For the Defense - Vol. 5, Issue 1 - 29

This section would most likely apply to return
of firearms after a PFA order has expired
because a conviction of a misdemeanor crime of
domestic violence will effectively carry a lifetime
disqualification for firearms possession, with no
ability to have the firearms returned, absent pardon
or vacating of sentence.

Surrender by Reason of PFA Order
In almost every circumstance, if your client is
subject to an active PFA order under the Domestic
Relations Code, they will be required to relinquish
firearms, among other items.
A final PFA order issued without agreement of
the parties such as after a hearing, will result in
automatic relinquishment of firearms.43 However if
an order is entered by agreement of the parties, the
court may order that defendant does not have to
relinquish firearms, ammunition, or other weapons.44
But, despite entering into an order by agreement,
which does not require relinquishment of firearms,
under the Federal statutes, the person subjected to
a PFA order is still barred from possessing firearms,
regardless of how the PFA was entered.45
Unlike relinquishment under Section 6105.2, a PFA
order requires a defendant to surrender firearms,
ammunition, licenses or "other weapons"46 upon
entry of either a temporary or final order without
agreement.47 Such relinquishment must occur within
24 hours of service of a temporary order or entry of a
final order.48 Similar to relinquishment under Section
6105.2, a court may modify the time period for
relinquishment of the firearms if cause is shown that
the firearms are unable to be relinquished because of
their location or unavailability.49
A wrinkle in the PFA relinquishment statutes
concerns how firearms may be returned to third
parties who are the lawful owners of said firearms.
In such cases, if the relinquished firearms are the
property of a third party, the lawful owner of
the firearms may petition the court for return of
the firearms.50 The petitioner must show proof of
ownership and submit an affidavit, under criminal
penalties, stating they will not return the firearms
or allow access to them by the defendant.51 If the
lawful owner has their firearms returned, but they
are a family or household member of defendant,
the firearms must be "stored in a gun safe to which
the defendant does not have access and will not be
permitted to access, or stored in a location outside
the third party's home to which the defendant does
not have access."52 If the court orders the return

of firearms to the lawful owner, the sheriff must
confirm the lawful owner is eligible to possess
firearms under Federal and Pennsylvania law via
background check "as soon as practicable."53
The Domestic Relations Code also allows
for relinquishment to a third party in lieu of
relinquishment to law enforcement or firearms
dealer.54 However "third party" in the Domestic
Relations Code is limited to either "an attorney
at law" who is in an attorney-client relationship
with the relinquishing party or "a commercial
armory" not owned or operated by a family or
household member of defendant.55 The defendant
must still provide an acknowledgment from the
third party that the firearms were received within
twenty-four hours of a sheriff issuing a permit for
third-party safekeeping.56
Since there is great intersection between PFA
and domestic violence cases, it's very important to
inform the court that any firearms owned by your
client are accounted for, if they are not in your
client's possession. Be prepared to show receipts
that will verify the firearms are in possession of a
sheriff's office or an appropriate law enforcement
agency in addition to designating continued
possession of the firearms by those agencies as the
method for Section 6105.2 relinquishment.

Practical Applications
Practically speaking, the best way to avoid Act
79 restrictions is to not be convicted or subjected
to a PFA order. This article would not be needed if
we had clients who follow that advice, so here are
some tips which have proven useful when dealing
with relinquishment issues.
Assume that you have a client who has no prior
criminal record, no prior PFA orders entered against
them, they pay their taxes on time, etc. Suddenly,
they call you and calmly explain they've been
accused of simple assault, for allegedly punching
their spouse during an argument. Your client owns
a handgun, ammunition, and holds a conceal carry
permit. Surprisingly, there is no bail condition
saying your client is not able to possess these things.
First, simply being charged of any crime against
a person whom your client shares a domestic
relationship does not mean there's no access to
firearms ever. There are several alternative routes
to consider when negotiating a resolution to your
client's case.

Vol. 5, Issue 1 l For The Defense

29



For the Defense - Vol. 5, Issue 1

Table of Contents for the Digital Edition of For the Defense - Vol. 5, Issue 1

Contents
For the Defense - Vol. 5, Issue 1 - 1
For the Defense - Vol. 5, Issue 1 - 2
For the Defense - Vol. 5, Issue 1 - Contents
For the Defense - Vol. 5, Issue 1 - 4
For the Defense - Vol. 5, Issue 1 - 5
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For the Defense - Vol. 5, Issue 1 - 7
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For the Defense - Vol. 5, Issue 1 - 29
For the Defense - Vol. 5, Issue 1 - 30
For the Defense - Vol. 5, Issue 1 - 31
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For the Defense - Vol. 5, Issue 1 - 33
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For the Defense - Vol. 5, Issue 1 - 44
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol5_issue4_2020
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https://www.nxtbook.com/nxtbooks/pacdl/FORTHEDEFENSE_vol2_issue3_2017
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https://www.nxtbook.com/nxtbooks/pacdl/FORTHEDEFENSE_vol2_issue1_2017
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol1_issue4_2016
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https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol1_issue2_2016
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