Good Guy With A Gun Saves Officer’s Life!

Breibarts is reporting that on February 5, 2016, an Upper Darby police officer’s life was saved by an individual with a Pennsylvania license to carry firearms.

Upper Darby Police Superintendent Michael Chitwood said “there is no doubt they would have attacked” the officer without the armed citizen’s intervention

The background, as reported by Philly.com, is that the officer was breaking up a fight between two Upper Darby High School students–after school had let out for the day–and one of the students jumped the officer. Superintendent Chitwood said, “As he breaks up the fight, he takes one kid and then the other jumps [on] him. Now he’s fighting two of them and he’s calling for an assist officer at the same time. There’s a crowd of 40 or 50 kids watching the fight, and they all move in towards the officer.” At that point, an area resident with a license to carry saw the officer struggling and the crowd closing in, so he grabbed his gun and ran to the officer’s defense, until responding officers arrived.

This is another example of how a good guy with a gun can save lives.

 

4 Comments

Filed under Firearms Law, Pennsylvania Firearms Law

EB-5 Investor Program Shake-up?

Last week Tuesday and Wednesday, February 2nd and 3rd, Congress held hearings on proposed changes to the United States’ Visa-Investor program, EB-5.

The popular program was launched by Congress in 1990, as part of the omnibus Immigration Act of that year. Essentially, the program’s purpose is intended to stimulate and strengthen the economy by giving foreign businesspeople a pathway to permanent residency and eventual citizenship in exchange for a significant investment, in the form of a business venture. The program has grown in the ensuing decades but not without controversy, including numerous allegations of fraud and other impropriety – leading to several overhauls in that time, in the 1990s and 2000s. The last set of official changes made to the program were in 2009 where processing of applications were centralized in the California Service. It should be underlined that the program is not permanent; however, it has consistently been reauthorized.

Nevertheless, a number of important players in the making of U.S. Immigration policy, including the Secretary of the Department of Homeland Security, and several members of the Senate Judiciary Committee, have refocused our collective attention on persistent problems with the program.

The Congressional hearings discussed changes intended by the “EB-5 Integrity Act of 2015”, which include scrutiny and modification of: Investment Amounts, Targeted Employment Area Definitions, Job Creation Requirements, Processing Changes, Documentation Requirements, Source of Fund Criteria, and Regional Center Oversight and Compliance. A possible counter-point though – in exchange for many of these prospective changes aimed at reigning-in ongoing problems with the program, the proposed Senate Bill would actually make the program permanent, eliminating the Congressional reauthorization.

The current iteration of the authorized EB-5 program has the following general requirements:

1) $500,000 for investments in a Targeted Employment Area (TEA) – either rural or high employment.

2) $1,000,000 for non-TEA investments.

3) Creation and maintenance of at least 10 full-time jobs for qualifying U.S. workers within 2 years.

As a practical matter, the vast majority (some 90%) of EB-5 investors utilize intermediaries designated as Regional Centers. To make a rough (and I hope not too crude) an analogy, these Regional Centers are like hedge fund managers or investment bankers, who work with the prospective investor to fine-tune and submit a proposed business plan or prospectus.

The proposed changes are widely considered to implicate significant and impactful changes to the program, including the number of interested and/or successful applicants. The application process is long, complex, and document-intensive. Persons considering the program are invariably advised to consult and utilize qualified attorneys.  This would especially be the case if any of the proposed changes are legislated.

Leave a comment

Filed under Immigration Law

Important Update on Implementation of ATF-41F

Rather than use the rulemaking process set forth in the Administrative Procedure Act, the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) seemingly continues to release information in a haphazard manner that sows confusion among the very people striving to comply with its requirements.  After taking more than two years to review comments and draft regulation ATF-41F that was published on January 15, 2016, ATF already has had meetings with a small, hand-selected audience to announce that the regulation does not actually mean what it says.  Given that the regulation does not become effective until July 13, 2016, one might expect ATF to withdraw the rule and revise its text so as not to mislead the public.  It would be a breath of fresh air to see ATF show such concern.

