Cambria County to Return 306 Guns to Resident at NO Cost , After Final PFA Dismissed and Temporary PFA Vacated

As some of our viewers are aware, in March of this year, a Cambria County man and collector of firearms had 306 of his firearms confiscated by the Cambria County Sheriff as a result of a temporary Protection for Abuse Act (PFA) Order. (His name is not being disclosed due to the nature of the issues).

Pursuant to 23 Pa.C.S. 6107(b), which addresses temporary PFAs, an individual can be deprived of his/her right to keep and bear arms, without opportunity to be heard, as occurred in this matter. Where a temporary PFA is issued, pursuant to 23 Pa.C.S. 6107(a), a hearing must be held within 10 days where all parties have an opportunity to be heard. During that hearing, the Honorable Judge F. Joseph Leahey not only denied the final PFA but also vacated the temporary PFA, finding that there was no basis in the law for the issuance of the temporary PFA. Unfortunately, the Cambria County Sheriff’s department expended over $1200 in the confiscation of the Cambria man’s firearms, the cost of which was assessed against the gun owner.

At that point, I was retained to request reconsideration of that aspect of the Order on several grounds: First, 23 Pa.C.S. 6108.1(a) precludes the assessment of costs relating to the return of firearms in PFA matters; Second, 18 Pa.C.S. 6111.1(b)(4) requires return of all firearms in the possession of a law enforcement agency to the lawful owner, provided the lawful owner is not prohibited from possessing and purchasing firearms and ammunition; Third, pursuant to Article 1, Sections 1 and 9 of the Pennsylvania Constitution and the 14th Amendment of the U.S. Constitution, he was denied all forms of due process; Fourth, pursuant to Article 1, Section 21 and the Second Amendment to the U.S. Constitution, he was denied his right to keep and bear arms; and Fifth, that pursuant to the 5th and 14th Amendments to the U.S. Constitution, the assessment of costs would constitute a taking in this context. Additionally, I requested that all firearms be returned to the location of confiscation (e.g. my client’s home).

On April 24th, Judge Leahey graciously granted an emergency oral request for reconsideration of his Order, as the appeal deadline was about to run. After filing a written motion for reconsideration explaining the above issues, on May 18, 2015, the Honorable F. Joseph Leahey issued a new Order vacating the assessment of costs against my client and now assessing the costs for confiscation against the County. Further, he directed the Sheriff to return all the firearms to my client at the location of confiscation.

It bears noting that Cambria Sheriff Bob Kolar never opposed the motion for reconsideration (or, to my knowledge, ever asked the court to impose the costs against my client) and was quoted as saying “I had a court order and I was complying with that order.” Further, it is my understanding that Judge Leahey was unaware of the prohibition on the assessment of costs related to the confiscation and return of firearms in PFA matters and simply followed policy in initially assessing the costs.  As soon as he was made aware of the issue, he was genuinely concerned and was extremely amenable to reconsidering his Order. Both of these men deserve our appreciation for their dedication in upholding the law.

If you or someone you know has a PFA issued against them or need assistance in seeking return of your firearms, please do not hesitate to contact us – 888-313-0416 or info@princelaw.com – to discuss your rights!

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Unanimous U.S. Supreme Court Decision – Felons Do Not Lose Property Right in Owned Firearms

Today, the United States Supreme Court handed down its decision in Henderson v. U.S., No 13-1487, 575 U.S. _____ (2015),  holding that while a convicted felon is prohibited from “possessing” firearms pursuant to 18 U.S.C. 922(g), nothing strips the individual of his/her property interest in the firearms and the individual retains “the right merely to sell or otherwise dispose of their firearms,” provided the felon lacks all control over the firearms.

Justice Kagan writing for the unanimous Court declared that the issue before the Court was “what §922(g) allows a court to do when a felon instead seeks the transfer of his guns to either a firearms dealer (for future sale on the open market) or some other third party.” In responding to that question, the Court held “that § 922(g) does not bar such a transfer unless it would allow the felon to later control the guns, so that he could either use them or direct their use.”

