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A07721
THE GENERAL ASSEMBLY OF PENNSYLVANIA
HOUSE BILL
No.
2227
Session of
2018
INTRODUCED BY STEPHENS, CHARLTON, KULIK, SCHLOSSBERG, DEAN,
TOEPEL, FRANKEL, KORTZ, STURLA, YOUNGBLOOD, HILL-EVANS, MURT,
HARPER, MARSICO, WATSON, NEILSON, CALTAGIRONE, ROE, NELSON,
EVERETT AND TOOHIL, APRIL 16, 2018
REFERRED TO COMMITTEE ON JUDICIARY, APRIL 16, 2018
AN ACT
Amending Titles 18 (Crimes and Offenses) and 42 (Judiciary and
Judicial Procedure) of the Pennsylvania Consolidated
Statutes, in firearms and other dangerous articles, further
providing for persons not to possess, use, manufacture,
control, sell or transfer firearms; in community and
municipal courts, further providing for masters; and adding
provisions relating to extreme risk protection orders.
Amending Titles 18 (Crimes and Offenses) and 42 (Judiciary and
Judicial Procedure) of the Pennsylvania Consolidated
Statutes, in firearms and other dangerous articles, further
providing for persons not to possess, use, manufacture,
control, sell or transfer firearms; in community and
municipal courts, further providing for masters; and adding
provisions relating to extreme risk protection orders.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Section 6105(a)(2), (a.1) and (f)(4)(i) of Title
18 of the Pennsylvania Consolidated Statutes are amended and
subsection (c) is amended by adding a paragraph to read:
§ 6105. Persons not to possess, use, manufacture, control, sell
or transfer firearms.
(a) Offense defined.--
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(2) (i) A person who is prohibited from possessing,
using, controlling, selling, transferring or
manufacturing a firearm under paragraph (1) or subsection
(b) or (c) shall have a reasonable period of time, not to
exceed 60 days from the date of the imposition of the
disability under this subsection, in which to sell or
transfer that person's firearms to another eligible
person who is not a member of the prohibited person's
household.
(ii) This paragraph shall not apply to any person
whose disability is imposed pursuant to subsection (c)(6)
or (10).
(a.1) Penalty.--
(1) Except as provided under paragraph (1.1), a person
convicted of a felony enumerated under subsection (b) or a
felony under the act of April 14, 1972 (P.L.233, No.64),
known as The Controlled Substance, Drug, Device and Cosmetic
Act, or any equivalent Federal statute or equivalent statute
of any other state, who violates subsection (a) commits a
felony of the second degree.
(1.1) The following shall apply:
(i) A person convicted of a felony enumerated under
subsection (b) or a felony under The Controlled
Substance, Drug, Device and Cosmetic Act, or any
equivalent Federal statute or equivalent statute of any
other state, who violates subsection (a) commits a felony
of the first degree if:
(A) at the time of the commission of a violation
of subsection (a), the person has previously been
convicted of an offense under subsection (a); or
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(B) at the time of the commission of a violation
of subsection (a), the person was in physical
possession or control of a firearm, whether visible,
concealed about the person or within the person's
reach.
(ii) The Pennsylvania Commission on Sentencing,
under 42 Pa.C.S. § 2154 (relating to adoption of
guidelines for sentencing), shall provide for a
sentencing enhancement for a sentence imposed pursuant to
this paragraph.
(2) A person who is the subject of an active protection
from abuse order issued pursuant to 23 Pa.C.S. § 6108
(relating to relief), which order provided for the
relinquishment of firearms, other weapons or ammunition
during the period of time the order is in effect, commits a
misdemeanor of the first degree if he intentionally or
knowingly fails to relinquish a firearm, other weapon or
ammunition to the sheriff as required by the order unless, in
lieu of relinquishment, he provides an affidavit which lists
the firearms, other weapons or ammunition to the sheriff in
accordance with either 23 Pa.C.S. § 6108(a)(7)(i)(B), 6108.2
(relating to relinquishment for consignment sale, lawful
transfer or safekeeping) or 6108.3 (relating to
relinquishment to third party for safekeeping).
