Category Archives: Firearms Law

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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Filed under Firearms Law, Pennsylvania Firearms Law

The Thin Blue Label…A Tale of Confidential Information and a Glock Representative Demanding a Pennsylvania FFL Violate the Crimes Code

Trop Gun made a big splash on social media and forums on Thursday for their refusal to show Glock employees their 4473s for customers who had purchased guns through the Blue Label Program. In response to Trop’s refusal to show the Glock representative the 4473s, Glock terminated Trop from the Blue Label Program. You can read Trop’s response to having their Blue Label Program participation revoked here. For those who are unfamiliar, the Blue Label Program allows law enforcement, military, Glock Shooting Sports Foundation (GSSF) members and several other select individuals to purchase Glock pistols at a reduced price.

43bluelabel

The Blue Label Program imposes certain requirements on dealers when selling “blue label” guns. Those requirements include collecting a copy of the individuals credentials (photocopy of their ID), filling out a form that certifies the sales representative saw the credential if a photocopy cannot be made or collecting the GSSF coupon that GSSF members bring. Glock requires that these be attached to the 4473.

According to Trop, when the Glock representative came to do an audit of the “blue label” firearms that were sold, the representative demanded access to view records relating to “blue label” sales including access to the 4473s. Trop Gun wisely refused the representative’s request. After attempting to find a solution that would allow the Glock representative to be satisfied that the “blue label” sales were only made to qualified individuals and arriving at nothing that would satisfy the demands of the Glock representative, Trop Gun was terminated from the Blue Label Program.

While Trop Gun refused the Glock representative access to the 4473s based on their position of protecting their customer’s privacy, there appears to be a more pertinent reason to deny the Glock representative access. It’s a violation of the Pennsylvania Crimes Code for a Pennsylvania FFL to disclose information provided by the transferee in relation to the purchase of a firearm.

18 Pa.C.S. § 6111(i) of the Pennsylvania Crimes Code reads:

Confidentiality.–All information provided by the potential purchaser, transferee or applicant, including, but not limited to, the potential purchaser, transferee or applicant’s name or identity, furnished by a potential purchaser or transferee under this sectionshall be confidential and not subject to public disclosure. In addition to any other sanction or penalty imposed by this chapter, any person, licensed dealer, State or local governmental agency or department that violates this subsection shall be liable in civil damages in the amount of $1,000 per occurrence or three times the actual damages incurred as a result of the violation, whichever is greater, as well as reasonable attorney fees.

As Section 6111 pertains to the sale or transfer of firearms, the information provided by the transferee is confidential and not subject to public disclosure. This prohibition of disclosure would surely include the Glock representative who arrives at a Pennsylvania FFL to conduct an audit of “blue label” sales. Furthermore, any FFL who did provide the 4473s and/or Pennsylvania Record of Sale to a Glock representative would be in violation of Section 6111(i) and subject to civil penalties in the amount of $1,000 per occurrence or three times the actual damages incurred as a result of the violation, as well as reasonable attorney fees!

glock-logo_1_1

Ostensibly, as the credentials Glock requires individuals to provide in order to purchase a “blue label” gun are being provided for the purchase of a firearm, there may be an argument that the disclosure of those credentials are in violation of Section 6111.

All FFLs in Pennsylvania who are Blue Label Program members should be aware of this issue. If a Glock representative requests information pertaining to an audit for “blue label” guns and the PA FFL provides them with any information furnished by the transferee, that FFL could be civilly liable under the Pennsylvania Crimes Code. Perhaps the next Pennsylvania FFL who is ordered to disclose their 4473s for a Glock “blue label” audit would be better suited in pointing out the request is asking them to violate the Pennsylvania Crimes Code. Maybe after reviewing this matter more closely, Glock will reconsider their termination of Trop’s Blue Label Program participation, as they were asking Trop Gun to potentially open themselves up to civil liability.

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Filed under Firearms Law, Pennsylvania Firearms Law

City of Lancaster’s RTKL Disclosures Regarding It’s Unlawful Defense Fund, Including the Mayor’s Chief of Staff “Need[s] Dope”

As most of our viewers are aware, on February 25, 2015, I submitted a Right to Know Law (RTKL) Request on the City of Lancaster in relation to the litigation of NRA v. City of Lancaster and the defense fund it instituted to pay for that litigation. Specifically, I requested the following:

This is a request for all records, including, but not limited to, financial records pursuant to Section 102, since January of 2015, relating to the National Rifle Association (NRA) v. City of Lancaster, including, but not limited to, the following:

(1) All records, including, but not limited to, City of Lancaster’s Legal Defense Fund, information of which can be found at http://www.commonsenselancaster.com and http://www.cityoflancasterpa.com/blog/message-mayor-gray-nra-lawsuit. As provided for by Section 102, this specifically includes, but is not limited to, the names, addresses, and amounts of any donations to/receipts by the City of Lancaster;

(2) All records, including, but not limited to, all financial accounts and financial institutions utilized by the City of Lancaster, in relation to request (1);

(3) all records, including, but not limited to, contracts, communications, and billings, from or to Dechert, LLP or any other law firm or attorney hired to review the legal issues relating to request (1); and

(4) Any other record in any way relating to the current litigation in NRA v. City of Lancaster.

