Pennsylvania State Police v. Swinehart5/7/2003
Argued: April 1, 2003
The Pennsylvania State Police (PSP) appeal from an order of an Administrative Law Judge (ALJ) with the Office of Attorney General that upheld Larry L. Swinehart's appeal from the denial of his firearm application and restored his firearm privileges.
The following facts are pertinent. Swinehart had been convicted in 1985 of filing false and fraudulent tax returns under Section 268 of the Tax Reform Code of 1971, Act of March 4, 1971, P.L. 6, as amended, 72 P.S. § 7268(a), a state crime punishable by up to three years imprisonment. On May 21, 2001, he attempted to purchase a firearm. The dealer requested that the PSP perform a criminal history record check, which revealed the 1985 conviction. The PSP, therefore, "denied" his request to purchase a firearm. In July of 2001, Swinehart appealed this decision to the Office of Attorney General. While the appeal was pending there, Swinehart filed a petition in the Court of Common Pleas of Lancaster County for "Restoration of Privileges Pursuant to the Pennsylvania Uniform Firearms Act." After conducting a hearing, wherein the Commonwealth was represented by the district attorney and the PSP were not present, Judge Allison, on January 2, 2002, entered the following order:
his Court hereby declares that the relief under 18 Pa. C.S. §6105(d) is unnecessary due to the lack of disability to own, possess, or control a firearm pursuant to Pa. Law.
Thereafter, on March 27, 2002, the ALJ conducted a hearing and, on April 29, 2002, issued an order "overruling" the PSP's denial of Swinehart's application to purchase a firearm. An appeal by the PSP to this Court ensued.
Before the ALJ, the PSP argued that "despite the fact that there is no reference to [Swinehart's] crime in [Section 6105 of the Pennsylvania Uniform Firearms Act of 1995, (Pennsylvania Firearms Act) 18 Pa. C.S. § 6105] under federal law ... the penalty which [Swinehart] could have received for the misdemeanor conviction, 3 years, requires that Swinehart's crime be considered a disqualifying offense under [the Federal Gun Control Act of 1968 (Gun Control Act), 18 U.S.C. § 922(g)]." (Footnote added.) The Federal provision pertinently provides that "it shall be unlawful for any person ... convicted in any court of a crime punishable by imprisonment for a term exceeding one year" to possess or receive a firearm. The ALJ stated that, if the above stated argument were the "only evidence" Swinehart advanced, the PSP "may have carried the day." However, relying on the order of Judge Allison, he concluded, inter alia, that under Pennsylvania State Police v. Viall, 774 A.2d 1288 (Pa. Cmwlth. 2001), the PSP's position could not be upheld because "judicial intervention" rejected the application of Section 6105 to Swinehart.
On appeal, the PSP re-assert that a conviction under state law can result in a disability under Section 922(g) of the Gun Control Act, even where the conviction is not for an enumerated disability under the state law.
In Grogan v. Pennsylvania State Police, 790 A.2d 1093 (Pa. Cmwlth. 2002), a case involving a Pennsylvania conviction for driving under the influence , the Court, sitting en banc, wrote:
Section 922(g) of the Federal Gun Control Act, 18 U.S.C. § 922(g), prohibits any person who has been convicted of a crime with an attending imprisonment term of more than one year from possessing a firearm. Until 1986, federal law determined the effect of a state conviction, without regard to whether the state had expunged the conviction. But that has been modified by Section 921(a)(20) of the Federal Gun Control Act which provides in pertinent part:
What constitutes a c
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