(2.1) A person who is the subject of an extreme risk
protection order issued pursuant to 42 Pa.C.S. Ch. 64A
(relating to extreme risk protection orders) commits a
misdemeanor of the first degree if he intentionally or
knowingly fails to relinquish a firearm or concealed carry
license as required by the order.
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(3) (i) A person commits a misdemeanor of the third
degree if he intentionally or knowingly accepts
possession of a firearm, other weapon or ammunition from
a person he knows is the subject of an active protection
from abuse order issued pursuant to 23 Pa.C.S. § 6108,
which order provided for the relinquishment of the
firearm, other weapon or ammunition during the period of
time the order is in effect, or an extreme risk
protection order issued pursuant to 42 Pa.C.S. Ch. 64A.
(ii) This paragraph shall not apply to:
(A) a third party who accepts possession of a
firearm, other weapon or ammunition relinquished
pursuant to 23 Pa.C.S. § 6108.3; or
(B) a dealer licensed pursuant to section 6113
(relating to licensing of dealers) or subsequent
purchaser from a dealer licensed pursuant to section
6113, who accepts possession of a firearm, other
weapon or ammunition relinquished pursuant to 23
Pa.C.S. § 6108.2 or 42 Pa.C.S. Ch. 64A.
(4) It shall be an affirmative defense to any
prosecution under paragraph (3) that the person accepting
possession of a firearm, other weapon or ammunition in
violation of paragraph (3):
(i) notified the sheriff as soon as practicable that
he has taken possession; and
(ii) relinquished possession of any firearm, other
weapon or ammunition possessed in violation of paragraph
(3) as directed by the sheriff.
(5) A person who has accepted possession of a firearm,
other weapon or ammunition pursuant to 23 Pa.C.S. § 6108.3 or
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42 Pa.C.S. Ch. 64A commits a misdemeanor of the first degree
if he intentionally or knowingly returns a firearm, other
weapon or ammunition to a defendant or respondent or
intentionally or knowingly allows a defendant or respondent
to have access to the firearm, other weapon or ammunition
prior to [either] any of the following:
(i) The sheriff accepts return of the safekeeping
permit issued to the party pursuant to 23 Pa.C.S. §
6108.3(d)(1)(i).
(ii) The issuance of a court order pursuant to
subsection (f)(2) or 23 Pa.C.S. § 6108.1(b) (relating to
return of relinquished firearms, other weapons and
ammunition and additional relief) which modifies a valid
protection from abuse order issued pursuant to 23 Pa.C.S.
§ 6108, which order provided for the relinquishment of
the firearm, other weapon or ammunition by allowing the
defendant to take possession of the firearm, other weapon
or ammunition that had previously been ordered
relinquished.
(iii) The issuance of a court order pursuant to 42
Pa.C.S. Ch. 64A that vacates or terminates an extreme
risk protection order.
(iv) The expiration of an extreme risk protection
order pursuant to 42 Pa.C.S. Ch. 64A.
* * *
(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):
* * *
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(10) A person who is the subject of an extreme risk
protection order issued pursuant to 42 Pa.C.S. Ch. 64A.
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(f) Other exemptions and proceedings.--
* * *
(4) (i) The owner of any seized or confiscated firearms
or of any firearms ordered relinquished under 23 Pa.C.S.
§ 6108 or 42 Pa.C.S. Ch. 64A shall be provided with a
signed and dated written receipt by the appropriate law
enforcement agency. This receipt shall include, but not
be limited to, a detailed identifying description
indicating the serial number and condition of the
firearm. In addition, the appropriate law enforcement
agency shall be liable to the lawful owner of said
confiscated, seized or relinquished firearm for any loss,
damage or substantial decrease in value of said firearm
that is a direct result of a lack of reasonable care by
the appropriate law enforcement agency.
* * *
Section 2. Section 1126 of Title 42 is amended to read:
§ 1126. Masters.
