PENNSYLVANIA FIREARMS LAW & GUN OWNERS  RIGHTS

Expunge Civil Commitments
         
          WARNING:
If you think
you might have been involuntarily committed in the past for mental health reasons, do not attempt to purchase a firearm or o
btain a license to carry a concealed firearm.
If you have been previously committed and you attempt to purchase a firearm or apply for a license, you could be charged with a crime and might be prosecuted for a felony. If you have any doubts about your legal status, consult with an attorney.

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The following information is provided to you by:
J. Michael McCormick, Attorney at Law - Telephone: 412-828-8490 - Email: mike@pagunlaws.com

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Important Appellate Court News:

      In a landmark decision, on July 22, 2016, a three-judge panel of a Pennsylvania appellate court, the Pennsylvania Superior Court, overturned the decision of a judge of a Court of Common Pleas that had denied expungement of the two involuntary 302 civil commitments of one of attorney McCormick's clients.

      The Pennsylvania Superior Court agreed with Attorney McCormick that the trial court judge abused his discretion when he disagreed with attorney McCormick's argument that the procedural requirements of the Pennsylvania Mental Health Procedures Act were violated in the case when his client was committed and that the record of both of the two commitments must therefore be expunged.  

      The trial court's decision was reversed and the case was sent back to the trial court with directions that the trial court judge order expungement of both commitments.

Case Citation: Westlaw 2016 WL 4035957

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REGARDING THE EXPUNGEMENT OF INVOLUNTARY CIVIL MENTAL HEALTH COMMITMENTS:


          Attorney McCormick has been successful in obtaining expungements for clients in eleven (11) Pennsylvania counties, Allegheny, Beaver, Blair, Butler, Clearfield, Crawford, Fayette, Lawrence, Mercer, Venango and Westmoreland County.

          No matter what Pennsylvania county your commitment occurred in, Attorney McCormick can help you.

          Attorney McCormick also has been successful in obtaining expungements for former Pennsylvania residents who now live in California, Colorado, Florida, Georgia, Louisiana and South Carolina.
       
          In order to have an involuntary civil commitment record expunged and restore firearms rights, it is necessary to begin by filing a petition in the Court of Common Pleas in the county where the commitment occurred.
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           Please note:
           The Pennsylvania Mental Health Procedures Act does not contain terms such as "involuntarily committed to a mental institution", "involuntary civil commitment", "committed", and "mental institution".
          Those terms are used on this website because those terms are found in the Pennsylvania Crimes Code.         
          Those terms are also improperly used by the Pennsylvania State Police, other police agencies and district attorneys in prosecutions resulting from PICS denials when they erroneously refer to someone who had been admitted to a hospital for involuntary emergency examination and treatment using the authority provided by Section 7302 of the Pennsylvania Mental Health Procedures Act as having been "involuntarily committed to a mental institution.
          The Pennsylvania Mental Health Procedures does not anywhere authorize anyone to be "committed to a mental institution".

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          Whether or not an action will be successful depends upon the facts of a particular involuntary commitment.

           In order to be successful in obtaining an expungement, it is very important that you obtain the services of an attorney knowledgeable in this area of the law. Only a very small percentage of attorneys in Pennsylvania are experienced in this area of the law.

           The first thing to do relative to expunging an involuntary civil commitment is to thoroughly scrutinize the involuntary commitment documents and medical records in order to determine if the due process protections and procedural requirements of Section 302 of the Mental Health Procedures Act were precisely followed.

            Obtaining a copy of the document that is used to initiate a section 302 commitment should be done as soon as possible.  That document is the Application For Involuntary Emergency Examination And Treatment.  It is form MH-783. In at least one Pennsylvania county, a court order is required in order to obtain that document.

            If the due process protections and procedural requirements of the Pennsylvania Mental Health Procedures Act were not complied with as required by law, or the evidence was insufficient, you can plead and then argue that the involuntary commitment was invalid and illegal and therefore must be expunged.


            Expungements of involuntary civil commitment proceedings are still possible and thereby relief from both the Pennsylvania prohibition and the federal prohibition against firearm possession is obtainable from a Pennsylvania Court of Common Pleas in spite of the well known 2013 appellate case of In Re: Keyes.

          Relief from the prohibition under federal law is no longer available by way of Section 6105(f) of the Pennsylvania Firearms Act (18 Pa.C.S. 6105(f)) due to the holding in the case of In Re Keyes, 83 A. 3d 1016 (Pa. Superior Court 2013).

