304 A.3d 801
Pa. Commw. Ct.2023Background
- In 2015 Michael Drake pled nolo contendere in California to misdemeanor false imprisonment and unlawfully carrying a concealed firearm; he was sentenced and later moved to Pennsylvania.
- In April 2019 the California Superior Court set aside Drake’s plea and dismissed the complaint under Cal. Penal Code § 1203.4 but the order noted it did not remove all firearms-related disabilities under California law.
- Drake applied for a Pennsylvania license to carry a concealed firearm in May 2019; the Pennsylvania Instant Check System (PICS) showed a prohibiting conviction and the Pennsylvania State Police (PSP) denied the application.
- Drake appealed to the Office of the Attorney General (OAG); an ALJ reversed in Feb. 2022, concluding (1) the California set-aside removed the conviction for purposes of the federal Gun Control Act (FGCA) and (2) PSP had not proved an interstate-commerce nexus for the firearm.
- PSP appealed to the Commonwealth Court. The Commonwealth Court held the California set-aside did not expunge the conviction for purposes of 18 U.S.C. § 921(a)(33)(B)(ii)/§ 922(g)(9), reversed that part of the ALJ decision, vacated the ALJ’s interstate-commerce finding, and remanded for an evidentiary hearing limited to whether the firearm moved in or affected interstate commerce (burden on PSP).
Issues
| Issue | Plaintiff's Argument (PSP) | Defendant's Argument (Drake) | Held |
|---|---|---|---|
| Whether CA §1203.4 set-aside expunges conviction for FGCA §921(a)(33)(B)(ii)/§922(g)(9) purposes | Set-aside does not expunge; conviction remains a bar to firearm rights | Set-aside nullified conviction; FGCA disqualifier no longer applies | Held for PSP: CA set-aside under §1203.4 does not expunge for FGCA purposes; ALJ erred |
| Whether Drake waived challenge about interstate-commerce element | PSP: Drake waived; ALJ should not sua sponte decide interstate-commerce | Drake need not raise it; OAG hearing is de novo and Commonwealth must prove elements | Held for Drake on waiver point: PSP bears burden at de novo OAG hearing; waiver argument rejected |
| Whether proof of firearm movement in or affecting interstate commerce is required under PA law (18 Pa.C.S. §6105(c)(9)) | Section 6105(c)(9) does not mention interstate commerce, so no proof required | Section 6105(c)(9) imports FGCA §922(g)(9) elements including interstate-commerce nexus | Held for Drake: Commonwealth Court follows Madden—PSP must prove interstate-commerce nexus under §6105(c)(9) |
| Remedy / next step | Maintain ALJ reversal | Affirm set-aside effect and allow license | Court: reverse in part (set-aside ruling), vacate in part (interstate finding), remand for limited evidentiary hearing with PSP burden |
Key Cases Cited
- Rehaif v. United States, 139 S. Ct. 2191 (Sup. Ct.) (FGCA possession offense requires proof of statutory elements)
- Wyoming ex rel. Crank v. United States, 539 F.3d 1236 (10th Cir. 2008) ("set aside" and "expunged" treated synonymously for FGCA; state relief must remove disabilities)
- Pa. State Police v. Madden, 284 A.3d 272 (Pa. Cmwlth. 2022) (§6105(c)(9) imports §922(g)(9) interstate-commerce element; Commonwealth must prove nexus)
- Navarro v. Pa. State Police, 212 A.3d 26 (Pa. 2019) (evidence of interstate commerce need not be extensive; manufacturing out-of-state can suffice)
- Bacon v. Pa. State Police, 164 A.3d 563 (Pa. Cmwlth. 2017) (California set-aside under §1203.4 does not expunge firearm disabilities under federal law)
- Jennings v. Mukasey, 511 F.3d 894 (9th Cir. 2007) (California post-conviction relief under §1203.4 does not eliminate all consequences for federal firearm disability)