On March 4, 2015, the City requested 30 days to respond, which it is permitted under the RTKL. On April 1, 2015, I received a response from the City stating that “Your request is granted” and that the records would be disclosed upon my payment of $104.50. It is notable that no exemptions were claimed in the response; rather, as reflected on the face of the March 4, 2015 letter, my request was granted.

Understanding that the City had granted my request in full (per the City’s April 1, 2015 letter stating such), I paid the $104.50 (418 pages at .25 cents per page). On April 6, 2015, I received the City’s disclosures, now denying in part my request and claiming exemptions not previously asserted. (Nice how that works; AFTER someone has paid pursuant to an understanding that the request was granted in full, they then deny in part the request…but, I digress. This will be an issue for the Office of Open Records (OOR) in my future appeal). The City categorized the disclosures into 12 sub-parts (A – L). The categories and links to download the applicable documents are as follows:

Production A. Legal Defense Fund Account Screen Print

Production B. Online Contributions to 3/27/2015

Production C. Cash and Check Contributions to 3/27/2015

Production D. City of Lancaster Cash Account Fulton Bank

Production E. January 2015 Solicitor’s Invoice

Production F. February 2015 Solicitor’s Invoice

Production G. Insurance Claim Documentation

Production H. City emails Regarding NRA Lawsuit

Production I. Emails with Travelers Regarding Coverage of Defense of Lawsuit

Production J. Emails regarding Media Communication NRA lawsuit, establishment of legal defense fund, and process to set up communications website, use of funds

Production K. Emails regarding Prince Right to Know Request

Production L. Emails from Mayor

In Production A., it reflects that the City has taken in over $18,000 in donations. Of course, contrary to their original grant of my request, they redacted the donor names and contact information. Again, this issue will be addressed in my future appeal to OOR.

In Production G., Travelers’ January 30, 2015 letter, (pdf pg 6) is enlightening. Specifically, on pdf pg 8, Travelers reviews its exemptions for “wrongful acts.” Travelers’ letter goes on to state:

To the extent that Plaintiff seeks damages in connection with a “wrongful act” committed by or on behalf of the City in the conduct of the City’s duties, the following exclusions may apply;…

Well that doesn’t sound good…So, let’s see what the Carrier goes on to disclaim on the next page:

Plaintiff requests a declaration that the Ordinance is pre-empted by state statute. Plaintiff also seeks to enjoin the City from enforcing the Ordinance. To the extent that any loss, cost or expense for complying with any injunctive or other non-monetary relief is assessed against the City, there would be no coverage for those damages. In addition, the claims for injunctive and declaratory relief do not qualify as damages under the Policy. Therefore, the injunctive, declaratory and non-monetary relief claims are disclaimed.

Uh oh…last I checked, Section 6120 applied to declaratory and injunctive relief, unless the party had actual damages. Maybe, I’m in error, as it has been at least 2 hours since I’ve thought about Section 6120. Nope, Section 6120 (a.2) provides that an aggrieved individual “may seek declaratory or injunctive relief and actual damages.” Since actual damages are not in play in NRA v. City of Lancaster, the City is liable for ALL costs and fees awarded by the court, contrary to Mayor Gray’s statement that the City only has a $25,000 deductible. I think the residents of Lancaster might be interested to learn that per Travelers’ disclaimer, they’re on the hook for ALL the fees and costs associated with this litigation.

Butl, Travelers isn’t done yet.

The Complaint seeks punitive damages if available. Directly assessed punitive damages are uninsurable in Pennsylvania and any award for such punitive damages would not be covered by the City’s policy with Travelers.

Wow…that’s too bad because those multi-million dollar verdicts tend to result from punitive damages. I guess the taxpayers will have to cough up that money, as well, all because the Mayor and City Council believe they are above the law.

But things only get worse in the disclosures.

