Category Archives: Firearms Law

New Jersey Supreme Court: Warrant Requirement a Burden on Citizens

There has been a lot of commentary on the recent New Jersey Supreme Court case, State v. William L. Witt, (A-9-14)(074468), which essentially did away with a warrant requirement for the search of a vehicle in many circumstances.  What the Court ultimately ruled was that, like Pennsylvania a little over a year ago, New Jersey was going to follow the federal warrant requirements, which are quite a bit more relaxed than New Jersey’s.  In determining to exempt automobiles from the exigency requirements, the Court rested heavily on the presumption that the warrant requirement is unduly burdensome on both police and the suspect, as cars are typically impounded while the long wait for a warrant occurs.  See Slip op. at 15.

The case started when William Witt was pulled over by Carney’s Point Township Police Officer Joseph Racite for failing to dim his high beams.  When Officer Racite approached the car and began speaking with Witt, he noticed the smell of alcohol and put Witt through a series of field sobriety tests.  Witt failed them all.  Subsequently, Witt was arrested for DWI and placed into the back of Officer Racite’s police car.  Up to this point, Officer Racite had acted by the book.  (As a side note, the initial stop was likely inappropriate.  The statute – N.J.S.A. 39:3-60 – requires drivers to dim their high beams “whenever the driver of a vehicle approaches an oncoming vehicle within five hundred feet.”  But Officer Racite was stopped; thus, he was not an oncoming vehicle.  The Court declined to entertain this argument, though, because Witt had not brought this defense at trial.  At trial, he had not even contested the validity of the stop.)

After Witt was cuffed and placed in the police car, Officer Racite then began searching for intoxicating substances.  Under the federal automobile exception, this is allowed.  Once an officer has probable cause that a crime has occurred, he has constitutional authority (under the current case law, at least) to search the car for evidence of the crime that he had probable cause to believe occurred.  From there, the plain sight doctrine applies, meaning that if in the search for one object, the officer discovers another, that evidence may be used as the basis for an entirely different crime.  This is what happened here.  Officer Racite found the firearm in the car and then charged Witt with firearms offenses.

Under New Jersey state law at the time, however, Officer Racite was required to have exigent circumstances.  In short, he needed to be able to articulate reasons why either his life was in danger or the evidence would be destroyed in the time it would take to get a warrant.  Because he could not articulate a reason for either (Witt was handcuffed in the back of the police car), both the trial and appellate courts found that the evidence must be suppressed.

For the reasons below, the New Jersey Supreme Court overturned its prior decisions requiring exigent circumstances for warrantless automobile searches and adopted the federal automobile exception.  Fortunately for Mr. Witt, the decision was prospective.  Because the law at the time of his arrest required exigent circumstances, the evidence in his case remained suppressed and he was not convicted of the firearms offense.  Going forward, however, police do not need a warrant to search your automobile, provided they have probable cause to arrest you.

While federal courts have allowed officers to search vehicles and seize evidence from an automobile without a warrant, New Jersey (and until last year, Pennsylvania) required more.  New Jersey had, until last week, required the existence of exigent circumstances.  In other words, there had to be a reason, such as officer safety or the imminent destruction of evidence, to search an automobile without a warrant or consent.

The New Jersey Supreme Court relied on several factors in dispensing with the exigency requirement.  First, the Court found that “the multi-factor exigency formula is too complex and difficult for a reasonable police officer to apply to fast-moving and evolving events that require prompt action.”  Slip op. at 3.  While there is a good argument that a stop in which the suspect is handcuffed and sitting under arrest in the police car can conceivably constitute “fast-paced” or “requir[ing] prompt action,” the Court did rely solely on the “fast-paced” argument.  The Court primarily relied on the same reasoning that Pennsylvania’s adopted in 2014: “The Pennsylvania high court ultimately concluded that it was ‘difficult, if not impossible, for police officers in the field to determine how [it] would rule in motor vehicle search and seizure cases, the circumstances of which are almost endlessly variable.’’  Slip op. at 20-21.

