PRINTER'S NO. 3040
THE GENERAL ASSEMBLY OF PENNSYLVANIA
HOUSE BILL
No.
2109
Session of
2018
INTRODUCED BY McCARTER, SIMS, KINSEY, SCHLOSSBERG, FRANKEL,
SCHWEYER, PASHINSKI, DEAN, BRIGGS, DAVIS, FREEMAN,
FITZGERALD, STURLA AND J. McNEILL, FEBRUARY 26, 2018
REFERRED TO COMMITTEE ON JUDICIARY, FEBRUARY 26, 2018
AN ACT
Amending Title 18 (Crimes and Offenses) 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 and for
licenses; and providing for firearm restraining order.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Section 6105 of Title 18 of the Pennsylvania
Consolidated Statutes is amended to read:
§ 6105. Persons not to possess, use, manufacture, control, sell
or transfer firearms.
(a) Offense defined.--
(1) A person who has been convicted of an offense
enumerated in subsection (b), within or without this
Commonwealth, regardless of the length of sentence or whose
conduct meets the criteria in subsection (c) shall not
possess, use, control, sell, transfer or manufacture or
obtain a license to possess, use, control, sell, transfer or
manufacture a firearm in this Commonwealth.
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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 (6.1).
(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) or an active firearm restraining order
under section 6190.5 (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)[.] or in
accordance with either section 6190.5(a)(2) or (a.1)(3)(i) or
6190.8 (relating to relinquishment for consignment sale,
lawful transfers and safekeeping).
(3) (i) A person commits a misdemeanor of the third
degree if he intentionally or knowingly accepts
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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 or
an active firearm restraining order issued under section
6190.5, which order provided for the relinquishment of
the firearm, other weapon or ammunition during the period
of time the order is in effect.
(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 under section 6190.8 .
(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
section 6190.3 (relating to commencement of proceedings)
commits a misdemeanor of the first degree if he intentionally
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or knowingly returns a firearm, other weapon or ammunition to
a defendant or intentionally or knowingly allows a defendant
to have access to the firearm, other weapon or ammunition
prior to either 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) or section 6190.7(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 or a valid firearm
restraining order under section 6190.5, 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.
(b) Enumerated offenses.--The following offenses shall apply
to subsection (a):
Section 908 (relating to prohibited offensive weapons).
Section 911 (relating to corrupt organizations).
Section 912 (relating to possession of weapon on school
property).
Section 2502 (relating to murder).
Section 2503 (relating to voluntary manslaughter).
Section 2504 (relating to involuntary manslaughter) if
the offense is based on the reckless use of a firearm.
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Section 2702 (relating to aggravated assault).
Section 2703 (relating to assault by prisoner).
Section 2704 (relating to assault by life prisoner).
Section 2709.1 (relating to stalking).
Section 2716 (relating to weapons of mass destruction).
Section 2901 (relating to kidnapping).
Section 2902 (relating to unlawful restraint).
Section 2910 (relating to luring a child into a motor
vehicle or structure).
Section 3121 (relating to rape).
Section 3123 (relating to involuntary deviate sexual
intercourse).
Section 3125 (relating to aggravated indecent assault).
Section 3301 (relating to arson and related offenses).
Section 3302 (relating to causing or risking
catastrophe).
Section 3502 (relating to burglary).
Section 3503 (relating to criminal trespass) if the
offense is graded a felony of the second degree or higher.
Section 3701 (relating to robbery).
Section 3702 (relating to robbery of motor vehicle).
Section 3921 (relating to theft by unlawful taking or
disposition) upon conviction of the second felony offense.
Section 3923 (relating to theft by extortion) when the
offense is accompanied by threats of violence.
Section 3925 (relating to receiving stolen property) upon
conviction of the second felony offense.
Section 4906 (relating to false reports to law
enforcement authorities) if the fictitious report involved
the theft of a firearm as provided in section 4906(c)(2).
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Section 4912 (relating to impersonating a public servant)
if the person is impersonating a law enforcement officer.
Section 4952 (relating to intimidation of witnesses or
victims).
Section 4953 (relating to retaliation against witness,
victim or party).
Section 5121 (relating to escape).
Section 5122 (relating to weapons or implements for
escape).
Section 5501(3) (relating to riot).
Section 5515 (relating to prohibiting of paramilitary
training).
Section 5516 (relating to facsimile weapons of mass
destruction).
Section 6110.1 (relating to possession of firearm by
minor).
Section 6301 (relating to corruption of minors).
Section 6302 (relating to sale or lease of weapons and
explosives).
Any offense equivalent to any of the above-enumerated
offenses under the prior laws of this Commonwealth or any
offense equivalent to any of the above-enumerated offenses
under the statutes of any other state or of the United
States.
(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):
(1) A person who is a fugitive from justice. This
paragraph does not apply to an individual whose fugitive
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status is based upon a nonmoving or moving summary offense
under Title 75 (relating to vehicles).
(2) A person who has been convicted of an offense 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, that may be punishable by a term of imprisonment
exceeding two years.
(3) A person who has been convicted of driving under the
influence of alcohol or controlled substance as provided in
75 Pa.C.S. § 3802 (relating to driving under influence of
alcohol or controlled substance) or the former 75 Pa.C.S. §
3731, on three or more separate occasions within a five-year
period. For the purposes of this paragraph only, the
prohibition of subsection (a) shall only apply to transfers
or purchases of firearms after the third conviction.
(4) A person who has been adjudicated as an incompetent
or who has been involuntarily committed to a mental
institution for inpatient care and treatment under section
302, 303 or 304 of the provisions of the act of July 9, 1976
(P.L.817, No.143), known as the Mental Health Procedures Act.
This paragraph shall not apply to any proceeding under
section 302 of the Mental Health Procedures Act unless the
examining physician has issued a certification that inpatient
care was necessary or that the person was committable.
(5) A person who, being an alien, is illegally or
unlawfully in the United States.
(6) A person who 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 firearms during the
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period of time the order is in effect. This prohibition shall
terminate upon the expiration or vacation of an active
protection from abuse order or portion thereof relating to
the relinquishment of firearms.
(6.1) A person who is the subject of an active firearm
restraining order issued under section 6190.5, which order
provided for the relinquishment of firearms during the period
of time the order is in effect. The prohibition under this
paragraph shall terminate upon the expiration or vacation of
an active firearm restraining order or upon the expiration or
vacation of any provision of a firearm restraining order
relating to the relinquishment of firearms.
(7) A person who was adjudicated delinquent by a court
pursuant to 42 Pa.C.S. § 6341 (relating to adjudication) or
under any equivalent Federal statute or statute of any other
state as a result of conduct which if committed by an adult
would constitute an offense under sections 2502, 2503, 2702,
2703 (relating to assault by prisoner), 2704, 2901, 3121,
3123, 3301, 3502, 3701 and 3923.
(8) A person who was adjudicated delinquent by a court
pursuant to 42 Pa.C.S. § 6341 or under any equivalent Federal
statute or statute of any other state as a result of conduct
which if committed by an adult would constitute an offense
enumerated in subsection (b) with the exception of those
crimes set forth in paragraph (7). This prohibition shall
terminate 15 years after the last applicable delinquent
adjudication or upon the person reaching the age of 30,
whichever is earlier.
(9) A person who is prohibited from possessing or
acquiring a firearm under 18 U.S.C. § 922(g)(9) (relating to
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unlawful acts). 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.
(d) Exemption.--A person who has been convicted of a crime
specified in subsection (a) or (b) or a person whose conduct
meets the criteria in subsection (c)(1), (2), (5), (7) or (9)
may make application to the court of common pleas of the county
where the principal residence of the applicant is situated for
relief from the disability imposed by this section upon the
possession, transfer or control of a firearm. The court shall
grant such relief if it determines that any of the following
apply:
(1) The conviction has been vacated under circumstances
where all appeals have been exhausted or where the right to
appeal has expired.