In Production J., (pdf pg 42) Patricia Brogan, Mayor Gray’s Chief of Staff declares:

Actually, I NEED dope…

This stuff is too good to make up. I wonder if the good Mayor will oppose the drug laws and defend his Chief of Staff in her need for illicit drugs. Inquiring minds want to know Mayor Gray…

More interesting tidbits from the disclosures include the City’s relationship with Everytown for Gun Safety (formerly Mayors Against Illegal Guns – boy, they sure do change names frequently, especially when a lot of their members are convicted of deplorable crimes) (Production J. at pdf pg 65). Production J. also reflects the City’s desire, from the start, to utilize any donations for purposes beyond the litigation in NRA v. City of Lancaster. See, Production J. at pdf pg 143.

There are some more beneficial tidbits in the disclosures that I’ll save for later…like during the appeal or when the time is right. Someone in the City might want to take a second look at the IRS exemptions…especially, when the case law already establishes that a lost and stolen ordinance violates pre-amendment Section 6120.

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Filed under Firearms Law, Pennsylvania Firearms Law

PA Gaming Control Board Rescinds Unlawful Regulation

As many of our viewers are aware, almost a year 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. 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.”

Yesterday, April 16, 2015, the Board convened and repealed the firearm regulations in Section 465a.13. You can find a copy of the final approved rule on the Independent Regulatory Review Commission’s website – here.

We are still waiting to hear from DCNR, L&I and State regarding the repeal of their unlawful regulations.

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Loose Lips Sink Ships…and Closed Ones Could Land You in Hot Water with the Pennsylvania Game Commission

Yesterday, Representative Keller introduced a bill into the Pennsylvania House of Representatives, that would repeal the unconstitutional provision found in the game code which makes it unlawful for a hunter to refuse to answer any pertinent question pertaining to the killing or wounding of any game or wildlife killed or wounded, or the disposition of the entire carcass or any part thereof.

game commission

Currently, in Pennsylvania, it is a crime to invoke your Fifth Amendment rights against a Game Commission Officer in relation to the killing and wounding of any game or wildlife or the disposition of a carcass or any part of a carcass. Jack Coble spent thousands of dollars to fight against this unconstitutional provision in order to obtain relief as applied to him.

As I’ve reported previously, Game Commission Officers (GCO) will be utilizing body cameras in future encounters. As such, an individual needs to be conscious that any information they give to a GCO will likely be used against them. This is true even if there is no camera involved.

Interactions with WCO, GCO or WLCO should be treated in the same manner as an interaction with the police. You, as an individual, still retain your Fourth Amendment right to be free from unreasonable searches and seizures and your Fifth Amendment right to not incriminate yourself. As such, you should not consent to any searches, no matter what the officer offers or threatens nor should you make any statements against your self-interest.

If you have found yourself having an interaction with a GCO and were issued a citation, give us a call to discuss your options. It is not uncommon for hunters to sign a citation only to find out their license has been revoked for the next several years. The best way to prevail in challenging a citation is to give the GCO nothing to use against you.

What should you do in order to help make this bill a law? Tell your state representative to support H.B. 455 and help push to remove this unconstitutional provision from Pennsylvania’s game code!

Who is my representative?

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Pennsylvania Second Amendment Action Day – May 12, 2015!

The 10th Annual Pennsylvania Second Amendment Action Day is scheduled for May 12, 2015 at the State Capitol Steps in Harrisburg, PA. With notable speakers such as Sheriff Richard Mack (who sued the U.S. Government and won in relation to a gun control measure) and State Representative Daryl Metcalfe, it is guaranteed to be phenomenal event in support of OUR rights.

Will you join me in attending and standing up for Article 1, Section 21 of the Pennsylvania Constitution and the Second Amendment to the United States Constitution? Contrary to media discourse, our Right to Keep and Bear Arms is being eviscerated at the state and federal level. This year alone, we have seen Pennsylvania Attorney General Kane rescind firearm reciprocity agreements in the absence of any authority to do so and fail in her duty to enter into a reciprocity agreement with Idaho. We have also seen NUMEROUS bills submitted in the General Assembly to strip away OUR rights! These include HB 285 which seeks to make any person who ever seeks mental health treatment, a prohibited person; HB 418, which seeks to ban human silhouette targets; and HB 91, which seeks to make any false compartment, potentially including your attached vehicle safe, a criminal offense! At the federal level, we have seen ATF seek to expand the “sporting purpose framework” in relation to 5.56/223 ammo, ATF direct Federal Firearm Licensees (FFLs) to abuse the NICS and PICS systems, and ATF seek to redefined what constitutes being “committed to a mental institution.”

You need to come out and let your voice be heard! Article 1, Section 21 and the Second Amendment are inalienable (or natural) rights, as even acknowledged by the U.S. Supreme Court in D.C. v. Heller.