Thus, as the ACLU pointed out in its amicus brief, the New Jersey Supreme Court decided that rather than making the point simple: “Get a warrant before you search, unless 1) you’re in danger or 2) the evidence is at risk,” the Court erred on the side of making police work easier.  While there’s nothing inherently wrong with making police officers’ jobs easier, in this case the Court placed simplicity over the Constitution.

The Court’s greatest concern, however, was that getting a warrant – even a telephonic warrant – prolongs the detention and is dangerous to both police and the suspect.  This is because the Court found that the longer any individual remains on the shoulder of the road, the higher the likelihood of an accident.  This is probably true, and the Court does cite a fair number of anecdotes to support its contention, but as the dissent points out admirably, this misses the point.  The prolonged wait was not an inherent part of telephonic warrants, but was rather an inefficiency caused by the state, itself.

The Court rested its decision on the fact that telephonic warrants take a long time to get.  A six-month pilot program conducted three years ago in Burlington County found that the goal of the police should be to obtain a telephonic warrant within a half hour, with 45 minutes being the longest amount of time one should have to wait.  The Burlington program showed that warrants were approximately 59 minutes in the making, while the New Jersey State Police [NJSP] found that they had to wait nearly two hours for a warrant.

Because of the long time in obtaining warrants, it appeared that more New Jersey officers were seeking consent searches, which the Court noted could be a big problem.  After all, NJSP had been through a major racial profiling scandal in the late 1990’s and early 2000’s, and the Court was correctly suspicious of whether consent searches were truly consensual.  So-called consent searches placed the driver in an “inherently coercive predicament . . . [because the driver] is stopped on the highway” and facing the choice of full cooperation with a potentially unconstitutional request to search, or increased police scrutiny and possible citation.  “[I]t is not a stretch of the imagination to assume that the individual feels compelled to consent.”  Slip op. at 45.

The Court seemed to be acknowledging that a delay of an hour prompted police to use a more intrusive and constitutionally suspect maneuver.  Indeed, NJSP acknowledged that the “current patrol policy and practice is to exhaust the consent search option prior to making a determination to seek a warrant, telephonic or in-person.”  Slip op. at 35.  It would seem as though the Court’s concern about the inherent voluntariness of a “consent” search was justified.  After all, “exhaust[ing] the consent search option” certainly suggests that NJSP troopers are repeatedly asking for consent, which itself suggests that a fair amount of pressure is being placed on motorists to allow searches.  The 95% consent rate further supports this.

The Court’s solution, however, was not to scrutinize the consent where given, but to eliminate the need for consent or exigency altogether.  Rather, it moved to the next part of the analysis, and attempted to couch the abdication to the State in terms of constitutional protection.

The Court reasoned that a two-hour wait, followed by impoundment of the car (to facilitate a search), was infinitely more intrusive than an on-site search.  While this is true, it entirely misses the point.

First, as any elementary school student should be able to recite, the federal, democratic republican system of government we ostensibly enjoy (and which, notably, is guaranteed to the states in the body of the Constitution), provides that the three branches of government are divided and serve to check one another’s power.  Thus, the legislature passes and funds laws; the executive executes them; and the judiciary keeps watch to ensure everything is being done fairly (John Marshall’s judicial review notwithstanding).  The New Jersey Supreme Court, however, just condensed that, at least regarding automobile searches.  Its decision here gives police officers (part of the executive branch) the judicial authority to determine whether probable cause exists.  Thus, the officer does not actually have to have probable cause.  Rather, he just needs to reasonably believe he does.  That the federal government or other states allow this is no argument (indeed, the U.S. Supreme Court’s own reasoning in Obergefell – the gay marriage case – belies this, as many states and the federal government had failed to recognize same-sex marriages as of only a few years ago.  The U.S. Supreme Court was unconcerned with the number of states that chose not recognize these marriages).

Second, the Court assumes that impounding a car while waiting to procure a warrant survives constitutional muster, in and of itself.  If there is no warrant, and no exigency, then impounding the car is unconstitutional in the first place.  If it is unconstitutional to search the car, then it is surely unconstitutional to seize the whole thing while waiting for permission to search it.

