interesting criminal case re: suppressor in PA

[MartinBrody]

This is in Chester County, PA, which is the outer edges of the Philadelphia suburbs. The defense is claiming the suppressor isn't prohibited under PA law because it doesn't make the gun silent as described in the "Prohibited offensive weapons" statute - "firearm specially made or specially adapted for concealment or silent discharge".

http://www.dailylocal.com/WebApp/app..._Story_1219781

O’Neill charges debated in court
ATTORNEY ASKS JUDGE TO DISMISS ILLEGAL POSSESSION OF PROHIBITIVE OFFENSIVE WEAPONS CHARGES
WEST CHESTER — When is a silencer not a silencer?
That is essentially the question that a defense attorney for the father of a Willistown teenager who shot and killed a friend at a drinking party put to Common Pleas Court Judge James P. Mac-Elree II in a hearing Wednesday. He asked the judge to throw out charges of illegal possession of prohibitive offensive weapons filed against him in the wake of the deadly shooting.
The case could not have been assigned to a judge more conversant in the language of firearms.
MacElree, a bit of an amateur gun enthusiast, spent the hearing peppering both defense attorney Vincent DiFabio and Assistant District Attorney John Pavloff with questions that showed his knowledge of silencers, noise suppressors, flash suppressors, subsonic ammunition and even the occasional sawed-off shotgun.
He opined on various reasons for threading the barrel of a rifle, such as what the prosecution is alleging was the case with the two .22-caliber rifles found in a walk-in closet at the home of Sean O’Neill Sr. on Pony Trail Lane in the sumer of 2006, and mused that even a grenade — typically thought of as the classic illegal weapon — could be used legitimately for self-defense.
In the end, however, he took no action on the petition DiFabio filed in the case, although he remarked that he was inclined to dismiss it. He said he would research the matter further and issue a ruling before February, when the case is scheduled for trial.
“My gut feeling is that (the evidence against O’Neill) may be enough to hold him at a preliminary hearing, but not enough to get (the prosecution) past a trial,” he said during the 30-minute hearing.
O’Neill Sr., 47, a former restaurant owner from Willistown, filed a motion in court Friday contending that the prosecution erred in filing charges that he owned rifles illegally equipped for silencers. The motion follows a preliminary hearing in September at which District Magisterial Judge Gwenn S. Knapp ordered him held on charges of illegal use or possession of a prohibited offensive weapon.
The weapons were found in a search of the O’Neill home in the wake of the fatal shooting of 17-year-old Scott Sheridan at a drinking party held at the home by Sean O’Neill Jr. on Sept. 1, 2006, while his parents were away at the New Jersey Shore. O’Neill Jr., now 19, had shot and killed Sheridan during drunken horseplay with a .45-caliber gun he took from his parents’ bedroom.
The guns state police took from O’Neill Sr. included a Marlin Model 980 .22-caliber rifle, with an attached Parker Hale silencer, and a Ruger Model 77 rifle whose barrel had been threaded to accept a silencer.
According to the petition asking to have the charges dismissed, the prosecution is resting its case against Sean O’Neill Sr. on a report conducted by the U.S. Bureau of Alcohol, Tobacco and Firearms (ATF). That reports states that in test firing the Marlin rifle with the silencer attached, the noise level of the gunshot was reduced from 149.90 decibels to 133.34 and thus was classified as a prohibited weapon under federal law because it “muffled” or “diminished the report of a portable firearm.”
However, DiFabio said state law in Pennsylvania does not include the same language as the federal statute.
The Pennsylvania statute, he said, refers to “silent discharge,” and since the ATF report shows that there was only a minimal reduction in sound by the silencer and not anything like complete silence, there is nothing to show that the guns were illegal.
“Your defense is that it’s a defective silencer and it doesn’t count?” MacElree asked.
No, said DiFabio. “My defense is that it’s not a silencer” under the state statute. “I don’t believe that (the prosecution) is able to make out ... that this is a weapon made for silent discharge,” he said.
But MacElree questioned what an actual silent discharge would be, noting studies that he said showed that there is always some noise present, and that a decibel-measuring device in an empty room would still pick up some ambient noise.
Pavloff argued that in passing the legislation barring silencers as prohibited weapons, the General Assembly could not have meant to point to a device that rendered a gunshot totally silent, no matter what the language. “That is an assumption that is impossible,” he said. “Silence in this context can’t mean the total absence of noise.”
MacElree agreed. “Anyone who knows anything about suppressors knows the concept is not to silence (a gunshot) but to change the way it sounds,” he said. “Not that it is silent.”
DiFabio noted that the guns would have met the federal definition for an illegal weapon, since the noise was muffled with the device, but was unable to answer MacElree when the judge asked why the case was not being prosecuted federally. DiFabio said the case was initially handled by federal agents, but that they “kicked back” the case to the Chester County District Attorney’s Office in April.
O’Neill Sr. did not attend the hearing Wednesday. DiFabio said that his client had had two operations for back problems in the past 10 months and that he was getting an MRI Wednesday. He is free on bail pending the outcome of his case.
O’Neill Sr. and his wife, Eileen O’Neill, are the former owners of Maggie O’Neill’s Irish Pub & Restaurant in Drexel Hill. They have been sued by Sheridan’s family for the fatality.
Sean O’Neill Jr. was sentenced to serve time in a juvenile placement facility in western Pennsylvania after a county judge ruled he could not be tried as an adult in the matter.
To contact staff writer Michael P. Rellahan, send an e-mail to mrellahan@dailylocal.com.

