This is an open letter to Criminal Defense Attorneys of Pennsylvania
Dear Colleague,
I write “Dear Colleague” to start this open letter because I, Justin J. McShane, am a proud to be your colleague. I am a proud member of PACDl, NACDL and other national and state DUI defense organizations. I have been a practicing trial and appellate attorney practicing criminal law first as a certified legal intern with the Dauphin County Public Defender’s Office since 1999. I had the pleasure of working there with some of the very best criminal defense attorneys until 2002 when I hung out my shingle. I have handled thousands of criminal cases from the relatively minor traffic offense to the most serious offense, death penalty cases. I have tried all types of cases from the relatively minor traffic offense to the most serious type of offenses: death penalty cases. I am proud to say that I am one of you. I am with you. I am proud not to be a paper-pusher or transactional attorney. I am proud that I am a litigator.
I am equally proud to say that I am a proud gun owner. I am proud to be a Pennsylvania Law Abiding Gun Owner (PennLAGO). I have a License to Carry a Firearm. I train. I own firearms including NFA items. I shoot precision long distance rifle. I train combatives. I handload my precision rounds. I shoot at least 4 days a week. I carry my weapon everywhere that I am legally able to do so. I carry at home even. I consult and represent Federal Firearms Licensees (FFLs). I am a big believer in the 2nd Amendment, Article I Section 21 of the Pennsylvania Constitution and the ancient right of self-defense.
I write and declare all of this to you as a prelude to my plead to you all.
Before you plead someone guilty, please stop and pause and ask about the client’s gun ownership.
Without doing so, you may (unintentionally) disenfranchise someone from a fundamental right for life.
The Pennsylvania Uniform Firearms Act (UFA), the Pennsylvania License to Carry a Firearm (LTCF) and Chapter 44 of the United States Code is a swamp. And FFL regulations are even more of a swamp. I really like that area of the law and dealing with the Bureau of Alcohol, Tobacco, Firearms and Explosives (BAFTE) Industry Operations (IO) and the Criminal Enforcement (CE) division. I personally love it all.
Here are some surface considerations for the criminal law practitioner.
LICENSE TO CARRY A FIREARM
There is one thing about the Pennsylvania UFA, it is as the name suggests, uniform. The LTCF provision is found in 18 PS 6109.
An example of a PA LTCF found on the internet (No, the picture is not of me.)
Per 18 Pa.C.S. § 6109, Pennsylvania law provides that the sheriff “shall issue” a License to Carry Firearms unless good cause for denial exists. As a result, the sheriff lacks authority to deny an individual a LTCF unless one of the 14 statutory bases for disqualification applies.
The list of the the 14 statutory bases for disqualification are listed in 6109(e).
There are two very frequent areas of denial that a lot of Pennsylvania criminal law practitioners are not aware of: (1) misdemeanor drug act convictions, and (2) DUIs.
First is a conviction of an Act 64 offense (YES, that includes paraphernalia folks. Colleagues, please stop pleading LTCF folks to paraphernalia and not explaining to them that it will not impact their LTCF. Whether you agree with gun ownership or not, it is a fundamental right like voting or liberty itself. I suggest that it is malpractice to not so advise. Even unintentionally disenfranchising someone of a constitutional right FOR LIFE is a big deal, I suggest.). That basis is found in 6109(e)(ii). This is a lifetime disability for issuance of a LTCF. So unless there is a pardon, then there is no means of issuance of a LTCF in any county in PA once an Act 64 conviction exists. Don’t you think someone ought to know that before making that type of decision?
There are also collateral concerns when pleading someone to a even a misdemeanor Act 64 violation beyond the LTCF. When it comes to a Pennsylvania Instant Check System (PICS) check (the PSP maintained BAFTE approved full Point of Contact (POC) background check system here in PA) when someone wants to buy or transfer a regulated item, one has to fill out a BAFTE 4473 and if it is a firearm (a modern handgun) then a state form known as SP 4-113 (10/2008).