 

ATF now asserts that when ATF-41F becomes effective, all Forms 1 and Forms 4 submitted by legal entities must be accompanied by fingerprints and photographs regardless of the two-year look back provision stated in the regulation.

 

ATF also now takes the position that current law will be applied to all applications postmarked prior to July 13, 2016.

 

ATF’s Meeting

 

As Silencer Shop reported on its blog, ATF and representatives of ATF’s National Firearms Act Branch met with the American Suppressor Association (“ASA”) and some of its members, including Silencer Shop itself while at SHOT Show last month.  While the National Rifle Association’s Institute for Legislative Action (“NRA ILA”), the National Shooting Sports Foundation, and the Gun Owners of America, Inc. & Gun Owners Foundation (“GOA”) all filed comments on the proposed rule that culminated in ATF-41F, ATF did not include representatives of those organizations in its meeting.  ATF also failed to include any representatives of the media.  Despite the number of major comments submitted by attorneys who advise consumers who seek to lawfully possess firearms regulated under the National Firearms Act (including Firearms Industry Consulting Group®, David M. Goldman and the Gun Trust Lawyer® nationwide network, and many others), no such individuals were included in ATF’s meeting.

 

Even after the meeting ATF took no steps to publish the information it shared.  The rest of us, as usual, were left in the dark.

 

ATF Asserts Fingerprints and Photographs Will Be Required With All Applications After July 13, 2016

 

As reported by Silencer Shop, ATF asserted that the certification procedure outlined in ATF-41F does not, in fact, establish a two-year window during which trusts and other legal entities submitting a subsequent Form 1 or Form 4 could certify there had been no change and thereby avoid having to resubmit fingerprints and photographs for all “responsible persons” with each new application.  Instead, ATF apparently now takes the position that despite the clear language of a regulation less than a month old, it really means something else.

 

The new text of 27 Code of Federal Regulations section 479.63, as revised by ATF-41F, governs the identification of the applicant (on a Form 1 or a Form 4).  The text is available at volume 81 of the Federal Register on pages 2722 and 2723.  The section has three subsections.  Subsection (a) addresses the situation where the applicant “is an individual”.  Subsection (b) addresses the situation where the applicant is a trust or other legal entity.  And subsection (c) alleviates the burden that would be imposed on a legal entity submitting all the documentation required in subsection (b) upon a “certification that the information has not been changed since the prior approval”.  The point of ATF’s new interpretation is the breadth of the relief provided by subsection (c).  To answer that question, one may look at the plain text of the regulation.  Subsection (b) sets forth the filing requirements for a trust or other legal entity.

 

Subsection (b) is further divided into two subsections.  Section 479.63(b)(1) simply specifies how the address of a legal entity is determined.   Section 479.63(b)(2) sets forth the additional documentation that must accompany the application when submitted by a trust or other legal entity and it contains four separately-numbered requirements:  (i) documentation of “the existence and validity of the entity”, such as a copy of the trust, (ii) an ATF Form 5320.23 for each “responsible person”, (iii) photographs, and (iv) fingerprint cards.  If the regulation was designed so that the certification available under section 479.63(c) were limited to only the documentation of the existence and validity of the entity rather than all four requirements, one would expect to find that the cross-reference to the exception for the certification procedure would be part of the text of section 479.63(b)(2)(i).  But that is not where ATF referenced the exception.  Instead, ATF placed the reference to the exception under section 479.63(c) in the general language of section 479.63(b)(2) preceding the four numbered requirements thereby indicating that the exception applied to all four forms of documentation.

