rehabilitative Disposition (ARD), but the victim was under eighteen (18) years of age and the offense was:

Section 3121 (relating to rape).

Section 3122.1 (relating to statutory sexual assault).

Section 3123 (relating to involuntary deviate sexual intercourse).

Section 3124.1 (relating to sexual assault).

Section 3125 (relating to aggravated indecent assault).

Section 3126 (relating to indecent assault).

Section 3127 (relating to indecent exposure).

Section 5902(b) (relating to prostitution and related offenses).

Section 5903 (relating to obscene and other sexual materials and performances).

See 18 Pa.C.S. § 9122(b.1).

Expungement can be a valuable tool for individuals who have records of nonconvictions. These records are available to the public. Although in America we are “innocent until proven guilty,” these records can subject an individual to scrutiny from potential employers and other members of the community.

302 Expungements

Years ago, individuals commonly used a Petition under 18 Pa.C.S. § 6105(f) to expunge a record of involuntary examination and treatment under Section 302 of the Mental Health Procedures Act (MHPA). Although commonly referred to as “302 Commitments” this is truly a misnomer, as Section 302 of the MHPA does not allow for a “commitment,” but only emergency examination and treatment. Sometimes people call this treatment a “302” and people say one who has received the treatment has been “302’d.”

In a case called In Re Keyes, the Superior Court of Pennsylvania held that “section 6105(f)(1) does not provide authority for expunging mental health commitment records. The only authority for doing so under the Uniform Firearms Act is located under section 6111.1(g).” In re Keyes, 83 A.3d 1016, 1024 (2013).

One could, however, seek an expungement through 18 Pa.C.S. § 6111.1(g). It reads, in pertinent part:

A person who is involuntarily committed pursuant to section 302 of the Mental Health Procedures Act may petition the court to review the sufficiency of the evidence upon which the commitment was based. If the court determines that the evidence upon which the involuntary commitment was based was insufficient, the court shall order that the record of the commitment submitted to the Pennsylvania State Police be expunged. A petition filed under this subsection shall toll the 60-day period set forth under section 6105(a)(2).

A successful challenge under Section 6111.1(g) leads to expungement. That means that the records of the involuntary treatment will be destroyed, no firearms prohibitions remain, and the individual can truthfully state that the treatment never took place. This can be extremely valuable to those who want to restore their gun rights or restore eligibility to obtain a TWIC (Transportation Worker Identification Credential), granting her access to secure areas of the nation’s maritime facilities/vessels.

It is often more difficult to obtain an expungement under Section 6111.1(g) than relief under Section 6105(f). To be successful under Section 6111.1(g), one must essentially show that the 302 was invalid in the first place. Unlike Section 6105(f), it is not enough to simply prove that the individual can possess a firearm without posing a danger to the public. It does not matter that the individual, today, is in perfect mental shape. If the 302 was valid when it took place, it will be impossible to expunge the 302 under 18 Pa.C.S. § 6111.1(g).

Because this method is more difficult, many believe success to be impossible. We know from experience that this is simply not true. If you believe your involuntary examination and treatment may be invalid, it may be wise to hire an attorney to investigate the merits of a potential expungement action. You may be a candidate to file a Petition to expunge the records of your 302 treatment.

Restoration of Rights under 18 Pa.C.S. § 6105(f)

Under 18 Pa.C.S. § 6105(f)(1), an individual who has been 302’d (involuntarily examined and treated under Section 302 of the MHPA) may file a petition to restore their Pennsylvania rights.

Section 6105 (f)(1) provides, in pertinent part:

(f) Other exemptions and proceedings.–

(1) Upon application to the court of common pleas under this subsection by an applicant subject to the prohibitions under subsection (c)(4), the court may grant such relief as it deems appropriate if the court determines that the applicant may possess a firearm without risk to the applicant or any other person.

(2) If application is made under this subsection for relief from the disability imposed under subsection (c)(6), notice of such application shall be given to the person who had petitioned for the protection from abuse order, and such person shall be a party to the proceedings. Notice of any court order or amendment to a court order restoring firearms possession or control shall be given to the person who had petitioned for the protection from abuse order, to the sheriff and to the Pennsylvania State Police. The application and any proceedings on the application shall comply with 23 Pa.C.S. Ch. 61 (relating to protection from abuse).

(3) All hearings conducted under this subsection shall be closed unless otherwise requested to be open by the applicant.

Through this process, the court may enter an order declaring that the petitioner’s rights, under Pennsylvania law, are restored.

NOTE: As referenced above, the court cannot grant an expungement through 18 Pa.C.S. § 6105(f).

