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A Pennsylvania common pleas court can restore the right to possess firearms to a person who is convicted of a crime and subsequently prohibited by federal law from gun ownership by granting an unqualified exemption pursuant to state law, the state Commonwealth Court has ruled. The Federal Gun Control Act prohibits any person found guilty of a crime punishable by a prison term of more than one year from possessing a firearm. However, it allows restoration of gun ownership rights if a state conviction is expunged, set aside, or if the person convicted is pardoned or has his or her civil rights restored. The Pennsylvania Commonwealth Court decided Friday in Pennsylvania State Police v. Grogan that an unqualified exemption pursuant to � 6105 of the Pennsylvania Uniform Firearms Act relieves a person of firearm disabilities, including those defined by the FGCA. The Grogan court ruled that the unqualified exemption was sufficient to restore civil rights to the convicted person because “the law of the state of conviction, not federal law, determines restoration of civil rights.” The majority ruling in Grogan defeated an argument by the Pennsylvania State Police that a common pleas court exemption couldn’t restore civil rights, because only a full gubernatorial pardon could grant relief from a federal ban on gun ownership. Writing for the court, Judge James Gardner Colins affirmed the exemption order for Walter Grogan, who was convicted of driving under the influence in 1964 and applied to own a firearm in 1999. CIVIL RIGHTS Judge Bonnie Brigance Leadbetter, who dissented from the majority, agreed that a state court has the power to grant relief from “firearm disability” imposed by the federal act. But the relevant question here, Leadbetter said, was whether the state court actually granted that relief. Colins said a 1986 amendment to the federal act made it clear that the federal courts must look to state law to determine what constitutes a “conviction” that would disqualify a person from gun ownership under the federal statute. He pointed to a section of the act that reads: “What constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. “Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this [act], unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.” Because Grogan “sought and obtained an unqualified exemption from the trial court pursuant to [the Pennsylvania act],” Colins said, “the exemption had the effect of relieving Grogan of both his state firearm disabilities and his federal firearm disabilities.” But in her lone dissent, Leadbetter focused on whether the court’s order restored Grogan’s civil rights. Last year the Commonwealth Court ruled in Pennsylvania State Police v. Paulshock that an exemption from federal firearm disability requires both the restoration of civil rights and a full relief from any state firearm disability. Leadbetter said she agreed with the majority that Grogan’s state firearm disability was removed by the common pleas court. “However, I do not believe that the order has restored civil rights within the meaning of Section 921(a)(20) [of the Federal Gun Control Act],” she said. It was an issue Pennsylvania courts had not previously addressed, she said. Leadbetter pointed to a 1990 6th U.S. Circuit Court of Appeals ruling in U.S. v. Cassidy that expressed a view uniformly adopted by the federal circuits. The Cassidy court said that specific “core civil rights” must be restored to satisfy � 921(a)(20) of the federal statute, which makes the federal firearms ban dependent on state restoration of civil rights. The Cassidy court specifically identified the right to vote, the right to sit on a jury and the right to seek and hold public office as core civil rights, Leadbetter said. Leadbetter also pointed to a binding 1994 decision — the 3rd Circuit ruled in U.S. v. Essig that a restoration of civil rights is effective to relieve the federal firearms disability “only if all three of the core civil rights are restored.” However, the order entered in Grogan was insufficient to remove the federal disability, Leadbetter said, because it only read that Grogan “is hereby granted an exemption from any disability to possess, transfer or control a firearm.” There was no specific mention of restoring Grogan’s core civil rights. “Although I believe it was the clear intent of common pleas to enter an order which would have the effect of restoring all of Grogan’s gun privileges, I cannot so torture the language of its order as to construe it to restore the right and obligation of jury service, which the federal precedents have so inextricably tied to gun ownership,” she wrote. Grogan, Leadbetter explained, was never imprisoned, so he never lost his right to vote and also never lost his right to hold public office. Only the civil right to sit on a jury was taken from Grogan and had to be restored to permit him to own firearms. A spokesman for the state police said Friday that the state police are “disappointed in the ruling” but are asking that the Grogan case be joined along with Pennsylvania State Police v. Reed in a state Supreme Court appeal of the decision in Paulshock. In Reed, the applicant for a gun also was given state clearance but then was denied clearance when the state police reviewed his record. Reed was denied a gun permit in 1997 for a 1966 conviction for unlawfully carrying a firearm and malicious mischief. Alfred Merlie, the solo practitioner in Jenkintown, Pa., who represented Grogan, said he has a case nearly identical to Grogan coming up in Delaware County, Pennsylvania State Police v. McKittrick, involving a client who was denied gun ownership because of an old conviction. That conviction would today be a misdemeanor, Merlie said, which was also the case in Grogan. The McKittrick hearing is scheduled for Feb. 4. Merlie said that the state police have indicated to him that “for whatever reason, they are interested in fighting all of these cases.” Merlie continued that an appeal in Grogan may be beneficial “because finally there will be some closure” on the issue of restoring the right to own firearms. Grogan, a retired Marine, is interested in fighting now “more for the principal of the thing” than anything else, he said. Joanna Reynolds represented the Pennsylvania State Police.

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