(2) The conviction has been the subject of a full pardon
by the Governor.
(3) Each of the following conditions is met:
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(i) The Secretary of the Treasury of the United
States has relieved the applicant of an applicable
disability imposed by Federal law upon the possession,
ownership or control of a firearm as a result of the
applicant's prior conviction, except that the court may
waive this condition if the court determines that the
Congress of the United States has not appropriated
sufficient funds to enable the Secretary of the Treasury
to grant relief to applicants eligible for the relief.
(ii) A period of ten years, not including any time
spent in incarceration, has elapsed since the most recent
conviction of the applicant of a crime enumerated in
subsection (b), a felony violation of The Controlled
Substance, Drug, Device and Cosmetic Act or the offense
which resulted in the prohibition under 18 U.S.C. §
922(g)(9).
(e) Proceedings.--
(1) If a person convicted of an offense under subsection
(a), (b) or (c)(1), (2), (5), (7) or (9) makes application to
the court, a hearing shall be held in open court to determine
whether the requirements of this section have been met. The
commissioner and the district attorney of the county where
the application is filed and any victim or survivor of a
victim of the offense upon which the disability is based may
be parties to the proceeding.
(2) Upon application to the court of common pleas
pursuant to paragraph (1) by an applicant who is subject to
the prohibition under subsection (c)(3), the court shall
grant such relief if a period of ten years, not including any
time spent in incarceration, has passed since the applicant's
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most recent conviction under subsection (c)(3).
(f) Other exemptions and proceedings.--
(1) Upon application to the court of common pleas under
this subsection by an applicant subject to the prohibitions
under subsection (c)(4), the court may grant such relief as
it deems appropriate if the court determines that the
applicant may possess a firearm without risk to the applicant
or any other person.
(2) If application is made under this subsection for
relief from the disability imposed under subsection (c)(6) or
(6.1), notice of such application shall be given to the
person who had petitioned for the protection from abuse order
or a firearm restraining order, and such person shall be a
party to the proceedings. Notice of any court order or
amendment to a court order restoring firearms possession or
control shall be given to the person who had petitioned for
the protection from abuse order or a firearm restraining
order, to the sheriff and to the Pennsylvania State Police[.]
and, in the case of a firearm restraining order, to the
appropriate law enforcement agency and district attorney in
the county wherein the firearm restraining order was issued.
The application and any proceedings on the application shall
comply with 23 Pa.C.S. Ch. 61 (relating to protection from
abuse) or with the applicable provisions of Subchapter E
(relating to firearm restraining order).
(3) All hearings conducted under this subsection shall
be closed unless otherwise requested to be open by the
applicant.
(4) (i) The owner of any seized or confiscated firearms
or of any firearms ordered relinquished under 23 Pa.C.S.
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§ 6108 or under section 6190.5 shall be provided with a
signed and dated written receipt by the appropriate law
enforcement agency. This receipt shall include, but not
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.
(ii) Firearms shall not be engraved or permanently
marked in any manner, including, but not limited to,
engraving of evidence or other identification numbers.
Unless reasonable suspicion exists to believe that a
particular firearm has been used in the commission of a
crime, no firearm shall be test fired. Any reduction in
the value of a firearm due to test firing, engraving or
permanently marking in violation of this paragraph shall
be considered damage, and the law enforcement agency
shall be liable to the lawful owner of the firearm for
the reduction in value caused by the test firing,
engraving or permanently marking.
(iii) For purposes of this paragraph, the term
"firearm" shall include any scope, sight, bipod, sling,
light, magazine, clip, ammunition or other firearm
accessory attached to or seized, confiscated or
relinquished with a firearm.
(g) Other restrictions.--Nothing in this section shall
exempt a person from a disability in relation to the possession
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or control of a firearm which is imposed as a condition of
probation or parole or which is imposed pursuant to the
provision of any law other than this section.
(h) License prohibition.--Any person who is prohibited from
possessing, using, controlling, selling, purchasing,
transferring or manufacturing any firearm under this section
shall not be eligible for or permitted to obtain a license to
carry a firearm under section 6109 (relating to licenses).
(i) Firearm.--As used in this section only, the term
"firearm" shall include any weapons which are designed to or may
readily be converted to expel any projectile by the action of an
explosive or the frame or receiver of any such weapon.
(j) Copy of order to State Police.--If the court grants
relief from the disabilities imposed under this section, a copy
of the order shall be sent by the prothonotary within ten days
of the entry of the order to the Pennsylvania State Police and
shall include the name, date of birth and Social Security number
of the individual.
Section 2. Section 6109(i.1) and (m.1) of Title 18 are
amended to read:
§ 6109. Licenses.
* * *
(i.1) Notice to sheriff.--Notwithstanding any statute to the
contrary:
(1) Upon conviction of a person for a crime specified in
section 6105(a) or (b) or upon conviction of a person for a
crime punishable by imprisonment exceeding one year or upon a
determination that the conduct of a person meets the criteria
specified in section 6105(c)(1), (2), (3), (5), (6), (6.1) or
(9), the court shall determine if the defendant has a license
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to carry firearms issued pursuant to this section. If the
defendant has such a license, the court shall notify the
sheriff of the county in which that person resides, on a form
developed by the Pennsylvania State Police, of the identity
of the person and the nature of the crime or conduct which
resulted in the notification. The notification shall be
transmitted by the judge within seven days of the conviction
or determination.
(2) Upon adjudication that a person is incompetent or
upon the involuntary commitment of a person to a mental
institution for inpatient care and treatment under the act of
July 9, 1976 (P.L.817, No.143), known as the Mental Health
Procedures Act, or upon involuntary treatment of a person as
described under section 6105(c)(4) or 6190.6(c)(3)(ii)(F)
(relating to hearing), the judge of the court of common
pleas, mental health review officer or county mental health
and mental retardation administrator shall notify the sheriff
of the county in which that person resides, on a form
developed by the Pennsylvania State Police, of the identity
of the person who has been adjudicated, committed or treated
and the nature of the adjudication, commitment or treatment.
The notification shall be transmitted by the judge, mental
health review officer or county mental health and mental
retardation administrator within seven days of the
adjudication, commitment or treatment.
* * *
(m.1) Temporary emergency licenses.--
(1) A person seeking a temporary emergency license to
carry a concealed firearm shall submit to the sheriff of the
county in which the person resides all of the following:
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(i) Evidence of imminent danger to the person or the
person's minor child. For purposes of this subparagraph,
the term "minor" shall have the same meaning as provided
in 1 Pa.C.S. § 1991 (relating to definitions).
(ii) A sworn affidavit that contains the information
required on an application for a license to carry a
firearm and attesting that the person is 21 years of age
or older, is not prohibited from owning firearms under
section 6105 (relating to persons not to possess, use,
manufacture, control, sell or transfer firearms) or any
other Federal or State law and is not currently subject
to a protection from abuse order or a protection order
issued by a court of another state or an active firearm
restraining order under Subchapter E (relating to firearm
restraining order).
(iii) In addition to the provisions of subsection
(h), a temporary emergency license fee established by the
Commissioner of the Pennsylvania State Police for an
amount that does not exceed the actual cost of conducting
the criminal background check or $10, whichever is less.
(iv) An application for a license to carry a firearm
on the form prescribed pursuant to subsection (c).