 

ATF not only contradicts the text of its recently-drafted rule, the resulting procedure would seem to be upside-down in terms of ATF’s stated purpose in adopting any new rule at all.  Consider the situation of a trust that sought to acquire a different suppressor each month for a year.  Under ATF’s interpretation, every month each and every “responsible person” would be required to submit a new set of fingerprints (which obviously had not changed) and a new photograph (which, in the course of a month, is unlikely to change significantly), but the one item which could have changed significantly — the trust which may have added additional responsible persons — would not be required to be submitted.  In any rational system, the last item from the list of four types of required documentation that ATF should be willing to accept based on certification would be the paperwork that demonstrates who constitutes a responsible person.  The whole mistaken premise of ATF-41F was ATF’s belief that people who lawfully acquire NFA-regulated firearms might misuse a trust or other legal entity as a means to permit use of the firearm by some improperly-authorized “responsible person” of the legal entity.  If there were any such problem it is far from clear how requiring someone to submit a fresh set of fingerprints every month addresses it in any way.  Once ATF has the fingerprints to confirm the identity of a responsible person, the only thing that should matter is whether some new responsible person has been identified but evidence on that issue that is the very information ATF assigns the lowest priority.

 

ATF acknowledged receiving comments addressing the issue of whether fingerprints and photographs should be required each time an application was filed.  ATF’s response in the preamble to ATF-41F was that such an approach “does not meet the NFA’s requirement that each NFA transaction must be accompanied by an individual application and registration.”  81 Fed. Reg. 2684.  Notably, the only supporting citation ATF offered for that view was to ATF’s own regulations, not to the NFA itself.   Obviously, the NFA itself does not require that every NFA transaction be accompanied by fingerprints and photographs as for eighty years neither fingerprints nor photographs were required with regard to applications filed by legal entities.  As a result, while ATF’s response may have been adequate with regard to the suggestion that individual applicants not be required to submit fingerprints and photographs with each separate application, it provided no reason for imposing such a requirement on legal entities and, indeed, section 479.63(b)(2) and section 479.63(c), when read together, imposed a requirement for fingerprints and photographs to accompany applications only if either more than two years had elapsed or there had been some change with regard to the legal entity since the last application.  By announcing its new interpretation ATF essentially acknowledges that it failed to provide a reasoned explanation for the requirement that fingerprints and photographs accompany applications from legal entities more frequently than suggested in the comments.

 

The suggestion that fingerprints and photographs must accompany every Form 1 or Form 4 submitted by a trust or other legal entity has far-reaching consequences.  All the tax dollars spent on establishing a system to permit the electronic filing of a Form 1 and Form 4 will have been wasted as e-Forms were limited to situations where there were no accompanying fingerprints and photographs, and now zero applicants would qualify for use of the system.  Further tax dollars spent to develop the second version of e-Forms will also have been wasted.  Without reconsideration of its interpretation, e-Forms will be completely unavailable for applications involving consumers.

 

ATF Advises Postmark of Applications Will Determine Grandfathering

 

As reported by Silencer Shop, ATF will apply existing law to all applications postmarked prior to July 13, 2016.

 

When ATF first released the proposed rule that was to become ATF-41F selected individuals were advised about its retroactivity provisions while the public at large was left to wonder how the matter would be handled.  The issue was one raised in comments filed with ATF on its proposal, specifically requesting that ATF comply with its obligation to inform the regulated community (not just a few who received a reply) as to how the rule would be implemented with regard to applications approved during the period between publication of a final rule and the effective date of the rule.  ATF was also requested to address how applications would be handled that had been sent to ATF but which were not completed when the new rule became effective.

 

Apparently in a rush to publish ATF-41F, this issue is another one where ATF seems to have determined how to handle the issue only after publishing the rule.  In the preamble to ATF-41F, ATF explained only that “the final rule will not apply to applications that are in ‘pending ‘ status, or to previously approved applications”.  81 Fed. Reg. 2710.  The all-important question of when an application would be considered “pending” was completely ignored.  At various times ATF officials suggested that perhaps the key date would be when the payment for the transfer tax was processed, or maybe when the application made its way to the appropriate branch of ATF, and so forth.  The decision to abide by the postmark date is perfectly reasonable.  One must question, however, why ATF could not simply state that matter in the text of ATF-41F itself so that everyone would know the answer.  It would seem either that ATF prefers not to tie itself down by publishing such answers, which denies the public fair notice, or ATF had not decided the matter until after publishing ATF-41F which raises the question why ATF-41F was not delayed a few weeks so as to incorporate such information.

