PSP v. R. Madden, Jr. (OAG)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Pennsylvania State Police, :
Petitioner :
:
v. : No. 918 C.D. 2020
: Submitted: June 24, 2022
Richard Madden, Jr. (Office of :
Attorney General), :
Respondent :
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE LORI A. DUMAS, Judge
OPINION
BY JUDGE DUMAS FILED: October 21, 2022
Pennsylvania State Police (the PSP) petitions for review of the order of
the Administrative Law Judge (ALJ) of the Office of Attorney General (OAG),
which overruled the PSP’s denial of an application to possess a firearm filed by
Richard Madden, Jr. (Respondent).1 On review, we consider whether the ALJ erred
in finding that the PSP had not satisfied its burden of proving the “interstate
commerce” element implicitly required by Section 6105(c)(9) of the Pennsylvania
Uniform Firearms Act of 1995 (UFA), 18 Pa. C.S. §6105(c)(9).
During the pendency of this appeal, our Supreme Court issued its
decision in Navarro v. Pennsylvania State Police, 212 A.3d 26 (Pa. 2019) (Navarro
II), which held that the PSP must demonstrate that a firearm traveled in interstate or
foreign commerce before denying a firearm return application pursuant to federal
law. The Court’s recognition of this requirement is relevant here as Section
6105(c)(9) expressly incorporates federal law into its plain terms. Thus, after careful
1
Respondent, appearing pro se, did not submit a brief before this Court.
consideration, we vacate and remand to the ALJ for further proceedings and
additional evidence on the limited question of whether Respondent’s requested
firearm was in or affected interstate commerce.
I. BACKGROUND2
On July 4, 2016, following a domestic violence incident involving his
live-in girlfriend, police apprehended Respondent and charged him with several
crimes. Upon his arrest, Respondent first denied having a firearm, but later informed
police of the gun in his car. Certified Record (C.R.), Item No. 5, Incident Report, at
4-5. A background check revealed Respondent was on probation and not permitted
to have a firearm. Thereafter, he was incarcerated for the probation violation, and
police lawfully confiscated his gun. C.R., Item No. 5, Incident Report, at 5. At a
September 2016 hearing, Respondent pleaded guilty to the charge of Disorderly
Conduct - Engage in Fighting, 18 Pa.C.S. § 5503(a)(1), which is a misdemeanor of
the third degree, and was sentenced to 12 months’ probation and fines.
In September 2017, Respondent contacted the PSP seeking return of his
firearm. Upon completion of a background check using the Pennsylvania Instant
Check System (PICS),3 the PSP informed Respondent that his firearm return request
was denied. Respondent then submitted a firearm application challenge
(application) to PICS. The PSP issued its initial written notice to Respondent,
explaining his firearm application had been denied due to his criminal record. The
2
The facts of this matter are not in dispute. Unless stated otherwise, we derive this
background from the decision of the ALJ, which is supported by the record. See ALJ Op. & Order,
8/21/20.
3
The General Assembly created the Pennsylvania Instant Check System (PICS), the state’s
digitized background check database, to afford the PSP instantaneous access to an applicant’s
criminal and mental health records at the local, state, and federal level.
See 18 Pa.C.S. § 6111.1(b)(3)(i).
2
letter invited Respondent to submit supporting documents to assist the PSP in
making its final decision. Respondent did not. Thereafter, the PSP issued a final
written decision upholding the denial of Respondent’s application because his 2016
disorderly conduct conviction was a state misdemeanor offense involving domestic
violence under Section 922(g)(9) of the Federal Gun Control Act of 1968 (FGCA),
18 U.S.C. §922(g)(9), and Section 6105(c)(9) of the UFA.
Respondent appealed to the OAG, which held an evidentiary hearing
on December 7, 2018. The PSP introduced evidence documenting Respondent’s
conviction and that he had used physical force or violence during the offense. See
generally C.R., Item No. 1, Hearing Transcript, Notes of Testimony, 12/7/2018.