(2) Upon receipt of the items required under paragraph
(1), the sheriff immediately shall conduct a criminal
history, juvenile delinquency and mental health record check
of the applicant pursuant to section 6105. Immediately upon
receipt of the results of the records check, the sheriff
shall review the information and shall determine whether the
applicant meets the criteria set forth in this subsection. If
the sheriff determines that the applicant has met all of the
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criteria, the sheriff shall immediately issue the applicant a
temporary emergency license to carry a concealed firearm.
(3) If the sheriff refuses to issue a temporary
emergency license, the sheriff shall specify the grounds for
the denial in a written notice to the applicant. The
applicant may appeal the denial or challenge criminal records
check results that were the basis of the denial, if
applicable, in the same manner as a denial of a license to
carry a firearm under this section.
(4) A temporary emergency license issued under this
subsection shall be valid for 45 days and may not be renewed.
A person who has been issued a temporary emergency license
under this subsection shall not be issued another temporary
emergency license unless at least five years have expired
since the issuance of the prior temporary emergency license.
During the 45 days the temporary emergency license is valid,
the sheriff shall conduct an additional investigation of the
person for the purposes of determining whether the person may
be issued a license pursuant to this section. If, during the
course of this investigation, the sheriff discovers any
information that would have prohibited the issuance of a
license pursuant to this section, the sheriff shall be
authorized to revoke the temporary emergency license as
provided in subsection (i).
(5) The temporary emergency license issued pursuant to
this section shall be consistent with the form prescribed in
subsection (e)(3), (4) and (5). In addition to the
information provided in those paragraphs, the temporary
emergency license shall be clearly marked "Temporary."
(6) A person who holds a temporary emergency license to
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carry a firearm shall have the same rights to carry a firearm
as a person issued a license to carry a firearm under this
section. A licensee under this subsection shall be subject to
all other duties, restrictions and penalties under this
section, including revocation pursuant to subsection (i).
(7) A sheriff who issues a temporary emergency license
to carry a firearm shall retain, for the entire period during
which the temporary emergency license is in effect, the
evidence of imminent danger that the applicant submitted to
the sheriff that was the basis for the license, or a copy of
the evidence, as appropriate.
(8) A person applying for a temporary emergency license
shall complete the application required pursuant to
subsection (c) and shall provide at the time of application
the information required in paragraph (1).
(9) Prior to the expiration of a temporary emergency
license, if the sheriff has determined pursuant to
investigation that the person issued a temporary emergency
license is not disqualified and if the temporary emergency
license has not been revoked pursuant to subsection (i), the
sheriff shall issue a license pursuant to this section that
is effective for the balance of the five-year period from the
date of the issuance of the temporary emergency license.
Records and all other information, duties and obligations
regarding such licenses shall be applicable as otherwise
provided in this section.
(10) As used in this subsection, the term "evidence of
imminent danger" means:
(i) a written document prepared by the Attorney
General, a district attorney, a chief law enforcement
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officer, judicial officer or their designees describing
the facts that give a person reasonable cause to fear a
criminal attack upon the person or the person's minor
child. For the purposes of this subparagraph, the term
"chief law enforcement officer" shall have the same
meaning as provided in 42 Pa.C.S. § 8951 (relating to
definitions) and "judicial officer" shall have the same
meaning as provided in 42 Pa.C.S. § 102 (relating to
definitions).
(ii) a police report.
* * *
Section 3. Chapter 61 of Title 18 is amended by adding a
subchapter to read:
SUBCHAPTER E
FIREARM RESTRAINING ORDER
Sec.
6190.1. Definitions.
6190.2. Jurisdiction.
6190.3. Commencement of proceedings.
6190.4. Responsibilities of law enforcement agencies.
6190.5. Relief.
6190.6. Hearing.
6190.7. Return of relinquished firearms, other weapons and
ammunition, and additional relief.
6190.8. Relinquishment for consignment sale, lawful transfers
and safekeeping.
6190.9. Disclosure and confidentiality.
6190.10. Service of order.
6190.11. Violation of order.
6190.12. Contempt for violations and arrest.
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6190.13. Civil contempt for violation of an order.
6190.14. Procedures and other remedies.
6190.15. Immunity.
6190.16. Inability to pay.
6190.17. Warrantless searches.
6190.18. Construction.
§ 6190.1. Definitions.
The following words and phrases when used in this subchapter
shall have the meanings given to them in this section unless the
context clearly indicates otherwise:
"Family or household member." As defined in 23 Pa.C.S. §
6102 (relating to definitions).
"Firearm." As defined in section 6113(d) (relating to
licensing of dealers).
"Firearm restraining order." An order entered by the court
under this subchapter prohibiting a named person from having in
the person's custody or control, purchasing, possessing or
receiving any firearms, other weapons or ammunition.
"Hearing officer." As defined in 23 Pa.C.S. § 6102 (relating
to definitions).
"Law enforcement officer." Any officer of the Commonwealth
or a political subdivision who is empowered to conduct
investigations of or to make arrests for offenses enumerated in
this title and any attorney authorized by law to prosecute or
participate in the prosecution of an offense.
"Other weapon." Anything readily capable of lethal use and
possessed under circumstances not manifestly appropriate for
lawful uses which it may have. The term does not include a
firearm.
"Physical safety." Personal or physical harm or bodily
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injury or the threat of personal or physical harm or bodily
injury whether by acts of hostility, aggression or harassment.
"Safekeeping permit." A permit issued by a sheriff allowing
a person to take possession of any firearm, other weapon or
ammunition that a judge ordered a subject of a firearm
restraining order in a proceeding under this subchapter.
"Sheriff."
(1) Except as provided in paragraph (2), the sheriff of
a county.
(2) In a city of the first class, the chief or head of
the police department.
"Weapon." Anything readily capable of lethal use and
possessed under circumstances not manifestly appropriate for
lawful uses which it may have. The term includes a firearm which
is not loaded or lacks a magazine, clip or other components to
render it immediately operable and components which can readily
be assembled into a weapon as defined by section 907 (relating
to possessing instruments of crime).
§ 6190.2. Jurisdiction.
(a) General rule.--The court shall have jurisdiction over
all proceedings under this subchapter and may, at the court's
discretion, develop rules or procedures as necessary to govern
proceedings under this subchapter.
(b) Effect of departure and nonresidence.--The right of the
petitioner to relief under this subchapter shall not be affected
by the absence of the subject of the petition or restraining
order from this Commonwealth or the nonresidence of the subject
in this Commonwealth, if the court has personal jurisdiction
over the person in accordance with 42 Pa.C.S. § 5322 (relating
to bases of personal jurisdiction over persons outside this
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Commonwealth).
§ 6190.3. Commencement of proceedings.
(a) General rule.--
(1) A law enforcement officer, a family or household
member or a person licensed under the act of July 9, 1987
(P.L.220, No.39), known as the Social Workers, Marriage and
Family Therapists and Professional Counselors Act, or a
health care practitioner as defined under section 103 of the
act of July 19, 1979 (P.L.130, No.48), known as the Health
Care Facilities Act, may petition the court for a firearm
restraining order enjoining the subject of the petition from
having in the subject's custody or control, purchasing,
possessing or receiving a firearm, other weapon or
ammunition.
(2) A petition for a firearm restraining order must
include instructions which, in the court's discretion, must
require the petitioner to describe the number, type and
location of any firearm, other weapon and ammunition known by
the petitioner to be owned, possessed or controlled by the
subject of the petition.
(b) Notification of defendant's occupation.--A law
enforcement officer, family or household member or other person
under subsection (a)(1) shall notify the court if the person has
knowledge or reason to believe that the subject of a firearm
restraining order is any of the following:
(1) a licensed firearms dealer;
(2) employed by a licensed firearms dealer or
manufacturer;
(3) employed as a writer, researcher or technician in
the firearms or hunting industry; or
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(4) required to carry a firearm as a condition of
employment.
