As Published in the April, 2019 Issue of the PELRAS Newsletter
Published on: Thu 2nd May, 2019 By: Ian B. Everhart
Recent amendments to the Protection From Abuse (“PFA”) Act, and the Pennsylvania Uniform Firearms Act, will soon take effect, imposing stricter requirements on gun owners subject to court ordered PFAs and assigning new responsibilities to law enforcement agencies. Many provisions of Act 79 of 2018 took effect on April 10, 2019 (180 days after the law was signed by Governor Tom Wolf). For purposes of employment, individuals who are required to carry firearms as a requirement of their job and who are subject to prohibitions of the revised PFA Act may be barred from continuing to work during the terms of a final PFA.
Under the previous version of the PFA Act, courts had discretion whether to require the surrender of firearms by a defendant in a PFA proceeding (the accused abuser). The amended law leaves that discretion in place for temporary orders and consent agreements, but it is now mandatory that the courts require the surrender of firearms in every final PFA order held after a hearing. Perhaps even more importantly, PFA defendants may no longer relinquish firearms to family members or friends. Rather, under Act 79, firearms may only be surrendered to: (1) the county sheriff; (2) a law enforcement agency (such as a municipal police department or the state police); (3) a federally-licensed firearms dealer or commercial armory; or (4) the defendant’s attorney. 18 Pa.C.S. § 6105.2. The new law also requires that firearms be relinquished within 24 hours of the order being issued, whereas the law previously allowed for a sixty (60) day surrender period. 18 Pa.C.S. § 6105.2.
Another provision of Act 79 requires law enforcement to accompany the plaintiff to his or her residence to retrieve personal belongings, or while serving the petition or order on the defendant, when the plaintiff has reason to believe that his or her safety is at risk. 23 Pa.C.S. § 6106.
Local law enforcement agencies should be aware of the changes brought by Act 79, and should be prepared to assume the new duties imposed by the statute. How much the amended law will affect a local police department will depend on the volume of PFA orders issued, but each agency should consider the best way to manage these new requirements. In addition to storage of weapons, law enforcement must have a process for intake (and issuing receipts, required in 18 Pa.C.S. § 6105.2(b)(2)) and eventual retrieval of surrendered firearms (with the “weapon return form” required in 18 Pa.C.S. § 6108.1(a) upon dismissal or expiration of the PFA order). In order to facilitate the Act 79 amendments, the Pennsylvania State Police and the Pennsylvania Coalition Against Domestic Violence have developed a process within the PFA Database to assist with recording, monitoring and tracking firearms relinquishments. Agencies should also prepare to communicate with the court(s) issuing the PFA order.
Police departments are not permitted to assess fees against defendants associated with the return of weapons—i.e., storage fees are not permitted, although costs associated with a defendant’s request that a firearm be transferred from a police department to a licensed dealer may be assessed. 18 Pa.C.S. § 6105.2(c)(2) and 23 Pa.C.S. § 6108.1(a).
Act 79 also includes a provision regarding sealing of older PFA records. The new law permits a PFA defendant who has signed a consent agreement to petition the court to seal the record of that agreement ten years after the expiration of the PFA consent agreement, so long as that was the first and only PFA that was filed against him or her, and the person has not been convicted of any other offenses. 23 Pa.C.S. § 6108.7.
Employers should have a policy requiring employees to disclose the existence of a temporary or permanent PFA if the PFA bars the employee from possessing a firearm and the employee’s job requires the use of a firearm. Once a public employer becomes aware of the employee’s PFA, consideration must be given as to whether the employee can perform the duties of his/her job and whether the employer is obligated to assign the employee to an alternate position during the PFA period. Contractual (collective bargaining agreement provision) and practical considerations must be vetted to ensure that the public employer is not violating the terms of the court order. Employers should carefully consider their approach in dealing with this employment scenario utilizing labor counsel.