PSP v. M. Drake

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Pennsylvania State Police, :
Petitioner :
:
v. : No. 235 C.D. 2022
:
Michael Drake, :
Respondent : Submitted: September 13, 2023
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE LORI A. DUMAS, Judge
OPINION
BY JUDGE CEISLER FILED: October 30, 2023
Petitioner Pennsylvania State Police (PSP) appeals from the Office of the
Attorney General’s (OAG) February 17, 2022 order, through which an OAG
administrative law judge (ALJ) reversed the PSP’s denial of Respondent Michael
Drake’s (Drake) application for a license to carry a concealed firearm. After
thorough review, we reverse in part, vacate in part, and remand this matter to the
OAG for proceedings consistent with this opinion.
I. Background
On May 30, 2015, Drake was arrested in Folsom, California, and was charged
with multiple crimes relating to violent acts he had perpetrated against the mother of
his young son. Reproduced Record (R.R.) at 91a-92a, 96a-101a. Drake subsequently
pled nolo contendere in the Superior Court of California, County of Sacramento
(California Superior Court), to 1 misdemeanor count each of false imprisonment1
and unlawfully carrying a concealed firearm,2 and was sentenced on October 9,
2015, to 45 days in county jail, along with 258 hours of community service. Id. at
84a, 90a.
At some point thereafter, Drake moved to Pennsylvania. He then sought post-
conviction relief by filing a petition for dismissal with the California Superior Court,
which was granted on April 4, 2019, pursuant to California Penal Code Section
1203.4.3 Id. at 104a-05a. In doing so, the California Superior Court set aside Drake’s
1
Cal. Penal Code § 236.
2
Cal. Penal Code § 25400(a)(1).
3
At that point in time, this provision stated, in relevant part:
In any case in which a defendant has fulfilled the conditions of
probation for the entire period of probation, or has been discharged
prior to the termination of the period of probation, or in any other
case in which a court, in its discretion and the interests of justice,
determines that a defendant should be granted the relief available
under this section, the defendant shall, at any time after the
termination of the period of probation, if they are not then serving a
sentence for any offense, on probation for any offense, or charged
with the commission of any offense, be permitted by the court to
withdraw their plea of guilty or plea of nolo contendere and enter a
plea of not guilty; or, if they have been convicted after a plea of not
guilty, the court shall set aside the verdict of guilty; and, in either
case, the court shall thereupon dismiss the accusations or
information against the defendant and except as noted below, the
defendant shall thereafter be released from all penalties and
disabilities resulting from the offense of which they have been
convicted, except as provided in Section 13555 of the [California]
Vehicle Code. The probationer shall be informed, in their probation
papers, of this right and privilege and the right, if any, to petition for
a certificate of rehabilitation and pardon. The probationer may make
the application and change of plea in person or by attorney, or by
the probation officer authorized in writing. However, in any
(Footnote continued on next page…)
2
nolo contendere plea, entered a not guilty plea on his behalf, and dismissed the
criminal complaint that had been filed against him in 2015. R.R. at 104a.
Additionally, the California Superior Court stated in its order memorializing this
dismissal that:
[Drake] is released from all penalties and disabilities
resulting from the offense except as provided in
[California] Penal Code sections 29800 and 29900 . . . and
[California] Vehicle Code section 13555. In any
subsequent prosecution of [Drake] for any other offense,
the prior conviction may be pleaded and proved and shall
have the same effect as if probation had not been granted
or the accusation or [criminal] information dismissed. The
dismissal does not permit a person to own, possess, or
have in his . . . control a firearm if prevented by
[California] Penal Code sections 29800 or 29900[.]
Id. at 105a.
On May 6, 2019, Drake applied for a license to carry a concealed firearm at
the York County Sheriff’s Office, which was denied when the Pennsylvania Instant
subsequent prosecution of the defendant for any other offense, the
prior conviction may be pleaded and proved and shall have the same
effect as if probation had not been granted or the accusation or
information dismissed. The order shall state, and the probationer
shall be informed, that the order does not relieve them of the
obligation to disclose the conviction in response to any direct
question contained in any questionnaire or application for public
office, for licensure by any state or local agency, or for contracting
with the California State Lottery Commission.