(c) Certain fees not permitted.--
(1) A person seeking relief under this subchapter shall
not be charged any fees or costs associated with the filing,
issuance, registration or service of a petition, motion,
complaint, order or any other filing required under this
subchapter. Prohibited fees or costs shall include, but are
not limited to, those associated with modifying, withdrawing,
dismissing or certifying copies of a petition, motion,
complaint, order or any other filing, as well as any judicial
surcharge or computer system fee.
(2) A person seeking relief under this subchapter shall
not be charged any fees or costs associated with filing a
motion for reconsideration or an appeal from any order or
action taken under this subchapter.
(3) Nothing in this subsection shall expand or diminish
the court's authority to enter an order under Pa.R.C.P. No.
1023.1 (relating to Scope. Signing of Documents.
Representations to the Court. Violation).
(d) Assessment of fees and costs.--If a firearm restraining
order is granted under this subchapter, fees and costs may be
assessed against the subject of the order. The court shall waive
fees and costs upon a showing of good cause or if the court
makes a finding that the subject of the petition or order is not
able to pay the fees and costs. Nothing in this subsection shall
expand or diminish the court's authority to enter an order under
Pa.R.C.P. No. 1023.1.
(e) Surcharge on order.--
(1) Notwithstanding subsection (d), if a firearm
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restraining order is granted under this subchapter, a
surcharge of $100 shall be assessed against the subject of
the restraining order.
(2) All money received from surcharges shall be
distributed in the following order of priority:
(i) Fifty dollars shall be forwarded to the
Commonwealth and shall be annually appropriated by the
General Assembly as follows:
(A) Twenty-five dollars shall be appropriated to
the Pennsylvania State Police to assist with the
maintenance of the Statewide registry established in
accordance with 23 Pa.C.S. § 6105(e) (relating to
responsibilities of law enforcement agencies).
(B) Twenty-five dollars shall be appropriated to
the Supreme Court for use by county courts and
magisterial district courts to carry out their duties
under this subchapter.
(ii) Fifty dollars shall be retained by the county
and shall be used to carry out the provisions of this
subchapter as follows:
(A) Twenty-five dollars shall be used by the
sheriff.
(B) Twenty-five dollars shall be forwarded to
the local law enforcement agency.
(3) The surcharge allocated under paragraph (2)(i) shall
be used to supplement and not to supplant any other source of
funds received for the purpose of carrying out the provisions
of this subchapter.
(f) Service.--
(1) The court shall adopt a means of prompt and
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effective service. If the court adopts a means of prompt and
effective service, the sheriff or another court-designated
agency or individual shall serve the petition and order. The
petitioner shall not be obligated to serve the petition or
firearm restraining order.
(2) The petition and order shall be served upon the
subject of the petition.
(3) Within two business days, the order shall be served
upon the local law enforcement agency, sheriff and district
attorney in the jurisdiction where the order was entered.
(4) A certified copy of the order shall be issued to the
petitioner.
(5) A copy of the order shall be issued as otherwise
ordered by the court or hearing officer.
(6) Failure to serve the local law enforcement agency,
sheriff or district attorney's office shall not stay the
effect of a valid order.
(g) Assistance and advice to petitioner.--The court or
hearing officer shall provide simplified forms and clerical
assistance in English and Spanish to help with the writing and
filing of petitions for firearm restraining orders for any
individual requesting the assistance or not represented by
counsel.
§ 6190.4. Responsibilities of law enforcement agencies.
(a) General rule.--The Pennsylvania State Police, local law
enforcement agencies and the sheriff of each county shall ensure
that the entities' troopers, officers, deputies and other
designated employees are familiar with the provisions of this
subchapter. Instruction concerning firearm restraining orders
shall be made a part of the training curriculum for all trainee
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troopers, officers and deputies or other designated employees of
the Pennsylvania State Police, local law enforcement agencies
and the sheriff. The Pennsylvania State Police and all other law
enforcement agencies within this Commonwealth shall adopt a
written policy to govern firearm restraining orders.
(b) Notice of arrest.--The applicable law enforcement agency
shall make reasonable effort to notify a family or household
member or other person under section 6190.3(a)(1) (relating to
commencement of proceedings) of the arrest of the subject of a
firearm restraining order for violation of an order as soon as
possible, except that, if a family or household member or other
person cannot be located at the time of arrest, notice of the
arrest shall be provided not more than 24 hours after
preliminary arraignment.
(c) Statewide registry.--
(1) Notwithstanding any other provision of law or
regulation, the Pennsylvania State Police shall cause each
valid temporary and final firearm restraining order granted
under this subchapter to be entered into the Statewide
registry established under 23 Pa.C.S. § 6105(e) (relating to
responsibilities of law enforcement agencies). The registry
of firearm restraining orders maintained in the Statewide
registry shall include, but may not be limited to, the
following:
(i) The names of the petitioner and family and
household members of the subjects of the restraining
orders, if known.
(ii) The names and addresses of the subjects of
firearm restraining orders.
(iii) The familial and professional relationship
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between the petitioners and the subjects of firearm
restraining orders, if known.
(iv) The date the order was entered.
(v) The date the order expires.
(vi) The relief granted under this subchapter.
(vii) The judicial district in which the order was
entered.
(viii) The Social Security number and date of birth
of the subject of the restraining order.
(ix) A listing of all firearms, other weapons or
ammunition ordered to be relinquished.
(2) The prothonotary shall send, on a form prescribed by
the Pennsylvania State Police, a copy of the firearm
restraining order to the Statewide registry so that the copy
is received within 24 hours of the entry of the order.
Amendments to or the revocation, vacation or expiration of an
order shall be transmitted by the prothonotary within 24
hours of the entry of the order for modification or
revocation, vacation or expiration. The Pennsylvania State
Police shall enter orders, amendments, revocations, vacations
and expirations in the Statewide registry of firearm
restraining orders within eight hours of receipt. Each
revoked, vacated or expired order shall be purged from the
registry within eight hours of receipt.
(3) The Statewide registry shall be available at all
times to inform courts, police dispatchers and law
enforcement officers of any valid firearm restraining order
involving any individual subject to an order.
(4) If an order granting relief under section
6190.5(a.1)(3) (relating to relief) has been entered by the
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court, the information shall be available to the Pennsylvania
State Police for the purpose of conducting a criminal history
records check, juvenile records check and mental health
records check following the procedures under section 6111
(relating to sale or transfer of firearms).
(5) Information contained in the Statewide registry
shall not be subject to access under the act of February 14,
2008 (P.L.6, No.3), known as the Right-to-Know Law.
(d) Information concerning firearm restraining orders.--Each
local law enforcement agency and the Pennsylvania State Police
shall transmit to the Pennsylvania State Police, in a manner
prescribed by the Pennsylvania State Police, the information
specified under subsection (c)(1).
(e) Annual report.--
(1) The Pennsylvania State Police shall annually compile
and publish in the Pennsylvania Bulletin a Statewide report
which includes aggregate, county-based statistical profiles
of firearm restraining orders granted under this subchapter.
(2) The Pennsylvania State Police shall incorporate the
report under paragraph (1) into the annual report compiled in
accordance with 23 Pa.C.S. § 6105(g).
§ 6190.5. Relief.
(a) Issuance of order.--Notwithstanding any other provision
of law, the court:
(1) May issue a firearm restraining order enjoining the
subject of a petition from having in the subject's custody or
control, purchasing, possessing or receiving a firearm, other
weapon or ammunition if it determines that there is good
cause to believe that the subject of a petition poses an
immediate and present danger to the physical safety of a
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family or household member or other person by having in the
subject's custody or control, purchasing, possessing or
receiving a firearm, other weapon or ammunition.
