First Time Gunbuyer DENIED in Phila, PA

[MDJschool]

With all due respect for you knowledge and work in offering the above information, it's part of why many of us are recommending a lawyer.
It really does take a lawyer, or someone with an extraordinary amount of time, to figure all that out and then manuever it all correctly through a system design by and for lawyers.
Go it on your own and fail and all you get to do is listen to your buddies talk about opening day and wish like hell you had gone the lawyer route 30 years back. . . . I'm thinking, just from the above post, that it's going to be complicated, frustrating and possibly a failed attempt.
Just make a consultation appointment with a lawyer. Their usually free, or so I believe.
Do you trust your legal skills enough to risk the outcome?

I recommend a lawyer, because there's a certain defense that can be brought for relying upon one (but not to the point in remaining in complete ignorance oneself), not to mention having someone trained in law to bounce your own research off of. However, I know not every person who comes here will leave and seek a lawyer. It isn't in anyone's best interest for people to leave here with 'get a lawyer' IN LIEU OF receiving pointers to law that they should be aware of alright, and tools they can use to make certain decisions, etc.

So, my posts:
1) apprise both the OP and other readers of law they may not have been aware of (especially in the face of misinformation on the thread)
2) provide someone evaluating future counsel a baseline from which to form a reasoned conversation and judge the attorney's competence
3) direct those fools who choose themselves for lawyers and become asses of clients where to find pertinent law so that they can seek self-directed justice, preferably without violating the 'law' in the process
4) Provide an analysis from the facts given and various hypotheses which can be challenged equally clearly, to benefit those following the thread.

It's a little something for everyone.

Consultations with lawyers are not usually free. Sometimes lawyers in criminal practice offer this, and I think we have become spoiled believing this is always the case. It is not really always the case. It is, however, probably worth finding a few of those lawyers who will give a preliminary look for free, if you have the time to do comparison shopping. The only thing that is certain is that you're not going to get the same treatment from every lawyer; there will be various levels of attention to and appreciation of your situation, and varying levels of competence, experience, and strategy among them.

I don't know why you're looking at this situation as a propensity for the permanent denial of his rights...usually in those situations we can squarely see that, and such a person has to work out from the position. That doesn't seem to certain here. But if the law cannot be read by the layperson, and uncounseled persons really have no hope, it's actually cheaper to get a gun than a lawyer...

[ErSwnn]

I recommend a lawyer, because there's a certain defense that can be brought for relying upon one (but not to the point in remaining in complete ignorance oneself), not to mention having someone trained in law to bounce your own research off of. However, I know not every person who comes here will leave and seek a lawyer. It isn't in anyone's best interest for people to leave here with 'get a lawyer' IN LIEU OF receiving pointers to law that they should be aware of alright, and tools they can use to make certain decisions, etc.

So, my posts:
1) apprise both the OP and other readers of law they may not have been aware of (especially in the face of misinformation on the thread)
2) provide someone evaluating future counsel a baseline from which to form a reasoned conversation and judge the attorney's competence
3) direct those fools who choose themselves for lawyers and become asses of clients where to find pertinent law so that they can seek self-directed justice, preferably without violating the 'law' in the process
4) Provide an analysis from the facts given and various hypotheses which can be challenged equally clearly, to benefit those following the thread.

It's a little something for everyone.

Consultations with lawyers are not usually free. Sometimes lawyers in criminal practice offer this, and I think we have become spoiled believing this is always the case. It is not really always the case. It is, however, probably worth finding a few of those lawyers who will give a preliminary look for free, if you have the time to do comparison shopping. The only thing that is certain is that you're not going to get the same treatment from every lawyer; there will be various levels of attention to and appreciation of your situation, and varying levels of competence, experience, and strategy among them.

I don't know why you're looking at this situation as a propensity for the permanent denial of his rights...usually in those situations we can squarely see that, and such a person has to work out from the position. That doesn't seem to certain here. But if the law cannot be read by the layperson, and uncounseled persons really have no hope, it's actually cheaper to get a gun than a lawyer...

