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January 20, 2017

Court: Pennsylvania law used to seize man's gun 'doesn't exist'

You can't enforce a law that doesn't exist, a Pennsylvania court ruled in a recent decision, ordering a gun to be returned to a man who brandished the weapon during a road rage incident.

Commonwealth Court Judge Patricia McCullough concluded in the ruling issued by a seven-member appeals board that "common law forfeiture does not exist in Pennsylvania" because it was never transferred over from "English common law" that dates back hundreds of years to when Pennsylvania was still a colony. 

In November 2013, on an Adams County road, Justin Irland displayed his handgun through the rear windshield of his car to get a driver behind him to stop tailgating, according to court records. Irland was charged with simple assault, harassment, disorderly conduct – all misdemeanors – and disorderly conduct as a summary offense.

Irland eventually pleaded guilty only to disorderly conduct as a summary offense for the incident, which resulted in a $200 fine. He asked for his handgun to be returned, but was denied. Irland tried again to get it back, arguing there was "no such thing as common law forfeiture" in Pennsylvania.

McCullough and the appeals court agreed, reversing a trial court's decision that concluded there was enough of a connection between the gun and Irland’s offense to warrant forfeiture.

"We conclude that common law forfeiture, as that concept originated and developed in England, was never incorporated into or became part of our Commonwealth’s common law tradition," McCullough wrote.

Forfeiture is permitted by law in certain instances, such as in drug-related crimes. But not in cases of summary offenses, McCullough wrote.

McCullough added that the court doesn't "condone or minimize Irland’s actions." But since there's no law that specifically outlines government forfeiture in cases the summary offense that Irland pleaded guilty to, authorities should give Irland the gun back.

PennLive notes that Adams County prosecutors may appeal the decision to the Pennsylvania Supreme Court. A voicemail seeking comment left at the Adams County District Attorney's office was not immediately returned.