Lehman v. Pennsylvania State Police

• Decision Date: 30 December 2003
• Citation: 576 Pa. 365,839 A.2d 265
• Parties: Michael S. LEHMAN, Appellant, v. PENNSYLVANIA STATE POLICE, Appellee.
• Court: Pennsylvania Supreme Court

839 A.2d 265

576 Pa. 365

Michael S. LEHMAN, Appellant, v. PENNSYLVANIA STATE POLICE, Appellee.

Supreme Court of Pennsylvania.

Argued December 4, 2002.

Decided December 30, 2003.

Before ZAPPALA, C.J., and CAPPY, CASTILLE, NIGRO, NEWMAN, SAYLOR and EAKIN, JJ.

OPINION

Justice EAKIN.

In 1962, appellant was convicted of larceny for stealing a case of beer worth $3.38. At the time, larceny was a felony under § 807 of the 1939 Penal Code, subject to a $2,000 fine and five years imprisonment. Appellant was placed on probation and assessed the costs of prosecution. Thirty-eight years later, during an attempt to buy a .22 rifle, a Pennsylvania State Police (PSP) background check, see 18 Pa. C.S. § 6111, revealed the 1962 conviction; his purchase was denied.

Appellant contested the denial, but the PSP informed him his larceny conviction was a disqualifying offense under § 6105(b) of the Pennsylvania Uniform Firearms Act (UFA), 18 Pa.C.S. §§ 6101-6162. Appellant sought a hearing because a larceny conviction is not a disqualifying offense under § 6105(b). Before the hearing, the PSP informed appellant the real basis for his denial was § 922 of the Federal Gun Control Act (GCA), which states:

(g) It shall be unlawful for any person—

(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;

* * *

to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

18 U.S.C. § 922(g)(1).¹ Assuming a case of beer worth $3.38 in 1962 would cost less than $50 today, a similar theft after enactment of the 1972 Crimes Code would be a third degree misdemeanor with potential imprisonment not exceeding one year. See 18 Pa.C.S. § 3903(b)(2) (theft of less than $50); 18 Pa.C.S. § 106(b)(8) (classification of third degree misdemeanor). Appellant's purchase in that case would not have been denied under the GCA.

Before the hearing, the Administrative Law Judge (ALJ) advised appellant, "[J]urisdiction is limited to a determination of the accuracy of your criminal record or record of mental health. Constitutional challenges ... are beyond the scope of the jurisdiction of the ALJ." ALJ Letter, 6/21/00, at 1; R.R., at 7. During the hearing, appellant attempted to argue the GCA violated the Ex Post Facto Clause of the United States Constitution, but the ALJ refused to consider this argument:

For the record, Counsel, we should indicate to you that the jurisdiction of this body is to consider issues which relate to the accuracy of the records maintained by the Pennsylvania State Police in what is known legally as the Central Repository, which is the official record keeping body of Pennsylvania for criminal history record information.

We do not have jurisdiction to consider various constitutional issues, one of which you raised this morning, the ex post facto nature of the application of laws to a particular course of conduct in which your client may have engaged in many years ago.

Those arguments would be more appropriately made, if necessary, to the Commonwealth Court, since we do not have the mandate to consider constitutional issues. We simply are here to review the application of the Uniform Firearms Act and the Criminal History Record Information Act to instances where an individual challenges the accuracy of that criminal record, which in this case has been determined to be a disability for his application to purchase or carry a firearm.

N.T., 7/19/00, at 19-20; R.R., at 61-62. In an undated opinion, the ALJ affirmed the denial pursuant to the GCA.²