I get your general direction in your posts. I saw nowhere in which you express a lawyer is a bad idea. I like the fact your offering a different approach. That is a thoughtful option to the OP.

I am looking at this with a propensity for permanent denial because it just could end up that way. If he mistakenly believes he is clear to answer the 4473 question with "No" and is wrong, he's a felon. Sure, with time and money he might clear that problem away too, but he has the opportunity right now to get it done once and for all.

[jerkin]

The first thing I would do is talk to someone in the courthouse and find out how the expungements work, it's different between counties. My buddy had a dui in Tionesta about 2 years ago and after the ARD it was an automatic expungement, he didn't have to do anything. I was in some minor trouble in Beaver County about 20 years ago and just recently found out there was still a record of it even after ARD. I went to the Clerk of Courts and applied for the expungement on my own.

Another thing you need to know is that with the PSP the expungement will take 6-8 months. The judges order will say something to the affect of "all records of this incident shall be destroyed within 30 days." but it doesn't happen that way so I don't know how that will play out with your appeal.

The status of the expungement shouldn't matter once you complete ARD and the case is closed since you were never convicted of a crime but who knows with the PSP. That's why it's always better to consult a lawyer.

[MDJschool]

If he mistakenly believes he is clear to answer the 4473 question with "No" and is wrong, he's a felon. Sure, with time and money he might clear that problem away too, but he has the opportunity right now to get it done once and for all.

He already flubbed that if he was prohibited when he actually filled out the 4473. He already filled out the 4473 and submitted to the FFL, who called PICS, which we believe incredibly likely since he was denied. There is no 4473 to be filled out when the challenge occurs. Only were he to exceed the challenge period and be forced to make the sale again could the scenario you envision occur. One felony would not make him less a felon than two. So, he may need a lawyer for another reason should the PSP or ATF or someone else harass him on that count! (although it's not really an attractive case for them to make...someone is going to successfully challenge the constitutionality of preconviction prohibitors that pervert the presumption of innocence some day...)

Look at a 4473. http://www.atf.gov/press/releases/20...ample-form.pdf Notwithstanding that the OP should acquire the information to make sure the form is filled out "true, correct, and complete" (above block 16) (as it might relate to other potential prohibitors the OP didn't inform us about), do you see any situation for which perjury could be charged but for misstating being under information for a state misdemeanor with a max term of imprisionment for the offense of more than 2 years? Take what you can from the PSP example of the SP 4-113. The questions may ask more than they ought to, but there are no open ended questions related to general prohibition that might snag someone under sec. 6119: http://www.portal.state.pa.us/portal...ns-10-2008_pdf.

The perspective I try to look at this from is one where liberty is not weighted with a value of 0 against the value of not being persecuted. It's easy to always fall back to the 'safest' position of cowering in the face of government overburden. Worrying is fine but not when done without topping a porridge of facts flavored with reason.

(P.S. i just stumbled upon this...would you like your very own eForm 4473 software? check it out! beware of backdoors! [url=http://www.atf.gov/applications/e4473/download.html[/url])

[topsykretts]

I already PMed this guy and suggested a (specific) lawyer.

[DDeTora]

Just wanted to chime in on a more positive note for the OP. IANAL, so what I have to say is based off of my own experiences.

I got myself jammed up years ago with a possession charge, which I plead down to an ungraded M.

After reading a boatload of threads on this site, I decided it was best that I contacted a lawyer. It cost me 1 hour of his time, and answered all the questions I needed to know.

The next day after seeing an attorney I bought an AR and have been a happy camper ever since. Unfortunately, I can't get a PA LTCF. Had I known then what I know now...

To the OP, I can only guess that once you're off probation/ARD you'll be fine to buy a firearm. Being convicted of DWI (alcohol or drug) does NOT mean or prove that you're an addict. If you were to have spent time in a rehab, I can imagine it would be a different story, since there's a "paper trail" and proof of abuse. But to reiterate what has already been suggested, contact a lawyer versed in gun laws and he'll set you straight. Good luck.

