PSP’s Burden on Appeal from Denial of Return of Firearm

Navarro v. Pennsylvania State Police, 2018 WL 2247193 (Pa. Cmwlth. 2018) (unreported), allocatur granted Dec. 18, 2018, appeal docket 72 MAP 2018

Navarro, after serving a two-year probation for misdemeanor forgery, applied for return of his firearm and was denied on the grounds that Pennsylvania’s Uniform Firearms Act incorporates the federal Gun Control Act (GCA) and the GCA treats Navarro’s crime as a disqualifying conviction.  On appeal, Commonwealth Court reversed, interpreting the GCA to require proof not only of a disqualifying conviction but also that the firearm in question was involved in interstate or foreign commerce; thus, the court vacated the administrative law judge’s opinion and remanded for findings regarding the interstate or foreign commerce status of the firearm that Navarro sought to be returned.

The GCA provides:

(g) It shall be unlawful for any person—

(1) who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year;


to ship or transport in interstate or foreign commerce, or 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.

18 U.S.C. § 922(g).

The Commonwealth Court interpreted this provision to require proof that the firearm in question “was involved in interstate or foreign commerce”:

To be triggered, GCA Section 922(g) requires proof of two things: (1) a disqualifying conviction, and (2) that the firearm in question was involved in interstate or foreign commerce. See 18 U.S.C. § 922(g). Therefore, per the language of the statute, without proof that the firearm sought to be purchased, possessed, or received moved in interstate commerce, GCA Section 922(g) would not apply regardless of whether or not the individual in question had a disqualifying criminal offense. Such proof need not be extensive, but it must be present in some form to trigger the application of Section 922(g).

Slip Op. at 4.

Focusing on 18 Pa.C.S. § 6111.1(e), which provides that a denied applicant “may challenge the accuracy of that person’s criminal history” through an appeal, , and that the Pennsylvania State Police “shall have the burden of proving the accuracy of the record” in such appeal,  the Pennsylvania State Police sought allocatur, which the Supreme Court has granted as to the following issue:

Did the Pennsylvania Commonwealth Court err when it reversed a decision of the Pennsylvania Office of the Attorney General upholding a decision of the Pennsylvania State Police to deny a firearms background check, based on a failure of the ALJ to determine if a firearm had moved in interstate commerce, when the statute, 18 Pa.C.S. § 6111.1(e), does not require such a finding?

Image copyright Lunde Studio