On appeal to the Commonwealth Court, appellant contended the denial of his application to purchase a firearm: (1) violated the prohibition against ex post facto laws in Article I, § 17 of the Pennsylvania Constitution and Article I, § 10, Clause 1 of the United States Constitution; (2) violated substantive due process and equal protection under Article I, §§ 1, 21 of the Pennsylvania Constitution and the Fourteenth Amendment to the United States Constitution because, under strict scrutiny, the application of the GCA to appellant was fundamentally unfair; (3) violated his right to bear arms under Article I, § 21 of the Pennsylvania Constitution and the Second Amendment to the United States Constitution because his larceny conviction was not a crime of violence; (4) violated the proscription against cruel and unusual punishments in Article I, § 13 of the Pennsylvania Constitution and the Eighth Amendment to the United States Constitution because his right to bear arms had been forfeited for a single, non-violent act in 1962; and (5) violated his "equitable" rights as a citizen of Pennsylvania. He also contended the PSP failed to prove the firearm at issue traveled interstate so as to make relevant § 922(g) of the GCA. Citing § 703 of the Administrative Agency Law, 2 Pa.C.S. §§ 501-508, 701-704, the Commonwealth Court deemed all of appellant's constitutional claims, with the exception of the ex post facto issue, to be waived. See 2 Pa.C.S. § 703(a).³ Relying on United States v. Brady, 26 F.3d 282 (2d Cir.1994), and Nat'l Ass'n of Gov't Employees v. Barrett, 968 F.Supp. 1564 (N.D.Ga.1997), aff'd sub nom., Hiley v. Barrett, 155 F.3d 1276 (11th Cir.1998), the Commonwealth Court concluded § 922(g) did not violate the Ex Post Facto Clause of the United States Constitution. This Court granted review to consider whether § 922(g) of the GCA is an ex post facto law and whether the Commonwealth Court erred in not addressing all of appellant's constitutional claims.

A law may constitute a prohibited ex post facto provision in one of four ways:

1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action.2d. Every law that aggravates a crime, or makes it greater than it was, when committed.3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offense, in order to convict the offender.

Commonwealth v. Young, 536 Pa. 57, 637 A.2d 1313, 1317 (1993) (quoting Calder v. Bull, 3 U.S. (3 Dall.) 386, 390, 1 L.Ed. 648 (1798)). "[T]wo critical elements must be present for a criminal or penal law to be ex post facto: it must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it." Weaver v. Graham, 450 U.S. 24, 29, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981) (footnote omitted). "Critical to relief under the Ex Post Facto Clause is not an individual's right to less punishment, but the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated." Id., at 30, 101 S.Ct. 960.⁴

In Brady, the Second Circuit Court of Appeals upheld § 922(g) against an ex post facto challenge. The defendant was charged with being a felon in possession of a firearm based on a 1951 conviction. He argued his 1951 conviction could not be used as a predicate offense under § 922(g) because he committed the felony before the GCA was enacted. The court rejected this argument, holding that by the time of the defendant's violation of the GCA, he had adequate notice that possessing a firearm was illegal given his prior conviction. Brady, at 291. The date of his conviction was irrelevant because the crime was possession of a firearm by a felon, and the prohibited act of possession occurred after the adoption of § 922(g). Id.

Similarly, in United States v. Mitchell, 209 F.3d 319 (4th Cir.2000), the Fourth Circuit Court of Appeals considered whether a conviction for possession of a firearm by a person with a prior misdemeanor conviction for domestic violence violated the Ex Post Facto Clause. See 18 U.S.C. § 922(g)(9) (unlawful for anyone to possess firearm if previously convicted of misdemeanor crime of domestic violence). The court emphasized the prior conduct itself was not being punished; rather, the prior conduct was only an element of the prohibited conduct. Id., at 322-23. Accordingly, no ex post facto violation occurred. Accord Barrett, at 1575-76.

These cases hold that prohibiting firearm possession by those with prior criminal convictions does not retroactively punish the prior crime; instead, the GCA punishes their subsequent possession of a firearm. Unlike the defendants in Brady and Mitchell, however, appellant has not been charged with violating the GCA. Rather, § 922(g)(1) has been used to impose a civil disability: disqualifying appellant from purchasing firearms.

The Ex Post Facto Clause speaks only to retroactive punishment. See Smith v. Doe, 538 U.S. 84, 123 S.Ct. 1140, 1146, 155 L.Ed.2d 164 (2003). Thus, the issue becomes whether the civil disability imposed on appellant—the inability to purchase firearms—constitutes punishment. In the past, the Third Circuit's Artway/E.B. v. Verniero, 119 F.3d 1077 (3d.Cir. 1997) three-prong test was used to evaluate ex post facto claims. See Commonwealth v. Gaffney, 557 Pa. 327, 733 A.2d 616 (1999).⁵ However, this Court, in Commonwealth v. Williams, 832 A.2d 962 (Pa.2003), adopted the two-prong analysis enunciated by the United States Supreme Court in Smith v. Doe. In order to promote consistency and minimize confusion, we are formally abandoning the Artway/Verniero test, adopting instead the Smith v. Doe test used in Williams.

This test first asks whether the legislature's intent was punitive; if so, the statute violates the Ex Post Facto Clause. If the intent is found to be civil and non-punitive, the inquiry continues, to determine whether the statute is "so punitive either in purpose or effect as to...