Brad Fox Law, Mandating Minimum Sentence for Straw Purchasers, Becomes Law

Today, Governor Tom Corbett signed into law, what has become known as the Brad Fox Law, which imposes a mandatory minimum sentence of 5 years for any straw purchaser conviction, where the individual “who at time of sentencing has been convicted of another offense under this section.”

Currently, Section 6111(h)(1) reads, “A second or subsequent violation of this section shall be a felony of the second degree and shall be punishable by a mandatory minimum sentence of imprisonment of five years.”

The new Brad Fox law or HB 898 changes the language to “A second or subsequent violation of this section shall be a felony of the second degree. A person who at the time of sentencing has been convicted of another offense under this section shall be sentenced to a mandatory minimum sentence of imprisonment of five years.”

HB 898 was a result of Plymouth Township police officer Bradley Fox being killed on September 13th by Andrew Thomas of Lower Merion. Since Mr. Thomas was precluded from owning or possessing firearms, he paid Michael J. Henry of Philadelphia to acquired a firearm for him, which is known as a straw purchase. Later, Mr. Thomas would kill Officer Fox, before turning the gun on himself and committing suicide.

A straw purchase occurs when someone, other than the actual purchaser, purchases a firearm or ammunition and states that it is for him/herself, when in reality it is for another individual. While this generally arises when the true “purchaser” is a prohibited person, the law does not differentiate between a straw purchase by a prohibited person and a non-prohibited person. While there are some exceptions to straw purchases, such as purchase of a firearm as a gift, if the Federal Firearms Licensee is aware of the situation, he/she/it will generally suggest that the purchaser pay for the firearm or purchase a gift card and have the individual who is actually going to own the firearm come in and fill out the paperwork. This ensures that the individual receiving the firearm is not a prohibited person and that the transaction does not constitute a straw purchase.

The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) has a lot of material and information available on straw purchasers through their program Don’t Lie For the Other Guy. Also, they have a video for detecting straw purchases.

The most interesting aspect to this law, which will not be effective for 60 days, is subsection 5, which declares, “For purposes of this subsection, a person shall be deemed to have been convicted of another offense under this section whether or not judgment of sentence has been imposed for that violation.” The wording is somewhat suspect an unusual given the overall context of this matter, and as Representative Toepel, R-141, explained, “If you are convicted of multiple gun purchases you will be subject to a mandatory sentence of five years for the second and subsequent violations of the straw purchase section of the law.”

It will be interesting to see if such will hold up if challenged on appeal, as any guilty plea or finding of guilt would occur at the same time; however, one is to be treated as a first offense, even though not sentenced, and the remainder are to be treated as subsequent offenses. In the past, the courts have held that someone must be sentenced on a first offense before it can be used to calculate a second or subsequent offense. This has come up frequently in the DUI context, where an individual is charged with a DUI, while he/she has pending charges for a previous DUI. The courts in Pennsylvania have consistently held that, for sentencing purposes, although the second DUI occurred after the first, since sentencing had not occurred, the second DUI must be sentenced as a first DUI.

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