A.M. Rice v. PSP

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Adam Matthew Rice, :
Petitioner :
:
v. : No. 235 C.D. 2023
:
Pennsylvania State Police, :
Respondent : Argued: February 7, 2024
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE STACY WALLACE, Judge
HONORABLE MATTHEW S. WOLF, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE CEISLER FILED: March 11, 2024
Petitioner Adam Matthew Rice (Rice) petitions for review of the Office of
Attorney General’s (OAG) February 10, 2023 adjudication, through which an OAG
administrative law judge (ALJ) denied Rice’s appeal of Respondent Pennsylvania
State Police’s (PSP) denial of his application to purchase a firearm. We affirm, on
the basis of issue waiver.
I. Background
As recounted by the ALJ in his adjudication of Rice’s appeal:
On September 15, 2020, Rice attempted to purchase a
firearm in the City of Washington (Washington County),
Pennsylvania. He was prevented from doing so because a
Pennsylvania Instant Check System (“PICS”)1 report was
run by the PSP. The report indicated that the requested
purchase was prohibited by law.
1
The PICS was established by Pennsylvania’s General
Assembly in 1995 and requires the PSP to conduct
immediate criminal history, juvenile delinquency history,
and mental health record checks prior to any firearm
purchase, transfer, or license issuance. The PSP is required
to determine whether the applicant is prohibited from receipt
or possession of a firearm or license to carry under state
and/or federal law and to inform the licensed firearm
importer, manufacturer, dealer, or sheriff's office involved in
the proposed transaction. See 18 Pa. C.S. §§ 6111, 6111.1.
After receiving a challenge from Rice dated the same day,
the PSP confirmed the denial. The PSP explained to Rice
that the status of his application to purchase a firearm was
based on information received indicating that Rice was
convicted of Driving Under the Influence of Alcohol
(DUI) graded as a misdemeanor of the first degree in 2013,
which triggered a firearm prohibition under the Federal
Gun Control Act (FGCA), 18 U.S.C. § 922(g). The PSP’s
letter invited Rice to submit additional information for the
agency’s review and consideration before a final
determination on the question was made.
On November 3, 2020, the PSP sent a letter to Rice
indicating that it had decided to uphold the firearm denial.
The letter indicated that the firearm denial was based on
his conviction for DUI, which triggered a firearm
prohibition under 18 U.S.C. § 922(g)(1). Rice appealed
this determination to the OAG pursuant to 18 Pa. C.S. §
6111.1(e)(3), [via letter on November 23, 2020,] and an
evidentiary hearing was conducted [before the ALJ] on the
matter on March 15, 2022.
OAG Adjudication at 1-2 (cleaned up).
The ALJ subsequently issued his adjudication on February 10, 2023, through
which he affirmed the PSP’s denial of Rice’s firearm purchase application. The ALJ
noted that Section 922(g)(1) bars a person from shipping, transporting, possessing,
or receiving a firearm if they have been convicted of a state-level misdemeanor crime
for which the maximum carceral term is two or more years. Id. at 4-5. The ALJ then
observed that Rice had been convicted of precisely that kind of crime, in that his
2
misdemeanor DUI conviction was for a crime that carried a maximum potential
sentence of five years, and that he was consequently barred by federal law from
purchasing a firearm. Id. at 5-6. The ALJ also declared that, in his view, any
arguments regarding the as-applied constitutionality of this federal ban had not been
fully articulated or developed at the administrative level:
Notably, counsel for Rice stated to this tribunal:
As I indicated at the outset, we understand that the
[PSP] is doing what it’s required to do under the
law. We’re here today to exhaust our administrative
remedies, to go through the process and then at a
later date, if necessary, if we decide so, we may
pursue this as a collateral matter to challenge the
constitutionality of Section 922(g), particularly as
it applies to my client.
3/15/22 [Notes of Testimony (N.T.)] at 13 (emphasis
added). No further information was communicated
regarding the potential constitutional argument under
consideration by Rice for presentation at a future date in a
different forum.