[ErSwnn]

He already flubbed that if he was prohibited when he actually filled out the 4473. He already filled out the 4473 and submitted to the FFL, who called PICS, which we believe incredibly likely since he was denied. There is no 4473 to be filled out when the challenge occurs. Only were he to exceed the challenge period and be forced to make the sale again could the scenario you envision occur. One felony would not make him less a felon than two. So, he may need a lawyer for another reason should the PSP or ATF or someone else harass him on that count! (although it's not really an attractive case for them to make...someone is going to successfully challenge the constitutionality of preconviction prohibitors that pervert the presumption of innocence some day...)

Look at a 4473. http://www.atf.gov/press/releases/20...ample-form.pdf Notwithstanding that the OP should acquire the information to make sure the form is filled out "true, correct, and complete" (above block 16) (as it might relate to other potential prohibitors the OP didn't inform us about), do you see any situation for which perjury could be charged but for misstating being under information for a state misdemeanor with a max term of imprisionment for the offense of more than 2 years? Take what you can from the PSP example of the SP 4-113. The questions may ask more than they ought to, but there are no open ended questions related to general prohibition that might snag someone under sec. 6119: http://www.portal.state.pa.us/portal...ns-10-2008_pdf.

The perspective I try to look at this from is one where liberty is not weighted with a value of 0 against the value of not being persecuted. It's easy to always fall back to the 'safest' position of cowering in the face of government overburden. Worrying is fine but not when done without topping a porridge of facts flavored with reason.
(P.S. i just stumbled upon this...would you like your very own eForm 4473 software? check it out! beware of backdoors! [url=http://www.atf.gov/applications/e4473/download.html[/url])

Yeah, I suppose he did step over that line on the 4473 already. I hope your right that it's a minor item the authorities don't make an issue of in cases such as this.

The bolded section. I can only concede the point to you on that, it's so very true. Thanks for yanking me back into reality with that one. If we fear to seek a solution, we have already lost the fight.

[SIGStackz]

okay, just posting some information as i just checked the dockets, on the second link you provided. the result came back with 1 docket, it says adjudicated, and it was filed 2/6/11.

It also says as of 5/4/11 "Awaiting Completion of ARD Program"......which is all completed on my end at this point.

I had no bail, and was ROR'd. The charge is listed as DUI: Gen Imp/Inc of Driving Safely - 1st Off., and the statute is 75 § 3802 §§

these were the terms set forth for my ARD.

ARD - DUI 6.00 Months 05/04/2011
License Suspension
Counseling
PCPC Evaluation
Pay Costs
Safe Driving School
Supervision Fee Waived

[SIGStackz]

For some reason, everyone is making this harder than it really is (including you, OP.) Although the PSP have been known for denying approval numbers when it is unlawful to do so, it is more likely that you are under information for a crime which either prohibits a seller from delivering you the firearm or prohibits you from receiving the firearm, or both.

Take, for example, 18 USC 922. "It shall be unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person—
(1) is under indictment for, or has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;" 18 USC 922(d)(1). "The term “indictment” includes an indictment or information in any court under which a crime punishable by imprisonment for a term exceeding one year may be prosecuted." 18 USC 921(a)(14). "The term “crime punishable by imprisonment for a term exceeding one year” does not include— (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." 18 USC 921(a)(20)(B).

The difference between an FFL being prohibited to sell to you is the difference between being a first time and second time DUI-drugs offender: the first time is apparently an ungraded misdemeanor (which I expect to mean 2nd or 3rd degree, not prohibiting), and the second offense, an M1, which would prohibit the seller from delivering under 18 USC 922(d)(1). (DUI statutes would take a moment to work through so I'm working off a sentencing commission cheat sheet on the statutes.) What seems to matter to the PSP, however, is not what the law may say about grading, but what the DA has actually graded the offense on the information.