[JayBell]

well, what he has there is a Parker Hale AIRGUN SILENCER which he illegally adapted to a 22lr rifle...if i'm reading it right.

Parker Hale is made in England, and thier silencers cannot be imported legally for firearms.
the only way they are legal on an airgun is if they are permanently attached.

PAs law on NFA specifies that all NFA is illegal unless registered under the NFA of 34, and this was not, hes definitely going to lose that case.

the quote about rifles illegally adapted to take a suppressor is kind of disturbing, I have multiple 22s threaded for my legal suppressor...and tons of 22s have threading of some kind.

then again, I have a legal registered suppressor for them

[Pa. Patriot]

Originally Posted by JayBell

PAs law on NFA specifies that all NFA is illegal unless registered under the NFA of 34, and this was not, hes definitely going to lose that case.

I don't know if it is "definite". Since his defense is challenging the definition of silenced.

Originally Posted by JayBell

the quote about rifles illegally adapted to take a suppressor is kind of disturbing,

Yep, there simply is no such thing as "illegally adapted to take a surpressor".

[JayBell]

I'm pretty sure challenging the law based on semantics isn't going to work.

besides, all they have to do it turn it over to the feds for Federal violations in the State charges dont turn out, thats what they do these days.

[GunLawyer001]

I think the defense has a point on the "silent discharge" issue, but as Jay points out, the Feds can still prosecute under the NFA if he beats the state charges. It's not double jeopardy, they are two separate statutes and two separate sovereign powers. Of course, they can do that even if he's convicted on the state charges.

"Silent" means "without sound", not "quieter". Just like "honest" means "without cheating", not "with less cheating"; or "less lively" is different than "dead". Comparative words are different than absolutes, and "silent" is an absolute.

Just because the state legislators couldn't tell their asses from a ported muzzle doesn't mean that the citizens have to read between the lines and figure out what they meant to say. Lots of laws make no sense as written, like the 1994 Assault Weapons Ban, which allowed you to be shot with a post-ban gun but not the nearly identical pre-ban with a flash hider. Not much sense, but it was enforced as written.

Theres a rule of lenity in the criminal statutes, where ambiguities are construed in favor of the defendant. The state should never enforce a harsher law than a reasonable reading of the statute would indicate.

[jackson]

I stumbled on this forum when I was searching for information about Sean O'Neill, who lives down the road a piece.

His place was raided by ATF and other feds on Friday (6/27/08) at 6am. He's presently being held without bail, but there will be a bail hearing on Wednesday (7/2).

Here are two links to news stories from yesterday:

Chester County newspaper story

Philadelphia Inquirer story

[MartinBrody]

Thank you for the links Jackson. I grew up in Willistown Twp. not far from where they live and have been following this story from the start. I didn't know about his roots in Ireland, maybe that explains the UK made Parker Hale "silencer". Based on other stories it sounded like this guy was a firearms enthusiast, I never understood why he wouldn't just buy a suppressor legally as Chester County is NFA friendly. It was good to see the article mentioned that they could be purchased legally, a lot of people don't know that.

From the Inquirer story...

Agents recovered a silencer yesterday at O'Neill's home and are checking whether it was obtained legally, Hageman said.

"You need to get permission from the chief law enforcement officer [of the township] and apply to the ATF to own a silencer," Hageman said.

This is a very sad story and a good re-emphasis about the importance of properly securing firearms. I understand the pistol his son shot his friend with was hidden under his mattress.

[JoeWilliams]

Good defense attorney.

[MartinBrody]

Here is today's story...

http://www.dailylocal.com/site/news....d=635398&rfi=6

Bail hearing set for today in Sean O'Neill Sr. weapons case
By ROSE QUINN, Special to the Local News
07/02/2008
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A bail hearing on weapons charges is set for today in federal court in Philadelphia for Sean O'Neill Sr.

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O'Neill Sr. is being held without bail in federal detention in Philadelphia, a spokesperson for U.S. Attorney Patrick L. Meehan's office said Friday.

According to the indictment, O'Neill, a citizen of the United Kingdom and former owner of Maggie O'Neill's Pub in Upper Darby, lied about his membership in an Irish terrorist group to obtain his green card.