(2) Shall issue a firearm restraining order enjoining
the subject of a protection order under 23 Pa.C.S. (relating
to domestic relations) from having in his custody or control,
purchasing, possessing or receiving a firearm, other weapon
or ammunition.
(a.1) Regulations and prohibitions.--A firearm restraining
order issued by the court under subsection (a) may:
(1) Prohibit the person subject to the firearm
restraining order from having in the subject's custody or
control, purchasing, possessing or receiving or attempting to
purchase, possess or receive a firearm, other weapon or
ammunition for the duration of the order.
(2) Require the subject of the firearm restraining order
to relinquish to the sheriff any firearm license in
accordance with section 6106 (relating to firearms not to be
carried without a license) or 6109 (relating to licenses) the
defendant may possess.
(3) Order the person subject to a firearm restraining
order to temporarily relinquish to the sheriff any firearm or
other weapons and ammunition which the person may own,
possess or have in the person's custody or control. If
relinquishment is ordered, the following shall apply:
(i) (A) The court's order shall require the subject
of the restraining order to relinquish the firearms,
other weapons, ammunition and any firearm license
under the provisions of this section within 24 hours
of service of a temporary order or the entry of a
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final order or the close of the next business day as
necessary by closure of the sheriffs' offices, except
for cause shown at the hearing, in which case the
court shall specify the time for relinquishment of
the subject's firearms, other weapons and ammunition
or firearm license.
(B) A person subject to a temporary firearm
restraining order requiring the relinquishment of
firearms, other weapons and ammunition shall, in lieu
of relinquishing specific firearms, other weapons or
ammunition which cannot reasonably be retrieved
within the time for relinquishment in clause (A) due
to their current location, provide the sheriff with
an affidavit listing the firearms, other weapons or
ammunition and their current location. If the subject
of the order, within the time for relinquishment in
clause (A), fails to provide the affidavit or fails
to relinquish, under this section, any firearms,
other weapons or ammunition ordered to be
relinquished which are not specified in the
affidavit, the sheriff shall, at a minimum, provide
immediate notice to the court, the petitioner and
appropriate law enforcement agencies. The subject of
the temporary order shall not have in the subject's
custody or control or possession any firearms, other
weapons or ammunition specifically listed in the
affidavit provided to the sheriff under this clause
for the duration of the temporary order.
(C) As used in this subparagraph, the term
"cause" shall be limited to facts relating to the
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inability of the subject of a firearm restraining
order to retrieve a specific firearm within 24 hours
due to the current location of the firearm.
(ii) The court's order shall contain a list of the
firearm, other weapon or ammunition ordered to be
relinquished. Upon the entry of a final order, the
subject of the firearm restraining order shall inform the
court in what manner the subject will relinquish any
firearm, other weapon or ammunition ordered to be
relinquished. Relinquishment may occur under section
6190.8 (relating to relinquishment for consignment sale,
lawful transfers and safekeeping) or to the sheriff under
this paragraph. If the sheriff is designated, the sheriff
shall secure custody of the firearms, other weapons or
ammunition and any firearm license listed in the court's
order for the duration of the order or until otherwise
directed by court order. In securing custody of the
subject's relinquished firearms, the sheriff shall comply
with section 6105(f)(4) (relating to persons not to
possess, use, manufacture, control, sell or transfer
firearms). In securing custody of the subject's other
weapons and ammunition, the sheriff shall provide the
subject with a signed and dated written receipt which
shall include a detailed description of the other weapons
and ammunition and their condition.
(iii) The sheriff shall provide the petitioner with
the name of the person to which any firearm, other weapon
or ammunition was relinquished.
(iv) If the subject of a firearm restraining order
has not complied with subparagraph (i)(B) or section
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6190.8 and fails to relinquish any firearm, other weapon,
ammunition or firearm license within 24 hours or upon the
close of the next business day due to closure of
sheriffs' offices or within the time ordered by the court
upon cause shown at the hearing, the sheriff shall, at a
minimum, provide immediate notice to the court, the
petitioner and appropriate law enforcement agencies.
(v) Any portion of any order or any petition or
other paper which includes a list of any firearm, other
weapon or ammunition ordered to be relinquished shall be
kept in the files of the court as a permanent record
thereof and withheld from public inspection except:
(A) upon an order of the court granted upon
cause shown;
(B) as necessary, by law enforcement and court
personnel; or
(C) after redaction of information listing any
firearm, other weapon or ammunition.
(vi) As used in this paragraph, the term "subject's
firearms" shall, if the subject is a licensed firearms
dealer, only include firearms in the subject's personal
firearms collection under 27 CFR § 478.125a (relating to
personal firearms collection).
(4) If the subject of a firearm restraining order is a
licensed firearms dealer, order the subject to follow
restrictions as the court may require concerning the conduct
of his business, which may include ordering the subject to
relinquish any Federal or State license for the sale,
manufacture or importation of firearms as well as firearms in
the subject's business inventory. In restricting the subject
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of a firearm restraining order under this paragraph, the
court shall make a reasonable effort to preserve the
financial assets of the subject's business while fulfilling
the goals of this subchapter.
(b) Identifying information.--Any order issued under this
section shall specify the Social Security number and date of
birth of the subject of the firearm restraining order.
(c) Duration and amendment of order.--A firearm restraining
order shall be for a fixed period of time not to exceed one
year. The court may amend its order at any time upon subsequent
petition filed by a petitioner, family or household member or
other person under section 6190.3 (relating to commencement of
proceedings).
(d) Extension of firearm restraining order.--
(1) An extension of a firearm restraining order may be
granted:
(i) Where the court finds, after a duly filed
petition, notice to the subject of an order and a hearing
in accordance with the procedures set forth in sections
6190.5 (relating to relief) and 6190.6 (relating to
hearing) that the subject of the firearm restraining
order is alleged to have committed one or more of the
offenses enumerated in section 6105(b) or has engaged in
a pattern of conduct which indicates a continued risk of
danger to the physical safety of the petitioner, family
or household member or other person or himself subsequent
to the entry of the final order.
(ii) If a contempt petition or charge has been filed
with the court or with a hearing officer in Philadelphia
County and the hearing has not occurred before the
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expiration of the order, the order shall be extended, at
a minimum, until the disposition of the contempt petition
and may be extended for another term beyond the
disposition of the contempt petition.
(2) Service of an extended order shall be made in
accordance with section 6190.10 (relating to service of
order).
(3) There shall be no limitation on the number of
extensions that may be granted.
(e) Notice.--Notice shall be given to the subject of a
firearm restraining order, in orders issued under this section
and temporary orders issued under section 6190.6, stating that
violations of a firearm restraining order will subject the
subject of the restraining order to arrest under section 6105
or 6190.11 (relating to violation of order) or contempt of court
under section 6190.12 (relating to contempt for violation;
arrest).
(f) Transmission of order.--A copy of the court's order
shall be transmitted to the Pennsylvania State Police, the chief
or head of the local law enforcement agency of the municipality
in which the subject of the firearm is a resident and in which
the order was issued, the district attorney and the sheriff of
the county in which the subject of the firearm restraining order
is a resident and in which the order was issued.
(g) False reports.--A person who knowingly gives false
information to any law enforcement officer with the intent to
implicate another under this chapter commits an offense under
section 4906 (relating to false reports to law enforcement
authorities).
§ 6190.6. Hearing.