Although Respondent disputed the details of the domestic incident, he conceded that
he had pleaded guilty to disorderly conduct. See id.By August 21, 2020 decision, the ALJ reversed the PSP’s denial of
Respondent’s application. According to the ALJ, the PSP had proven that
Respondent had been convicted of a misdemeanor crime involving domestic
violence but failed to establish a nexus between the requested firearm and interstate
commerce as required by both Section 922(g)(9) of the FGCA and Section
6105(c)(9) of the UFA. The ALJ recognized that Navarro II was decided after the
evidentiary hearing held in this case. Nevertheless, the ALJ noted that “Navarro [II]
clarified existing federal law in the context of 18 Pa.C.S. § 6111.1, which requires
the PSP to enforce federal law governing firearm prohibitions. It did not create a
3
new substantive legal rule.” ALJ Op. & Order, 8/21/2020 at 16. The PSP timely
petitioned for review.4,5
II. ISSUES
The PSP contends that the ALJ erred in addressing the issue of
interstate commerce sua sponte. PSP’s Br. at 11-12. Additionally, the PSP asserts
that the plain language of Section 6105(c)(9) of the UFA does not require an
interstate commerce finding. Id. at 12-14.6
Alternatively, the PSP asks for this Court to order a remand because at
the time of the December 2018 evidentiary hearing, Pennsylvania precedent had not
yet resolved the interstate commerce element in Section 922 of the FGCA. Id. at 14-
15. According to the PSP, a remand would be appropriate because any subsequent
firearm requests from Respondent, which would trigger an automatic background
check, would also result in denials. Id. at 15.
III. DISCUSSION
The right to bear arms serves as the basis for ongoing judicial,
legislative, political, and cultural debate in the United States. Although
4
On September 8, 2020, the PSP timely sought reconsideration and leave to reopen the
record for the limited purpose of presenting evidence on the interstate commerce element.
However, the application for reconsideration was denied by operation of law.
See 1 Pa.Code § 35.241(d).
5
On appeal, we will affirm an administrative agency’s decision unless “constitutional
rights were violated, an error of law was committed, the procedure before the agency was contrary
to statute, or any finding of fact made by the agency and necessary to support its adjudication is
unsupported by substantial evidence.” Pa. State Police v. Doe, 217 A.3d 455, 461 n.5 (Pa.
Cmwlth. 2016).
6
The PSP only contests the ALJ’s finding concerning Section 6105(c)(9) of the UFA.
However, as further analysis will demonstrate, the relevant sections of the UFA and the FGCA are
inextricably linked, and we must address both statutes.
4
constitutionally protected, the right to possess firearms is not limitless but rather
subject to longstanding regulatory measures for individuals with criminal records or
mental illnesses. See McDonald v. City of Chicago, 561 U.S. 742, 778, 786 (2010).
In Pennsylvania, the General Assembly has delegated the regulation of
individual firearm possession to the PSP, which assesses an applicant’s eligibility
“under Federal or State law.” 18 Pa.C.S. § 6111.1(b)(1)(i). The UFA7 governs the
possession, use, control, sale, transfer, manufacturing, or license to do any such
action, of an individual’s right to a firearm within the Commonwealth. 18 Pa. C.S.
§6105(a)(1). Our state legislature bars individuals convicted of certain crimes from
having access to a gun, regardless of sentence length or crime location, i.e., whether
committed inside or outside of the Commonwealth. Id.; see also 18 Pa. C.S.
§6105(c). While the UFA controls Pennsylvania intrastate use of firearms, the
FGCA8 governs firearm use in or affecting foreign or interstate commerce.
18 U.S.C. §922(a)(1)(A).
A. Navarro II applies retroactively to Respondent’s application
The PSP argues that the ALJ erred in raising the interstate commerce
element sua sponte. We disagree. Because Navarro II, which required proof of a
firearm’s involvement in interstate commerce to uphold a firearm denial under
federal law, was decided while the present matter was pending, we must first
determine whether its holding applies here.
In 2019, in a case of first impression, our Supreme Court addressed the
interstate commerce element of Section 922(g)(9) of the FGCA.9 The case history
7
18 Pa.C.S. §§ 6101-6127, as amended, 18 Pa.C.S. § 6105(c)(9).
8
18 U.S.C. §§ 921-931.
9
As the ALJ noted in the appealing order, the U.S. Supreme Court has interpreted an
interstate commerce nexus in prior federal gun control statutes. See, e.g., Scarborough v. U.S.,
5
begins with our Court, in Navarro v. Pennsylvania State Police (Pa. Cmwlth., No.
1433 C.D. 2017, filed May 17, 2018) (unreported), 2018 WL 2247193 (Navarro I),
aff’d, 212 A.3d 26 (Pa. 2019) (Navarro II), which vacated and remanded an ALJ’s
order denying a firearm application. We were unable to properly review the ALJ’s
decision because no findings were made concerning the interstate commerce element
of Section 922(g) of the FGCA. Navarro I., slip. op. at *5. On appeal, our Supreme
Court held that the PSP must show proof that the firearm moved in interstate or
foreign commerce before refusing return of a firearm under Section 922(g)(9) of the
FGCA.10 Navarro II, 212 A.3d at 33.
Because this was the Court’s “first opportunity” to directly address the
interstate commerce element, Navarro II applies retroactively. Kendrick v. Dist.
