IN RE: APPLICATION TO RESTORE FIREARMS RIGHTS OF MICHAEL L. KEYES APPEAL OF: MICHAEL L. KEYES, Appellant
Appeal from the Order Entered July 13, 2012, in the Court of Common Pleas of Perry County Civil Division at No. CV-PE-2008-01230
BEFORE: FORD ELLIOTT, P.J.E., WECHT AND COLVILLE, [*] JJ.
FORD ELLIOTT, P.J.E.
Appellant appeals the order denying his petition to expunge his record of involuntary mental health commitments pursuant to sections 7302 and 7303 of the Mental Health Procedures Act ("MHPA"), 50 P.S. §§ 7302, 7303, as to allow appellant to possess a firearm. Finding no error below, we affirm.
Appellant is a Pennsylvania State Police Trooper. During the summer of 2006, appellant was in a depressed state and made multiple attempts to commit suicide by the ingestion of drugs. Subsequently, appellant was involuntarily committed to a mental health facility, first under section 7302 of the MHPA, and then under the more restrictive section 7303. As a consequence of these commitments, appellant is barred from possessing a firearm under 18 Pa.C.S.A. § 6105:
§ 6105. Persons not to possess, use, manufacture, control, sell or transfer firearms.
(a) Offense defined.--
(1) A person who has been convicted of an offense enumerated in subsection (b), within or without this Commonwealth, regardless of the length of sentence or whose conduct meets the criteria in subsection (c) shall not possess, use, control, sell, transfer or manufacture or obtain a license to possess, use, control, sell, transfer or manufacture a firearm in this Commonwealth.
(c) Other persons.--In addition to any person who has been convicted of any offense listed under subsection (b), the following persons shall be subject to the prohibition of subsection (a):
(4) A person who has been adjudicated as an incompetent or who has been involuntarily committed to a mental institution for inpatient care and treatment under section 302, 303 or 304 of the provisions of the act of July 9, 1976 (P.L. 817, No. 143), known as the Mental Health Procedures Act. This paragraph shall not apply to any proceeding under section 302 of the Mental Health Procedures Act unless the examining physician has issued a certification that inpatient care was necessary or that the person was committable.
18 Pa.C.S.A. § 6105(a)(1) and (c)(4).
On December 3, 2008, appellant filed an "Application for Restoration of Firearms Rights" pursuant to section 6105(f)(1):
(f) Other exemptions and proceedings.--
(1) Upon application to the court of common pleas under this subsection by an applicant subject to the prohibitions under subsection (c)(4), the court may grant such relief as it deems appropriate if the court determines that the applicant may possess a firearm without risk to the applicant or any other person.
18 Pa.C.S.A. § 6105(f)(1).
On July 10, 2009, the court entered an order restoring appellant's rights to possess a firearm. However, the court did not expunge appellant's involuntary commitment record, ostensibly because such relief was not requested. Because these commitments remained on appellant's record, although he could again possess a firearm under Pennsylvania law, he was still barred from possessing a firearm under the federal Gun Control Act:
§ 922. Unlawful acts
(g) It shall be unlawful for any person—
(4) who has been adjudicated as a mental defective or who has been committed to a mental institution;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.A. § 922(g)(4).
Ironically, under another provision of the Gun Control Act, appellant is permitted to possess a firearm while he is on-duty as a State Trooper:
§ 925. Exceptions: Relief from disabilities
(a)(1) The provisions of this chapter, except for sections 922(d)(9) and 922(g)(9) and provisions relating to firearms subject to the prohibitions of section 922(p), shall not apply with respect to the transportation, shipment, receipt, possession, or importation of any firearm or ammunition imported for, sold or shipped to, or issued for the use of, the United States or any department or agency thereof or any State or any department, agency, or political subdivision thereof.
18 U.S.C.A. § 925(a)(1). Thus, the Gun Control Act prohibits appellant from possessing a firearm only when he is off-duty.
On September 18, 2009, appellant filed a "Motion to Vacate Mental Health Commitment Pursuant to 18 Pa.C.S.A. § 6105(f)." On September 28, 2009, the court entered a rule to show cause, returnable in 21 days, upon the Pennsylvania State Police as to why appellant's motion should not be granted. The Pennsylvania State Police filed their response on October 22, 2009, three days late of the October 19, 2009 deadline. For unknown reasons, the court took no further action as to this motion, nor did appellant file any pleading prompting it to act.
Three years later, with the assistance of new counsel, appellant filed a "Motion to Expunge Mental Health Commitment Pursuant to Order Granting Relief." Therein, appellant argued that the court should expunge his mental health records pursuant to its powers under 18 Pa.C.S.A. § 6105(f)(1). The court again issued a rule to show cause, and Pennsylvania State Police filed a timely response. On June 25, 2012, the trial court entered an order denying appellant's motion based upon this court's holding ...