Attorney General Kane’s Opinion on Commonwealth Agencies Regulating Possession of Firearms

As I previously blogged about, I wrote a letter to the PA Gaming Control Board requesting that it invalidate 58 Pa.Code § 465a.13, as it had unlawfully regulated the possession of firearms in casinos, pursuant to 18 Pa.C.S. § 6109(m.3)(2). On September 8, 2014, I heard back from the PA Gaming Control Board that it would be rescinding the regulation of firearms, pursuant to a Legal Opinion of Attorney General Kane. At that time, I was not provided a copy of the Legal Opinion but have since come into possession of it.

On August 5, 2014, Attorney General Kane issued a Legal Opinion letter stating:

“…the Board’s regulation at 58 Pa.Code § 465a.13(a) contravenes 18 Pa.C.S. § 6109(m.3)…Section 6109(m.3), on the other hand, prohibits a Commonwealth agency from regulating the possession of a firearm in any manner inconsistent with Title 18. The Board is a Commonwealth agency….Accordingly, the Board’s regulation is inconsistent with the provisions of Title 18 inasmuch it regulates the possession of firearms in a location (licensed casino facility) not contemplated by Title 18.”

It looks like many other Commonwealth agencies (Dept of State, PASSHE, DCNR, Bureau of Workers’ Compensation, … etc) may be on the receiving end of demands to rescind their unlawful regulations…

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Perry County Update: Nauman Smith Law Firm Requests Extension for Right to Know Law Request

On August 28, 2014, I submitted a Right to Know Law (RTKL) Request to Perry County for all receipts and disbursements by Nauman Smith Law Firm in relation to its representation of the Perry County Auditors. Pursuant to Section 506(d)(1) of the RTKL, third parties possessors must disclose public record, pursuant to the RTKL. On August 29, 2014, it was forwarded to Nauman Smith Law Firm. On September 8, 2014, pursuant to Section 902, Nauman Smith Law Firm requested thirty (30) additional days to respond.

I am somewhat perplexed as to why Nauman Smith Law Firm is unable to immediately provide an accounting of its receipts and disbursements (financial records) related to its representation of the Perry County Auditors. It should not take 30 days to prepare an accounting in a matter that has been billed the entire time. Maybe someone should hire an auditor to assist…It’ll be interesting to see what the accounting reflects….

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Did ATF Approve Your Making of a New Machinegun and Then Rescind It? Contact Us To Discuss

As many of our viewers are aware, on May 14, 2014, I wrote an article: Did ATF’s Determination on NICS Checks Open the Door for Manufacture of New Machineguns for Trusts? At that time, I submitted a paper Form 1 for a minigun, as eFile was not currently available. Several weeks later, eFile would come up and several individuals submitted eForm 1s, utilizing the argument I put forth in my article, to make new machineguns. As paper forms are taking 6+ months, but eFile Form 1s are only taking 30-45 days, several individuals have reported receiving approvals to make a new machinegun. Yesterday, ATF decided to rescind those approvals and started calling individuals to inform them of the rescission.

Some have reported receiving eFile notices from ATF stating the change in determination. ATF’s humorous basis is allegedly:

 THE GUN CONTROL ACT OF 1968 (GCA), AS AMENDED, PROHIBITS ANY PERSON FROM POSSESSING A MACHINEGUN NOT LAWFULLY POSSESSED AND REGISTERED PRIOR TO MAY 19, 1986. SEE 18 U.S.C. § 922(O). THE GCA DEFINES THE TERM “PERSON” TO “INCLUDE ANY INDIVIDUAL, CORPORATION, COMPANY, ASSOCIATION, FIRM, PARTNERSHIP, SOCIETY, OR JOINT STOCK COMPANY.” SEE 18 U.S.C. § 921(A)(1). PURSUANT TO THE NFA, 26 U.S.C. § 5822, AND IMPLEMENTING REGULATIONS, 27 C.F.R. § 479.105(A), ATF MAY NOT APPROVE ANY PRIVATE PERSON’S APPLICATION TO MAKE AND REGISTER A MACHINEGUN AFTER MAY 19, 1986.

THE FACT THAT AN UNINCORPORATED TRUST IS NOT INCLUDED IN THE DEFINITION OF “PERSON” UNDER THE GCA DOES NOT MEAN THAT AN INDIVIDUAL MAY AVOID LIABILITY UNDER SECTION 922(O) BY PLACING A MACHINEGUN “IN TRUST.” CONSEQUENTLY, IN TERMS OF AN UNINCORPORATED TRUST, ATF MUST DISREGARD SUCH A NON-ENTITY UNDER THE GCA AND CONSIDER THE INDIVIDUAL ACTING ON BEHALF OF THE TRUST TO BE THE PROPOSED MAKER/POSSESSOR OF THE MACHINEGUN.

We have discussed these rescission with several individuals and are looking at filing suit against ATF over them. If you received an approved Form 1 to make a new machinegun and have subsequently received notice from ATF that they are rescinding it, contact us to discuss your legal options.