 

Public Confusion

 

Members of the public have already been posting questions regarding the confusion caused by ATF’s statements reported by Silencer Shop.  Certainly, clients seeking to understand ATF-41F have been asking questions about these matters since we first reported on January 4, 2016 that a draft of the rule had been posted to ATF’s Website.  Unfortunately, it seems now that the best answer is that ATF is still resolving these matters for itself and may change its mind as it works through the process of implementing the new rule.  Those are steps the agency is supposed to take before publishing a new rule.  Given that the rule does not become effective until July 13, 2016, one hopes ATF does the responsible thing and incorporates this important information into a corrected rule so that the text actually reflects the manner of implementation.

7 Comments

Filed under Firearms Law, Gun Trusts, ATF

NFA Firearms, Form 1s, Engraving and Cartoon Chickens

FORM53201-APPROVED (1).pdf

Late last week an article was posted on a popular website, dedicated to firearms news, about the engraving of firearms that had approved Form 1s. The author describes how easy it is for one to submit a Form 1, with the advent of eForms, to register your firearm as a Short Barrel Rifle (“SBR”) but laments the marking requirement. He accurately describes ATF’s response to any number of questions you could ask them by stating “Ask three people whether you need to engrave your information on your newly registered NFA device and you’ll get three different answers.”

The author then prefaces the remainder of the article with “In an effort to sort out the confusion I asked the ATF directly…”. Oddly enough, the author seems to forget his previous statement, a mere sentence prior, that if you ask three people at ATF whether you need to engrave your information that you would receive three different answers.

The article states that if you do not plan on selling your SBR, there is no requirement to engrave the firearm. The author also claims that if you remove the firearm from the registry in order to sell it, at that point you’ll need to engrave your information on the firearm.

Perhaps the most concerning part of the post is that nowhere does the author state who he spoke to, cite to any statutes or regulations, or produce a letter from ATF confirming his statements.

leghorn

Confused yet? Let’s attempt to remove the dog from the hen house.

In an effort to make things simple to follow, a few terms need to be defined. We will examine both the National Firearms Act and its regulations.

26 U.S.C. 5845 is where one can find the definitions for the National Firearms Act.

(i) Make

The term “make”, and the various derivatives of such word, shall include manufacturing (other than by one qualified to engage in such business under this chapter), putting together, altering, any combination of these, or otherwise producing a firearm.

(m) Manufacturer

The term “manufacturer” means any person who is engaged in the business of manufacturing firearms.

It is important to differentiate between the preceding two terms. The term “manufacturer” applies to those who are engaged in the business of manufacturing firearms, while the other is in reference to individuals or entities not engaged in the business of manufacturing firearms.

26 U.S.C. 5842 regulates the identification of firearms.

(a) Identification of firearms other than destructive devices

Each manufacturer and importer and anyone making a firearm shall identify each firearm, other than a destructive device, manufactured, imported, or made by a serial number which may not be readily removed, obliterated, or altered, the name of the manufacturer, importer, or maker, and such other identification as the Secretary may by regulations prescribe.

27 C.F.R. 479 et seq. is where one can find regulations pertaining to the National Firearms Act.

Make. This term and the various derivatives thereof shall include manufacturing (other than by one qualified to engage in such business under this part), putting together, altering, any combination of these, or otherwise producing a firearm.

Manufacturer. Any person who is engaged in the business of manufacturing firearms.

Again, the distinction between maker and manufacturer is seen.