In response thereto, the undersigned inquired of both
counsel whether or not Rice is required to raise a
constitutional argument in the administrative law
proceeding and whether or not the undersigned is required
to rule upon it. Id. at 14. More specifically, the
undersigned stated:
The reason I asked that is, frankly, in the couple of
years I’ve been doing this [(serving as the OAG’s
ALJ)], I haven’t ever been asked to rule on the
constitutionality [of a statute] . . . In passing and in
doing legal research, I feel like I’ve come across a
case that talked about a certain subset of
constitutional challenges where they have to be
raised in this - with the ALJ.
Id. at 15.
Counsel for both parties communicated their belief that
claims of constitutional dimension are not within this
tribunal’s jurisdiction and must be raised in a different
3
forum. Id. at 14. However, both counsel also indicated that
they would not oppose the undersigned opining on the
constitutionality of the FGCA if I wished to. Id. at 15-17.
At that point, the undersigned: (1) pointed out that “I don’t
even know what the constitutional argument is at this
point,” and (2) informed counsel that no constitutional
claim would be addressed unless one or both parties
subsequently contacted the tribunal and requested a
reopening of the hearing to address questions of statutory
constitutionality. Id. at 17. In the words of the tribunal:
Why don’t we do this? I don’t want to put any extra
burdens on you, but if you, subsequent to today, . . .
if you do any research or you find that I – you think
I should address the constitutionality [issue], why
don’t you just send a letter to me and copy counsel.
....
We’ll assume that I don’t need to, but—if you
subsequently feel that I need to do something in that
regard, just let me know.
Id.2 Neither party subsequently contacted the tribunal on
this matter and no “as-applied” constitutional claim was
ever raised or argued. See Lehman v. Pa. State Police, 839
A.2d 265 (Pa. 2003) (“facial challenges to a statute’s
constitutionality need not be raised before the
administrative tribunal to be reviewed by an appellate
court; challenges to a statute’s application, however, must
be raised before the agency or are waived for appellate
review” and “administrative agencies must address ‘as[-
]applied’ claims”).
2
The hearing transcript contains a typographical error
indicating that I stated “if . . . you think I shouldn’t address
the constitutionality, . . . why don’t you just send a letter[.]”
In fact, my direction to counsel was “if . . . you think I should
address the constitutionality, . . . why don’t you just send a
letter[.]” Corroboration of this fact can be found in my later
statement to counsel reflected in the transcript that “[w]e’ll
assume that I don’t need to, but . . . if you subsequently feel
that I need to do something in that regard, just let me know.”
Id. at 6-8 (cleaned up).
This appeal to our Court followed shortly thereafter.
4
II. Discussion
Rice presents two interrelated arguments for our consideration,1 which we
summarize as follows. First, Section 922(g)(1) of the FGCA is unconstitutional as
applied to Rice, because the PSP’s denial of his firearm purchase application on
account of his non-violent misdemeanor conviction runs afoul of the Second
Amendment.2 Rice’s Br. at 9-19. Second, the PSP’s denial of Rice’s firearm
purchase application violated article I, section 21 of the Pennsylvania Constitution,3
which enshrines the right to bear arms on a state level. This is because Section
922(g)(1) of the FGCA, as applied in this instance to Rice, contravenes the Second
Amendment, and that law was the only reason why the PSP denied Rice’s
application; as such, the PSP’s denial runs afoul of the Pennsylvania Constitution.
Id. at 19-21. In other words, both of Rice’s arguments hinge upon his belief that
Section 922(g)(1), as applied to him under these circumstances, violates the Second
Amendment.
We, however, are precluded from entertaining the merits of Rice’s position,
because he failed to challenge Section 922(g)(1)’s as-applied constitutionality at the
administrative level. Constitutional challenges come in two flavors:
1
Our standard of review regarding an OAG administrative adjudication of this nature is
limited to determining whether the ALJ abused their discretion, committed an error of law, or
violated a petitioner’s constitutional rights. Pa. State Police v. Viall, 774 A.2d 1288, 1290 (Pa.
