For the Defense - Vol. 5, Issue 1 - 30

While crimes like terroristic threats57 and simple
assault58 committed against a victim in a qualifying
domestic relationship will result in firearm
disqualification, there are alternative offenses
which do not result in firearms relinquishment
under Section 6105.2. For instance, the offense of
recklessly endangering another person (REAP)59
contains no elements involving "the use or
attempted use of physical force, or the threatened
use of a deadly weapon." REAP only requires proof
of a person endangering another by recklessly
engaging in conduct which places or may place
another person in danger of death or serious injury.
There is no "domestic element" to the offense of
REAP, even if the "victim" of a person's conduct
would otherwise qualify as a person in a domestic
relationship.60 Further, REAP is not an enumerated
statute under the Pennsylvania Firearms Act and is
a misdemeanor of the second degree meaning the
federal statute also will not disqualify one from
owning or possessing firearms.
Offenses like disorderly conduct and harassment
may also be good alternative offenses when
resolving cases through pleas. Be very careful
though, disorderly conduct and harassment may
potentially carry disqualification, depending on the
facts in the allocution at the plea hearing.
Disorderly conduct is graded as either a
misdemeanor of the third degree or summary
offense, depending on whether a person intended
to cause substantial harm or serious inconvenience,
or persisted in disorderly conduct after reasonable
warning or request to desist.61 A person is guilty
of disorderly conduct when a person "engages
in fighting or threatening, or in violent or
tumultuous behavior."62 Because the language
requires admission to the use or attempted use
of physical force, if your client admits to such
behavior against someone with whom they share
a domestic relationship, it triggers disqualification
under Federal and Pennsylvania statutes.63 To avoid
this, try an alternative allocution to creating a
"hazardous or physically offensive condition which
serves no legitimate purpose of the actor" while
making sure it does not contain any mention of
threatening harm with a deadly weapon or force
used against the victim.64
Harassment65 is another typical charge used in
negotiations to reduce offenses and, like disorderly
conduct, amending a charge to harassment can
also result in firearms disqualification. If a person
"strikes, shoves, kicks or otherwise subjects the
other person to physical contact" and the victim is
in a domestic relationship with your client under
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section (a)(1), the relinquishment requirement will
be triggered.66 It appears the same can be said
for admissions to conduct under section (a)(4),
but only if the "threatening language" involves
threatened use of a deadly weapon, not a plain
threat of violent action.67
Back to our hypothetical case: What if, after a
week, your client's spouse applies for and obtains
a temporary PFA order against your client? Your
client is properly served by a sheriff's deputy
with notice of the PFA action and the PFA orders
the relinquishment of any handgun, license and
ammunition within 24 hours. Your client complies
by turning their handgun, license, and ammunition
into their county sheriff's office within the 24
hours. After a few weeks, the PFA is voluntarily
withdrawn so you tell your client to retrieve the
items which he does, after passing a background
check.
Subsequently, you work out a plea deal which
calls for the charge to be reduced from simple
assault to disorderly conduct, graded as a
summary, for three months' probation. However,
your client must admit to striking their spouse as
part of the plea allocution. In court, your client
indicates on the record they will turn their firearm
into the local State Police barracks within 24 hours.
The court issues the relinquishment order, and
your client complies, except they do not turn over
their concealed carry license. After verifying your
client has a conceal carry license, the local police
department files a charge of failure to relinquish
firearms graded as a misdemeanor of the second
degree.
This is obviously not a great outcome and
provides a perfect example of why - especially
when there are civil and criminal cases occurring
simultaneously - it is extremely important to
advise your client of all the necessary requirements
and to stress the importance of compliance.

Conclusion
As with most new legislation, the actual
implementation and practical effects of the law
will be left to the courts to ultimately decide. This
article was intended to provide a general overview
of what the law requires at a minimum; however,
it will undoubtably be tweaked to accommodate
your county's preferences and quirks in how
business is conducted. Your respective defense
bars may have had some discussion with the
Commonwealth over standardizing compliance
with Act 79. I hope this article provides a practical
For the Defense - Vol. 5, Issue 1

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