            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Carlos P. Maglas,                      :
                      Petitioner       :
                                       : No. 1772 C.D. 2016
               v.                      :
                                       : Argued: September 14, 2017
Pennsylvania State Police,             :
                   Respondent          :


BEFORE:        HONORABLE P. KEVIN BROBSON, Judge
               HONORABLE PATRICIA A. McCULLOUGH, Judge
               HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McCULLOUGH                            FILED: January 4, 2018


               Carlos P. Maglas petitions for review from the October 5, 2016 order
of an administrative law judge (ALJ) denying his appeal from the determination of
the Pennsylvania State Police (PSP) rejecting Maglas’ application to purchase a
firearm. As we are precluded from addressing the constitutional issue of sufficient
notice because Maglas failed to raise this issue in his petition for review, we are
constrained to affirm.
               The relevant facts are not in dispute. On September 10, 2014, Maglas
submitted an application to purchase a firearm. PSP denied Maglas’ application
because he was convicted in 2005 of Driving Under the Influence of Alcohol or
Controlled Substance (DUI), a first-degree misdemeanor under the Vehicle Code.1

      1
          75 Pa.C.S. §§101-9805.
The DUI conviction rendered Maglas ineligible to purchase a firearm under section
922(g)2 of the Federal Gun Control Act (GCA), 18 U.S.C. §922(g). Maglas filed a
Pennsylvania Instant Check System (PICS) challenge to PSP’s decision on
September 16, 2014. On October 6, 2014, PSP upheld the denial of Maglas’
application on the basis of the DUI conviction.
                Maglas filed a timely appeal to the Pennsylvania Office of Attorney
General on October 23, 2014. A hearing was held before an ALJ on July 16, 2015.
Maglas, who did not personally appear, was represented by counsel at the hearing,
where PSP presented evidence of the 2005 DUI conviction. Maglas’ counsel did not
contest the evidence, but rather argued that the General Assembly never intended for
persons convicted of DUI to be prohibited from purchasing firearms under the
Pennsylvania Uniform Firearms Act of 1995.3 (Transcript from Firearm Appeal
Hearing, 7/16/15, at 14-23.) Maglas’ counsel did not introduce any evidence or raise
any constitutional issues at the hearing. (Id.)
                On October 5, 2016, the ALJ issued a decision denying Maglas’
administrative appeal.         The ALJ determined that PSP’s rejection of Maglas’
application was proper. He ruled that Maglas was prohibited from purchasing a
firearm under Section 922(g) of the GCA because Maglas’ DUI conviction was


       2
          Section 922(g) of the GCA provides, “[i]t shall be unlawful for any person . . . (1) who
has been convicted in any court of . . . a crime punishable by imprisonment for a term exceeding
one year . . . to receive any firearm . . . which has been shipped or transported in interstate or
foreign commerce.” 18 U.S.C. §922(g). Section 921(a)(20) of the GCA further states that “[t]he
term ‘crime punishable by imprisonment for a term exceeding one year’ does not include . . . any
State offense classified by the laws of the State as a misdemeanor and punishable by a term of two
years or less.” 18 U.S.C. §921(a)(20).

       3
           Act of December 6, 1972, P.L. 1482, as amended, 18 Pa.C.S. §§6101-6187.



                                                2
punishable by a maximum of five years of incarceration.4 The ALJ noted that PSP
was required under state law to review an individual’s application to purchase a
firearm “to determine if the potential purchaser . . . is prohibited from receipt . . . of
a firearm under Federal or State law.” 18 Pa.C.S. §6111.1(b)(1)(i). The ALJ
concluded:

               It is clear, pursuant to Pennsylvania’s Uniform Firearm
               Act, that PSP was mandated to determine whether
               [Maglas] was precluded from purchasing a firearm under
               either Federal or State law. It is equally clear that
               [Maglas] is precluded from purchasing a firearm under
               Federal law due to his DUI conviction graded as a first-
               degree misdemeanor with a five year maximum sentence.
(ALJ Disposition, 10/5/16, at 4.) This appeal followed.
               This Court’s review of an order sustaining a decision by PSP to deny
an application to purchase a firearm is limited to determining whether the necessary
findings of fact are supported by substantial evidence, whether an error of law was
committed, or whether constitutional rights were violated. Freeman v. Pennsylvania
State Police, 2 A.3d 1259, 1260 n.2 (Pa. Cmwlth. 2010). Presently, Maglas does not
argue that the ALJ’s findings were unsupported by substantial evidence or that the
ALJ committed an error of law. Rather, Maglas argues that the application of the
GCA in this instance violates his rights under the Second Amendment.5 Maglas also
does not argue that the GCA is facially unconstitutional. Instead, he contends that
his particular circumstances are beyond the scope of what the legislature intended to
prohibit when it enacted section 922(g) of the GCA, 18 U.S.C. §922(g), and