Cmwlth. 2001) (citing 2 Pa. C.S. § 704). “An abuse of discretion will be found only if
[administrative] findings [of fact] are not supported by substantial evidence, that is, such relevant
evidence that a reasonable mind might accept as adequate to support a conclusion.” Zoning
Hearing Bd. of Sadsbury Twp. v. Bd. of Supervisors of Sadsbury Twp., 804 A.2d 1274, 1278 (Pa.
Cmwlth. 2002).
2
U.S. CONST. amend. II.
3
PA. CONST. art. I, § 21.
5
they either assail the statute on its face, or as applied in a
particular case. In a facial challenge, a party is not required
to exhaust administrative remedies because “the
determination of the constitutionality of enabling
legislation is not a function of the administrative agencies
thus enabled.” Borough of Green Tree v. Bd. of Prop.
Assessments, Appeals and Rev. of Allegheny Cnty., 328
A.2d 819, 825 (Pa. 1974). Accordingly, facial challenges
to a statute’s constitutionality need not be raised before the
administrative tribunal to be reviewed by an appellate
court; challenges to a statute’s application, however,
must be raised before the agency or are waived for
appellate review.
Lehman, 839 A.2d at 275 (cleaned up and emphasis added).
In this instance, Rice failed to pursue his as-applied Second Amendment
challenge to Section 922(g)(1) when he appeared before the ALJ; in fact, the
administrative record conclusively establishes that he intended to both save that
challenge for another day and present it in another forum. It is true that Rice, through
his November 23, 2020 appeal letter, did initially express his belief to the OAG that
the PSP’s Section 922(g)(1)-based denial of his purchase application violated his
Second Amendment rights. See Reproduced Record at 2a-3a. However, upon
appearing at the March 15, 2022 hearing, Rice’s attorney made clear to the ALJ that
he had elected not to make an as-applied constitutionality argument at that point:
PSP’s Attorney: I’ve spoken with Rice’s attorney and Rice
earlier today. We have a signed stipulation as to certain
facts, and I believe we were also going to stipulate to the
admittance of the exhibits. There’s no dispute as to the
underlying facts. So I don’t believe that the PSP would be
offering any testimony, just the stipulated exhibits.
Rice’s Attorney: That’s correct. As we indicated to them,
we understand that the PSP’s hands are tied under the
circumstances, but they are following federal law as it
presently exists. It was our intention today to go through
the administrative process and possibly at some point later
in the future, challenge the federal law. But for the time
6
being, we understand we need to exhaust our
administrative remedies and get a final conclusion at this
level and then possibly appeal it to the next level, at which
time, we would exercise whatever options are available to
us.
....
ALJ: Okay. Is there going to be any legal argument or no?
PSP’s Attorney: I can make a brief legal argument.
ALJ: I mean, it’s entirely up to you. I just didn’t know. I
mean, is there anything in dispute? What’s in dispute,
essentially is what I’m getting at.
PSP’s Attorney: Well, from PSP’s point of view, the
records show a 2013 conviction for a misdemeanor one,
DUI charge. Misdemeanor ones in Pennsylvania are
punishable by up to five years. 18 U.S.C. § 922(g)(1)
states that anyone who’s convicted of a sentence that
carries more than one year of punishment is prohibited
from possessing firearms under federal law. We would
argue that Rice is currently prohibited.
Rice’s Attorney: And I don’t disagree with the points that
PSP’s attorney has made. As I indicated at the outset, we
understand that the PSP is doing what it’s required to do
under the law. We’re here today to exhaust our
administrative remedies, to go through the process and
then at a later date, if necessary if we decide so, we may
pursue this as a collateral matter to challenge the
constitutionality of Section 922(g), particularly as it
applies to my client. So with that said, there’s really no
dispute at this level with respect to -
ALJ: Okay.
Rice’s Attorney: - the respective case.
....
ALJ: Now, I guess one question I have is are the parties in
agreement that I either do not or cannot decide any
constitutional issues? And the reason I’m asking is, I just
want to make sure that there’s not something that I need to
do as part of this process, you know, in terms of you setting
up for what you may do in the future. You follow me?