You were either delivered a copy of the criminal complaint at your preliminary arraignment or it was mailed to you in a summons. The criminal complaint is going to tell you exactly what statute you've offended, because otherwise it would describe no offense against the Commonwealth. You signed a plea of not guilty at the formal arraignment, so you should also have a copy of the information. And then you can go to http://ujsportal.pacourts.us/DocketSheets/MDJ.aspx and http://ujsportal.pacourts.us/DocketSheets/CP.aspx and VERIFY what your docket actually says! There really should be no question whatsoever as to what you were charged with, given those 4 places which will tell you. So please, go look.

If you find the charge was not graded as disabling under 18 USC 922, and it is not enumerated under 18 Pa.C.S. 6105(b) or (c), then it is possible that a TERM of your ARD "probation" was a gun ban. THIS IS NOT A MANDATORY TERM OF PROBATION!!! "The conditions of the program may be such as may be imposed with respect to probation after conviction of a crime, including restitution, except that a fine may not be imposed. In addition, the conditions of the program may include the imposition of costs, the imposition of a reasonable charge relating to the expense of administering the program, and such other conditions as may be agreed to by the parties." Pa.R.Crim.P., Rule 316(A). While I do not know the limits of "such other condition as may be agreed to by the parties" under ARD, the court has no authority to impose a condition that would not be allowed for a defendant under probation. "Furthermore, while § 9754(c)(7) grants to the sentencing judge the discretion to impose such a condition of probation, it does not authorize as a condition of probation the transfer of title or ownership of firearms. The legislature has given to the sentencing judges the authority to ensure that during a probationary period the accused does not have possession of firearms. However, the legislature has not authorized the divestiture of ownership of firearms during probation. Thus, the trial court has the discretion only to direct the manner in which possession of a firearm shall be transferred out of Appellant, and may not make any order which would affect any other aspect of Appellant's ownership of the property." Com. v. Arthur, 384 Pa.Super. 613, 618-619 (1989). You should also be aware that it is the court, and not the probation officer, who may set the terms of probation. Therefore, you signed or otherwise received a list of terms of ARD "probation" that was not required to contain, but in which someone may have included, a term prohibiting the possession (or perhaps acquisition?) of firearms or weapons. If the grading of the offense or the offense itself is not prohibiting, please review the terms provided to you.



That's nice, but unless you know he's sending that to the PSP and that's the only reason they're denying you, you shouldn't care. If the reason you're being denied is because you're under information for a prohibiting crime, dismissal is the solution, not simply successfully completing the program. You should consider applying for dismissal on Nov. 5. "When the defendant shall have completed satisfactorily the program prescribed and complied with its conditions, the defendant may move the court for an order dismissing the charges. This motion shall be supported by affidavit of the defendant and by certification of the agency or person charged with supervising the defendant’s program, if any." Pa.R.Crim.P., Rule 319. Expungment is not 'a much lengthier road' in the case of ARD. "When the judge orders the dismissal of the charges against the defendant, the judge also shall order the expungement of the defendant’s arrest record, subject to the provisions of paragraph (B). The expungement order shall contain the same information that is required in Rule 490(C) in summary cases and Rule 790(C) in court cases." Rule 320. Because the DA "shall within 30 days after service advise the judge of any objections to the motion" following the motion to dismiss, it's possible that the judge will be unable to order dismissal in time to make a challenge. And because a challenge is not an appeal as you would find in the courts, since you have to recertify conditions that may have changed since the last certification, there is really no process to begin the litigation and stay it pending the outcome of something else (i.e. if you are prohibited but you expect not to be, I don't see how the challenge form can be the appropriate answer.)