Should no warrant be forthcoming, then what cause was there to seize the car in the first place?  The Court seemingly authorizes the unreasonable seizure of the car while police wait for the judiciary to determine whether a mere search is constitutional.

), is the fact that the entire constitutional analysis occurred within the framework of a one-county pilot program three years ago.  The purpose of any pilot program is to test ideas and then determine how to fix the mistakes.  New Jersey has a telephonic warrant program that seems to work well for obtaining Temporary Restraining Orders (TRO).  And the dissent notes that there was only a 14 minute gap between the target time and the actual time in local police obtaining warrants.  Could not, then, the state give it one more try?

Rather, the state spent the last several years appealing the exigency requirement whenever it had the chance.  You might say they “exhausted” the appellate option prior to Witt.

In short, the Court found that because there were likely abuses occurring by the police and because New Jersey was having a difficult time efficiently following the constitutional dictates of the Fourth Amendment and its own laws, it was better to merely adopt the federal exemption.  While acknowledging that the federal courts are perfectly fine with the automobile exception, and acknowledging the dangers that police officers face, exempting the government from the constraints of the constitution is not the answer.  Would that New Jersey (and Pennsylvania, for that matter) had considered other options before throwing in the towel.

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Filed under Constitutional Law, Criminal Law, Firearms Law, News & Events

Pennsylvania Firearms Law Seminar – October 24, 2015!

On October 24, 2015, Chief Counsel Joshua Prince and Attorney Eric Winter of Firearms Industry Consulting Group (FICG), a division of Prince Law Offices, P.C., in conjunction with King Shooters Supply, will offer a four (4) hour seminar from 10am to 2pm on state and federal firearms law at their store located at  346 E Church Rd, King of Prussia, Pennsylvania 19406.

The cost is $10 and you must register early, as last time it sold out fast. You can find out further information on King Shooters Supply’s website or on King Shooters Supply’s FB page.  All registrations are to be mailed or dropped off at King Shooters Supply, 346 E Church Rd, King of Prussia PA 19406. If you have questions, please feel free to contact King Shooters Supply at 610-491-9901 .


Filed under Firearms Law, News & Events, Pennsylvania Firearms Law

ALERT – PA FFLs, PSP Has No Authority To Conduct Inspections

It has recently come to my attention that the Pennsylvania State Police (PSP) is conducting compliance inspections of PA Federal Firearms Licensees (FFLs) without warrants. Unlike the federal law provision found in 18 U.S.C. 923(g)(1)(B)(ii) that provides ATF with the authority to conduct a compliance inspection once every 12 months without a warrant, no similar provision exists in Pennsylvania law. Further, unlike with a Federal Firearms License, where the ATF issues the FFL, in Pennsylvania, it is the county sheriff that issues the Pennsylvania firearms sales license, not the PSP.

Accordingly, the PSP has no authority or jurisdiction, absent a lawfully executed warrant or your consent, to inspect your records or premise. If the PSP comes to your store and demands to review your records, you should immediately inform them that you do not consent to a search of your premise or records and request that they produce a warrant. You should also immediately contact an attorney for representation and anticipate ATF to conduct a compliance inspection in the near future.

If you or a FFL you know is approached by the PSP, you should immediately contact us so that we can ensure your rights are protected. Remember, Rule 1 is never speak with the police and Rule 2 is never consent to a search, even if you believe your records to have been maintained in strict compliance.


Filed under Firearms Law, Pennsylvania Firearms Law

Can You Bring Your Sword Into a School Administration Building? The Superior Court Says No…

Recently, in Commonwealth v. Giordano, 2015 PA Super 167, the Pennsylvania Superior Court published an opinion by Judge Wecht (who is currently running for PA Supreme Court) holding that although a school administration building was not defined in the statute as part of an “elementary or secondary publicly-funded educational institution” and no case law existed as to whether an administration building could constitute an “elementary or secondary publicly-funded educational institution,” Mr. Giordano could be convicted for violating Section 912 by bringing a sword into an administration building.