(2) Dismissal of an accusation or information pursuant to this
section does not permit a person to own, possess, or have custody or
control of any firearm or to prevent conviction under Chapter 2
(commencing with Section 29800) of Division 9 of Title 4 of Part 6
[of the California Penal Code].
Former Cal. Penal Code § 1203.4(a)-(b) (2019).
3
Check System (PICS)4 indicated that Drake was legally prohibited from obtaining
such a license. Id. at 2a, 70a. Drake then filed a PICS challenge with the PSP on May
14, 2019, which the PSP denied on June 26, 2019. Id. at 70a-77a. In doing so, the
PSP explained that Drake’s application had been denied because of his
aforementioned false imprisonment conviction. Id. at 74a, 77a.
Shortly thereafter, Drake appealed the PSP’s denial to the OAG, whereupon
an OAG ALJ held an evidentiary hearing on July 12, 2021. The ALJ then took the
matter under advisement and, on February 17, 2022, issued an order granting
Drake’s appeal. Id. at 1a. In the written adjudication that accompanied this order, the
ALJ explained that he had made this ruling for two reasons. First, the California
Superior Court’s April 4, 2019 order, which set aside Drake’s 2015 nolo contendere
plea, meant that his false imprisonment conviction could not be considered a
“conviction” for purposes of federal or Pennsylvania gun control law and, thus,
could not impede Drake’s ability to secure a license to carry a concealed firearm. Id.at 15a-18a. Second, the PSP had not established that Drake’s situation involved a
firearm that had moved in or affected interstate commerce, as the ALJ believed the
PSP was required to do under both federal and state law. Id. at 18a. Accordingly, the
ALJ concluded that the PSP lacked a legally valid basis for denying Drake’s
application. Id. at 18a-19a. In response, the PSP appealed the OAG’s order to our
Court on March 17, 2022.
4
“The General Assembly created [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.” Pa. State Police v. Madden, 284 A.3d 272, 275 n.3 (Pa. Cmwlth.
2022).
4
II. Discussion
The PSP offers three arguments for our consideration, which we summarize
as follows.5 First, the California Superior Court’s set aside order did not expunge
Drake’s false imprisonment conviction. Therefore, despite being “set aside,” the
existence of that conviction still necessitated the denial of Drake’s application for a
license to carry a concealed firearm. PSP’s Br. at 9-13. Second, Drake failed to make
any interstate commerce-related arguments during the course of his administrative
appeal to the OAG. Consequently, the ALJ erred by sua sponte raising and ruling
upon such an argument, i.e., whether the PSP had shown that the matter involved a
firearm that had moved in or affected interstate commerce. Id. at 15-16. Finally, even
if Drake had properly preserved that claim, the ALJ’s ruling regarding this issue was
wrong on the merits, as it disregarded unambiguous statutory language, was absurd
and unreasonable, and wrongly relied upon an interstate commerce-related
requirement that was present in federal law, but not in state law. Id. at 16-18.6
The PSP’s first argument hinges upon the interplay between California law,
federal law, and Pennsylvania law. Per Section 6109(e) of the Uniform Firearms Act
of 1995 (UFA), “[a]n individual who is . . . prohibited from possessing, using,
manufacturing, controlling, purchasing, selling or transferring a firearm as provided
5
We review an administrative adjudication of this nature for abuses of discretion, errors of
law, and violations of 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 Sup’rs of Sadsbury Twp., 804 A.2d 1274, 1278 (Pa.
Cmwlth. 2002).
6
Drake neglected to file a brief in this matter, in contravention of the briefing schedule, as
well as of this Court’s November 2, 2022 order that directed him to correct this oversight no later
than November 16, 2022. As a consequence, we precluded him from filing a brief on December 5,
2022.
5
by [S]ection 6105 [of the UFA,]” or “who is prohibited from possessing or acquiring
a firearm under the statutes of the United States[,]” is barred from obtaining a license
to carry a firearm in Pennsylvania. 18 Pa. C.S. § 6109(e)(1)(xiii)-(xiv). Pursuant to
Section 6105 of the UFA, “[a] person who is prohibited from possessing or acquiring
a firearm under [Section 922(g)(9) of the Federal Gun Control Act (FGCA),] 18
U.S.C. § 922(g)(9)[,]” is also prohibited from securing such a license in this
Commonwealth. Id. § 6105(a)(1), (c)(9), (h). In turn, Section 922(g) of the FGCA
provides, in relevant part:
It shall be unlawful for any person--
....
