Gun Charges

In Pennsylvania, gun charges are some of the most serious charges that a person can face. Most gun charges are felonies with high sentencing guidelines that call for state prison sentences. Straw purchase of firearms (buying a gun for someone else) can trigger mandatory minimum state prison sentences of at least 5 years in jail. Even a first offense can land you in state prison. However, there are effective strategies to lessen the impact of gun charges. This can include downgrading them to misdemeanors or even getting them dismissed for an illegal search.

Please give us a call at 215-997-1000 if you are facing gun charges so that we can immediately begin taking the best course of action depending on your particular circumstances.

The federal government has its own laws that address firearm possession and firearm dealing. There is a lot of overlap with state and federal gun laws. But, there are certain things covered by one that aren’t covered by the other. This page only addresses gun charges under Pennsylvania state law.

Here are some of the most common gun charges in Pennsylvania. Click one to read more about it:

• Person Not to Possess Firearms
• Carrying a Concealed Firearm without a License
• Straw Purchase (Lying on Gun Forms and/or Illegally Selling Guns)

Person Not to Possess Firearms

This crime involves the possession of a firearm by a person who isn’t allowed to have one. It’s important to note that the crime isn’t “felon not to possess firearms.” This is because not all felonies prohibit firearm possession under state law (although they do under federal law). Additionally, some misdemeanor convictions do result in a firearm prohibition. There are other reasons unrelated to criminal convictions, like being involuntarily committed for mental health reasons, or being subject to a domestic violence restraining order (PFA), that can prohibit a person from firearm possession.

What is a prohibitor?

The first thing the prosecution has to prove is that the person is prohibited from having guns under state law. Pennsylvania law has a list of specific factors that render you ineligible under state law. They include being:

• convicted of a crime (in any state) that’s specifically listed as a prohibitor under state law. This includes things like Aggravated Assault, Burglary, Robbery, and Stalking. Most of these are felonies, but some are misdemeanors.
• adjudicated delinquent as a juvenile of one of the listed crimes. Some juvenile prohibitors go away after you turn 30.
• convicted of a drug-related crime (in any state) punishable by more than 2 years in jail. This is usually felony drug-dealing, but can include second-offense simple possession of drugs because it carries a 3-year maximum.
• a fugitive from justice (knowing you have a warrant and not surrendering yourself)
• subject to a domestic violence restraining order (PFA) that ordered you to not possess firearms
• illegally in the United States
• convicted of domestic violence, even if only as a misdemeanor. The term “domestic violence” isn’t as clear-cut as you might think, because it may sometimes not include casual boyfriends/girlfriends.
• involuntarily committed to a mental health facility due to being a danger to self or others
• convicted of 3 DUIs within a 5-year period

What is “Possession?”

The second thing they have to prove is possession, use, control, sale, transfer, or manufacture. A person can possess an item even if they’re nowhere near it and even if they don’t own it. This is constructive possession. The prosecution has to prove that the person had the ability and intent to exercise control over the item. For example, you’re in constructive possession of everything in your bedroom, even while you’re at a worksite. This law also prohibits manufacturing, or making, a firearm. Selling and transferring are the same thing, but selling involves money or some other exchange.

What counts as a “Firearm?”

The third thing to prove is that the item at issue was a firearm. This is a broad definition and includes anything that can shoot a bullet. It even includes just the “frame” or “receiver” of guns, even if there’s no barrel, slide, or trigger attached. It doesn’t include spring-powered or air-powered guns because they aren’t powered by an “explosive” like regular bullets are. However, privately-made firearms (PMFs), sometimes known as “ghost guns,” are included. The length of the barrel isn’t relevant for this law, so handguns are treated the same as shotguns and rifles.

What are the Penalties?

This offense is one of the most serious gun charges. If the person is prohibited because of a prior felony conviction, this charge is at least a 2nd-degree felony. But if the person has a prior for this, or was actually in physical possession of or near the gun when caught, the penalty doubles; it increases to a 1st-degree felony, carrying up to 20 years in jail. The sentencing guidelines also usually increase by at least 1 year, as well.