The President Judge of the Philadelphia Municipal Court may
appoint attorneys who are members of the Pennsylvania Bar to
serve as masters in proceedings under 23 Pa.C.S. Ch. 61
(relating to protection from abuse) or 42 Pa.C.S. Ch. 64A
(relating to extreme risk protection orders).
Section 3. Title 42 is amended by adding a chapter to read:
CHAPTER 64A
EXTREME RISK PROTECTION ORDERS
Sec.
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64A01. Scope of chapter.
64A02. Definitions.
64A03. Access to courts.
64A04. Petition for extreme risk protection order;
determination.
64A05. Service of process.
64A06. Extreme risk protection order.
64A07. Emergency relief by minor judiciary.
64A08. Termination hearing.
64A09. Renewal of order.
64A10. Relinquishment of firearms.
64A11. Return of relinquished firearms and unclaimed firearms.
64A12. Violations.
§ 64A01. Scope of chapter.
This chapter relates to extreme risk protection orders.
§ 64A02. Definitions.
The following words and phrases when used in this chapter
shall have the meanings given to them in this section unless the
context clearly indicates otherwise:
"Concealed carry license." A license issued under 18 Pa.C.S.
§ 6109 (relating to licenses) or a similar license issued
pursuant to the laws of another state.
"Extreme risk protection order." A court order prohibiting a
person from having in the person's possession or control,
purchasing or receiving, or attempting to purchase or receive, a
firearm, based upon a finding by clear and convincing evidence
that the person presents a danger of suicide or of causing
serious bodily injury to another person.
"Family or household member." A spouse or person who has a
spouse, person living as a spouse or who lived as a spouse,
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parent or child, other person related by consanguinity or
affinity, current or former sexual or intimate partner or person
who shares biological parenthood.
"Firearm." A weapon designed to or that may readily be
converted to expel a projectile by the action of an explosive or
the frame or receiver of such weapon.
"Firearms dealer or dealer." A person licensed to sell
firearms under 18 Pa.C.S. § 6113 (relating to licensing of
dealers).
"Hearing officer." A magisterial district judge, judge of
the Philadelphia Municipal Court, arraignment court magistrate
appointed under section 1123 (relating to jurisdiction and
venue), master appointed under section 1126 (relating to
masters) and master for emergency relief.
"Law enforcement officer." An officer of the United States,
of another state or political subdivision thereof or of the
Commonwealth or political subdivision thereof, who is empowered
by law to conduct investigations of or to make an arrest for an
offense enumerated in this chapter or an equivalent crime in
another jurisdiction and an attorney authorized by law to
prosecute or participate in the prosecution of such offense.
"Serious bodily injury." Bodily injury that creates a
substantial risk of death or causes serious, permanent
disfigurement or protracted loss or impairment of the function
of a bodily member or organ.
§ 64A03. Access to courts.
(a) Standing.--A law enforcement officer or a family or
household member of a person alleged to present a danger of
suicide or of causing extreme bodily injury to another person
may file a petition requesting that the court issue or renew an
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extreme risk protection order.
(b) Access to courts.--No filing fee may be charged for a
proceeding under this chapter.
(c) Right to counsel.--A respondent under this chapter shall
have the right to be represented by counsel. If the respondent
cannot afford an attorney and meets the income guidelines
applicable to representation by a public defender in a criminal
case, the court shall appoint counsel upon the request of the
respondent.
§ 64A04. Petition for extreme risk protection order;
determination.
(a) Petition.--A petition for an extreme risk protection
order shall be supported by a written affidavit signed under
oath and shall specify facts that support the issuance of an
order and information concerning firearms known or believed to
be in the respondent's possession or control.
(b) Factors.--In determining whether to issue an extreme
risk protection order, the court shall consider evidence of the
following:
(1) A history of suicide threats or attempts.
(2) A history of threats or acts of violence or
attempted acts of violence.
(3) A history of domestic abuse.
(4) A history of cruelty to animals.
(5) A history of driving under the influence of alcohol
or a controlled substance.
(6) Recent unlawful use of controlled substances.
(7) Previous unlawful or reckless use, display or
brandishing of a firearm.