(9) who has been convicted in any court of a
misdemeanor crime of domestic violence,
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). Generally speaking, Section 922(g)
makes possession of a firearm unlawful when the
following elements are satisfied: (1) a status element (here
“[convicted in any court of a misdemeanor crime of
domestic violence]”); (2) a possession element (to
“possess”); (3) a jurisdictional element (“in or affecting
commerce”); and (4) a firearm element (a “firearm or
ammunition”).
Rehaif v. United States, 139 S. Ct. 2191, 2195-96 (2019). The FGCA also includes
an exception to this rule, however, in that
[a] person shall not be considered to have been convicted
of [a misdemeanor crime of domestic violence] for
purposes of this chapter if the conviction has been
expunged or set aside, or is an offense for which the person
has been pardoned or has had civil rights restored (if the
law of the applicable jurisdiction provides for the loss of
6
civil rights under such an offense) unless the pardon,
expungement, or restoration of civil rights expressly
provides that the person may not ship, transport, possess,
or receive firearms.
18 U.S.C. § 921(a)(33)(B)(ii).
Upon reviewing this statutory language, as well as the factual record, the ALJ
determined that Drake’s false imprisonment conviction constituted a misdemeanor
crime of domestic violence, but reasoned that the California Superior Court’s set
aside order had rendered that conviction a nullity. See R.R. at 16a-17a. Because of
this, as well as the absence in the set aside order of any language that imposed
firearms-related restrictions upon Drake, the ALJ concluded that Section 922(g)(9)
of the FGCA did not bar Drake from possessing or acquiring a firearm and,
consequently, that Drake was not prohibited by either Section 6105 or 6109 of the
UFA from obtaining a permit to carry a concealed firearm. See id. at 14a-17a.
This conclusion is deeply flawed and rests upon the ALJ’s misunderstanding
of the aforementioned state and federal laws, as well as his disregard for how the
meaning of “set aside” differs in each context. As just discussed, an individual’s
conviction for a misdemeanor crime of domestic violence does not qualify as a
“conviction” for purposes of Section 921(a)(33)(B)(ii) of the FGCA “if the
conviction has been expunged or set aside, or is an offense for which the person has
been pardoned or has had civil rights restored[.]” 18 U.S.C. § 921(a)(33)(B)(ii). This
presents a question of statutory interpretation regarding the contextual meaning of
“set aside.”
7
Helpfully, the United States Circuit Court for the Tenth Circuit already
answered this very question in Wyoming ex rel. Crank v. United States, 539 F.3d
1236 (10th Cir. 2008).7 As the Crank Court explained,
[t]here are two possible interpretations for the phrase
“expunged or set aside.” First, the use of the disjunctive
“or” could indicate that Congress intended the two terms
to have separate meanings. Second, Congress may have
intended the two terms to have the same meaning and used
separate terms merely to avoid potential issues of
terminology created by the varying language used in the
different laws of the States.
Crank, 539 F.3d at 1244-45. The Tenth Circuit ruled that the second interpretation
was the more reasonable one, concluding that
two aspects of the statute suggest that Congress intended
both “expunged” and “set aside” to require that the state
procedure completely remove all effects of the conviction
at issue.
First, the plain meaning of “expunge” and “set aside” are
nearly equivalent. Black’s [L]aw [D]ictionary defines
“expunge” as “[t]o erase or destroy.” Black’s Law
Dictionary (4th ed. 2004).[] Similarly, Black’s defines “set
aside” as “to annul or vacate.” Id. Importantly for the
context of [Section] 921(a)(33), both definitions require a
complete removal of the effects of a conviction.
Second, the structure of [Section] 921(a)(33)(B)(ii)
suggests that Congress intended the terms to be interpreted
equivalently. The first portion of the subsection lists four
state actions that would remove firearm disability:
expunging, setting aside, pardoning, or restoring civil
rights. See id. The second portion of the subsection—
which we label the “unless” clause—is apparently
intended to parallel and to be coextensive with the first
portion of that subsection, yet it addresses only three state
actions: pardoning, expunging, or restoring civil rights. Id.7
Though inferior federal courts’ interpretations of federal law are not binding upon this
Court, they nevertheless may constitute persuasive authority that we may follow at our discretion.