Attorney of Phila. Cnty., 916 A.2d 529, 537 (Pa. 2007) (internal citation omitted).
When our Supreme Court has “not yet answered a specific question about the
meaning of the statute, [its] initial interpretation does not announce a new rule of
law.” Fiore v. White, 757 A.2d 842, 848 (Pa. 2000) (emphasis added). Instead, the
decision becomes “part of the statute under consideration from the time the statute
was enacted.” Thiele, Inc. v. Workers’ Comp. Appeal Bd. (Younkers), 586 A.2d 489,
491 (Pa. Cmwlth. 1991). Navarro II did not issue a new rule of law but “merely
clarified the plain language of the statute” and relied on a statutory interpretation
431 U.S. 563, 567 (1977) (requiring satisfaction of the interstate commerce nexus under prior
federal gun control law); U.S. v. Bass, 404 U.S. 336 (1971). Yet prior to Navarro II, our Supreme
Court never expressly ruled upon the interstate commerce provision of Section 922(g) of the
present federal gun control statute, the FGCA. See Navarro II, 212 A.3d at 32 (“Our research has
revealed no binding case with similar facts that addresses the issue raised here.”).
10
Notably, Congress may only prohibit individual possession of firearms where there is a
nexus to interstate commerce. Bass, 404 U.S. at 336. Absent proof of an interstate commerce
connection, the U.S. Supreme Court has declined to extend Congress’s authority to encompass
regulation of the “mere possession” of firearms. Id. at 350. Such interpretation would be a
“dramatic[] intru[sion] upon traditional state criminal justice.” Id.6
that was not “wholly without precedent.” Fiore, 757 A.2d at 848-849 (internal
citation omitted); see Scarborough; Bass. Accordingly, Navarro II is retroactive as
of the date of the FGCA’s enactment and controlling here.
Therefore, the ALJ was required to dispose of all the necessary
requirements of the statutory plain language under both statutes, including rendering
a finding as to whether a nexus existed between the requested firearm and interstate
commerce pursuant to Section 922(g)(9) of the FGCA. Despite its focus before this
Court on the UFA, the PSP denied Respondent’s application under both the UFA
and the FGCA provisions. As such, the ALJ’s analysis would have been incomplete
and forced our remand had it omitted a finding as to the element of interstate
commerce. See Navarro I (vacating and remanding back to the ALJ without an
express finding as to the interstate commerce element under Section 922(g) of the
FGCA). Further, and of critical import here, even if the PSP had only cited Section
6105(c)(9) of the UFA to deny Respondent’s application, this violation triggers
Section 922(g)(9) of the FGCA; therefore, the ALJ could not ignore the element of
interstate commerce.
B. Section 6105(c)(9) of the UFA requires proof of “interstate commerce”
The PSP also argues that “interstate commerce” is not required by the
plain language of the UFA. Again, we disagree.
Statutory interpretation presents a question of law; thus, our standard
of review is de novo, and our scope of review is plenary. J.C.B. v. Pa. State Police,
35 A.3d 792, 794 (Pa. Cmwlth. 2012). Our primary objective is “to ascertain and
effectuate the intention of the General Assembly,” which is best indicated by the
plain language of a statute. Navarro II, 212 A.3d at 32. Thus, absent ambiguity in
the statutory language, we shall “construe words and phrases according to their
7
common and approved usage” and endeavor “to give effect to all its provisions so
that no provision is mere surplusage.” Pa. State Police v. Sama, 209 A.3d 1155,
1159 (Pa. Cmwlth. 2019).
Section 6105(c)(9) of the UFA prohibits firearm possession following
the commission of certain crimes.11 Rather than define expressly or list those crimes,
the UFA adopts the prohibitory language set forth in Section 922(g)(9) of the FGCA,
which prohibits anyone who “has been convicted in any court of a misdemeanor
crime of domestic violence” from possessing a firearm that has been “in or affecting
[interstate] commerce.” 18 U.S.C § 922(g)(9) (emphasis added).12
Although we acknowledge the phrase “interstate commerce” is
nowhere to be found within Section 6105 of the UFA, our plain language analysis
does not end there. We cannot ignore that Section 6105(c)(9) expressly imports the
11
Specifically, Section 6105(c)(9) prohibits firearm possession by:
A person who is prohibited from possessing or acquiring a firearm
under 18 U.S.C. § 922(g)(9). If the offense which resulted in the
prohibition under 18 U.S.C. § 922(g)(9) was committed, as provided
in 18 U.S.C. § 921(a)(33)(A)(ii) (relating to definitions), by a person
in any of the following relationships:
(i) the current or former spouse, parent or guardian of
the victim;
(ii) a person with whom the victim shares a child in
common;
(iii) a person who cohabits with or has cohabited with the
victim as a spouse, parent or guardian; or
(iv) a person similarly situated to a spouse, parent or
guardian of the victim;
then the relationship need not be an element of the offense to meet
the requirements of this paragraph.