This case stemmed from a U.S. Border Patrol Agent, Tony Henderson, being charged with a felony count of distributing marijuana. After the charges were filed, in deciding the terms of bail for Mr. Henderson, the Magistrate Judge required Henderson to relinquish all of his firearms to the Federal Bureau of Investigation. Mr. Henderson would later plead guilty to the charges, which would prohibit him under § 922(g) from possessing firearms. After his release from prison, he requested that his firearms be transferred to a friend of his, who had agreed to purchase them. The FBI denied the request stating that such would constitute “constructive possession.” Mr. Henderson then petitioned the District Court to have the court direct the FBI to transfer the firearms to his friend. The District Court denied his request and the 11th Circuit Court of Appeals affirmed the decision.

In vacating the 11th Circuit’s Decision, the Court explained that

Section 922(g) proscribes possession alone, but covers possession in every form. By its terms, §922(g) does not prohibit a felon from owning firearms. Rather, it interferes with a single incident of ownership—one of the proverbial sticks in the bundle of property rights—by preventing the felon from knowingly possessing his (or an-other person’s) guns. But that stick is a thick one, encompassing what the criminal law recognizes as “actual” and“constructive” possession alike. (Emphasis in original)

While acknowledging that “§922(g) prevents a court from ordering the sale or other transfer of a felon’s guns to someone willing to give the felon access to them or to accede to the felon’s instructions about their future use,” the Court declared that nothing prohibits the individual’s “right merely to sell or otherwise dispose of that item.”

In responding to the Government’s arguments that Mr. Henderson’s request should be denied, the Court stated

Yet on the Government’s construction, §922(g) would prevent Henderson from disposing of his firearms even in ways that guarantee he never uses them again, solely because he played a part in selecting their transferee. He could not, for example, place those guns in a secure trust for distribution to his children after his death. He could not sell them to someone halfway around the world. He could not even donate them to a law enforcement agency. Results of that kind would do nothing to advance §922(g)’s purpose.

and

A court may also grant a felon’s request to transfer his guns to a person who expects to maintain custody of them, so long as the recipient will not allow the felon to exert any influence over their use.

In this regard, it is extremely interesting that the Court specifically acknowledged that a “secure trust,” which I refer to as a prohibited person trust, is a lawful mechanism for family heirlooms to be held for future generations, provided the prohibited person does not have access to the firearms.

In determining the proper considerations for return of the firearms, the Court directed that a court is to seek certain assurances, such as, “it may ask the proposed transferee to promise to keep the guns away from the felon, and to acknowledge that allowing him to use them would aid and abet a § 922(g) violation.” Once these assurances are met, the court is to direct return of the firearms consistent with § 922(g).

You can find a copy of the fully decision here.

If you are a prohibited person and are seeking return of your firearms to an FFL or third-party, contact us today to discuss your legal options.

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ATF Determination – FFLs Can Rent Handguns AND Ammunition to Individuals 18 and Older

As our readers are aware, Trop Gun Shop, LTD has been at the forefront of defending the rights of those in the Firearms Industry, including individuals, FFLs and Gun Clubs/Ranges. Recently, Trop obtained a determination from the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) that benefits the entire Firearms Industry.

In March of 2013, the ATF issued its FFL Newsletter that, inter alia, addressed whether an FFL could rent a handgun to an individual under the age of 21 for on-premises use. ATF declared, “A licensee may rent a handgun to a person less than 21 years of age, or a long gun to a person less than 18 years of age for use at an on-premises shooting range.” However, ATF did not address, or even mention, whether the FFL could provide ammunition for the handgun to an individual between the ages of 18 and 21 given the prohibition on the sale or delivery of handgun ammunition to those under 21, pursuant to 18 U.S.C. 922(b)(1).