Cole v. Pa. Dep’t of Env’t Prot., 257 A.3d 805, 813 (Pa. Cmwlth. 2021).
8
The absence of the term “set aside” suggests that Congress
felt that “expungement” in the “unless” clause covered
both “set asides” and “expungements.”
Id. at 1245 (footnote omitted). We agree with the Crank Court’s reasoning and hold
that, under Section 921(a)(33)(B)(ii) of the FGCA, the terms “expunged” and “set
aside” are synonymous. Furthermore, like the Tenth Circuit, we conclude that, for
purposes of this federal statute, a conviction for a misdemeanor crime of domestic
violence is expunged or set aside only when the limitations that were imposed upon
the guilty individual as a result of that conviction are completely eliminated.
It follows from this, then, that unless a set aside order issued pursuant to
California Penal Code Section 1203.4 effectively wipes the slate clean, the
underlying domestic violence conviction remains as a bar under federal law to the
convicted individual’s ability to acquire or possess a firearm, and prevents
acquisition, licensure, or possession under Pennsylvania law. Given that it is well
settled under California law that such orders do not expunge convictions and,
instead, leave a multitude of limitations in place, the California Superior Court’s
April 4, 2019 order did not expunge Drake’s conviction for purposes of Section
921(a)(33)(B)(ii) of the FGCA. See Bacon v. Pa. State Police, 164 A.3d 563, 567-
70 (Pa. Cmwlth. 2017); People v. Gross, 190 Cal. Rptr. 3d 472, 477 (Cal. App. 4th
2015); Jennings v. Mukasey, 511 F.3d 894, 898-99 (9th Cir. 2007); People v.
Frawley, 98 Cal. Rptr. 2d 555, 559-60 (Cal. App. 4th 2000). In other words, the ALJ
improperly concluded that this “set aside” under California law also qualified as a
“set aside” under federal law, and consequently erred when he ruled that Drake’s
false imprisonment conviction could not prevent Drake from obtaining a license to
carry a concealed firearm.
The PSP’s next argument, that Drake waived the issue of whether the PSP had
shown that the matter involved a firearm that had moved in or affected interstate
9
commerce, is incorrect. Per Section 6111.1(e)(3) of the UFA, in instances where the
PSP affirms the denial of a firearms license, the affected individual may appeal the
PSP’s determination to the OAG. 18 Pa. C.S. § 6111.1(e)(3). This statute mandates
that, in such a scenario, “[t]he [OAG] shall conduct a hearing de novo in accordance
with the Administrative Agency Law[, 2 Pa. C.S. §§ 501-508, 701-704]. The burden
of proof shall be upon the Commonwealth.” Id. In other words, the OAG ALJ does
not need to give the underlying license denial decision any deference, while the PSP
must prove that the denial was legally and factually proper. Id. It was therefore the
PSP’s burden to prove to the ALJ that this matter involved a firearm that had moved
in or affected interstate commerce, rather than Drake’s responsibility to raise the
interstate commerce issue himself. See Pa. State Police v. Madden, 284 A.3d 272,
277 (Pa. Cmwlth. 2022); Navarro v. Pa. State Police, 212 A.3d 26, 51-55 (Pa. 2019).
The PSP’s waiver argument is therefore without merit.
The PSP’s final argument, that proof of a firearm’s movement in or effect
upon interstate commerce is not required to sustain a license denial under
Pennsylvania law, is predicated upon a reading of the UFA that this Court has
recently rejected. The PSP’s assertion on this point relies upon its reading of Section
6105(c)(9) of the UFA. This statute provides:
(c) Other persons.--In addition to any person who has been
convicted of any offense listed under subsection (b), the
following persons shall be subject to the prohibition of
subsection (a):
....
(9) 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:
10
(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). The PSP argues that, as Section 6105(c)(9) does not
mention “firearm” or “interstate commerce,” this statute’s prohibitory language
applies directly to the person who seeks licensure, without concern for whether the
weapon to which the license would apply travelled in interstate commerce. PSP’s
Br. at 16-18. Accordingly, the PSP asserts the OAG ALJ improperly read into this
statutory language a requirement that the PSP establish a nexus between the weapon
and interstate commerce in order to justify the denial of an application for a license
to carry a concealed firearm under Pennsylvania law. Id.
