PSP v. N. Bell (OAG)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Pennsylvania State Police, :
Petitioner :
:
v. : No. 917 C.D. 2020
: Submitted: June 17, 2022
Naziyr Bell (Office of :
Attorney General), :
Respondent :
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE LORI A. DUMAS, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE DUMAS FILED: November 2, 2022
The 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 purchase a firearm
filed by Naziyr Bell (Respondent).1 On appeal, we consider whether the ALJ erred
in finding the PSP failed to meet its burden on the element of interstate commerce,
which is implicitly required by Section 6105(c)(9) of the Pennsylvania Uniform
Firearms Act of 1995 (UFA), 18 Pa. C.S. § 6105(c)(9).2 Our recent decision in
Pennsylvania State Police v. Madden, __A.3d___ (Pa. Cmwlth., No. 918 C.D. 2020,
filed October 21, 2022), is instructive here. As in Madden, we vacate and remand
to the ALJ for further proceedings on the limited question of interstate commerce.
1
Respondent, who is pro se, was precluded from filing a brief in this matter for failure to
comply with this Court’s June 10, 2021 order requiring him to file a brief within 14 days. Cmwlth.
Ct. Orders, dated 6/15/22.
2
18 Pa.C.S. §§ 6101-6128.
I. BACKGROUND3
On September 9, 2006, Respondent was arrested after a domestic
violence incident involving his wife. He pleaded guilty to the charge of Disorderly
Conduct - Engage in Fighting,4 which is a misdemeanor of the third degree.
On May 20, 2018, over 10 years later, Respondent attempted to
purchase a firearm in Pennsylvania. This action triggered a Pennsylvania Instant
Check System (PICS)5 background check, and Respondent’s purchase request was
denied. Meanwhile, during this time, this Court issued its decision 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). In Navarro I, we vacated and remanded for incompleteness where the
ALJ made no finding on the issue of interstate commerce when reviewing a firearm
application denial under Section 922(g) of the Federal Gun Control Act of 1968
(FGCA), 18 U.S.C. §922(g).6
After the PSP’s denial of his purchase request in the instant case,
Respondent submitted a firearm application (application) to PICS. That day, the
PSP issued an initial written denial of Respondent’s application, explaining that his
2006 disorderly conduct conviction involved domestic violence and, therefore,
3
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.
4
18 Pa.C.S. § 5503(a)(1).
5
The General Assembly delegates to the PSP the authority to regulate individual firearm
possession “under Federal or State law.” 18 Pa.C.S. § 6111.1(b)(1)(i). Pursuant to this delegation,
the legislature 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).
6
18 U.S.C. §§ 921-931.
2
prohibited his firearm purchase.7 Specifically, the PSP cited Section 922(g)(9) of
the FGCA and Section 6105(c)(9) of the UFA. The letter provided Respondent the
opportunity to respond with additional information or evidence for the PSP’s review.
Respondent did not respond. Thereafter, the PSP issued a final written notice,
upholding the firearm denial for the above-stated reasons. Respondent appealed to
the OAG.
At the June 21, 2019 evidentiary hearing, the PSP introduced evidence
documenting Respondent’s conviction and that he had used physical force and/or
violence during its commission. See Certified Record (C.R.), Item No. 1, Hearing
Transcript, Notes of Testimony (N.T.), 7/21/19, at 26-27. Although Respondent
denied the details of the domestic incident, he acknowledged that he had pleaded
guilty to disorderly conduct. See id. The ALJ questioned the PSP’s Counsel as to
whether the PSP was required to present evidence on the nexus between the relevant
firearm and interstate commerce. Id. at 26-27. The PSP’s Counsel declined that
evidence was needed on this issue, stating, “[n]o, first off, the issue is not raised.
Secondly, this case involves both the State and Federal firearm prohibition. So from
the [PSP’s] perspective no, it’s not – it’s not necessary to – to raise that issue at all.”
Id. The ALJ also inquired about the relationship between the federal and state gun
prohibitions. Id. at 29-30. The PSP’s Counsel acknowledged “they are very – they
are very parallel prohibitions” and although initially hesitant, the PSP’s Counsel
ultimately agreed that the federal prohibition is a predicate offense to the state
prohibition. Id.
7
The PSP initially denied Respondent’s firearm application due to similar convictions in
both 2006 and 2003. However, the ALJ granted the PSP’s request to amend its denial letter to rely
only on the 2006 conviction, which remains the sole underlying conviction for Respondent’s
firearm denial. Certified Record (C.R.), Item No. 1, Hearing Transcript, Notes of Testimony
(N.T.), 7/21/19, at 6-8.
3
On July 17, 2019, nearly one month after the ALJ’s evidentiary hearing,
our Supreme Court issued its decision in Navarro II. The Navarro II Court held that
the PSP must present proof that an involved firearm affected interstate or foreign
commerce to lawfully deny a firearm application under Section 922(g) of the FGCA.
On August 21, 2020, the ALJ reversed the PSP’s denial of
Respondent’s firearm application.8 In particular, the ALJ criticized the PSP’s failure
to submit any evidence showing that the relevant firearm was moved in or affected
interstate commerce. See ALJ Op. & Order at 14-16. Accordingly, the ALJ
concluded that the PSP’s denial of Respondent’s application was unlawful under
both Section 922(g) of the FGCA and Section 6105(c) of the UFA. Id. at 16-17.