Both the federal and state forms ask questions the person filling out the form. Some are straight forward. Some are not. Whereas the state form is not implicated in misdemeanor Act 64 violations that are not misdemeanor of the first degree (M1s), the 4473 is. Here is why. The 4473 asks in Section 11(e) “Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?” Upon an Act 64 violation, PSP will either issue a “delay” or “denial” as a result of a PUCS check for up to one year past the misdemeanor Act 64 conviction date. This is due to their position that if one pleads to an Act 64 violation, there is some evidence to deny both on the federal level and on the state level because the person is “is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802).” There is a way to handle this, but not in the traditional vein. This is where it gets very potentially dicey for your client. When the delay comes back, the person will have already filled out the 4473 and certified it subject to penalty of law. There is a narrow window of action to avoid a lot of headaches and even criminal charges. Your client needs to consult with someone (such as me) who has a tremendous amount of experience in this area. And if it is a denial, then the store will likely hand the person a PICS Challenge Form (SP 4-197 (10-2008)). This is super dangerous time. Whereas I told you that the SP 4-113 (10/2008) does not implicate Act 64 misdemeanor crimes, this PICS Challenge Form absolutely does. On page 2 (which the person working at the store may not even give your person or your person didn’t bother to read) in Information point 3, it reads that in signing page 1 that you are certifying under penalty of law that you do not have a “[c]onviction of an offense under the act of April 14, 1972 (P.L. 233, No . 64), known as the Controlled Substance, Drug, Device and Cosmetic Act.” So this appeal process is fraught with peril and it would be best to consult with an attorney (like me) who practices in this area of law before filing a PICS challenge or even after the client has filed that PICS challenge.
DUIs gun ownership and LTCF
There are two parts of DUIs that you have to worry about when it comes to LTCF. The state disqualification and the federal disqualification.
First, we explore the fed disqualification. Federal disqualification to use, possess, own or transfer a regulated item can be found in 18 USA 922. It is vital to note that Pennsylvania follows what is referred to as “the state misdemeanor” model. While 922(g) has a wealth of disqualifying convictions or statuses, when it comes to Pennsylvania DUIs we focus on the details. The details at first blush make it look like that anyone “who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year” is disqualified for life per 922(g)(1), but you gotta read all of the statutes in the chapter 44 (Firearms). Section 921(20)(a) reads “The term ‘crime punishable by imprisonment for a term exceeding one year’ does not include— (A) any Federal or State offenses 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.” So the practical effect per federal law alone is that for Pennsylvania misdemeanor crimes a person is NOT disqualified from owning, possessing, using or transferring a regulated item unless the conviction is for a misdemeanor of the first degree (or higher) offense. In Pennsylvania, with DUIs, if you plead someone to any M1 form of DUI (yes even a second offense within 10 years DUID or refusal or highest rate), you have totally and completely disenfranchised that person from owning, possessing or using a regulated item for life anywhere and everywhere in America. In other words, it does not matter that the person lives out of state or had the prior DUI in another state, if the plea is here in PA to a M1 for any reason, then thta’s it for that person and guns…. forever.
Second, the state based concerns for DUI. Of course, the state has to honor the above so that is the floor. In PA we add to it when it comes to DUIs. In 18 PS 6105(c)(3), we find the following language “A person who has been convicted of driving under the influence of alcohol or controlled substance as provided in 75 Pa.C.S. § 3802 (relating to driving under influence of alcohol or controlled substance) or the former 75 Pa.C.S. § 3731, on three or more separate occasions within a five-year period [is disqualified]. For the purposes of this paragraph only, the prohibition of subsection (a) shall only apply to transfers or purchases of firearms after the third conviction.” So one might think that because of 18 US 922(g)(1) and 3804 and 3806 (Prior Offenses and Penalties for DUI), this part of 6105 is now duplicative, but it isn’t. One can rack up 3 DUIs or more in 5 years, but not trigger the 922(g)(1) federal disqualification. How you say? Well, if the third or subsequent ones are under (a)(1) or (a)(2) of 3802 of the Vehicle Code, they are decidedly only misdemeanor of the second degree. As such, the 922(g)(1) is not implicated, but the 6105(c)(3) status sure is. There is rehabilitation possible, but it is a process best reserved for those who have a lot of experience in the area. Again, as mentioned above, we have concerns about the various forms including the 4473, the SP 4-113, and the SP 4-197. Note this 6105(c)(3) status is not a prohibition against ownership or use, just transfer or purchases.