7
Rice’s Attorney: Uh-huh (yes).
ALJ: Okay. Do you guys have a position on that?
PSP’s Attorney: I don’t think that you can touch
constitutional issues. I think those have to be filed -
Rice’s Attorney: Yeah.
PSP’s Attorney: - within the Courts of Common Pleas or
Commonwealth Court or Circuit Courts or District Courts.
ALJ: Okay.
PSP’s Attorney: I think this determination today, as part
of the duties in administrative law and under the
Administrative Rules of Procedure, I believe that this is
solely a determination as to whether or not the record is
accurate and whether the PSP correctly followed that
record and - or correctly applied the law to the record in
making their determination.
ALJ: Okay. So the reason I asked that is I, frankly, in the
couple years I’ve been doing this, I haven’t ever been
asked to rule on the constitutionality, and I know what
you’re saying, that it’s not part of my job, but in passing
and doing legal research, I feel like I came across a case
that talked about a certain subset of constitutional
challenges where they have to be raised in this - with the
ALJ. I could be wrong and that’s why I’m asking. So I just
want to make sure that that’s not -.
PSP’s Attorney: To the extent that that needs to happen, I
don’t -.
ALJ: You’re not aware?
PSP’s Attorney: I’m not aware of it, but I’m okay if it
needs to be put into the decision. I’m fine with that.
Rice’s Attorney: That’s fine.
ALJ: Okay. I mean, I don’t - I have -.
Rice’s Attorney: Well, our plan, or expectation is to
challenge this in federal court at some point, but we need
to get a very clear statement from the state about his
circumstances. So in case some controversy would exist to
actually bring the actions.
ALJ: Okay.
8
Rice’s Attorney: Whether you want to - and if you wish to
opine on the constitutionality of the provisions, by all
means, do so.
ALJ: No, I – that’s what needs to be clear. I don’t feel the
need to. I just want to make sure that we don’t miss
something -
Rice’s Attorney: Right.
ALJ: - along the way. It sounds like I don’t need to, so -.
Rice’s Attorney: I don’t think it’s necessary at this point
and I think even if we were -. When we challenge it in
Commonwealth Court on the appeal, I’m not certain that
that issue would necessarily be raised in Commonwealth
Court.
ALJ: Okay.
Rice’s Attorney: But maybe it will be, as I sit here and
reflect on it and if you wish to opine, even if it’s a
sentence, that would be fine as well. So I’m thinking about
it.
ALJ: Well, why don’t we do this? I don’t want to put any
extra burdens on you, but if you, subsequent to today, if
you feel that - if you do any research or you find that you
think I should[] address the constitutionality, why don’t
you just send a letter to me and copy Counsel?
Rice’s Attorney: Okay.
ALJ: Otherwise, - because I don’t even know what the
constitutional argument is at this point. You know what I
mean? So -.
Rice’s Attorney: Right.
ALJ: We’ll assume that I don’t need to, but if you feel like
- if you subsequently feel that I need to do something in
that regard, just let me know.
Rice’s Attorney: Okay.
ALJ: Make sense?
Rice’s Attorney: Yes.
Supplemental Reproduced Record at 7b-8b, 12b-17b (cleaned up and speaker
designations modified). Rice’s attorney never took the ALJ up on his offer and, as a
9
consequence, the ALJ did not substantively address the as-applied constitutionality
of Section 922(g)(1) in his adjudication. See Adjudication at 6-8. In sum, Rice
clearly failed to present that challenge at the administrative level, and has therefore
waived his ability to contest the OAG’s adjudication on that basis. Lehman, 839
A.2d at 275.
III. Conclusion
Accordingly, we affirm the OAG’s February 10, 2023 adjudication.
__________________________________
ELLEN CEISLER, Judge
10
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Adam Matthew Rice, :
Petitioner :
:
v. : No. 235 C.D. 2023
:
Pennsylvania State Police, :
Respondent :
ORDER
AND NOW, this 11th day of March, 2024, the Office of Attorney General’s
February 10, 2023 adjudication is AFFIRMED.
__________________________________
ELLEN CEISLER, Judge