Pennsylvania State Police v. McPherson

DISSENTING OPINION BY

Senior Judge KELLEY.

I respectfully dissent.

Section 6109(d) of the Uniform Firearms Act (UFA) provides, in pertinent part:

(d) Sheriff to conduct investigation.—
The sheriff to whom the application is made shall investigate the applicant’s record of criminal convictions ... and shall conduct a criminal background ... check following the procedures set forth in section 6111 (relating to firearm ownership).

18 Pa.C.S. § 6109(d).

In turn, Section 6111(b)(7) of the UFA provides, in pertinent part:

(7) For purposes of the enforcement of [Section 922(g)(9) of the Federal Gun Control Act (GCA)1], in the event the criminal history ... background check indicates a conviction for a misdemeanor that the Pennsylvania State Police [ (PSP)] cannot determine is or is not related to an act of domestic violence, the [PSP] shall issue a temporary delay of the approval of the purchase or transfer. During the temporary delay, the [PSP] shall conduct a review or investigation of the conviction with courts, local police departments, district attorneys and other law enforcement or related institutions as necessary to determine whether or not the misdemeanor conviction involved an act of domestic violence. The [PSP] shall conduct the review or investigation as expeditiously as possible. No firearm may be transferred by the dealer to the purchaser who is the subject of the investigation during the temporary delay. The [PSP] shall notify the dealer of the termination of the temporary delay and either deny the sale or provide the unique approval number under paragraph (4).

18 Pa.C.S. § 6111(b)(7).

Thus, when an application is submitted to a sheriff, the plain language of Section 6109(d) specifically empowers the sheriff : (1) to investigate the applicant’s record of criminal convictions; (2) to conduct the background check outlined in Section 6111 of the UFA; and, therefore, (3) to determine whether or not these convictions preclude the applicant from obtaining the license to carry a firearm pursuant to Section 922(g)(9) of the GCA.2 The Majority’s conclusion to the contrary renders the ex*809plicit provisions of Section 6109(d) meaningless, in derogation of the basic tenets of statutory construction.3

Based on the explicit provisions of the UFA, I firmly believe that it was for the Sheriff of Bucks County, and the Sheriff alone, to conduct the investigation into McPherson’s background and criminal record, and to determine whether or not there was a statutory disability which precludes him from possessing a firearm. The only role that the PSP played in this application process was to forward McPherson’s criminal history record maintained in the PSP’s central repository, as defined in the Section 9102 of the Criminal History Record Information Act (CHRIA)4, to the Sheriff for his consideration.

Pursuant to the provisions of the CHRIA, McPherson’s criminal history record in the PSP’s central repository should only consist of all “[i]dentifiable descriptions, dates and notations of arrests, indictments, informations or other formal criminal charges and any dispositions arising therefrom ...”5 My review of the certified record in this case reveals that McPherson’s criminal history record, maintained by the PSP in its central repository, contains information in addition to the foregoing items. Specifically, McPherson’s criminal history record also contains a notation relating to the purported federal disability involving “misdemean- or crime of domestic violence” under Section 922(g)(9) of the GCA. See Appendix G of the certified record. As the ALJ’s order in this case properly directs the PSP to remove this information from McPherson’s criminal history record, to notify applicable agencies of this correction, and to furnish a corrected criminal record history to McPherson, the ALJ’s order should be affirmed

Accordingly, unlike the Majority, I would affirm the ALJ’s order in this case.

. 18 U.S.C. § 922(g)(9). Section 922(g)(9) provides, in pertinent part, that ”[i]t shall be unlawful for any person ... who has been convicted in any court of a misdemeanor crime of domestic violence, to ... possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.” In turn, Section 921(a)(33) defines "misdemeanor crime of domestic violence”, in pertinent part, as "[a]n offense that ... (i) is a misdemeanor under Federal or State law; and ... (ii) has, as an element, the use or attempted use of physical force ... committed by a current or former spouse ...” 18 U.S.C. § 921(a)(33)(A).

. See, e.g., Smith v. Nace, 824 A.2d 416, 419 (Pa.Cmwlth.2003) ("[A] review of Gardner [v. Jenkins, 116 Pa.Cmwlth. 107, 541 A.2d 406, petition for allowance of appeal denied, 520 Pa. 620, 554 A.2d 511 (1988)] and Tsokas [v. Board of Licenses and Inspections Review, 777 A.2d 1197 (Pa.Cmwlth.2001)] discloses that it is for the sheriff to determine the fitness of an individual to carry weapons. Each case is decided on its own facts and there is no fixed *809rule to determine fitness. Gardner, 541 A.2d at 409. Clearly the legislature intended to confer discretion upon police chiefs or sheriffs to determine whether an applicant should be licensed, and this principle applies with equal force to a determination of good cause for the revocation of a license granted under the [UFA].’ Tsokas, 777 A.2d at 1202.”).

. See, e.g., Galloway v. Workers' Compensation Appeal Board (Pennsylvania State Police), 756 A.2d 1209, 1213 (Pa.Cmwlth.2000) ("[W]hen interpreting a statute, a court must ascertain and effectuate the intent of the legislature and give full effect to each provision of the statute if at all possible. Where the words of a statute are clear and free from ambiguity the legislative intent is to be gleaned from those very words. Further, when construing one section of a statute, courts must read that section not by itself, but with reference to, and in light of, the other sections because there is a presumption that in drafting the statute, the General Assembly intended the entire statute to be effective.”) (citations omitted).

. 18 Pa.C.S. § 9102. Section 9102 defines "Central repository” as "[t]he central location for the collection, compilation, maintenance and dissemination of criminal history record information by the [PSP].” In turn, Section 9102 defines "criminal history record information” as "[information collected by criminal justice agencies concerning individuals, and arising from the initiation of a criminal proceeding, consisting of identifiable descriptions, dates and notations of arrests, indictments, informations or other formal criminal charges and any dispositions arising therefrom ...”

. As noted above, Section 9102 of the CHRIA defines "criminal history record information” as "[^Information collected by criminal justice agencies concerning individuals, and arising from the initiation of a criminal proceeding, consisting of identifiable descriptions, dates and notations of arrests, indictments, infor-mations or other formal criminal charges and any dispositions arising therefrom ...” 18 Pa.C.S. § 9102 (emphasis added).