You do not have an absolute right to own and use a firearm in the State of Pennsylvania. The Commonwealth has implemented legislation prohibiting certain persons from benefiting from this Constitutional right and breaking this law can result in serious legal consequences.
Montgomery County defense attorney David Cohen, a former police officer, represents clients who are either inadvertently in possession of a firearm when he or she should not have been or who simply made a mistake. Our legal team at David J. Cohen Law Firm, LLC will aggressively and strategically defend you. Below is a brief overview of what this law means, what the penalties could entail if convicted, and how we may be able to defend you.
Prohibited Possession of a Firearm in Pennsylvania
Prohibited possession of a firearm is an offense governed by Pennsylvania Statutes Title 18, Chapter 65, Section 6105 (18 PA.C.S. § 6105). According to this statute, it is illegal for certain persons to:
- manufacture, or
- obtain a license for a firearm.
The statute outlines specifically who these certain persons are, and it includes:
- anyone who has committed any of the following offenses:
- organized crime offenses
- offensive weapon or firearm crimes
- possession of a weapon on school property
- voluntary manslaughter
- involuntary manslaughter involving reckless use of a firearm
- aggravated assault
- assault by a prisoner or life prisoner
- weapons of mass destruction offenses
- kidnapping or unlawful restraint
- luring a child into a vehicle
- involuntary deviate sexual intercourse
- aggravated indecent assault
- criminal trespass if upgraded to a felony of the second degree or higher
- car theft
- felony receiving stolen property
- intimidating or retaliating against a witness/victim
- possession of weapons to escape a mental hospital or correctional facility
- escape from an official detention
- possession of a firearm as a minor
- impersonating an officer
- paramilitary training
- unlawful sale of weapons or explosives;
- illegal migrants;
- persons with a restraining order for abuse placed against him or her;
- persons convicted of drug crimes under the Pennsylvania Controlled Substance Act or any comparable state law or federal law;
- persons prohibited from owning firearms due to federal laws and domestic violence;
- persons with three or more DUI convictions (but this applies only to the transfer and purchase of weapons and not necessarily the possession or use of firearms); and/or
- juvenile delinquents.
Pennsylvania Penalties for a Conviction under PA.C.S. § 6105
PA.C.S. § 6105 is specific with regard to penalties and other restrictions. If you are prohibited from possessing or using a firearm in accordance with this statute, you have 60 days to sell or transfer your "firearms to another eligible person who is not a member of the prohibited person's household" unless there is a court order to relinquish your firearms or weapons to a law enforcement agency (e.g., in the case of many abuse orders).
If you do not sell or transfer your firearms within the statutory limit, you could be in violation of this statute, which is typically a felony of the second degree but can be charged as a first-degree felony or even a misdemeanor in some specific situations – like where the person to whom you transferred the firearm later allows you access to it when you were still prohibited from possessing or using a firearm.
According to the Pennsylvania crime classification, a conviction of a second-degree felony carries the following penalties:
- five to 10 years in prison; and/or
- a fine of up to $25,000.
A conviction of a first-degree felony carries the following penalties:
- ten to 20 years in prison; and/or
- a fine of up to $25,000.
An alleged violation of this offense is a first-degree felony when the person:
- committed one of the above-bulleted offenses while already having a previous conviction of one of the same bulleted offenses; or
- was in physical possession or control of a firearm when committing one of the above-bulleted offenses.
Misdemeanors are mostly charged with respect to persons who are the subject of abuse orders and persons who accept firearms from a subject of an abuse order and violates this statute.
The violation of this statute is charged as a misdemeanor of the second degree when the reason for prohibition of owning or using a firearm is due to "an active final protection from abuse order" and you intentionally or knowingly fail to relinquish a firearm to the appropriate law enforcement agency.
A second-degree misdemeanor can result in the following penalties:
- one to two years in prison; and
- a fine of up to $5,000.
A person can be charged with a misdemeanor of the third degree if, for example, he or she intentionally or knowingly accepts possession of a firearm from a person whom he or she knows to be the subject of an abuse order. A third-degree misdemeanor can result in the following penalties:
- six months to one year in prison; or
- a fine of up to $2,500.
It is a misdemeanor of the first degree if the person (who accepted a firearm from you while there's an abuse order against you) intentionally or knowingly either returns the firearm to you or allows you access to it before either:
- the sheriff returns the gun permit to you; or
- the court issues an order modifying an abuse order that provided for the relinquishment of the firearm.
A first-degree misdemeanor can result in the following penalties:
- two and a half years to five years in prison; and/or
- a fine of up to $10,000.
To note, the above classifications and penalties are a brief overview of what may apply in your unique situation, but there are far more circumstances that can influence the prosecutor's decision to file a charge as a felony or a misdemeanor. There are also other penalties that could apply in your case, like probation or license suspension. It is in your best interest to seek the counsel of a smart, strategic criminal defense attorney in Pottstown, Pennsylvania.
Defenses to a Charge for Allegedly Violating PA.C.S. § 6105 in Montgomery County
There are few affirmative defenses to this kind of charge. The one affirmative defense listed in the statute refers to a person who accepts possession of a firearm from the person prohibited to have it. This person who accepted possession has a defense if he or she:
- notified the sheriff as soon as practicable that he or she has possession of it; and
- relinquished possession of it as directed by the sheriff.
For other allegations under this statute, the defense is really how your attorney puts forth a viable strategy and induces doubt that you possessed, used, sold, transferred, or manufactured a firearm or obtained a license to do the same while prohibited from doing so.
Contact a Pottstown Attorney to Aggressively Challenge an Illegal Possession of a Firearm Charge
Violating a prohibition to possess a firearm can lead to serious consequences. You need a criminal defense attorney who will approach your case from all angles and develop a defense strategy that works toward an outcome in. your favor. Contact David J. Cohen Law Firm, LLC today.