(8) A previous violation of a protection from abuse
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order under 23 Pa.C.S. Ch. 61 (relating to protection from
abuse).
(9) Acquisition or attempted acquisition within the
previous 180 days of a firearm.
(10) Failure to voluntarily and consistently take
medication necessary to control a mental illness.
(11) A propensity for violent or emotionally unstable
conduct.
(12) Additional information the court finds to be
reliable, including a statement by the respondent.
(c) Determination.--Upon receipt of the petition, the court
shall do one of the following:
(1) Issue a temporary extreme risk protection order and
schedule a hearing. The hearing shall be scheduled no fewer
than three nor more than 10 days from the date of the order.
A temporary order shall be served concurrent with a warrant
to search for and seize any firearm or concealed carry
license in the respondent's possession or control.
(2) Issue an order for a hearing on the petition without
issuing an extreme risk protection order. A hearing on a
petition shall be scheduled no fewer than three nor more than
10 days from the date of the order, provided, however, that
the hearing may not be held fewer than three days after the
date of service of the order over the objection of the
respondent. If the respondent fails to appear for a hearing
on a petition, the court may issue a temporary extreme risk
protection order and a warrant to search for and seize any
firearm or concealed carry license in the respondent's
possession or control.
(3) Dismiss the matter.
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§ 64A05. Service of process.
(a) Effect of service.--An extreme risk protection order is
effective at the time of service.
(b) Notice to law enforcement.--
(1) Upon issuance of an extreme risk protection order,
the court shall cause a copy of the order to be delivered to
the local law enforcement agency and the Pennsylvania State
Police.
(2) Upon receipt thereof, the Pennsylvania State Police
shall enter the order into the Pennsylvania Instant Check
System and request that the order be entered into the Federal
Bureau of Investigation National Instant Criminal Background
Check System.
(3) Law enforcement agencies shall establish procedures
adequate to ensure than an officer at the scene of an alleged
violation of the order is informed of the existence and terms
of the order.
(c) Manner of service.--Service of an extreme risk
protection order or an order for a hearing shall be made in
person by a sheriff or a law enforcement officer, as directed by
the court.
(d) Return.--Immediately upon completion of service of an
order under this chapter, the sheriff or other person completing
service shall make a return of service to the court and shall
provide a copy of the return or service and of the order to the
petitioner, the local law enforcement agency and the
Pennsylvania State Police.
§ 64A06. Extreme risk protection order.
(a) Temporary order.--
(1) The court shall issue a temporary extreme risk
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protection order upon probable cause to believe that the
respondent presents a danger of suicide or of causing serious
bodily injury to another person.
(2) A temporary order shall be effective for one year
unless, after a hearing, the court vacates or terminates the
order or establishes a shorter effective period, which shall
be no fewer than three months.
(3) A temporary order shall include:
(i) The date and time the order was issued.
(ii) The duration of the order.
(iii) The date and time of the hearing scheduled on
the temporary order.
(iv) Instructions on how to waive the hearing or
request a continuance.
(v) A statement in substantially the following form:
An extreme risk protection order has been issued
by the court and is now in effect. You are
required to relinquish all firearms and any
concealed carry license currently in your
possession or control. Failure to relinquish all
firearms in your possession or control is
punishable by a fine and term of imprisonment
under 18 Pa.C.S. § 6105 (relating to persons not
to possess, use, manufacture, control, sell or
transfer firearms).
While this order is in effect, you may not have
in your possession or control, or attempt to gain
possession or control of, firearms. Failure to do
so is punishable by a fine and term of
imprisonment under 18 Pa.C.S. § 6105. If you own
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any other firearm that is not within your
immediate possession or control at the time that
you receive this order, you must deliver that
firearm to the sheriff within 72 hours.
A hearing is scheduled on this order. If you
choose to waive your right to a hearing, the
order will be effective for one year. If you
choose to exercise your right to a hearing, you
may present evidence and testimony on your
behalf. You are entitled to be represented by an
attorney. If you cannot afford an attorney, the
court will appoint an attorney to represent you.
(b) Hearing on temporary order.--A respondent shall have the
right to a hearing on a temporary extreme risk protection order.
