Occasionally, clients will inquire, after pleading guilty to or being convicted of a criminal offense, as to how long after becoming a prohibited person do they have to relinquish their firearms. Unfortunately, Pennsylvania’s Uniform Firearms Act (UFA), specifically 18 PA.C.S. 6105, does not specify the period of time a newly prohibited individual has to relinquish his/her firearms; but rather, states that the individual has a “reasonable period of time, not to exceed 60 days from the date of the imposition of the disability.” This makes it extremely difficulty in advising a client, as there is no clear cut answer, other than it must be within 60 days.
Recently, the Pennsylvania Superior Court was faced with this issue in Commonwealth v. Alvarez-Herrera, 2011 PA Super 104. In this case, a witness saw Luis Torres take a firearm from Mr. Alvarez-Herrera’s waistband and shoot at several individuals. When the police inquired of Mr. Alvarez-Herrera and other witnesses, they determined that he was an illegal immigrant, who was allegedly in this county for at least six months. Mr. Alvarez-Herrera was charged with possession of a firearm by a prohibited person due to his illegal immigration status. After a jury trial, he was convicted, to which he appealed to the Superior Court.
The Superior Court held that 18 PA.C.S. 6105(a)(2)(i) provides an affirmative defense rather than an element that the prosecution must prove. 6105(a)(2)(i) provides, “A person who is prohibited from possessing, using, controlling, selling, transferring, or manufacturing a firearm under paragraph (1) or subsection (b) or (c) shall have a reasonable period of time, not to exceed 60 days from the date of the imposition of the disability under this subsection, in which to sell or transfer that person’s firearms to another eligible person who is not a member of the prohibited person’s household.” In reviewing 6105, the court specifically held, “We conclude that the reasonable opportunity afforded by Subsection (a)(2)(i) is not an element but, instead, is in the nature of a defense to the elements of Subsection (a)(1). The defense would be available to person who were disqualified from gun possession/control by Subsection (a)(1) but who did not yet have a reasonable opportunity to dispose of their firearms.”
Unfortunately, this case hasn’t helped resolve the issue of how to determine a “reasonable period of time,” which may end up being case specific. However, this case has determined that the burden is on the Defendant to establish, as a defense, that he transferred (or has yet to transfer) the firearm(s) in a reasonable amount of time, not to exceed 60 days. While I believe there to be serious constitutional issues with 6105(a)(2)(i)’s prohibition against the firearm(s) being transferred to a household member, that issue was not relevant to this appeal.
If you have questions regarding how soon you must transfer your firearms after becoming a prohibited person or wish to challenge 6105(a)(2)(i)’s prohibition against the firearms being transferred to a household member, please contact me today to discuss your options.