18 Pa.C.S. § 6105(c)(9).
12
Under the FGCA, a misdemeanor crime of domestic violence is defined as an offense
with “the use or attempted use of physical force, or the threatened use of a deadly weapon,”
committed by, inter alia, a current or former romantic partner, spouse, or similarly situated person
in cohabitation. 18 U.S.C. § 921(a)(33)(A)(ii).
8
requirements of Section 922(g)(9) of the FGCA. Thus, the interstate commerce
element is automatically triggered by Section 6105(c)(9) of the UFA. In other
words, an individual cannot violate Section 6105(c)(9) of the UFA without violating
Section 922(g)(9) of the FGCA. Accordingly, bound by the plain language of the
UFA and the FGCA, proof of the interstate commerce element is required to satisfy
a firearm application denial under Section 6105(c)(9) of the UFA.
C. Remand is appropriate
In the alternative, the PSP argues this matter should be remanded. On
this issue, we agree. Because this matter was pending at the time Navarro II was
decided, we remand to the ALJ to hold an evidentiary hearing for the parties to
present evidence and argument on the element of interstate commerce. See, e.g.,
Kline v. Travelers Pers. Sec. Ins. Co., 223 A.3d 677, 691 (Pa. Super. 2019) (vacating
an order of the trial court and remanding based on new Pennsylvania Supreme Court
precedent given retroactive effect);13 Commonwealth v. Prop. Located at 2504 U.S.
Highway 522 North (Pa. Cmwlth., No. 1686 C.D. 2017, filed October 23, 2018),
2018 WL 5260550 (unreported) (remanding to the trial court because it did not “have
the benefit of our Supreme Court’s clarification” on the relevant issue from a
decision that was issued the day the trial court heard and decided the matter).14,15
13
Superior Court decisions “are not binding on this Court, but they offer persuasive
precedent where they address analogous issues.” Lerch v. Unemployment Comp. Bd. of Rev., 180
A.3d 545, 550 (Pa. Cmwlth. 2018).
14
We may cite unreported decisions for their persuasive value under Section 414(a) of the
Commonwealth Court’s Internal Operating Procedures, 210 Pa. Code § 69.414.
15
Although this Court did not order a remand in Germantown Cab Co. v. Phila. Parking
Auth., (Pa. Cmwlth., No. 962 C.D. 2016, filed August 18, 2017), 2017 WL 3567916, slip op. at 4
n.7, the case is distinguishable. In that case, we declined to remand in the interest of preserving
judicial economy and party resources because a change in precedent had only created a question
of law. Id. Here, unlike Germantown Cab, the decision in Navarro II creates a question of both
law and fact. Stated otherwise, additional evidence, e.g., whether the firearm ever crossed state
9
IV. CONCLUSION
Accordingly, to satisfy a denial of Respondent’s firearm application,
the PSP was required to submit evidence that the firearm was in or affected interstate
commerce. A thorough and sufficient analysis of law and fact required the ALJ to
make a finding on the interstate commerce element of the FGCA, due to the plain
language of the statutes, which implicitly (Section 6105(c) of the UFA) and
expressly (Section 922(g) of the FGCA) requires proof the firearm was in or
affecting interstate commerce. Our Supreme Court addressed the interstate
commerce element of the FGCA by majority opinion for the first time in Navarro
II, requiring proof from the PSP that the applicant’s firearm was in interstate or
foreign commerce to uphold a firearm application denial. Because Navarro II was
decided after the parties presented evidence, we are compelled to vacate and remand
to the ALJ for an evidentiary hearing, limited to allowing evidence and arguments
on the sole issue of interstate commerce.
LORI A. DUMAS, Judge
lines, is required to determine the question of law, i.e., whether a nexus exists between
Respondent’s firearm and interstate commerce.
10
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Pennsylvania State Police, :
Petitioner :
:
v. : No. 918 C.D. 2020
:
Richard Madden, Jr. (Office of :
Attorney General), :
Respondent :
ORDER
AND NOW, this 21st day of October, 2022, in light of our Supreme
Court’s decision in Navarro v. Pennsylvania State Police, 212 A.3d 26 (Pa. 2019),
the order of the Administrative Law Judge, Office of Attorney General, entered
August 21, 2020, in the above-captioned matter is VACATED, and the case is
REMANDED to the ALJ for further proceedings consistent with the attached
opinion. Jurisdiction relinquished.
LORI A. DUMAS, Judge