       See Section 3803(b)(4) of the Vehicle Code, 75 Pa.C.S. §3803(b)(4), grading Maglas’
       4

2005 DUI conviction as a first degree misdemeanor.

       5
         “A well regulated Militia, being necessary to the security of a free State, the right of the
people to keep and bear arms, shall not be infringed.” U.S. CONST. amend. II.
                                                 3
therefore, the application of the statute in this instance is unconstitutional. In support
of this argument, Maglas sets forth in his brief a series of factual statements intended
to show that “he is no more dangerous than a typical law-abiding citizen and poses
no continuing threat . . . .” (Maglas Brief, 1/25/17, at 14-15.)
              A citizen who seeks to challenge the constitutionality of a gun
regulation as-applied has a significant evidentiary burden. Binderup v. Attorney
General of the United States of America, 836 F.3d 336, 341 (3d Cir. 2016). In
District of Columbia v. Heller, the United States Supreme Court held that the Second
Amendment protects the right of “law-abiding, responsible citizens to use firearms
in defense of hearth and home,” but that such a right was “not unlimited.” 554 U.S.
570, 626, 634-35 (2008). The Heller court also ruled that “longstanding prohibitions
on the possession of firearms by felons” were “presumptively lawful regulatory
measures” consistent with historical limitations on the breadth of the Second
Amendment right. Id. at 626-27. In United States v. Marzzarella, 614 F.3d 85, 96-
97 (3d Cir. 2010), the court adopted a framework for evaluating as-applied
challenges. One year later, the court applied the Marzzarella framework in United
States v. Barton, 633 F.3d 168, 174-75 (3d Cir. 2011). The opinion of the court in
Binderup6 reflects the court of appeals’ synthesis of Marzzarella and Barton,
resulting in the emergence of a particular test or framework for the evaluation of as-
applied Second Amendment challenges. This framework was recently discussed in
Zedonis v. Lynch, 233 F. Supp. 3d 417 (M.D. Pa. 2017).
              To prevail in an as-applied challenge to a presumptively valid
regulation restricting Second Amendment rights, a challenger must prove that “the
challenged law imposes a burden on conduct falling within the scope of the Second

       6
        Binderup was a fractured, plurality decision. See Zedonis v. Lynch, 233 F. Supp. 3d 417
(M.D. Pa. 2017).
                                              4
Amendment’s guarantee.” Id. at 425 (quoting Binderup, 836 F.3d at 346). To do
so, the challenger

              must (1) identify the traditional justifications for excluding
              from Second Amendment protections the class of which
              he appears to be a member, . . . and then (2) present facts
              about himself and his background that distinguish his
              circumstances from those persons in the historically barred
              class . . . .
Binderup, 836 F.3d at 347. With respect to the first hurdle, the Binderup court noted
that the historical basis for “stripping felons”7 of Second Amendment rights “dates
back to our founding era.” Id. at 349.
              If the challenger successfully identifies the traditional justifications for
excluding Second Amendment protections from his class, he must then distinguish
himself from that class. Id. at 347. To do so, a challenger like Maglas must show
that “there is a ‘strong reason’ why his 2005 DUI conviction was not a ‘serious
offense.’” Zedonis, 233 F. Supp. 3d at 426.

              “[T]here are no fixed criteria for determining whether
              crimes are serious enough to destroy Second Amendment
              rights.” [Binderup, 836 F.3d at 351]. The Binderup court
              rejected the notion that all crimes subject to §922(g)(1)’s
              prohibition should be considered serious because of the
              crimes’ maximum possible punishment. Id. at 350.
              Rather, the court acknowledged that some State
              misdemeanors subject to §922(g)(1), although being
              punishable by more than two years’ imprisonment, “may
              be ‘so tame and technical as to be insufficient to justify the
              ban’” on firearms possession. Id. (quoting United States
              v. Torres–Rosario, 658 F.3d 110, 113 (1st Cir. 2011)).
              Reasoning that Heller stated that felon-in-possession
              firearm bans were “presumptively lawful,” and that

       7
          “Traditionally, ‘felons’ are people who have been convicted of and crime ‘that is
punishable by death or imprisonment for more than one year.’” Binderup, 836 F.3d at 347
(citations omitted).
                                            5
             “presumptions are rebuttable,” the court indicated that “to
             determine whether . . . [an individual is] shorn of [his]
             Second Amendment rights, Heller requires us to consider
             the maximum possible punishment but not to defer blindly
             to it.” [Binderup, 836 F.3d at 350–51].