        

         The good news is, however, that expungements of involuntary civil commitment proceedings can still be obtained and thereby relief from both the Pennsylvania prohibition and the federal prohibition against firearm possession is obtainable from a Pennsylvania Court of Common Pleas if a petitioner can satisfy the court that the evidence for the commitment was insufficient and/or the requirements of the Pennsylvania Mental Health Procedures Act were not complied with. See references to the case of Wolfe v. Beal and Section 6111.1 of the Pennsylvania Uniform Firearms Act, below.

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           The Pennsylvania statute establishing the prohibition against persons who have been involuntarily committed from possessing firearms is: 18 Pa.C.S. § 6105. Persons not to possess, use, manufacture, control, sell or transfer firearms.

18 Pa.C.S. § 6105(c)(4) provides:
"(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."


Article 1, Section I of the Pennsylvania Constitution and Expungements of Mental Health Commitments:
    
In addition to proceeding under the provisions of the Pennsylvania Uniform Firearms Act, jurisdiction of an
expungement action should also be based upon Article 1, Section I of the Pennsylvania Constitution which specifically provides that:

“all men . . . have certain inherent and indefeasible rights, among which . . . [is] acquiring, possessing, and protecting. . . reputation . . .”   

Wolfe v. Beal, 477 Pa. 477, at 480, 384 A.2d 1187, at 1189 (1978).

In Wolfe, the Pennsylvania Supreme Court stated that “The sole question before this Court is whether a person who has been unlawfully committed to a state mental hospital has a right to the destruction of the hospital records which were created as a result of the illegal commitment. We answer in the affirmative.”

In Wolfe, the Pennsylvania Supreme Court further stated:
"We, in Commonwealth ex rel. Magaziner v. Magaziner, 434 Pa. 1, 253 A.2d 263 (1975), approved of the concept of protecting the reputation of a person who was unlawfully thrust into the criminal process by sanctioning the expungement of his criminal record. We should not do less for appellant. The continued existence of the hospital records pose a threat to appellant's reputation. Additionally, the Commonwealth Court's contention that Section 4602(a) prohibits the destruction of appellant's hospital records is erroneous. This section states that records must be kept on persons who are "admitted or committed to any facility . . . under any provision of this act". Since it has been adjudicated that appellant's November 21, 1973 commitment is null and void, appellant was never "admitted or committed to any facility . . . under any provision of this act". Therefore, Section 4602(a) does not bar the destruction of the hospital records in question."


Section 6105(f) of the Pennsylvania Uniform Firearms Act (18 Pa.C.S. § 6105(f) provides:

(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.

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(3) All hearings conducted under this subsection shall be closed unless otherwise requested to be open by the applicant.


Section 6111.1 of the Pennsylvania Uniform Firearms Act provides:

18 Pa.C.S.A. § 6111.1. Pennsylvania State Police

(g) Review by court.--

(1) Upon receipt of a copy of the order of a court of competent jurisdiction which vacates a final order or an involuntary certification issued by a mental health review officer, the Pennsylvania State Police shall expunge all records of the involuntary treatment received under subsection (f).

(2) A person who is involuntarily committed pursuant to section 302 of the Mental Health Procedures Act may petition the court to review the sufficiency of the evidence upon which the commitment was based. If the court determines that the evidence upon which the involuntary commitment was based was insufficient, the court shall order that the record of the commitment submitted to the Pennsylvania State Police be expunged. A petition filed under this subsection shall toll the 60-day period set forth under section 6105(a)(2).

(3) The Pennsylvania State Police shall expunge all records of an involuntary commitment of an individual who is discharged from a mental health facility based upon the initial review by the physician occurring within two hours of arrival under section 302(b) of the Mental Health Procedures Act and the physician's determination that no severe mental disability existed pursuant to section 302(b) of the Mental Health Procedures Act. The physician shall provide signed confirmation of the determination of the lack of severe mental disability following the initial examination under section 302(b) of the Mental Health Procedures Act to the Pennsylvania State Police.


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IMPORTANT DISCLAIMER

The material found on this web site is for informational purposes only.
It is not legal advice and is not guaranteed to be complete or up to date.
It is not a substitute for obtaining the services of an attorney.


This website is maintained by:

J. Michael McCormick
Attorney at Law
314 Center Avenue
PO Box 64
Verona, PA 15147
412-828-8490
mike@pagunlaws.com

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