In terms of the LTCF and DUIs, well 6109 makes clear that any conviction or condition under 6105 (like 6105(c)(3)) or a federal or state firearm disqualification makes it impossible to get a LTCF. That’s just common sense. Like the legislature has provided strict guidelines as to when a License to Carry Firearms may be denied, the legislature has specifically defined key terms throughout the Uniform Firearms Act. Although 6109 reads “[a]n individual who is charged with . . . a crime punishable by imprisonment for a term exceeding one year . . . .” 18 Pa.C.S. § 6109(e)(1)(viii). The term specifically excludes misdemeanors that are not punishable by a term exceeding two years per 18 Pa.C.S. § 6109(e)(1)(viii) [‘Crime punishable by imprisonment exceeding one year.’ The term does not include any of the following: (1) Federal or State offenses pertaining to antitrust, unfair trade practices, restraints on trade or regulation of business. (2) State offenses classified as misdemeanors and punishable by a term of imprisonment not to exceed two years.]
There appears to be no binding case law reiterating that the definition means what it says, but the plain reading of the statute makes it so. However, a brief discussion of the issue is found in Brown v. Sheriff of Perry Cty., a case from the Court of Common Pleas. 38 Pa. D. & C.4th 214, 216-17 (Com. Pl. 1997). In that case, the court ruled in favor of the applicant, although he had indisputably been convicted of a crime punishable by imprisonment for a term exceeding one year. The court reasoned: “Because the definition section in [18 Pa.C.S. § 6102] appears to be quite clear to this court and because the exclusion section, subsection 8, does not indicate in terms similar to ‘not withstanding (sic) the definition in the definition,’ we think the ambiguity must, as a matter of common sense and perhaps constitutional law, inure in favor of the applicant. Id.
OPEN CARRY AND CONVICTIONS
In Pennsylvania with one notable exception, one does not need to LTCF to open carry a firearm or a long gun or an NFA weapon. You can walk down main-street of Pennsyltucky with your AR on a sling fully loaded in full tactical kit in the open or wear your gold-plated FN Five-seven pistol visible on your hip and the gubment cannot do boo about it. ‘Murica! That is the default everywhere in Pennsylvania except for any city of the first class. A city of the first class is defined as any city that has a population of greater than 1 million people. Currently, Philly is the only city of the first class. Per 18 Pa.C.S. § 6108, the statute provides, in pertinent part, “No person shall carry a firearm, rifle or shotgun at any time upon the public streets or upon any public property in a city of the first class unless: (1) such a person is licensed to carry a firearm . . . .” There is also an exception for those who are exempt from licensing requirements, but that is beyond the scope of this discussion. So in Pennsylvania (provided one is not state or federally precluded from possessing a gun), open carry is lawful without a LTCF unless you are in the city of brotherly love.
Of course there are several areas that are off limits to guns such as post offices (including parking lots of the USPS) and federal buildings, etc. but that is beyond the scope of this discussion.
WHY YOU AS A CRIMINAL DEFENSE LAWYER SHOULD CARE
As I mentioned above, regardless on your personal stance on guns and gun ownership, per the Pennsylvania state constitution it is beyond all doubt or reasonable debate that gun ownership in PA is an individual right, and unless Heller is overturned per the SCOTUS the Second Amendment is an individual right. I think that we all agree that from a “duty of client” point-of-view, we all owe a duty to explore our client’s backgrounds and fully inform them of potential collateral consequences of certain potential outcomes regardless of our personal opinions on whether it should be a certain way or someone should be able to do something or own something. This general provision absolutely includes gun ownership and use. This is no different than the heightened awareness that we all have now on immigration issues thanks to SCOTUS and Padilla. I predict that it may not be too long before Strickland is expanded to gun rights, just like Padilla. At least one trial court judge in Pennsylvania in a published opinion found as much. Prior to us getting involved in the case, a defense attorney plead his client guilty to a M1 DUI without exploring the person’s gun ownership or LTCF status and did not advise this person of the collateral consequences outlined above. We got involved after the GP and prior to the sentencing. After a very hotly contested hearing on a motion to withdraw the GP as unknowing because of the question of gun ownership, the judge allowed the withdrawal of the GP for this very reason notwithstanding the very recent ruling in Commonwealth v. Carrasquillo, 78 A.3d 1120 which the DDA argued. It is a short opinion, but it here it is: 11-12-15 Order.
These are all things that I hope you would take the time to consider before having your client enter that guilty plea.
Your friend and colleague,
Justin J. McShane