Getting denied for a purchase and failing to challenge or appeal does not ban you from firearms possession beyond the denial, because the PSP only has jurisdiction to carry out the UFA and prevent those who sell or deliver from unlawfully doing so to those who may not lawfully receive, own, or possess the firearms. That is, they are only preventing crimes from occuring: the statute does not read in terms of so-called "prohibitors" at all; instead, it reads in terms of crimes for receipt, possession, etc. Beside the prohibition itself, and trying to receive firearms while prohibited, the greatest risk here is false information on forms that don't really carry out the law, designed by the ATF and PSP. I'd have to look at the 4473 and the SP 4-113, but I don't recall them asking if you are on probation or parole or are 'generally prohibited', because that's simply not the way that the staute reads. Therefore, what crime would you be committing for attempting to acquire a firearm in violation of the terms of ARD probation? Not the prohibited-persons law, if you are not otherwise prohibited; not perjury or unsworn falsification, if there was no question about these things; not 'violating the terms of your ARD probation' if there is no prescribed penalty. The answer in such a case is with the DA/courts to shoot you out of the ARD program, to change the terms of your ARD probation, or to do nothing.

Receiving your ePATCH RAP sheet from the PSP will be telling, I think, although you will learn nothing you can't glean from the docket at http://ujsportal.pacourts.us/DocketSheets/CP.aspx unless the PSP have other charges down for you that you don't know about or forgot to tell us about. There is a number you can call to check on the status of an ePATCH mailing, and the reports I've received said the operators were precise and helpful when it came to estimating the remaining time to process and send your ePATCH RAP sheet. Please call them and find the status, have your Control Number and Date of Request ready. You can try checking here first: https://epatch.state.pa.us/RCStatusSearch.jsp and if the result is not satisfactory, I think the results page will give you a number to call. "If a request remains in pending status for more than 24 hours call the PATCH Help Line toll-free at 1-888-QUERY-PA (1-888-783-7972)."

In the (unlawful) scheme of things, it would probably do you better to successfully challenge the denial than to wait to buy again. Legally, you shouldn't be better off, but what government agents do is far from as it is read in law. I'd say you have two options: start a dialogue with the PSP (specifically one of their lawyers that handle challenges), or take your case to the court of common pleas (prior to a challenge, because you might be committing unsworn falsification if you challenge before certain events occur.) You should be aware, however, that stirring the pot here, after you certified that you were not under information or indictment for certain crimes (because if you are, you should have answered no, and then the FFL should have not run a PICS check), could cause you trouble.

Talking to a lawyer is always an option. Otherwise, wait a few days, methinks.

man you've been a great help, can't even begin to thank you for the clarification you've provided time and time again.

[SIGStackz]

With all due respect for you knowledge and work in offering the above information, it's part of why many of us are recommending a lawyer. I have no reason to doubt the validity of your direction but to many of us it is a complicated mass of words. It really does take a lawyer, or someone with an extraordinary amount of time, to figure all that out and then manuever it all correctly through a system design by and for lawyers. One wrong step by an untrained citizen puts that citizen right back where they started. Or worse.

I stand by my original advice. Get a lawyer. It's not going to be cheap but in the long run, say 30 years from now, it'll be money well spent as you track that 14 point buck or take a defensive stand as some doper comes through your front door at 2:30am while the kids are dreaming about the day on the range with you learning how to sight in their first rifle. Go it on your own and fail and all you get to do is listen to your buddies talk about opening day and wish like hell you had gone the lawyer route 30 years back.

Just make a consultation appointment with a lawyer. Their usually free, or so I believe. You spend about 20 minutes explaining your problem and where you are at the present, and what you want to accomplish. He/she will give you some idea of how difficult the task is, what it'll cost and based on the information provided, what the chances are of success. After that, take a good, hard, long look at the advice of MDJ and see if it's something you believe you can handle. He could be right and it's not as difficult as it seems. But I'm thinking, just from the above post, that it's going to be complicated, frustrating and possibly a failed attempt. It's your life. Do you trust your legal skills enough to risk the outcome?

yea you have very valid points, i've already contacted a lawyer regarding the situation too, just haven't made the follow up phone call for consultation yet. I guess i should probably contact him before i call the PSP, i'm guessing.