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(a) Schedule of hearing.--Within 10 business days of the
filing of a petition under this subchapter, a hearing shall be
held before the court, at which the petitioner must prove the
allegation, by a preponderance of the evidence, that the subject
of the petition poses an immediate and present danger to the
physical safety of the petitioner, family or household member,
other person or himself. The court shall, at the time the
subject of the petition is given notice of the hearing, advise
the subject of the following:
(1) The right to be represented by counsel.
(2) The possibility that any firearm, other weapon or
ammunition owned and any firearm license possessed by him may
be ordered to be temporarily relinquished.
(3) The options for relinquishment of a firearm under
this subchapter.
(4) The possibility that Federal law may prohibit the
possession of firearms.
(5) The penalty for violation of the firearm restraining
order.
(6) Any firearm restraining order granted by a court may
be considered in any subsequent proceedings under this title.
The notice shall be printed and delivered in a manner which
easily attracts attention to its content.
(b) Review prior to hearing.--Prior to a hearing on the
issuance, extension or vacation of a firearm restraining order,
the court shall conduct a review to determine whether the
subject of the petition has been convicted of or has pled guilty
or nolo contendere to any of the enumerated offenses under
section 6105 (relating to persons not to possess, use,
manufacture, control, sell or transfer firearms).
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(c) Temporary orders.--The following shall apply:
(1) If a law enforcement officer, family or household
member or other person under section 6190.3 (relating to
commencement of proceedings) petitions the court for a
temporary firearm restraining order alleging an immediate and
present danger to the physical safety of a family or
household member, another person or the subject of the
petition, the court shall conduct an ex parte proceeding.
(2) The court may enter a temporary order as the court
deems necessary to protect the petitioner, a family or
household member, other person or the subject of the
petition, if the petition demonstrates that the subject of
the petition poses an immediate and present danger to the
physical safety of such petitioner, family or household
member, other person or himself. The order shall remain in
effect until modified or terminated by the court after notice
and hearing.
(3) In addition to any other relief, the court may,
under section 6190.5 (relating to relief), direct the subject
of a firearm restraining order to temporarily relinquish to
the sheriff any firearms, other weapons or ammunition for the
duration of the temporary order if the petition demonstrates
any of the following:
(i) Conduct which involves a firearm or other
weapon.
(ii) An immediate and present danger to physical
safety. In determining whether an immediate and present
danger to physical safety exists, the court shall
consider the following factors, including, but not
limited to:
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(A) Whether the temporary firearm restraining
order is not likely to achieve the order's purpose in
the absence of such a condition.
(B) Whether the subject of the petition has
previously violated a protection from abuse order
under 23 Pa.C.S. Ch. 61 (relating to protection from
abuse).
(C) Whether past or present conduct or abuse of
a family or household member, another person or
himself resulted in bodily injury.
(D) Whether the conduct or abuse occurred in
public.
(E) Whether the conduct or abuse includes:
(I) threats to physical safety or of abuse
or suicide;
(II) killing or threatening to kill pets or
other animals;
(III) an escalation of violence;
(IV) stalking, harassment or obsessive
behavior;
(V) sexual violence; or
(VI) controlled substance, as defined under
the act of April 14, 1972 (P.L.233, No.64), known
as The Controlled Substance, Drug, Device and
Cosmetic Act, or excessive alcohol use.
(F) Whether the subject of the petition has been
adjudicated as incompetent or has been involuntarily
committed to a mental institution for inpatient care
and treatment under section 302, 303 or 304 of the
act of July 9, 1976 (P.L.817, No.143), known as the
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Mental Health Procedures Act. This paragraph shall
not apply to any proceeding under section 302 of the
Mental Health Procedures Act unless the examining
physician has issued a certification that inpatient
care was necessary or that the person was
committable.
(G) Whether the subject of the petition has been
convicted of any offense enumerated in section
6105(b).
(H) Whether the subject of the petition has been
convicted of an offense under The Controlled
Substance, Drug, Device and Cosmetic Act or any
equivalent Federal statute or equivalent statute of
any other state, that may be punishable by a term of
imprisonment of not more than two years.
(I) Whether the subject of the petition has been
convicted of driving under the influence of alcohol
or controlled substance as provided in 75 Pa.C.S. §
3802 (relating to driving under influence of alcohol
or controlled substance) on three or more separate
occasions within a five-year period.
(4) If the court orders the subject of the petition to
temporarily relinquish any firearm, other weapon or
ammunition under paragraph (3), the subject of the petition
shall decide in what manner he will relinquish the firearm,
other weapon or ammunition listed in the order.
Relinquishment may be to the sheriff under section
6190.5(a.1)(3).
(d) Continued hearings.--If a hearing under subsection (a)
is continued and no temporary order is issued, the court may
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make ex parte temporary orders under subsection (c) as it deems
necessary.
§ 6190.7. Return of relinquished firearms, other weapons and
ammunition, and additional relief.
(a) General rule.--Any court order requiring the
relinquishment of firearms, other weapons or ammunition shall
provide for the return of the relinquished firearms, other
weapons or ammunition to the subject of a firearm restraining
order upon revocation, vacation or expiration of the order or
dismissal of a petition for a firearm restraining order. The
subject of a firearm restraining order may take custody of the
relinquished firearms, other weapons or ammunition provided that
such subject is otherwise eligible to lawfully possess the
relinquished firearms, other weapons or ammunition. The subject
of the firearm restraining order shall not be required to pay
any fees, costs or charges associated with the returns, whether
the fees, costs or charges are imposed by the Pennsylvania State
Police, any local law enforcement agency or any other entity,
including a licensed importer, licensed manufacturer or licensed
dealer, in order to secure return of the relinquished firearms,
other weapons or ammunition.
(b) Hearing.--Within 10 business days of the filing of a
petition under this section, a hearing shall be held before the
court.
(c) Definitions.--As used in this section, the term "other
person" shall mean any person, except the subject of the
restraining order, who is the lawful owner of a firearm, other
weapon or ammunition relinquished under this subchapter.
§ 6190.8. Relinquishment for consignment sale, lawful transfers
and safekeeping.
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(a) General rule.--Notwithstanding any other provision of
law, an individual who is the subject of a firearm restraining
order, which order provides for the relinquishment of firearms,
other weapons or ammunition during the period of time the order
is in effect, may, within the time frame specified in the order
and in lieu of relinquishment to the sheriff, relinquish to a
dealer licensed under section 6113 (relating to licensing of
dealers) any firearms, other weapons or ammunition for
consignment sale, lawful transfers and safekeeping.
(b) Affidavit.--The subject of a firearm restraining order
relinquishing firearms, other weapons or ammunition to a
licensed dealer under subsection (a) shall obtain an affidavit
from the dealer on a form prescribed by the Pennsylvania State
Police which shall include, at a minimum, the following:
(1) The caption of the case in which the firearm
restraining order was issued.
(2) The name, address, date of birth and Social Security
number of the subject of the firearm restraining order.
(3) A list of the firearms, other weapons or ammunition,
including, if applicable, the manufacturer, model and serial
number.
(4) The name, license number and address of the licensed
premises of the dealer licensed under section 6113 receiving
the relinquished firearm, other weapon or ammunition.
(5) An acknowledgment that the firearms, other weapons
or ammunition will not be returned to the subject of the
restraining order or sold or transferred to an individual the
dealer knows is a family or household member of the subject
while he or she is the subject of an active firearm
restraining order under this subchapter or an active
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protection from abuse order under 23 Pa.C.S. Ch. 61 (relating
to protection from abuse) which order or orders provide for
the relinquishment of the firearm, other weapon or ammunition
being returned, sold or transferred.
(6) An acknowledgment that the firearms, other weapons
or ammunition, if sold or transferred, will be sold or
lawfully transferred in compliance with Chapter 61 (relating
to firearms and other dangerous articles).