Section 912 provides

(a)  Definition.  Notwithstanding the definition of “weapon” in section 907 (relating to possessing instruments of crime), “weapon” for purposes of this section shall include but not be limited to any knife, cutting instrument, cutting tool, nun- chuck stick, firearm, shotgun, rifle and any other tool, instrument or implement capable of inflicting serious bodily injury.

(b)  Offense defined.  A person commits a misdemeanor of the first degree if he possesses a weapon in the buildings of, on the grounds of, or in any conveyance providing transportation to or from any elementary or secondary publicly-funded educational institution, any elementary or secondary private school licensed by the Department of Education or any elementary or secondary parochial school.

(c)  Defense.  It shall be a defense that the weapon is possessed and used in conjunction with a lawful supervised school activity or course or is possessed for other lawful purpose.

As stated in the opinion, “Giordano asserts that the Commonwealth proved only that he carried a weapon into the administration building, which is neither an elementary nor a secondary educational institution.” The court acknowledged that “[w]e have found no precedent that defines “elementary or secondary publicly-funded education institution for purposes of the statute” and that “[t]herefore, we must construe those terms using our interpretive canons. After reviewing several dictionary definitions of “education institution” and secondary school, the court declares

Here, the administration building does not provide the first four to eight years of a child’s formal education nor does it off a general, technical, vocational, or college-preparatory curricula. However, we must also consider that the General Assembly does not intend an absurd result.

Hold on, the court acknowledges that it doesn’t fit any of the dictionary definitions, so to accomplish the court’s desired result, they declare that because “homebound instruction is provided in the building,” it constitutes an elementary or secondary publicly-funded educational institution? This sure sounds like judicial activism to me, especially when the court is determining whether there was sufficient evidence to convict Mr. Giordano of a misdemeanor of the 1st degree.

Mr. Giordano also argues that Section 912 is not a strict liability crime and therefore, consistent with prior holdings of the Commonwealth Court, requires that the Commonwealth prove that he had the mens rea to commit a crime. The court agreed with Mr. Giordano that the Commonwealth had to establish that he acted intentionally, knowingly or recklessly. However, the court, once again seemingly motivated by its own desired ends, found that since Mr. Giordano knew that a weapon could not be brought into a school building, the mens rea was established. While there is no dispute that Mr. Giordano knew he could not bring his sword into a school building, the court seems completely oblivious to the first several pages of its opinion, where it acknowledged that the statute did not specify that an administration building was part of an elementary or secondary publicly-funded educational institution and that no case law existed to place Mr. Giordano on notice that an administration building may constitute an elementary or secondary publicly-funded educational institution. If a statute is so vague as it does not place an individual on notice that his/her conduct may be prohibited, then the statute is unconstitutional for violating due process and the individual cannot be charged for violating it. Commonwealth v. Baxter, 2008 PA Super 200, 956 A.2d 465, 468-469 (Pa. Super. 2008) (en banc).

Additionally, there is no mention of whether Mr. Giordano argued that the defense found in subsection (c) applied. As there is an exception for other lawful purpose and nothing in the opinion establishes that he had an unlawful purpose, it would seem that subsection (c) would have applied.

It is truly disheartening when our courts permit the ends to justify the means. While it may not have been wise of Mr. Giordano to carry a sword into the administration building, such does not make it unlawful.


Filed under Firearms Law, Pennsylvania Firearms Law

Another Amici Curiae Brief Filed Against the City of Harrisburg!

Today, another Amici Curiae brief was submitted in the matter of City of Harrisburg, et al., v. U.S. Law Shield of Pennsylvania, LLC, et al., 449 C.D. 2015 by the Allegheny County Sportsmen’s League, American Gun Owners Alliance, Firearm Owners Against Crime, Gun Owners of America/Gun Owners Foundation, Lehigh Valley Tea Party, Pennsylvania Federation of Sportsmen’s Clubs, Pennsylvanians For Self Protection, Pennsylvania State Fish & Game Protective Association, and Unified Sportsmen of Pennsylvania.