Justice James Wilson interpreted the Pennsylvania Constitution’s arms-bearing right, for example, as a recognition of the natural right of defense “of one’s person or house”—what he called the law of “self preservation.” 2 Collected Works of James Wilson 1142, and n. x (K. Hall & M. Hall eds.2007) (citing Pa. Const., Art. IX, § 21 (1790)); see also T. Walker, Introduction to American Law 198 (1837). D.C. v. Heller, 554 U.S. 570, 585, 128 S. Ct. 2783, 2793, 171 L. Ed. 2d 637 (2008)
Yet, our rights are constantly under attack at the state and federal level. We need to let our representatives know that shall not infringe means just that…shall not infringe. If you don’t appreciate the language of the Second Amendment or Article 1, Section 21, then, like everyone else, you have the right to petition your representatives to have it amended; however, you do not have the right to seek judicially active judges to interpret that which is abundantly clear.
Join me and numerous other individuals and pro-2nd Amendment organizations on May 12th in celebrating our rights and making clear to our representatives that we will not tolerate ANY infringement on our rights!
Gun Rally Flyer 2015-Final

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Shocking Statements/Concessions by ATF at the NRA Firearms Law Seminar

Today, at the NRA Firearms Law Seminar in Nashville, Tennessee, NFA Branch Attorney William (Bill) Ryan spoke about Gun Trusts. Before we get into some of his somewhat shocking statements/concessions that are clearly contrary to ATF’s prior positions, it was interesting that he started out by saying that, in his opinion, the largest cause of the backlog at the NFA Branch is the submission of non-attorney drafted trusts and fill in trusts, which result in a high number of error letters due to their invalidity. He actually stated that he HIGHLY advised that attorneys handle the drafting of the trusts because of the plethora of issues the NFA Branch has to contend with in relation to the non-attorney drafted trusts. For some statistical background, he stated that in 2003, there were 45 trust applications. In 2012, there were 36,000 trust applications. He also reaffirmed that trusts can own any type of firearms, both Title 1 and Title 2 firearms.

Comments Regarding ATF 41P

ATF Attorney Ryan stated that ATF is “still sorting through the comments filed in opposition to ATF-41P” and that he still has a number of them to review. Since ATF is still sorting through the issues presented in the comments, they cannot have drafted a final rule taking into account those comments/issues and cannot have responded to the comments/issues. More importantly, once a draft final rule is prepared with responses to all the issues raises, it will have to go up to the Chief Counsel’s Office. While he said he had no idea when to expect ATF to take any action, it clearly seems based on his comments that the action date of May 2015 will be pushed back at least another six months.

More importantly, in response to a question of what happens when the executor of an estate is a prohibited person, Attorney Ryan responded “He can’t possess it.”  Which is obviously correct. However, the questioner then said but how do you know because no background check is performed and he could be in possession of that firearm as a prohibited person. Attorney Ryan responded, “It is on that person to know that as well.HOLD ON.

The entire putative premise for ATF-41P was that prohibited persons were gaining access to NFA firearms. Now, when presented with a question of a prohibited executor coming into possession of NFA firearms, the ATF is perfectly comfortable relying on the prohibited executor not to possess the firearms in the estate but is not perfectly fine with relying on a prohibited settlor or trustee not to possess the firearms in a trust? Say what?!?! ATF just undermined its entire premise for ATF-41P. I guess it is time to submit another supplemental comment in opposition to ATF-41P. (By the way, there is nothing prohibiting the submission of additional comments even after the comment period has closed and there is case law, depending on the status of the administrative agencies promulgation of a final rule, that requires the agency to consider them and respond to them. So, yeah, continue submitting comments!)

Comments Regarding Person Under the GCA vs. NFA

Further solidifying my argument that a trust can manufacture a machinegun, as it is not a person under the GCA but is a person under the NFA, he acknowledged, including in the presentation slides, that the definition of a person under the NFA includes a trust but under the GCA, a trust is not included. Specifically, he declared “This explains why a trust can have NFA firearms but a trust can’t be licensed under the GCA. It’s not a person and cannot be a licensee; only an individual [sic] can be a licensee.” (I believe he meant only a “person” can be a licensee, referring to the definition of a person under a GCA).

This extremely problematic for ATF given its prior position that putatively it can pierce through the trust to a person. If it can pierce through the trust to an individual (or other entity defined as a person under the GCA), then it cannot deny a trust an FFL. WHOOPSIE. It’s a shame that this issue hasn’t been raised in the litigation that has been filed utilizing my argument, as it has been a longstanding issue, which will result in a win for the Industry regardless of how the court decides the issue (assuming it is properly litigated).

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