The court shall ensure that the respondent is given adequate
time to prepare for the hearing. If the respondent fails to
appear for a scheduled hearing, the court shall make the order
effective for a period of one year. A hearing on a temporary
order shall be in addition to and shall not affect the right to
a termination hearing.
(c) Order and hearing.--
(1) If, after conducting a hearing, the court finds by
clear and convincing evidence that the respondent presents a
danger of suicide or of causing serious bodily injury to
another person, the court shall issue an extreme risk
protection order and a warrant to search for and seize any
firearm or concealed carry license in the respondent's
possession or control.
(2) An order entered after a hearing shall be in effect
no fewer than three months and no longer than one year from
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the date of the order.
(3) The order shall include:
(i) The date and time the order was issued.
(ii) The timeframe and manner in which the
respondent may request a termination hearing.
(iii) The address of the court to which a request
for a hearing must be sent.
(iv) Instructions for relinquishment of firearms
remaining in the respondent's possession or control.
(v) Notification of the penalties for violating the
order.
§ 64A07. Emergency relief by minor judiciary.
(a) General rule.--A petition for an emergency extreme risk
protection order may be filed with a hearing officer, including
a magisterial district judge, after the close of business, on
days when the court is closed or when the court is unavailable
during the business day.
(b) Probable cause required.--
(1) A hearing officer shall issue an emergency extreme
risk protection order upon probable cause to believe that the
respondent presents a danger of suicide or of causing serious
bodily injury to another person.
(2) An emergency order shall be served concurrent with a
warrant to search for and seize a firearm or concealed carry
license in the respondent's possession or control.
(c) Service.--Service of an emergency order shall be made by
a sheriff or a law enforcement officer as directed by the
hearing officer issuing the order.
(d) Duration.--An emergency order shall expire at the end of
the next business day the court deems itself available.
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§ 64A08. Termination hearing.
(a) General rule.--A person subject to an extreme risk
protection order shall have the right to one hearing during the
effective period of the order for the purpose of determining
whether the order should be terminated earlier than the
expiration date specified in the order. A termination hearing is
in addition to a hearing on a temporary order.
(b) Notice.--The court shall provide notice of the
termination hearing to the person requesting the hearing, the
petitioner, the local law enforcement agency and the
Pennsylvania State Police.
(c) Burden of proof.--At a termination hearing, the person
subject to the order shall have the burden of proving, by clear
and convincing evidence, that the person does not present a
danger of suicide or of causing serious bodily injury to another
person.
§ 64A09. Renewal of order.
(a) Petition.--A petition to renew an extreme risk
protection order shall be supported by a written affidavit,
signed by the petitioner under oath and shall specify facts that
support the issuance of an order. The court may deny the
petition or may schedule a hearing.
(b) Renewal hearing.--A renewal hearing shall take place no
more than 30 days before the expiration of an existing order.
The court shall provide notice of the hearing to the petitioner,
the respondent, the local law enforcement agency and the
Pennsylvania State Police.
(c) Renewal order.--If the court finds by clear and
convincing evidence that the respondent presents a danger of
suicide or of causing serious bodily injury to another person,
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the court may renew the extreme risk protection order for a
duration of up to one year.
§ 64A10. Relinquishment of firearms.
(a) Relinquishment upon initial order.--
(1) Immediately upon service of an extreme risk
protection order, the respondent shall relinquish to the
sheriff or law enforcement agency a firearm or concealed
carry license in the respondent's immediate possession or
control.
(2) Intentional or knowing failure to comply with
paragraph (1) shall be a violation of 18 Pa.C.S. § 6105
(relating to persons not to possess, use, manufacture,
control, sell or transfer firearms).
(3) Within 24 hours of the time of service, the
respondent shall deliver to the sheriff or law enforcement
agency any firearm that is in the possession of a third party
or not otherwise in the respondent's immediate possession or
control at the time of service.
(b) Warrant.--If, after a hearing or at any other time an
extreme risk protection order is in effect, the court finds
probable cause to believe that an additional firearm or
concealed carry license remains in the respondent's possession
or control, the court shall issue a warrant to search for and
seize the firearm or license.