27 C.F.R. 479.102 regulates how firearms must be identified. In the pertinent part:

(a) You, as a manufacturer, importer, or maker of a firearm, must legibly identify the firearm as follows:
….
(2) By engraving, casting, stamping (impressing), or otherwise conspicuously placing or causing to be engraved, cast, stamped (impressed), or placed on the frame, receiver, or barrel thereof certain additional information. This information must be placed in a manner not susceptible of being readily obliterated, altered or removed. For firearms manufactured, imported, or made on and after January 30, 2002, the engraving, casting, or stamping (impressing) of this information must be to a minimum depth of .003 inch. The additional information includes:
(i) The model, if such designation has been made;
(ii) The caliber or gauge;
(iii) Your name (or recognized abbreviation) and also, when applicable, the name of the foreign manufacturer or maker;
(iv) In the case of a domestically made firearm, the city and State (or recognized abbreviation thereof) where you as the manufacturer maintain your place of business, or where you, as the maker, made the firearm; and

The regulations pertaining to identifying NFA firearms unequivocally state that the maker of the firearm must engrave, cast, stamp, or otherwise conspicuously place their name and the city and state where the maker made the firearm.

Now, I will admit, the regulation does not speak to the “remanufacture” of a firearm. But the term “remanufacture” is not defined in the National Firearms Act of 1934, the Gun Control Act of 1968, 27 C.F.R. 478.11, or 27 C.F.R. 749.11.

foghorn

 

But we need not explore this non sequitur any further because the statue and regulation clearly state that if you are putting together, altering, or any combination thereof, you are manufacturing a firearm. And if you are manufacturing the firearm, you are required to identify it with certain information.

With regard to the serial number, caliber/gauge and model, ATF has published ruling 2013-3 which states that licensed manufacturers and licensed importers of firearms, and makers, may adopt the serial number, caliber/gauge and model on the firearm without a marking variance provided a number of conditions are met. You can view that ruling here.

thatsallfolks

15 Comments

Filed under ATF, Firearms Law, Uncategorized

Identity Theft Assistance

Identity theft victims can now go online and get a free, personalized identity theft recovery plan as a result of significant enhancements to the Federal Trade Commission’s IdentityTheft.gov website.3 - homepage

The new one-stop website is integrated with the FTC’s consumer complaint system, allowing consumers who are victims of identity theft to rapidly file a complaint with the FTC and then get a personalized guide to recovery that helps streamline many of the steps involved.
The upgraded site offers an array of easy-to-use tools, that enables identity theft victims to create the documents they need to alert police, the main credit bureaus and the IRS among others.

“Millions of Americans have been victims of identity theft, and until now, there has not been a single site where they can quickly file an official complaint and then get real, personalized help,” said FTC Chairwoman Edith Ramirez. “The FTC’s new IdentityTheft.gov website empowers consumers to fight back faster and more effectively against identity thieves.”

“Identitytheft.gov is a vital resource as identity theft has reached epidemic levels,” said Illinois Attorney General Lisa Madigan. “As most Americans know, we live in an age when it’s not a matter of if, but when you will become a victim of identity theft. The FTC’s website is a great place for consumers to go for practical and personalized help to recover from the financial mess created by identity theft.”

“Local law enforcement is often the first place identity theft victims turn for help,” said Mary Gavin, Chief of Police for Falls Church, VA, and an Executive Committee member of the International Association of Chiefs of Police. “IdentityTheft.gov will be a powerful tool to help police assist victims, and the information victims report to the FTC can help law enforcers build cases.”

In 2015, the FTC received over 490,000 consumer complaints about identity theft, representing a 47 percent increase over the prior year, and the Department of Justice estimates that 17.6 million Americans were victims of identity theft in 2014.

When a consumer initiates a response plan through IdentityTheft.gov, the site will automatically generate affidavits and pre-fill letters and forms to be sent to credit bureaus, businesses, police, debt collectors and the IRS. Should a consumer’s recovery run into issues, the site will suggest alternative approaches. Once a consumer completes their initial report on the site, they will receive follow up e-mails and can return to their personalized plan online to continue the recovery process.

