Possession of Firearms by Convicted Persons

When can a person who has been convicted of a crime possess a firearm? This question has been asked of me a few times, by people who were gun owners and who are wondering if they still might be permitted to own a gun.

The Pennsylvania Code states that it is unlawful for a person to possess a gun if they have convicted of any felony under the Controlled Substance Act, if there is a protective order against the person, or if one accepts a firearm from a person who is the subject of a protective order.  Additionally, the code specifically prohibits gun ownership or possession by persons convicted of certain crimes. These crimes include:

–          §911 (relating to corrupt organizations)

–          §912 (relating to possession on school property)

–          Murder

–          Voluntary Manslaughter

–          Involuntary Manslaughter if done recklessly using a firearm

–          Aggravated Assault

–          Stalking

–          Luring a Child

–          Rape

–          Arson

–          Robbery

–          Burglary

The statute elaborates, and you can read the full list under 18 Pa.C.S.A. §6105(b). Interestingly, the Pennsylvania Supreme Court has found that conviction of attempt under burglary is not sufficient to prevent you from owning a gun, because attempt was not an included offense in the state for burglary. Theoretically then, any statute which did not include attempt and the attempt statute was not included under this list, would not be a conviction which would prevent ownership or possession of a gun.

Wyoming Statute §6-8-102 prohibit use or possession of a firearm by a person convicted of a violent felony or attempt to commit a violent felony. This statute specifically includes interference with a peace officer as being sufficient to prohibit possession of a firearm. Whether a felony is violent is sometimes defined in the convicting statute but generally it is not. It is usually obvious if a person was convicted of a violent felony or attempted a violent felony, but if you are unsure, you should confer with an attorney before purchasing or using a firearm.

What is a Seizure under the Fourth Amendment?

The Fourth Amendment protects Americans from unreasonable search and seizure. Article I, Section 8 of the Pennsylvania Constitution mimics this protection. We have discussed the basic tenants of what comprises a search, but what is a seizure?

The most basic definition of a seizure is when government meaningfully interferes with an individual’s possessory property rights or liberty. So in order to have a seizure of a person or property, there must be a meaningful interference with a person’s property or with their liberty.

What constitutes a “meaningful” interference is a fact based question. Each case which challenges the interference with property rights will have to look at cases with similar fact patterns and determine whether the court would find that interference meaningful.

For example, an additional barrel of chemicals loaded onto your truck is not a meaningful interference with your property rights. However, a stop of your vehicle without any reasonable suspicion or probable cause of wrongdoing is a meaningful interference. Any restraint on a person’s liberty by a person of authority is a seizure, and sometimes that’s lawful, and sometimes its not.

Just being a seizure isn’t enough to be objectionable in court. The protection extends only to unreasonable seizures. So the question really is: what makes a seizure unreasonable? There is a three part test the United States Supreme Court developed to evaluate reasonableness.

  1. The gravity of the public interest which will be served by the seizure
  2. The degree to which the seizure advances public interest
  3. How greatly the seizure interferes with personal liberties

Again, this is a fact based test. Each case is going to be looked at individually, although both Pennsylvania and the Supreme Court have stated that in order to pass the test, the seizure must begin with a minimum of reasonable suspicion. That is, the officers must have a reasonable suspicion that illegal activity is taking place. This suspicion must be particularized such that it can be spoken by an officer and must be individualized such that the officer can point to one or maybe two people or objects that are suspicious.

This is a general idea of the law defining your right against unreasonable seizure. Talk to your attorney today about the evidence against you, and whether it may have been a product of an unreasonable search or seizure.  Even if you have challenged the evidence at trial for being unreasonably seized, there still may be an opportunity to appeal and get the evidence removed in a new trial.

You deserve every opportunity for a great defense.

Pennsylvania’s Post Conviction Relief Act (PCRA)

The PCRA is an indirect method of appeal in criminal cases. A direct appeal is when a criminal case is appealed from the Court of Common Pleas, where the accused lost the case, and wants to challenge some aspect of it. For more on direct appeals, read my post here. An indirect appeal in a PCRA allows the person to have the case reconsidered when a direct appeal to the Superior Court has been denied.

The PCRA must be filed within one year of the denial of the final direct appeal, or after the conviction if the defendant chooses not to use direct appeals. The one year rule does have some exceptions. The basic exceptions include: where counsel effectively abandons the defendant in the PCRA process, where the petition is an extension of a previously filed petition that was within the one year limit, where the government blocked the petition in some manner, where the new evidence could not have been known within the one year limit, and finally, where the court has determined that constitutional rights are such that the extension must be given.

PCRA is limited on its grounds for appeal. The full text of the act can be read here, but I will summarize it briefly. Under 42 Pa.C.S.A. § 9541 et seq, you may only begin the process for the PCRA if your conviction or sentence resulted from:

  • A violation of the Constitution of Pennsylvania or of the United states, or of the laws of the United States, and the violation occurred under circumstances which so undermined the process that no reliable adjudication of truth could have taken place
  • There was ineffective assistance of counsel such that no reliable determination of truth could have taken place
  • A plea of guilty was gotten under circumstances which make it likely that the defendant was induced to falsely make the statement and the defendant is innocent
  • Government officials wrongly obstructed the defendant’s right to appeal where an issue for appeal was present and capable of being appealed
  • New evidence has come to light which would have changed the outcome of the trial
  • A sentence was imposed which was greater than the lawful maximum
  • The court proceeding took place in a tribunal which did not have jurisdiction

Additionally, the statute requires that the allegation in the petition has not been previously litigated in court (it is a new issue) and it has not been waived by a failure to raise the issue (you didn’t bring it up and you were only permitted to bring it up at a certain point of the proceeding). The failure to litigate the issue cannot be the result of a rational or strategic move by the defendant’s attorney at trial.

You may notice the phrase “reliable adjudication of the truth” or “reliable determination of the truth.” These phrases are synonymous and mean that, because of what happened at trial, the facts or process was so distorted that no one could have discovered the truth. The courts have stated that the issue must go directly to the truth-determining process. (Commonwealth v. Bennett, 2007).

Another thing to mention is the process that a person must be given for the court to have properly reviewed the PCRA claim. Although the amount of due process required is less stringent than at trial, a defendant who petitions is still entitled to present his or her claims in a meaningful time and have them considered in a meaningful manner.

A petition for post-conviction relief must conform to certain processes and is subject to parameters defined by statute and the court. When you consider a PCRA, you also need to consider what attorney you will hire, and find one with the experience and the dedication to see the petition through. Failure to obtain the right counsel can result in the denial of your petition.

Call Shannon K. McDonald to discuss your potential PCRA petition today.