The PSP’s preferred reading of Section 6105(c)(9) cannot carry the day,
however, as this Court already rejected it in Madden. In that case, Madden applied
to have the PSP return his firearm after he was convicted of disorderly conduct and
had completed his sentence. Madden, 284 A.3d at 274-75. The PSP subsequently
denied this application on the basis that Madden’s conviction was for a misdemeanor
crime of domestic violence, which triggered prohibitions against possession and
ownership of a firearm under Section 922(g)(9) of the FGCA and Section 6105(c)(9)
of the UFA. Id. at 275. Madden challenged the PSP’s denial of his application to
return his firearm, whereupon an OAG ALJ reversed the PSP’s denial, on the basis
that the PSP had failed to meet its burden under both of those statutes to prove that
11
the at-issue firearm had moved in interstate commerce. Id. at 275. The PSP then
appealed the ALJ’s decision to this Court and, of relevance to this matter, argued
that the plain language of Section 6105(c)(9) did not require proof of a firearm’s
travel in interstate commerce in order to trigger that statute’s prohibition against
firearm ownership and possession. Id. at 277. We disagreed, explaining that
[a]lthough 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 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.
Id. at 278. While the genesis of this matter differs from Madden, in that this case
involves a firearms license application, the relevant statutory language is identical.
Accordingly, just as in Madden, we hold that it was the PSP’s burden under Section
6105(c)(9) to show that Drake’s firearm moved in or affected interstate commerce.
Given that Madden was published in October 2022, it post-dated the ALJ’s
reversal of the PSP’s license denial in this matter, the PSP’s subsequent appeal to
this Court, and the PSP’s appellate brief. Thus, this reading of Section 6105(c)(9)
and the burdens it imposes upon the PSP regarding proof of a firearm’s travel in
interstate commerce was not known to the PSP at any of these junctures. We
therefore consider it prudent to remand this matter in part to the OAG, with
instructions that the ALJ hold an evidentiary hearing that is limited to this issue, with
12
the burden of proof placed upon the PSP,8 and then make necessary factual findings
and legal conclusions thereafter. See Madden, 284 A.3d at 278-79 (remanding matter
to OAG due to effect of Pennsylvania Supreme Court decision that had been
published while the PSP’s appeal to Commonwealth Court was pending resolution).
III. Conclusion
In light of the foregoing analysis, we reverse the OAG’s February 17, 2022
order in part, vacate it in part, and remand this matter to the OAG for proceedings
consistent with this opinion.
____________________________
ELLEN CEISLER, Judge
Judge McCullough dissents and wishes to be so noted.
8
As the Supreme Court explained in Navarro, “the evidence relating to such commerce
need not be extensive and may be satisfied by showing the gun was manufactured outside
Pennsylvania (or that the gun otherwise crossed state lines).” 212 A.3d at 33.
13
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Pennsylvania State Police, :
Petitioner :
:
v. : No. 235 C.D. 2022
:
Michael Drake, :
Respondent :
ORDER
AND NOW, this 30th day of October, 2023, it is hereby ORDERED that the
Office of the Attorney General’s (OAG) February 17, 2022 order is REVERSED IN
PART, regarding its determination that the “set aside” of Respondent Michael
Drake’s (Drake) conviction in California for false imprisonment expunged that
conviction for purposes of Section 921(a)(33)(B)(ii) of the Federal Gun Control Act,
18 U.S.C. § 921(a)(33)(B)(ii). It is also ORDERED that the OAG’s order is
VACATED IN PART, regarding its determination that Respondent Pennsylvania
State Police (PSP) failed to prove that this matter involves a firearm that had moved
in or affected interstate commerce. Finally, it is ORDERED that this matter is
REMANDED to the OAG, with instructions that it hold an evidentiary hearing
limited to addressing this interstate commerce issue, with the burden of proof placed
upon the PSP, and thereafter issue a new order that contains the necessary factual
findings and legal conclusions.
Jurisdiction relinquished.
____________________________
ELLEN CEISLER, Judge