A successful petition will not restore one’s rights under federal law either.

For many years, this was not a problem, because the federal government (as related by the Bureau of Alcohol, Tobacco, Firearms and Explosives, or more commonly called “ATF”) did not consider involuntary examinations and treatment under Section 302 of the MHPA to be an “involuntary commitment.” Therefore, a 302 did not function as a prohibition to possessing firearms under federal law, and a restoration of Pennsylvania rights was all that was necessary.

More recently, however, ATF has taken the position that involuntary treatment under Section 302 does constitute a commitment to a mental institution, and does in fact prohibit one from possessing firearms.

Most recently, in a case in the United States District Court in the Western District of Pennsylvania, Franklin v. Sessions, the District Court found that Mr. Franklin’s involuntary treatment under Section 302 of the MHPA did not constitute a “commitment” under federal law, and that Mr. Franklin is not prohibited from possessing firearms under federal law. This makes sense, because as noted above, Section 302 does not allow for a “commitment,” but rather only “examination” and “treatment.”

As of today, this decision does not have a direct impact on individuals who have been 302’d.

This decision came from a District Court, and its holding is not binding on other courts. Moreover, the holding applies only to Mr. Franklin.

Should the ATF change its interpretation of 302s based upon this decision, or should the Third Circuit Court of Appeals uphold such an interpretation, this could add tremendous value to the relief afforded under Section 6105(f).

For now, one could presumably file a petition under Section 6105(f) and then file a lawsuit in federal court asking that the court declare void any federal prohibition based upon involuntarily examination and treatment under Section 302.

Either way, it is important to keep in mind that while a petition under Section 6105(f) may be able to help you restore your rights, it will not be able to expunge a 302.

Self-Defense and Deadly Force

We all understand that it is wrong to hurt another human being without a lawful reason.

But Pennsylvanians do have a right to protect themselves. The law does not require a person to let another harm them, or God forbid, kill them.

In these situations, the law provides us with a justification. A justification is a legal excuse for conduct that is otherwise unlawful.

Many attorneys are excellent at convincing a judge or jury that their client “didn’t do it.” But self-defense cases require a special kind of attorney. In these cases, you must explain to the judge or jury that your client did something that is generally a crime, but the law recognizes a reason why they did it.

Explaining a justification to a jury in the matter of days is somewhat of a science. You must convince people who have been taught from their youth that it is wrong to hurt or kill another human being that it is OK to hurt or kill under certain circumstances. Regardless of the way one feels about violence, Pennsylvania law provides that under certain circumstances, it is in fact justified, and therefore legal.

When a person uses force, or deadly force to protect themselves or a loved one, they can still be charged. As long as there is evidence that the person committed the act (harming or killing another person; putting another in imminent fear of death or serious bodily injury), they can be charged with a crime and forced to raise their justification in court.

If you have used self-defense, anything you say can and will be used against you. Detroit Attorney Terry L. Johnson once said it best: “I always ask people: If you had to shoot someone in your home at 2 in the morning, do you think the police are going to say, ‘great job, you got the bad guy’? A lot of people actually think that, but that’s not how it works.”

It is important to invoke your right to silence and your right to an attorney. Do not make any statements under the stress of the circumstances after a self-defense incident.

People don’t realize that the body undergoes a tremendous amount of physiological effects after a self-defense incident. Some of the common effects include:

    • Increased Heart Rate
    • Increased Blood Pressure
    • Loss of Fine Motor Skills
    • Changes in Respiratory Rate
    • “Tunnel Vision”
    • Effects on Depth Perception
    • Confusion/Temporary Inability to Recall Details About the Incident

It is because of these effects that so many people give inaccurate statements after self-defense incidents. Further, as a result, many of these people ultimately forfeit their legal justification.

For this very reason, many law enforcement agencies guarantee that their own officers are afforded several days before they have to make a statement after a use of force incident (many also require consecutive nights of sleep). Through these very policies, law enforcement officers recognize for their own well-being that immediately after a self-defense incident is never the time to be making an effort to give an accurate, coherent statement.

And let’s face it: if it’s good for them, it’s good for us.

The information and content on this website is for informational purposes only and is not to be construed as legal advice. If you need legal advice, please hire an attorney competent to fulfill your needs.

MICHAEL ANTONIO GIARAMITA JR., ESQ.

At Giaramita Law Offices, Attorney Giaramita is personally invested in your case from beginning to end. Because of this devotion, Attorney Giaramita must choose each case carefully. With you every step of the way, he prides himself on communicating with you directly, explaining the process, and vigorously fighting on your behalf.

Your journey to seek justice begins now.

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