             The Binderup court recognized that “the category of
             serious crimes changes over time as legislative judgments
             regarding virtue evolve,” and therefore set forth a
             seemingly non-exhaustive list of factors for courts to
             consider in evaluating whether challengers have presented
             sufficient facts at step one to “distinguish[ ] their
             circumstances from persons historically excluded from the
             right to arms.” Id. at 351, 353. The court instructed that,
             in evaluating an as-applied challenge to the
             constitutionality of §922(g)(1), we should consider: (1)
             whether a state classifies the offense as a misdemeanor or
             felony; (2) whether an offense involves violent criminal
             conduct, i.e., that violence (actual or attempted) is an
             element of the offense; (3) the severity of the sentence
             imposed on the challenger; and (4) whether there is cross-
             jurisdictional consensus regarding the seriousness of the
             disqualifying crime. Id. at 351–52.
Zedonis, 233 F. Supp. 3d at 427.
             If a challenger makes the showing required by Binderup, the burden
then shifts to the government to show that §922 of the GCA supports a legitimate
government interest (e.g., promoting public safety), and that the means employed to
advance that interest are reasonable and appropriate. Binderup, 836 F.3d at 353. In
other words, the statute or regulation at issue must survive intermediate scrutiny. Id.
at 356.
             Section 703(a) of the Administrative Agency Law provides:




                                          6
             (a) General rule.--A party who proceeded before a
             Commonwealth agency under the terms of a particular
             statute shall not be precluded from questioning the validity
             of the statute in the appeal, but such party may not raise
             upon appeal any other question not raised before the
             agency (notwithstanding the fact that the agency may not
             be competent to resolve such question) unless allowed by
             the court upon due cause shown.
2 Pa.C.S §703(a). PSP argues that Maglas waived his Second Amendment challenge
by failing to raise it before the ALJ. A careful review of the record confirms PSP’s
assertion that the issue was not addressed to the ALJ.
             In Lehman v. Pennsylvania State Police, 839 A.2d 265 (Pa. 2003), our
Supreme Court considered whether a prospective gun-buyer with a disqualifying
criminal conviction waived a constitutional challenge when he failed to raise it
before the ALJ. The Supreme Court expressly ruled that as-applied constitutional
challenges must be raised before the ALJ to preserve such claims for review. Id. at
276. However, the prospective gun-buyer argued that the application of the waiver
rule in his case was inappropriate because “he was denied the opportunity to raise
them before the ALJ because the ALJ disavowed having jurisdiction to review
constitutional claims.” Id. at 274. The fact that the ALJ in Lehman expressly
advised the prospective gun-buyer that “those arguments would be more
appropriately made, if necessary, to the Commonwealth Court, since we do not have
the mandate to consider constitutional issues” factored into the Supreme Court’s
disposition in that case: remand so that the prospective gun-buyer could develop his
constitutional arguments. Id. at 276.
             PSP argues that Lehman’s express ruling that as-applied constitutional
challenges must be raised before the ALJ to preserve such claims for review compels
a finding of waiver in this case. PSP’s argument, however, fails to address a pre-


                                          7
hearing letter from the Office of Attorney General to Maglas’ counsel. The letter
states:

             You should understand that the only issue which can be
             heard during this proceeding is whether the criminal
             history records maintained by the Pennsylvania State
             Police are accurate. If you do not dispute the accuracy of
             the criminal history records, but you want to raise other
             reasons in support of the restoration of your firearms
             rights, you should contact a lawyer and explore other
             avenues of relief.
(Certified Record, Item 5, Letter from Leigh Ann Snyder to Peter Daley, 6/15/15)
(emphasis in original). This language is similar to the problematic language in
Lehman where a prospective gun-buyer was denied an opportunity to litigate an as-
applied challenge before the ALJ. However, in this case, Maglas has not argued that
the pre-hearing letter prejudiced him in any way; i.e., he has not complained that he
was procedurally prevented from raising his Second Amendment challenge before
the ALJ as required by Lehman.
             Moreover, we note that Maglas did not raise his Second Amendment
challenge in his petition for review to this Court. The petition for review merely
reiterates the statutory argument presented unsuccessfully to the ALJ. (Petition for
Review, 10/26/2016, ¶¶ 5-6.) Maglas has not offered any argument that there exists
good cause for this Court to consider his Second Amendment claim when he failed
to raise and preserve this issue below. Hence, because this issue has been waived,
the Court must affirm the decision of the ALJ.




                                       __________________________________
                                       PATRICIA A. McCULLOUGH, Judge


                                         8
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Carlos P. Maglas,                     :
                    Petitioner        :
                                      :
            v.                        : No. 1772 C.D. 2016
                                      :
Pennsylvania State Police,            :
                   Respondent         :


                                     ORDER



            AND NOW, this 4th day of January, 2018, the order of the
administrative law judge, dated October 5, 2016, is hereby affirmed.




                                      __________________________________
                                      PATRICIA A. McCULLOUGH, Judge