(c) Failure to provide affidavit.--The subject of a firearm
restraining order relinquishing firearms, other weapons or
ammunition to a dealer under subsection (a) shall, within the
time frame specified in the order for relinquishing firearms,
other weapons or ammunition, provide to the sheriff the
affidavit obtained under subsection (b) and relinquish to the
sheriff any firearms, other weapons or ammunition ordered to be
relinquished which are not specified in the affidavit, in an
affidavit provided in accordance with section 6190.5(a.1)(3)(i)
(B) (relating to relief). If the subject of a firearm
restraining order fails to comply with this subsection, the
sheriff shall, at a minimum, provide immediate notice to the
court, the petitioner and appropriate law enforcement agencies.
(d) Form.--The Pennsylvania State Police shall develop and
make available to licensed dealers a form to be used by dealers
to accept possession of firearms, other weapons or ammunition
for consignment sale, lawful transfer or safekeeping under this
section.
(e) Transfer upon entry of final order.--Upon entry of a
final firearm restraining order issued under section 6190.5,
which provides for the relinquishment of firearms, other weapons
or ammunition during the period of time the order is in effect,
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the subject of a firearm restraining order who had relinquished
firearms, other weapons or ammunition to the sheriff under a
temporary order may request that the firearms, other weapons or
ammunition be relinquished to a dealer for consignment sale,
lawful transfer or safekeeping under this section. If the
defendant can identify a licensed dealer willing to accept the
firearms, other weapons or ammunition in compliance with this
section, the court shall order the sheriff to transport the
firearms, other weapons or ammunition to the licensed dealer at
no cost to the subject of the firearm restraining order or the
licensed dealer.
(f) Nondisclosure.--The affidavit obtained under subsection
(b) shall not be subject to access under the act of February 14,
2008 (P.L.6, No.3), known as the Right-to-Know Law.
(g) Definitions.--As used in this section, the following
words and phrases shall have the meanings given to them in this
subsection:
"Safekeeping." The secure custody of firearms, other weapons
or ammunition ordered to be relinquished by an active firearm
restraining order.
"Sale or lawful transfer." Any sale or transfer to a person
other than the subject of a firearm restraining order or a
family or household member of the subject which is conducted in
accordance with Chapter 61.
§ 6190.9. Disclosure and confidentiality.
(a) Certain disclosures prohibited.--
(1) During the course of a proceeding under this
subchapter, the court or hearing officer may consider whether
the petitioner or petitioner's family or household members or
other person would be endangered by disclosure of the
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permanent or temporary address of the petitioner or
petitioner's family or household member or other person. If
the court determines that disclosure of the petitioner's
address may pose a threat to the physical safety of the
petitioner, a family or household member of such petitioner
or other person, the court or hearing officer shall not
require disclosure of the petitioner's, family or household
member's or other person's address in either the pleadings or
during proceedings or hearings under this subchapter.
(2) If the court concludes that the subject of a
restraining order continues to pose a threat to the physical
safety of the petitioner, a family or household member of the
petitioner or another person and where the petitioner, family
or household member or other person requests that his or her
address, telephone number and information about whereabouts
not be disclosed, the court shall enter an order directing
that law enforcement agencies and any other person or entity,
as the court so determines, shall not disclose the presence
of the petitioner, family or household member or other person
in any jurisdiction or furnish any address, telephone number
or any other demographic information about the petitioner,
family or household member or other person, except by further
order of the court.
(b) Confidentiality.--Information retained to ensure
compliance with this subchapter shall not be subject to access
under the act of February 14, 2008 (P.L.6, No.3), known as the
Right-to-Know Law.
§ 6190.10. Service of order.
(a) Issuance.--A copy of an order under this subchapter
shall be issued to the petitioner, the subject of the
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restraining order and the local law enforcement agencies with
appropriate jurisdiction to enforce the order in accordance with
the provisions of this subchapter or as ordered by the court or
hearing officer.
(b) Placement in registry.--Upon receipt of an order, the
local law enforcement agency shall immediately advise the
Pennsylvania State Police of entry of the order and collaborate
with it to ensure that the order is timely entered into the
registry established in accordance with 23 Pa.C.S. § 6105
(relating to responsibilities of law enforcement agencies). The
local law enforcement agency with jurisdiction shall continue
its collaboration with the Pennsylvania State Police to ensure
that the registry is current at all times and that orders are
removed upon vacation or expiration.
§ 6190.11. Violation of order.
(a) General rule.--An arrest for violation of an order
issued under this subchapter may be without warrant upon
probable cause whether or not the violation is committed in the
presence of the law enforcement officer or sheriff in
circumstances where the subject of a firearm restraining order
has violated a provision of an order consistent with section
6190.5 (relating to relief). The law enforcement officer or
sheriff may verify the existence of a firearm restraining order
by telephone, radio or other electronic communication with the
appropriate law enforcement agency, the Pennsylvania State
Police registry or the issuing authority. A law enforcement
officer or sheriff shall arrest a subject of a firearm
restraining order for violating an order issued under this
subchapter.
(b) Seizure of firearms, other weapons and ammunition.--
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Subsequent to an arrest, the law enforcement officer or sheriff
shall seize all firearms, other weapons and ammunition used or
threatened to be used during a violation of a firearm
restraining order or during prior incidents that posed an
immediate and present danger to the physical safety of the
petitioner, a family or household member or other person and any
other firearms, other weapons or ammunition in the subject's
possession. As soon as it is reasonably possible, the arresting
law enforcement officer shall deliver the confiscated firearms,
other weapons and ammunition to the office of the sheriff. The
sheriff shall maintain possession of the firearms, other weapons
and ammunition until the court issues an order specifying the
firearms, other weapons and ammunition to be relinquished and
the persons to whom the firearms, other weapons and ammunition
shall be relinquished.
(c) Procedure following arrest.--Subsequent to an arrest
under subsection (a), the subject of a firearm restraining order
shall be taken by the law enforcement officer or sheriff without
unnecessary delay before the court in the judicial district
where the contempt is alleged to have occurred. If that court is
unavailable, the law enforcement officer or sheriff shall convey
the subject of the firearm restraining order to a magisterial
district judge designated as appropriate by local rules of court
or, in the City of Pittsburgh, to a magistrate of the Pittsburgh
Magistrates Court or, in counties of the first class, to the
appropriate hearing officer. For purposes of procedure relating
to arraignments for arrest for violation of an order issued
under this subchapter, the judges of Pittsburgh Magistrates
Court shall be deemed to be magisterial district judges.
(d) Preliminary arraignment.--The subject of a firearm
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restraining order shall be afforded a preliminary arraignment
without unnecessary delay.
(e) Other emergency powers unaffected.--This section shall
not be construed to limit any of the other powers for emergency
relief provided in this subchapter.
(f) Hearing.--A hearing shall be scheduled within 10 days of
the filing of the charge or complaint of indirect criminal
contempt. The hearing and any adjudication shall not preclude a
hearing on other criminal charges underlying the contempt, nor
shall a hearing or adjudication on other criminal charges
preclude a hearing on a charge of indirect criminal contempt.
§ 6190.12. Contempt for violations and arrest.
(a) General rule.--If the law enforcement officer, sheriff
or the petitioner has filed charges of indirect criminal
contempt against a defendant for violation of a firearm
restraining order issued under this subchapter, the court may
hold the subject of the restraining order in indirect criminal
contempt and punish the subject in accordance with law.
(b) Jurisdiction.--The court shall have jurisdiction over
indirect criminal contempt charges for violation of a firearm
restraining order issued under this subchapter in the county
where the violation occurred and in the county where the order
was granted.