IdentityTheft.gov is also available in Spanish at RobodeIdentidad.gov, and allows Spanish-speaking consumers to view the automatically generated letters and other documents in Spanish, but print them in English for sending to the relevant recipients.

If you or your business have questions or concerns regarding consumer protection, fraud, computer law, privacy, or cybersecurity law matters, contact attorney Jeffrey A. Franklin at Prince Law Offices.

 

Leave a comment

Filed under Business Law, Computer Law, Consumer Advocacy

IT’S DATA PRIVACY DAY

HappyDPD

Today, January 28th, is Data Privacy Day!  The purpose of Data Privacy Day is to raise awareness about and promote best practices for data privacy and protection.

Today marks the ninth Data Privacy Day (DPD), an international effort held annually on January 28 to create awareness about the importance of privacy and protecting personal information. DPD, led by the National Cyber Security Alliance (NCSA) in North America, is the signature event of NCSA’s year-round privacy awareness campaign and is centered on the theme of “Respecting Privacy, Safeguarding Data and Enabling Trust.”

To coincide with DPD, NCSA and TRUSTe released the U.S. Consumer Privacy Index 2016, which reveals the extent of current consumer privacy concerns. According to the research, consumer privacy concern levels are rising quickly: 68 percent of consumers listed not knowing how their personal information is collected online as a top concern, compared with only 57 percent who ranked losing personal income at the top. Additionally, 45 percent of respondents are more worried about their online privacy than they were just one year ago; and 37 percent of respondents listed companies collecting and sharing their personal information with other companies as a top cause of concern.

We encourage you to use available tools and take actionable steps to manage your privacy, like limiting access on social media, keeping apps, software and devices up to date and understanding the value of your personal information.

Businesses, take this opportunity to remind your company’s employees to comply with your data privacy and protection policies and practices, and to integrate data protection into their daily work habits.  Data Privacy Day is also a good time to assess (or reassess) your company’s exposure to data breaches.

Personally-identifiable information, or “PII”, is the information a company collects, stores and handles about its customers, employees, and business partners, usually in electronic formats.  The most common types of PII breaches typically involve the loss or theft of PII by an employee or third party, the access or duplication of PII by an unauthorized party, the use of PII by an unauthorized person, and the unauthorized use of PII by an authorized party.

We can help you or your business assess your exposure to data breaches, as well as the associated cost and potential for sanctions and the standard of care for cybersecurity best practices.

If you or your business have questions or concerns regarding consumer protection, fraud, computer law, privacy, or cybersecurity law matters, contact attorney Jeffrey A. Franklin at Prince Law Offices.

Leave a comment

Filed under Business Law, Computer Law, Consumer Advocacy, News & Events

Montgomery County Sheriff Sean Kilkenny Does Away With Unlawful Local Police Checks for LTCF Applicants!

Newly-elected Montgomery County Sheriff Sean Kilkenny has rescinded the unlawful practice of requiring the Local Police Check Card for License to Carry Firearms (LTCF) applications that was imposed by previous sheriffs. I was alerted to the change in police from a Facebook posting by the Lower Pottsgrove Township Police Department.

Screen Shot 2016-01-27 at 10.24.27 AM

Earlier this month I had sent the new Sheriff a letter asking that he review the policies and practices of the outgoing Sheriff Bono. I specifically requested Sheriff Kilkenny look into the unlawful practice of requiring references on the application as well as the Local Police Check Card.

I had the opportunity to speak with the Sheriff’s Solicitor earlier this morning. He did state that the Sheriff was reviewing the policies and procedures of the office and will be making changes. I was informed they were reviewing the practice of requiring references on the applications.

While new to the position of Sheriff, it appears that Sheriff Kilkenny is wasting no time in reviewing the policies and procedures of the office and making the appropriate changes. Join me in thanking Sheriff Kilkenny in reversing a longstanding unlawful practice that placed an additional burden on individuals in Montgomery County seeking LTCFs.

9 Comments

Filed under Firearms Law, Pennsylvania Firearms Law, Uncategorized