(c) Receipt.--
(1) At the time of relinquishment of a firearm or
concealed carry license, the sheriff or law enforcement
agency taking possession shall issue a receipt identifying
all relinquished items and provide a copy of the receipt to
the respondent.
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(2) Within 72 hours after service of the order, the
sheriff serving the order shall file the original receipt
with the court.
(d) Transfer to firearms dealer.--
(1) A respondent who has relinquished a firearm in
compliance with an extreme risk protection order may request
that the firearm be transferred to a firearms dealer for
consignment sale, lawful transfer or safekeeping.
(2) Upon receiving the request, the sheriff shall
transport the firearm to a dealer at no cost to the
respondent or the dealer.
(e) Affidavit.--A dealer accepting a firearm of a respondent
under this section shall provide the sheriff with an affidavit
on a form prescribed by the Pennsylvania State Police. The form
shall include, at a minimum, the following:
(1) The caption of the case in which the extreme risk
protection order was issued.
(2) The name, address, date of birth and Social Security
number of the respondent.
(3) A list of all firearms of the respondent
relinquished to the dealer, including, if applicable, the
manufacturer, model and serial number of the firearms.
(4) The name and license number of the dealer and the
address of the licensed premises.
(5) An acknowledgment that the dealer will not return
the firearm to the respondent nor sell or transfer to another
person the dealer knows is a family or household member of
the respondent while the respondent is subject to an extreme
risk protection order.
(6) An acknowledgment that the firearm, if sold or
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transferred, will be sold or lawfully transferred in
compliance with 18 Pa.C.S. Ch. 61 (relating to firearms and
other dangerous articles).
§ 64A11. Return of relinquished firearm and unclaimed firearms.
(a) Return.--
(1) Subject to subsection (c), if a court vacates a
temporary order following a hearing, the court shall order
the immediate return of all firearms and licenses to the
respondent.
(2) Upon termination after hearing or expiration of an
extreme risk protection order, the respondent may request
return of firearms and licenses, and the sheriff or dealer
shall return the relinquished items promptly upon receipt of
the request.
(b) Third-party claims.--
(1) A third party may request the return of a
relinquished firearm at any time by providing proof of
ownership and a sworn affidavit stating that the third party
will not intentionally or knowingly return a firearm to a
person subject to an extreme risk protection order or a
family or household member of the person nor intentionally or
knowingly allow a person subject to an extreme risk
protection order to have access to a firearm prior to the
time that the order expires or is vacated or terminated by
order of court.
(2) The affidavit must state that the third party
understands that to do so would constitute a misdemeanor of
the first degree under 18 Pa.C.S. § 6105(a.1) (relating to
persons not to possess, use, manufacture, control, sell or
transfer firearms), punishable by up to five years
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imprisonment and up to a $10,000 fine.
(3) Proof of ownership may consist of a statement made
in a sworn affidavit.
(c) Background check.--Prior to returning a firearm to a
person, the sheriff or dealer in possession of the firearm shall
independently confirm that the person requesting return of the
firearm is legally eligible to possess firearms under Federal
and State law.
(d) Unclaimed firearms.--
(1) A firearm shall be deemed abandoned after a period
of one year from the date that an order for relinquishment
has been terminated or has expired and no owner has submitted
a written request for its return, provided, however, that no
sheriff, law enforcement agency or firearms dealer may
dispose of a firearm deemed abandoned without first providing
notice to the person who relinquished the firearm.
(2) If the person who relinquished the firearm fails to
respond to the notice within 20 days, the sheriff, law
enforcement agency or firearms dealer may dispose of the
firearm.
(3) Notification shall be sent by certified mail to:
(i) an address where the person is known to reside;
(ii) the last known address;
(iii) the address provided at the time of
relinquishment; or
(iv) an address that is found after searching the
available sources of address data maintained in the
Commonwealth's databases of motor vehicle registration,
motor vehicle driver licensing, occupational and
professional licensure, corrections facilities and public
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