(c) Minors.--A subject of a firearm restraining order who is
a minor and who is charged with indirect criminal contempt for
allegedly violating a firearm restraining order shall be
considered to have committed an alleged delinquent act as that
term is defined in 42 Pa.C.S. § 6302 (relating to definitions)
and shall be treated as provided in 42 Pa.C.S. Ch. 63 (relating
to juvenile matters).
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(d) Trial and punishment.--
(1) A sentence for contempt under this subchapter may
include:
(i) (A) a fine of not less than $300 nor more than
$1,000 and imprisonment for not more than six months;
or
(B) a fine of not less than $300 nor more than
$1,000 and supervised probation not to exceed six
months; and
(ii) an order for other relief set forth in this
subchapter.
(2) All money received from the imposition of fines
under this section shall be distributed in the following
order of priority:
(i) One hundred dollars shall be forwarded to the
Commonwealth and shall be appropriated by the General
Assembly to the Pennsylvania State Police to assist with
the maintenance of the Statewide registry established in
accordance with 23 Pa.C.S. § 6105(e) (relating to
responsibilities of law enforcement agencies).
(ii) One hundred dollars shall be retained by the
county and shall be used to carry out the provisions of
this subchapter as follows:
(A) Fifty dollars shall be used by the sheriff.
(B) Fifty dollars shall be forwarded to the
local law enforcement agency.
(iii) Fifty dollars shall be forwarded to the
Commonwealth and shall be appropriated to the Supreme
Court for use by county courts and magisterial district
courts to carry out their duties under this subchapter.
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(iv) Any additional money shall be forwarded to the
Commonwealth and shall be appropriated to the
Pennsylvania State Police and used by it to maintain the
Statewide registry established under 23 Pa.C.S. §
6105(e).
(3) The subject of a firearm restraining order shall not
have a right to a jury trial on a charge of indirect criminal
contempt, except that the defendant shall be entitled to
counsel.
(4) Upon conviction for indirect criminal contempt and
at the request of the petitioner, the court shall also grant
an extension of the firearm restraining order for an
additional term.
(5) Upon conviction for indirect criminal contempt, the
court shall notify the sheriff of the jurisdiction which
issued the firearm restraining order of the conviction.
(6) The minimum fine required under paragraph (1)
allocated under paragraph (2)(i) and (iii) shall be used to
supplement and not to supplant any other source of funds
received for the purpose of carrying out the provisions of
this subchapter.
(e) Notification upon release.--The appropriate releasing
authority or other official as designated by local rule shall
use all reasonable means to notify the petitioner sufficiently
in advance of the release of the subject of a firearm
restraining order from any incarceration imposed under this
subchapter. Notification shall be required for work release,
furlough, medical leave, community service, discharge, escape
and recapture. Notification shall include the terms and
conditions imposed on any temporary release from custody. The
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petitioner must keep the appropriate releasing authority or
other official as designated by local rule advised of personal
contact information; failure to do so may constitute waiver of
any right to notification under this subsection.
(f) Multiple remedies.--Disposition of a charge of indirect
criminal contempt shall not preclude the prosecution of other
criminal charges associated with the incident giving rise to the
contempt, nor shall disposition of other criminal charges
preclude prosecution of indirect criminal contempt associated
with the criminal conduct giving rise to the charges.
§ 6190.13. Civil contempt for violation of an order.
(a) General rule.--A petitioner may file a petition for
civil contempt with the issuing court alleging that the subject
of a firearm restraining order has violated any provision of an
order issued under this subchapter.
(b) Civil contempt order.--Upon finding of a violation of a
firearm restraining order issued under this subchapter, the
court, either under petition for civil contempt or on the
court's own accord, may hold the subject of the restraining
order in civil contempt and restrain the subject in accordance
with law.
(c) Sentencing.--A sentence for civil contempt under this
subchapter may include imprisonment until the subject of the
restraining order complies with provisions of the order or
demonstrates the intent to do so. A term of imprisonment under
this section shall not exceed a period of six months.
(d) Jury trial and counsel.--The subject of a restraining
order shall not have a right to a jury trial except that the
defendant shall be entitled to counsel.
§ 6190.14. Procedures and other remedies.
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(a) General rule.--Unless otherwise indicated under this
subchapter, a proceeding under this subchapter shall be in
accordance with applicable general rules and shall be in
addition to any other available civil or criminal remedies.
(b) Remedies for bad faith.--Notwithstanding any other
provision of law, upon finding that an individual commenced a
proceeding under this chapter in bad faith, the court shall
direct the individual to pay to the subject of the petition or
firearm restraining order actual damages and reasonable attorney
fees. Failure to prove an allegation of an immediate and present
danger to the physical safety of the petitioner, family or
household member or other person by a preponderance of the
evidence shall not, by itself, result in a finding of bad faith.
§ 6190.15. Immunity.
(a) General rule.--
(1) Law enforcement agencies and their employees,
including troopers, officers, sheriffs and their deputies,
shall, except as provided under subsection (b), be immune
from civil liability for actions taken in good faith to carry
out their duties relating to the seizure and relinquishment
of firearms, other weapons and ammunition as provided for
under this subchapter, except for gross negligence,
intentional misconduct or reckless, willful or wanton
misconduct.
(2) A person licensed under the act of July 9, 1987
(P.L.220, No.39), known as the Social Workers, Marriage and
Family Therapists and Professional Counselors Act, or as a
health care practitioner as defined under section 103 of the
act of July 19, 1979 (P.L.130, No.48), known as the Health
Care Facilities Act, who initiates a proceeding for the
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issuance of a firearm restraining order in accordance with
section 6190.3 (relating to commencement of proceedings)
shall not be held civilly or criminally liable for actions
taken under the provisions of this subchapter, if the person
acted in good faith and without malice.
(b) Exception.--Law enforcement agencies and their
employees, including troopers, officers, sheriffs and their
deputies, may be liable to the lawful owner of confiscated,
seized or relinquished firearms in accordance with section
6105(f) (relating to persons not to possess, use, manufacture,
control, sell or transfer firearms) and may be liable to the
lawful owner of confiscated, seized or relinquished other
weapons or ammunition for any loss, damage or substantial
decrease in the value of the other weapons or ammunition that is
a direct result of a lack of reasonable care by the law
enforcement agency or its employees.
§ 6190.16. Inability to pay.
(a) Order for installment payments.--Upon plea and proof
that a person is without the financial means to pay a fine, fee
or cost under section 6190.5 (relating to relief) or a cost, the
court may order payment of money owed in installments
appropriate to the circumstances of the person and shall fix the
amounts, times and manner of payment. The failure to make the
payments in the amount, time and manner fixed by the court may
subject the person to contempt under the applicable provisions
of this subchapter.
(b) Use of credit cards.--The treasurer of each county may
allow the use of credit cards and bank cards in the payment of
fines, fees and costs set forth under this subchapter.
§ 6190.17. Warrantless searches.
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Except as provided under section 6190.11 (relating to
violation of order), nothing under this subchapter shall
authorize a warrantless search for firearms, other weapons or
ammunition.
§ 6190.18. Construction.
Nothing under this subchapter shall be construed to:
(1) Preclude an action for wrongful use of civil process
under 42 Pa.C.S. Ch. 83 Subch. E (relating to wrongful use of
civil proceedings) or criminal prosecution for a violation of
Chapter 49 (relating to falsification and intimidation).
(2) Allow a government agency or law enforcement agency,
or an agent or employee of either, or any other person or
entity to create, maintain or operate a database or registry
of firearm ownership within this Commonwealth, except that
information may be retained to ensure compliance with this
subchapter and to document the return of relinquished
firearms, other weapons and ammunition in accordance with
this subchapter.
Section 4. This act shall take effect in 60 days.
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