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PA Gaming Control Board Acknowledges That Its Regulation is Unlawful!

As many of our viewers are aware, several months ago, on April 19, 2014, I submitted a written request to the Pennsylvania Gaming Control Board to invalidate Section 465a.13, as it violated 18 Pa.C.S. § 6109(m.3).  In June, I heard from Chief Counsel of the PA Gaming Control Board that the issue had been forwarded to Attorney General Kane. Today, I heard back from Chief Counsel Sherman that the Attorney General issued a Legal Opinion (I don’t yet have a copy) and that the AG determined that

amendments in 2011 to the Pennsylvania Uniform Firearms Act prohibit the PGCB and other Commonwealth agencies from regulating the possession of firearms in a manner inconsistent with that Act.  Accordingly, the Attorney General states that the Board no longer may by Regulation limit the possession of firearms in a licensed casino facility by persons who possess a valid permit to carry a concealed firearm.  Given this result, we are preparing an amendment to Board regulation 465a.13 will be presented to the Board at its September 17, 2014 meeting to address this issue. (emphasis added)

Attorney Sherman then continued on to point out that the

Attorney General’s Opinion is not an evaluation of whether the private owners of a state-licensed casino facility may or may not limit the possession of firearms in the privately-owned casino.  Thus, each licensed casino facility may or may not chose to limit the possession of firearms on its property.  That is a determination which will be left to the discretion of each casino.

So that makes two wins in one day for LTCF holders!

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Perry County Auditors’ Complaint – DISMISSED

Today, Judge Zanic issued his decision on Sheriff Nace’s Preliminary Objections filed against the Perry County Auditors’ Complaint. A copy of the Order can be obtained here. A copy of the Decision can he obtained here.

The Order simply states, “AND NOW, this 8th day of September, 2014, the Preliminary Objection of Defendant in the nature of a demurrer is SUSTAINED and Plaintiffs’ Complaint is DISMISSED.”

The Decision reviews several of the legal issues involved and declares,

In the case at bar, we have determined that the Complaint is legally insufficient, and as such, a dismissal is required. The Auditors have failed to overcome the demurrer of the Sheriff for two clear and distinct reasons. First, the Complaint improperly seeks to increase the statutory authority of the Perry County Auditors by alleging that auditors in this Commonwealth have the duty to obtain information that was never intended by the statutory language of 16 P.S. §1721 or 16 P.S. §1724. Second, the Complaint does not make any allegation that the Sheriff’s actions have caused the Auditors to fail in performing their statutory duty to audit.

The Decision goes on to state,

Thus, the Complaint appears to be nothing more than a fishing expedition for information unrelated to the Plaintiffs’ statutory duty to audit.

Ouch…

 

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Perry County Auditors Feel Harassed, Provide Misinformation and Appear to Be Funded

I just received some new Right to Know Law (RTKL) documents in relation to the Perry County Auditors’ lawsuit against Perry County Sheriff Nace, which result in far more questions than answers.

In a letter dated “June [sic] (July) 21, 2014,” Attorney Craig Staudenmaier informs Perry County Commissioners Benner and Rudy that his clients “continue to be dismayed and disappointed in [their] continued harassment of them,” relating to the Commissioners’ request that the Auditors withdraw their frivolous lawsuit against Sheriff Nace. Interestingly, Attorney Staudenmaier then claims that the Auditors could have brought a contempt petition against Sheriff Nace for his failure to comply with the subpoena. While I have not reviewed the subpoena, I understand from the Sheriff’s Solicitor that the subpoena was not properly executed and therefore was ignored. But, I guess we’ll ignore that legal issue, much like the Auditors like to ignore 18 Pa.C.S. § 6111(g)(3.1).

The letter also goes on to claim that, “It is not my clients’ litigation that is ‘frivolous’ as you state, but the arguments and forces aligned against them which have totally misconstrued and misinformed the public as to what the true issue is here and the reasons for the declaratory judgment action…They have been and continue to be subjected to vicious attacks by you and by members of the community for absolutely no reason.” Now, before anyone goes reaching for a tissue box, I assure you, as is shown below, it appears the Auditors have some support, from somewhere, even if it is miniscule, and there is significant reason, such as the likely criminality of the Auditors’ action, for the outrage.

Let’s talk about lies and misinformation. Auditor McMullen previously told Reporter Sauro that “concealed firearms information was available to the public under the right-to-know law…However, last year, rules were established to exclude this information from public view.” However, when I submitted a RTKL Request for that information, the Perry County RTKL Officer responded back that the Auditors’ Solicitor responded, “the auditors do not have in their possession any records which would be responsive to Mr. Prince’s RTKL request.” Prior to my representation of Sheriff Nace and in relation to the same RTKL request, Sheriff Nace also issued a response stating, “NO ONE outside of the Sheriff’s Office has had or will have access to License to Carry Firearms Application or to any information regarding Licenses to Carry Permits.” Moreover, Perry County RTKL Officer responded back, “As of May 21, 2014, no RTK requests have been made to the Office of Open Records of the County, as well as no inter-office department or other disclosures of any nature.” Hmm, just who is providing the community with misinformation?

