Our law firm receives a lot of phone calls regarding gun ownership and Protection From Abuse (PFA) orders. It is important to understand that a PFA will prevent you from legally owning or possessing a gun or firearm in the Commonwealth of Pennsylvania despite your Second Amendment Right to do so. While all persons have a Second Amendment right, Pennsylvania may and will restrict that right based on your prior certain criminal convictions, a PFA (6105 – VUFA).
When a person files a PFA, he or she is requesting the protection of the law against the person who he/she believes is a threat to their safety. Unlike in criminal court, however, the burden of proof in these proceedings is “by the preponderance of the evidence” which is much lower than “beyond a reasonable doubt” – the standard in all criminal courts in the United States. A successful petition requires that the court find that the petitioner has demonstrated that the defendant is a threat to the person’s physical safety through an incident or a course conduct in the form of violence or threats of violence. While the court can look at a pattern, it isn’t required to obtain a PFA order.
One instance alone is sufficient for the Petitioner to meet the burden of proof. Keep in mind that unlike a criminal proceeding, a PFA case is the Petitioner vs. a defendant and not the Commonwealth vs. a defendant. The judge will hear testimony and make a decision based on that testimony but the Petitioner isn’t represented by the District Attorney and the defendant isn’t entitled to counsel. Both parties, however, may retain an attorney to assist them either with the defense or the petition in itself. When a person files for a PFA, a magistrate or Master will decide if the Petition has merit.
If there is merit to the petition, the court will grant an emergency order. The court, however, will also schedule a formal proceeding where the defendant will have a right to defend the allegations usually within 10 days. The defendant must be served with the petition during this time. A judge will not conduct a hearing unless there is proof of service. Keep in mind that this emergency order still requires the defendant to relinquish their guns, firearms and ammunition within 24 hours of being served with the order.
The formal hearing is extremely important to your ability to possess and own a gun or firearm in the Commonwealth long term. If the judge at the hearing finds that a PFA is appropriate, he can issue a final order requiring the defendant to surrender all guns and firearms to the county sheriff’s office or provide. PFA Act, 23 Pa. C.S. § 6108(a)(7)).
In addition a person can also be charged under the Uniform Firearm’s Act if he or she violates the Order (on top of a contempt charge). A person can be charged under Section 6105 even if the gun or firearm never leaves the person’s home or place of business. If the defendant is found outside of the home he is not only in violation of Section 6105, but 6106, and 6108. While violations of 6105 related to a PFA, aren’t as serious (misdemeanor of the first degree as opposed to a felony of the second degree) as other violations of this statute (enumerated offenses) a person would still have a criminal record. This could also affect your ability to obtain a permit to carry in the future!
If you’re served with a PFA petition, its important to contact a lawyer and immediately begin devising a defense strategy which may include contesting the allegations or agreeing to a “cooling off” period. Never ignore the petition and go to the proceedings even if you don’t have a lawyer. It is important to advise the court that you are working on obtaining a lawyer so the judge sees that you are taking the matter seriously.
In addition to preventing you from possessing or carrying a weapon, gun, or firearm a PFA Order can also do the following:
- Evict you from your home
- Modify your child custody arrangement
- Order supervised visitation with your children
- Prevent you from seeing your children
- Prevent your from attending your children’s school’s functions
If you own or want to own a gun in Pennsylvania, you need to understand as much as possible about firearms and the law to prevent you from having an issue with it. I encourage you to subscribe to our monthly newsletter and download a copy of one of my free books; especially my latest book, What Everyone Should Know about Drugs, Guns, and Defense Lawyers in Pennsylvania.