As a result and due to Trop’s dedication to protecting the Firearms Industry, Trop requested that I submit a determination request on its behalf to ATF arguing that an FFL is lawfully able to provide ammunition that can be used in either a rifle or handgun to someone who is between 18 and 21 years of age, when the person is renting a handgun from an FFL for on-premises use, in which the ammunition can be utilized. That request was submitted on August 16, 2014.

On May 6, 2015, the Firearms Industry Program Branch (FIPB) responded:

The longstanding position of ATF has been that the temporary use of a handgun and the “using up” of ammunition onsite does not constitute a delivery and the prohibition to the sale or delivery of handguns or ammunition to a person under 21 years of age according to 18 U.S.C. 922(b)(1) would not apply. This is provided that the ammunition is to be expended and used-up on the licensed premises in conjunction with the onsite rental of a firearm and is included as part of the overall fee for the usage of the facility. In addition, the spent cartridges and any unused ammunition must be returned to the facility.

A copy of the determination can be found here.

Accordingly, as I originally contended in my determination request, an FFL may lawfully provide (NOT SELL) ammunition that can be used in either a rifle or handgun to someone who is between 18 and 21 years of age, when the person is renting a handgun from that FFL for on-premises use, in which the ammunition can be utilized. However, it is imperative that the FFL ensure that either all ammunition is expended or any unused ammunition is returned.

If you are in the Firearms Industry and require a determination from ATF, contact us today to discuss how we can assist you in obtaining the determination that you desire and which further protects our Industry.

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Lower Merion Township’s Request for Stay is DENIED.

Today, the Honorable Bernard Moore of the Montgomery County Court of Common Pleas denied Lower Merion Township’s request for stay pending the outcome of Leach v. Commonwealth, 585 MD 2014. A copy of the Order is available here. Accordingly, the matter will move forward and Plaintiffs expect that a hearing on their Preliminary Injunction will be held within the next couple weeks.

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Roses are Red, Violets are Blue, You’re a Trustee, So No Background Check For You!

In late March, I wrote an article questioning whether ATF directed FFLs to abuse the NICS system in “requiring” a background check on a trustee to be performed on the transfer of a silencer to a trust. Furthermore, I contended that a Pennsylvania FFL who utilized the PICS system to perform such a check was committing a felony of the third degree under state law.

nics

To my knowledge there is a legal service, who will remain unnamed, that advised Pennsylvania based FFLs to stop transferring silencers to trusts relying on the Dakota Silencer letter that had been published. Relying on the faulty logic that ATF utilized, the legal service concluded that because a trust is not defined as a person under the Gun Control Act of 1968, a trustee must undergo a background check in order to have the silencer transferred from the Pennsylvania FFL to the trustee. I am aware of several Pennsylvania FFLs who have either stopped transferring silencers to trustees or have required that individuals undergo background checks.

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Prior to the writing of the article I had submitted a Right to Know Law Request to the Pennsylvania State Police asking for:

…all records, including but not limited to, any and all communications (either internal or external), determinations, notes, documents, records, etc. regarding gun/firearms trusts and the Uniform Firearms Act 18 Pa.C.S. 6101, et seq. and whether a background check being performed on a trustee purchasing or receiving a transfer on behalf of the trust is necessary.

I received a response today granting my request in part and denying it in part. The denial was merely based on personal identifying information (phone numbers and email addresses which were redacted). You can find the documents here.

The response includes a chain of emails between Christopher Clark of the Pennsylvania State Police and Susan B. Whitman of ATF. Mr. Clark inquires of Mrs. Whitman whether “ATF requires a NICS check on a trustee picking up a silencer on behalf of a trust”.

Mrs. Whitman replies:

No, ATF does not require a PICS/NICS check or a silencer/suppressor or a NFA firearm. PSP requires a PICS check on all firearms including NFA firearms. Silencer/Suppressors do not meet the PA state definition of firearm.

(Emphasis added, misspellings original).

Mr. Clark then asks if it makes a difference if it is being transferred to a trust or corporation and that he received a call from an attorney who indicated to him that ATF told him there has to be a background check when it involves a trust.