Maybe we should talk about the misinformation being sworn to, subject to the penalties of perjury, by the Auditors that they have been provided unredacted LTCF information in the past. Sheriff Nace has steadfastly denied this allegation. Of course, maybe it is just one of those statements like Auditor McMullen’s statement to Reporter Sauro….a little misinformation never hurt anyone, right?

We won’t even touch on the misinformation that has been given by the Auditors in relation to 6111(g)(3.1). For those unaware, Section 6111(g)(3.1) (which is dealt with in extreme detail in our Brief in Support of our Preliminary Objections) provides:

Any person, licensed dealer, licensed manufacturer or licensed importer who knowingly and intentionally obtains or furnishes information collected or maintained pursuant to section 6109 for any purpose other than compliance with this chapter or who knowingly or intentionally disseminates, publishes or otherwise makes available such information to any person other than the subject of the information commits a felony of the third degree. (emphasis added)

It would seem that by the Auditors bringing this action against Sheriff Nace, they are likely in violation of the criminal law prohibiting solicitation and conspiracy. 18 Pa.C.S. § 902, Solicitation, provides:

(a) A person is guilty of solicitation to commit a crime if with the intent of promoting or facilitating its commission he commands, encourages or requests another person to engage in specific conduct which would constitute such crime or an attempt to commit such crime or which would establish his complicity in its commission or attempted commission.

18 Pa.C.S. § 903, Conspiracy, provides:

A person is guilty of conspiracy with another person or persons to commit a crime if with the intent of promoting or facilitating its commission he:
(1) agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; or
(2) agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime.

I wonder if the Perry County District Attorney is aware of the filings in this matter. It would seem based on the pleadings and the Auditors’ own admissions that this would be a pretty simple prosecution.

But, let’s not overlook a very interesting issue – the issue of funding. The Perry County Commissioners only originally authorized a $2000 expenditure for research into this matter, which was authorized long before the litigation was instituted. (The Commissioners have consistently stated that this litigation in frivolous). The first billing from Nauman Law Firm was April 14, 2014, in the total amount of $1,435.00. Provided the authorized expenditure, it was paid. On June 2, 2014, a new invoice was submitted in the total amount of $2,456.75 for April billings. This resulted in Perry County Commissioners’ Solicitor Blunt’s June 16, 2014, letter advising that the County would not be paying any amounts over the agreed upon $2000.00. Accordingly, the County paid the difference of $565.00 for a total expenditure of $2000.00 and leaving an amount putatively owed of $1891.75. On June 16, 2014, a new invoice was issued from Nauman Law Firm in the amount of $1803.00, which does not appear to relate to any of the previous billings of the June 2, 2014 invoice, as these billings were all related to May. However, the back owed amount of $1891.75 is not listed. On August 14, 2014, a new invoice would be received from Nauman Law Firm, this time in the amount of $2,237.32 for services rendered in July. Once again, the past owed amounts of $1,891.75 and $1,803.00 (for a total of $3,694.75) are not reflected. So, who is paying the Auditors’ bills? The County has stated that it has not issued a payment since reaching the maximum provided for by the fee agreement. As the RTKL, Section 506(d)(3) requires 3rd parties to produce “public records” for which financial records, including receipts and disbursements, are part pursuant to Section 102, it should be interesting to see just who is funding this litigation….

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Perry County Update – New Filings and Rulings!

As many of our viewers are aware, I am representing Sheriff Carl Nace in relation to a lawsuit filed against him by the Perry County Auditors to force him to disclose confidential license to carry firearms (LTCF) information. The hearing is currently scheduled for September 2, 2014, at 1:30 PM in Courtroom 1 of the Perry County Courthouse.

Since my last blog on the PA Sheriffs’ Associations Amended Petition for Leave of Court to file Amicus Curiae, a number of documents have been filed:

  1. The Court Order continuing the matter until September 2, 2014 – here.
  2. President Judge Zanic’s Order GRANTING the PA Sheriffs’ Association’s Petition for Leave to File Amicus Curiae – here.
  3. The Auditors’ Brief in Opposition to our Preliminary Objections – here.
  4. Sheriff Nace’s Brief in Support of the Preliminary Objections – here.
  5. A Petition to Intervene by John Doe 1, 2, 3 and Jane Doe and Preliminary Objections – here.

Judge Zanic has stated that the Petition to Intervene will not be considered at the hearing on September 2nd and will be considered at a later time, if the Preliminary Objections are overruled. Also, I was informed that the reason for the continuance of the hearing (originally scheduled for today) was a result of Courtroom 1 being utilized today for another matter and the fact that only Courtroom 1 is of sufficient size to accommodate the expected attendance.

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