In an unreported decision, the PA Commonwealth Court has affirmed the decision of the Office of Attorney General (OAG) Administrative Law Judge’s (ALJ), denying Richard Hamborsky’s application to purchase a firearm because of his prior conviction for DUI, graded as a first-degree misdemeanor

Hamborsky’s application to the PA State Police (PSP) to purchase a firearm was denied because, under Section 922(g)(1) of the Federal Gun Control Act of 1968 (FGCA), his 2011 DUI conviction disqualified him from purchasing a firearm. The FGCA prohibits any person “who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year” from purchasing a firearm. The term “crime punishable by imprisonment for a term exceeding one year” is defined as “any State offense classified by the laws of the State as a misdemeanor and punishable by a term of imprisonment of two years or less.” 18 U.S.C. § 921(a)(20)(B). Pennsylvania classifies a misdemeanor in the first-degree as one in which “a person convicted thereof may be sentenced to a term of imprisonment, the maximum of which is not more than five years.”

The Court noted that Hamborsky would not have been disqualified under the PA Uniform Firearms Act because only “[a] person who has been convicted of driving under the influence of alcohol or controlled substance . . . on three or more separate occasions within a five-year period” is prohibited from obtaining a firearm in Pennsylvania. 18 Pa.C.S. § 6105(c)(3).

However, the ALJ nonetheless sustained the denial because the PSP was required to determine whether he was precluded from purchasing a firearm, not only under state but federal law as well. And, because Hamborsky was disqualified from purchasing a firearm under Section 922(g)(1) of the Federal Gun Control Act, the ALJ affirmed the PSP’s denial of his application.

R. Hamborsky v. PSP, 1359 C.D. 2016 (July 24, 2017)


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