Mrs. Whitman responds:

An ATF Form 4473 is required, but the NICS is not required if the firearm/silencer is subject to the provisions of the National Firearms Act (NFA) and has been approved for transfer. The licensee must keep an ATF Form 4473 on file for all NFA transfers.

Under PA State law, all firearm transfers/sales between licensees require a PICS, therefore the ATF Form 4473 for the NFA firearms would include completing the NICS section and conducting a PICS background check.

(Emphasis added).

atf reference

A look at the FAQs in the newest edition of the ATF’s Federal Firearms Regulations Reference Guide (Revised September 2014) has an entry P18: “Are there transfers that are exempt from the NICS background check requirement?” The answer in the guide is rather telling.

Firearm transfers are exempt from the requirement for a NICS background check in three situations. These include transfers: (1) to transferees having a State permit that has been recognized by ATF as an alternative to a NICS check; (2) of National Firearms Act weapons to persons approved by ATF; and (3) certi­fied by ATF as exempt because compli­ance with the NICS background check requirement is impracticable.

[18 U.S.C. 922(t); 27 CFR 478.102(d)]

(Emphasis added). ATF states in its Federal Firearms Regulations Reference Guide, which was updated after the letter sent to Dakota Silencer, that no NICS check is required for a NFA firearm to a person approved by ATF. Since all NFA firearm transfers have to be approved by ATF, there is only one conclusion to draw. No NICS check is required. Period.

Furthermore, the citation to the Brady Bill language in 18 U.S.C. 922 at the bottom of the FAQ references the same provision I cited in my previous article on the subject. The regulation that is referenced states:

(d) Exceptions to NICS check. The provisions of paragraph (a) of this section shall not apply if—…

(2) The firearm is subject to the provisions of the National Firearms Act and has been approved for transfer under 27 CFR part 479…

 

UPDATE:

As there have been some emails and comments on this post, it is appropriate to update it so there is no confusion. In PA and from what I understand, several other states, the definition of a firearm does not include a silencer. However, in PA SBRs, SBSs, Machine Guns and AOWs would require a FFL to conduct a PICS check as the definition of firearm would include those items. I apologize if anyone was misled. This was strictly in the context of a silencer. As always, consult with your legal counsel before making any decisions.

 

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Firearms Law Seminar – May 24, 2015!

LAW SEMINAR 5-23-15

On Sunday, May 24, 2015, from 10am to 2pm, Chief Counsel Joshua Prince from the Firearms Industry Consulting Group, a division of Prince Law Offices, P.C., and Attorney Eric Winter from Prince Law Offices, P.C. will present on federal and state firearms law issues at the Heritage Guild of Easton, 70 Hilton Street, Easton, PA 18042. This seminar is being offered in support of Girly and a Gun and the Heritage Guild. The cost is $25 to Girly and a Gun. All attendees must RSVP by May 15, 2015.

Attorneys Prince and Winter will discuss everything from the types of firearms that we can own in PA, to what constitutes a prohibited person under state and federal law, to firearm estate planning, to use of force in a self-defense situation. There will also be a question and answer period for anyone to ask any questions that they may have. How often do you get unfettered access to firearms legal advice for a 4 hour period, for a mere $25?!?!

This is your opportunity to learn about Pennsylvania and Federal Firearms Law, while having all your questions answered and supporting both Girly and a Gun and the Heritage Guild! Make sure to sign up as soon as possible, as the venue does have capacity restrictions and it will be on a first come, first serve basis. Based on prior seminars, this will sell out quickly!

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Harrisburg Ordered to Disclose Donor Information Relating to Legal Defense Fund

Today, the Office of Open Records (OOR) issued a final determination in relation to my Right to Know Law appeal in relation to, inter alia, the City’s redaction of donor information. You can download a copy of the determination here. OOR found

The City has not met its burden of demonstrating that responsive donor information may be redacted under Section 708(b)(13) of the RTKL

and

[T]he City is directed to provide an unredacted donor list to the Requester within thirty days.

It will be interesting to see whether the City complies.

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