Application to Purchase or Transfer Firearm Out-of-State Prohibited Weapons Offense Set-Aside Conviction
Bacon v. Pa. State Police, PICS Case No. 17-0968 (Pa. Commw. June 13, 2017) Simpson, J. (26 pages).
Out-of-state conviction "set aside" still constituted a firearms disability where "setting aside" of a conviction did not constitute expungement of that conviction or otherwise remove the disability to purchase firearms under that state's law. Order of the OAG affirmed.
David Bacon petitioned for review of an order of an administrative law judge that sustained the decision of the Pennsylvania State Police to deny his application to purchase or transfer a firearm. PSP denied applicant's application pursuant to Pennsylvania Uniform Firearms Act 1995, which precluded a person convicted of a prohibited offensive weapon violation or similar out-of-state violation from purchasing a firearm. Applicant had pled guilty to criminal possession of a "billy club" in California in 2002, and was sentenced to 30 days in jail followed by 36 months' probation in addition to a fine. Applicant later moved for early termination of his probation and to set aside his conviction. The California court granted the motion, set aside applicant's guilty plea, entered a plea of not guilty, and dismissed the case. However, the California court's order did not relieve applicant of his obligation to disclose the conviction in any application for licensure by any state or local agency.
After becoming a Pennsylvania resident, applicant attempted to purchase a firearm, but was denied due to a disqualifying conviction for possession of a dangerous weapon. Applicant appealed to OAG, and was denied applicant relief. The ALJ noted that the California court's setting aside of applicant's conviction did not, under California law, relieve applicant of the obligation to disclose the conviction on an application for licensure from a state or local agency.
On appeal, applicant argued that his criminal charge in California was "set aside" and thus did not constitute a "conviction," and that in the absence of a conviction he could not be prohibited from purchasing a firearm. Alternatively, applicant argued that the California and Pennsylvania offensive weapons statutes were not equivalent, and as a further alternative that the Pennsylvania statute was unconstitutional under the Second Amendment and the Pennsylvania constitution analogue. In response, PSP argued that the setting aside of applicant's conviction did not remove the legal fact of the conviction, and contended that applicant's proper avenue of relief was to seek relief in the common pleas court, which could afford such relief if certain criteria were met.
The court agreed that the setting aside of appellant's California conviction did not, under California law, constitute an expungement of that conviction. The court distinguished prior cases where applicants had obtained certificates from the states of their criminal conviction relieving them of their firearms disability, noting that in applicant's case there was no evidence that California did not consider applicant's conviction no longer a "conviction" for firearms disability or otherwise consider it expunged. The court further rejected applicant's contention that the California and Pennsylvania offensive weapons statutes were not equivalent, and thus applicant's California conviction could not trigger a firearm disability in Pennsylvania, noting that it had previously held that a New York conviction for possession of a billy club was equivalent to the Pennsylvania statute. Finally, the court rejected applicant's constitutional challenge, in which he asserted that deeming a billy club an offense weapon infringed upon the right to bear arms in self-defense. The court deemed applicant's argument waived, since he did not raise his as-applied challenge before the OAG, nor had he raised a facial challenge at any point.