If the prohibitor was anything other than a felony conviction, like a misdemeanor conviction, juvenile adjudication, or mental health commitment, this gun charge is a 1st-degree misdemeanor. These misdemeanor gun charges still have stiff sentencing guidelines and must still be taken seriously.

Judges across Pennsylvania do not hesitate to impose lengthy prison sentences for illegal firearm possession. Therefore, if you face gun charges in Pennsylvania, contact Fairlie & Lippy, P.C. immediately to get the best possible result given your circumstances.

Carrying a Concealed Firearm Without a License

This crime involves the concealed carrying of a firearm without having a valid license to carry a concealed firearm. Only firearms with shorter barrels, like handguns and short-barreled rifles, are subject to this law. This law does not apply to longer guns, like typical rifles and shotguns. Usually, common sense can guide you to what applies. You can only realistically try to conceal guns up to a certain size, but the law uses exact measurements. Specifically, these are the measurements that define a “firearm” for this particular law:

• pistol or revolver with a barrel length less than 15 inches
• shotgun with a barrel length less than 18 inches
• rifle with a barrel length less than 16 inches
• any pistol, revolver, rifle or shotgun with an overall length of less than 26 inches

What does this gun charge apply to?

A non-functioning firearm can count as a “firearm” if it can be readily fixed. A person “conceals” a firearm when it’s their intent hide the fact that they’re carrying a firearm with them. Pennsylvania law also treats the inside of a motor vehicle as a concealed area, even if the gun is out in plain view. So, having a gun in a vehicle automatically means that it is “concealed” for purposes of this law. Exceptions exist for transporting the gun home from the store, or for target practice, and other common sense situations. Be sure you know the law if you plan to rely on one of these exceptions.

If you have a license to carry issued by another state, and you want to carry concealed in Pennsylvania, it is always a good idea to speak with an attorney beforehand to make sure your state has reciprocity with Pennsylvania. Similarly, if you have a carry permit issued in Pennsylvania and wish to carry concealed (or in your vehicle) in another state, you should speak with an attorney beforehand. Some firearm owners are unfortunately taken by complete surprise when they are arrested in another state for carrying their firearm in their vehicle despite having a valid carry permit from Pennsylvania.

What are the Penalties?

Carrying a Concealed Firearm Without a License is a third-degree felony with harsh sentencing guidelines that can recommend a state prison sentence for someone who has no prior record. Whether the gun was loaded or unloaded is a factor the judge has to consider. People facing these gun charges face up to 7 years in jail upon conviction.

This crime is unique in that it provides the defense an opportunity to prove that the defendant would have been eligible to get a carry permit, if only he/she had applied for one. While this isn’t a total defense to this crime, it can bump it down to a misdemeanor if the defendant wasn’t committing any other crime at the time. Our attorneys are familiar with the eligibility requirements for carry permits and are well-equipped to properly raise this defense wherever possible. This can get you a favorable offer from the prosecutor or can significantly reduce your penalty after a trial.

How do I get a carry permit?

To get a concealed carry permit, you have to visit the county Sheriff’s office in the county where you live. If you live in Philadelphia, you apply through the police department. You have to fill out an application and answer honestly; intentionally making any false statement can get you charged criminally. Some Sheriffs may allow you to apply online. Click here to download a copy of the Application for a Pennsylvania License to Carry Firearms.

Once you submit the application and provide valid government-issued photo ID, you will be subject to all state and federal background checks. For the most part, this is the same background check that is run when you purchase a gun, but it has a few more requirements. The results can be instant, but can also take hours or even days if the background check system has problems or is busy. Then, if you pass the background check and pay the costs and fees, you will have your picture taken and get your carry permit card immediately. A license is good for 5 years unless you surrender it or it’s revoked.

Our attorneys at Fairlie & Lippy, P.C. can help you to understand whether or not you may be eligible to get a concealed carry permit. If you have any doubt about how to answer any firearms-related form, it is always a good idea to hire an attorney beforehand to have a detailed discussion about your background. Too many people make the mistake of just guessing on the forms, and they wind up being charged with a crime relating to dishonesty and false statements.