A team from the Alcohol, Tobacco, Firearms and Explosives; Immigration, Customs Enforcement; and Pennsylvania state police raided O'Neill's home early Friday.

When they left, O'Neill, 48, was in custody. Also, a gun silencer recovered from the house was confiscated, ATF spokesman John Hageman said.

O'Neill Sr.'s arrest came two days after a Chester County judge freed 19-year-old Sean O'Neill Jr. from a juvenile facility, where he had been placed following a plea in the September 2006 shooting death of Sheridan's son, Scott.

O'Neill Jr. shot and killed Scott Sheridan, 17, at the end of an underage drinking party at the O'Neill home, a palatial estate that straddles Delaware and Chester counties in Willistown. The young O'Neill had been pointing his father's .45-caliber, laser-equipped pistol at others at the party before Sheridan was shot in the face.

Sue Sheridan was told O'Neill Jr. was present when his father was escorted away by agents, who used a battering ram to enter the home.

Charges filed against O'Neill Sr. include possession of an alien registration card procured by fraud; false statement; eight counts of using a fraudulently obtained alien registration card; illegal possession of an unregistered silencer; and illegal possession of a silencer without a serial number.

It won't bring back her son, but Susan Sheridan said Saturday she felt good when she heard the father of the teen who shot and killed him is behind bars on federal weapons and immigration allegations.

"I knew he was being investigated," Sheridan said, referring to Sean O'Neill Sr. "It made my day when I heard he was arrested, to be honest."

Many of the details disclosed in a 12-count grand jury indictment unsealed Friday had been kept under wraps, but Sheridan said she had heard the rumors.

"A lot of the things I had heard, they are now making sense," she said

Sue Sheridan, a resident of Arizona, recently spent time in the Philadelphia area, primarily to celebrate the graduation of her son, Keith, from Cardinal O'Hara High School. Though it was Keith's moment, Sheridan said she couldn't help but think about Scott, too.

"I never got to see him graduate," she said.

In addition to his mom and brother, Scott is survived by his dad, Joseph R.; a brother Brian; a sister, Heather Mazza; and a stepfather, Anthony Ambruso.

Scott Sheridan, like O'Neill Jr., was just days away from starting his senior year at O'Hara when he died Sept. 1, 2006. The shooting occurred in the early morning as an unsupervised Labor Day weekend party at the O'Neill house was winding down.

The handgun used to kill Scott Sheridan belonged to O'Neill Sr. Authorities said it had been stored between the mattress and box spring in O'Neill's parents' bedroom.

Susan Sheridan blames O'Neill Jr., as well as his parents, for what she perceives as a continued pattern of arrogance and protection of their son, regardless of cost or consequence.

Brian Sheridan, the victim's older brother, said the elder O'Neill deserved some of the blame for the incident that took the life of his brother. The gun used in the shooting had been left unsecured in Sean O'Neill Sr.'s bedroom, and he and his wife were out of town when the shooting took place.

"I think justice has a way of finding itself for this family," Brian Sheridan said. "I truly believe that it was (the father's) fault for leaving the gun in the house."

Susan Sheridan said Saturday she was "outraged" by O'Neill Jr.'s release.

O'Neill Sr. and his wife, Eileen, are the former owners of Maggie O'Neill's Irish Pub in the Drexel Hill section of Upper Darby.

According to the federal indictment, O'Neill Sr. served jail time in his native Northern Ireland in the late 1970s. He was 17 when he pleaded guilty to being a member of the Fianna na h'Eireann - the youth faction of the Gerry Adams-led Irish Republican Army.

The group was dedicated to the violent overthrow of British rule in Northern Ireland.

From his first visit to the United States to the present, authorities alleged O'Neill Sr. had repeatedly failed to mention an early conviction involving his IRA ties, both on documents required to enter and remain in the country, as well as applications to buy and carry firearms.

The indictments state a woman who claimed to be married to O'Neill initially applied to the United States Immigration and Naturalization Service for O'Neill to become a legal permanent resident of the United States.

That woman, identified only by initials U.J.B., is known to the grand jury, according to the indictment.

Guns removed from the O'Neill home by state police following the Sheridan murder included a Marlin Model 980 .22-caliber rifle, with an attached Parker Hale silencer, and a Ruger Model 77, the barrel of which had been threaded to accept a silencer. Weapons offenses filed against O'Neill Sr. at that time by state police were later dismissed.

Federal agents recovered a silencer Friday at the O'Neill home, according to ATF spokesman Hageman.

Friday's arrest was the third for O'Neill since his arrival in the United States in 1983. Haverford police charged him in 1983 for carrying a firearm without a permit. That case was also dismissed.

As for Sheridan, she'll be watching the latest case as it proceeds through the system.

For now, she posed this question:

"What do you need a silencer for?"

Staff writer Michael P. Rellahan and correspondent Susan Serbin contributed to this report.

[jackson]

Bail was denied. Here's the Philadelphia Inquirer story.