The PSP timely petitioned this Court for further review.9, 10
II. ISSUES
After thorough review, we find that the PSP mirrors the arguments
previously raised in Madden. Effectively, the PSP argues that the ALJ erred in
addressing the interstate commerce element sua sponte; the plain language of
Section 6105(c) of the UFA does not require proof of interstate commerce; and in
the alternative, it is entitled to a remand in light of Navarro II. PSP’s Br. at 11-15.
8
ALJ William Ross Stoycos issued decisions in Madden and the present matter on the
same date, August 21, 2020.
9
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).
10
This Court “will affirm the decision of an administrative agency 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.” A.L. v. Pa. State Police, 247 A.3d 120, 126 n.6 (Pa.
Cmwlth. 2021) (internal citations omitted).
4
Although duplicative analysis on identical issues contravenes judicial economy, we
will address the PSP’s arguments briefly to ensure a comprehensive review on
appeal.
III. DISCUSSION
Our discussion begins with a review of Madden, which is directly
analogous to the present matter. In Madden, the applicant, like Respondent, was
convicted of a misdemeanor crime of domestic violence. Madden, slip op. at 2. The
applicant sought return of his firearm through a PICS firearm application, which the
PSP denied under Section 922(g)(9) of the FGCA and Section 6105(c)(9) of the
UFA. Id. at 2-3. Like here, after an evidentiary hearing, but before the ALJ’s order,
our Supreme Court issued Navarro II. Id. at 3-4. The ALJ reversed the denial of
the applicant’s firearm application, finding that the PSP did not present evidence of
the interstate commerce element required for a lawful denial under Section 922(g)(9)
of the FGCA. Id. On appeal, we vacated the ALJ’s order and remanded with
instructions to hold an evidentiary hearing on the sole issue of interstate commerce
following our Supreme Court’s decision in Navarro II. Id. at 9-10.
Here, the PSP argues that the ALJ erred in raising the issue of interstate
commerce sua sponte. We disagree. As we discussed in Madden, the Supreme
Court’s decision in Navarro II applies retroactively, and, therefore, the ALJ was
required to render a finding as to whether a nexus existed between the requested
firearm and interstate commerce pursuant to Section 922(g)(9) of the FGCA. Id. at
6-7.
The PSP also argues that the interstate commerce element does not
apply to the denial of Respondent’s application based on a plain language reading of
5
Section 6105(c) of the UFA.11 Again, we disagree. Section 6105(c)(9) of the UFA
adopts the prohibitory language set forth in Section 922(g)(9) of the FGCA, which
disallows 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). Accordingly,
bound by this plain language of both statutes, proof of the interstate commerce
element is required to satisfy a firearm application denial under Section 6105(c)(9)
of the UFA. Madden, slip op. at 7-8.12, 13
Finally, the PSP argues that, in the alternative, a remand is appropriate.
Here, we agree. Because this matter was pending during the disposition of Navarro
II, a remand is appropriate to provide both parties a chance to present evidence and
argument on the issue of interstate commerce at a further evidentiary hearing.
Precedent supports a decision to vacate and remand based on new Pennsylvania
Supreme Court precedent which was pending at the time of the appeal. Id. at 9,
Kline v. Travelers Pers. Sec. Ins. Co., 223 A.3d 667, 691 (Pa. Super. 2019).14
11
Our standard of review when interpretating a statute is de novo, and our scope of review
is plenary. Czachowski v. Zoning Bd. of Adjustment of City of Pittsburgh, 271 A.3d 973, 979 n.9
(Pa. Cmwlth. 2022). Generally, our best indication of legislative intent is by a statute’s plain
language. Id.12
Further, the PSP’s argument is at odds somewhat with its position at the evidentiary
hearing in this matter, where it acknowledged the relationship between Section 6105(c) and
Section 922(g). See N.T. at 29-30 (stating that it would be “fair to say” that “the [f]ederal
prohibition is a predicate to application of the [s]tate prohibition”).
13
Not every provision of the UFA incorporates the FGCA to require proof of interstate
commerce. However, Section 6105(c), the only state firearm prohibition provision before us, does.
14
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).
6
IV. CONCLUSION
In accordance with the Supreme Court’s decision in Navarro II, and the
decision of this Court in Madden, firearm application denials under either Section
6105(c) of the UFA or Section 922(g) of the FGCA require proof of interstate
commerce. Although the ALJ properly reversed the PSP’s denial of Respondent’s
firearm application for its failure to present such proof, the issuance of Navarro II
during the pendency of this appeal requires that we remand to afford the parties the
opportunity to present evidence and argument on the issue of interstate commerce.
Therefore, after careful review, we vacate the ALJ’s order and remand for an
evidentiary hearing on the issue of interstate commerce.
LORI A. DUMAS, Judge
7
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Pennsylvania State Police, :
Petitioner :
:
v. : No. 917 C.D. 2020
:
Naziyr Bell (Office of :
Attorney General), :
Respondent :
ORDER
AND NOW, this 2nd day of November, 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 (ALJ), 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