Straw Purchase (Lying on Gun Forms and/or Illegally Selling Guns)

Straw purchasing is one of the most serious gun charges you can be charged with in Pennsylvania. It is one of the few charges that still has a mandatory minimum sentence that applies for repeat offenses. And, it is especially tough because you don’t need to be convicted of the first offense before committing the second offense for the mandatory minimum to apply. The penalties under state law are so severe that they are actually harsher than federal law. Therefore, if the federal authorities decide to let the state prosecute a straw purchase case, it’s usually worse for the defendant.

What is this gun charge?

Under section 6111 of the Crimes Code (Title 18), several different acts can qualify.

“Straw purchasing” generally means buying a firearm for someone who couldn’t pass their own background check.

A similar crime occurs when people give false answers about their own background to try to get a gun, despite being prohibited.

Then, the related crime of “illegal transfer” occurs when a person gives or sells a handgun to another person without following the legal requirements, like background checks and paperwork.

The Firearm Purchase Process

When a person wants to buy a handgun in Pennsylvania, even if it’s from a private citizen (as opposed to from a business), the transaction has to take place at a licensed firearms dealer or at a Sheriff’s Office. This is because only licensed dealers and sheriffs have the authority to conduct the required background checks on the buyer. The buyer has to fill out two government-issued forms: an SP4-113 (PA State Police form) and an ATF-4473 (federal form). These forms ask for biographical information as well as information about the buyer’s background. The buyer has to sign the forms and verify, under penalty of law, that all the answers are correct.

Since Pennsylvania does not regulate the sale of long guns like shotguns or rifles, there is no state form to fill out for those sales. Federal laws still apply to these sales when a federally-licensed firearm dealer is involved.

Pass or Fail? Then What?

If the buyer answers any question in a way that makes them precluded under the law (like having certain convictions), the transaction doesn’t even proceed. If the forms make it appear that the buyer is eligible, the background check proceeds. When a buyer passes the background check, the transaction is completed. If they fail, the transaction stops, and the Pennsylvania State Police are automatically notified. The state police then conduct a preliminary investigation, send it to the local police department (if there is any), and tell them to figure out whether or not to file charges. Some people still get charged with this crime even though they just had an honest misunderstanding about their background.

Once the gun is bought, the buyer can not give/sell it to anybody else (subject to few exceptions for gifts to close family members) without going to a licensed dealer, or sheriffs office, and doing the paperwork along with the buyer. Selling a handgun to another person without going through the proper channels counts as an illegal transfer, no matter the reason behind it. Additionally, if the prosecution can prove that you never intended to keep the gun for yourself, they can also charge you with lying on the form for promising that you were only buying it for yourself.

What are the Penalties?

Making false statements or giving false answers on the gun purchase forms is always a felony. For a first offense, it’s a third-degree felony that carries up to 7 years in jail and sentencing guidelines that call for jail time. This is whether the answer is about the person’s background, or if it is about their address, or if it’s in relation to whether they’re the actual buyer.

Illegally selling/giving a gun to someone else is a misdemeanor for a first offense. But, if the prosecution can prove the seller knew the buyer was prohibited, it’s a third-degree felony.

Most importantly, a repeat offense triggers a FIVE-YEAR MANDATORY MINIMUM jail sentence. This is sometimes called the “Brad Fox Law,” named after the Plymouth Township (Montgomery County) police officer who was killed in the line of duty in 2012 by a felon with a gun. Since repeat offenses are second-degree felonies, punishable by up to 10 years in state prison, the mandatory “minimum” turns out to be a “mandatory maximum” sentence of 5 to 10 years in state prison. Also, these mandatory penalties apply even to people who have no prior record, and can piggyback off of each other all in one case.

Oftentimes, there are two charges per gun: one for lying on the form to buy the gun, and one for illegally selling that same gun. Since these charges are treated the same for the mandatory minimum law, you can see how the years in jail can stack up very quickly. There are many, many factors that prosecutors and judges will consider when negotiating an offer or sentencing a defendant, so it is vital that you contact our attorneys at Fairlie & Lippy, P.C. for immediate help if you face these gun charges.