Attorney Jim Smith of the Smith Law Group, LLC filed the brief on behalf of the Amici. You can obtain a copy here.

The Amici, in addition to incorporating the arguments of the Amici Curiae Members of the General Assembly, also raise arguments relating to 1. field preemption for discharge; 2. a violation of 18 Pa.C.S. 6120 being a criminal act, which constitutes official oppression; and 3. that the City should be barred under the Unclean Hands doctrine.

I would like to thank those organizations and Attorney James Smith for standing strong and in steadfast devotion to the protection of Article 1, Section 21 of the Pennsylvania Constitution and the Second Amendment to the U.S. Constitution with the Amici Curiae Members of the General Assembly. Together, we will ensure that the Right to Keep and Bear Arms will not be infringed and that the City of Harrisburg will be held accountable for its unlawful and illegal actions.

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PRESS RELEASE: Amici Curiae Brief of Members of the Pennsylvania General Assembly Filed Against the City of Harrisburg

Today, Joshua Prince, Esq., Chief Counsel of the Firearms Industry Consulting Group, a division of Prince Law Offices, P.C., filed an amici curiae brief (or friends of the court brief) on behalf of numerous members of the Pennsylvania General Assembly against the City of Harrisburg, in the matter of City of Harrisburg, et al., v. U.S. Law Shield of Pennsylvania, LLC, et al., 449 C.D. 2015. You can find a copy of the Amici Curiae brief here.

When asked for comment, Chief Counsel declared,

It is a distinct honor and privilege to serve the residents of this Commonwealth by filing this Amici Curiae brief on behalf of numerous Members of the General Assembly, who are ardent supporters and defenders Article 1, Section 21 of the Pennsylvania Constitution and the Second Amendment to the U.S. Constitution, against the City of Harrisburg and its unlawful and illegal firearm ordinances. Together, we have drawn a line in the sand and made explicitly clear that such conduct will not be condoned nor tolerated.

Please join us in congratulating Chief Counsel Prince in the filing of this Amici Curiae brief on behalf of numerous Members of the General Assembly!


Filed under News & Events, Pennsylvania Firearms Law

A Round Table Discussion with ATF

Having had the opportunity to sit around a table with different members of ATF, a few different things were learned.


And don’t worry, the cartoon doesn’t reflect the attitude of those I spoke to.

NFA Branch

In regards to the NFA Branch and processing times, it appears that they are aiming for a processing time of about 90 days for Form 1s and Form 4s. They are currently around the 120 day mark and are working diligently to improve that time. They have gone from 9 to 26 examiners, which should allow them to meet that goal after everyone has been brought up to speed.

Trusts account for the majority of Form 1s and Form 4s that the branch is receiving. I also learned that there is a substantial increase in Form 1 submissions since the introduction of the eForms system. Additionally, the processing times for eForm and paper form submissions are now currently running about the same time, so there is not necessarily any advantage time-wise to utilize the eForms system.


Furthermore, I learned that ATF hoped to have had the eForm 4s back by SHOT but they indicated that did not look like it would happen. They are currently in discussions with a contractor regarding the system.

There was also a question asked of the NFA branch in relation to 3D printed parts. The attendee asked if he printed a part, that was technically a NFA firearm, would he need to notify the branch of its creation and/or destruction. The answer was yes, provided the part was functional, it would be controlled by the NFA.

Imports Branch

The Import section fielded a question relating to the “sporting purpose” exemption. Disappointingly, there does not seem to be any hope in the near future for it to be revisited in order to consider such sports as 3-Gun, USPSA, IDPA or other shooting sports.

Firearms and Ammunition Technology Division

I also had the opportunity to sit down with the Firearms and Ammunition Technology Division (FATD).

For Industry Members, if you’re looking to receive a determination on your product, you can expect it to take about 120 days. That means if you WANT a determination on your product prior to SHOT 2016, you need to have your submission to FATD before September.

They did state that they would not give you priority just because your attending SHOT and need a determination prior to it. So you have to get moving on the product and submission now. If you’re an industry member and require a letter with your submission please contact us, as letters for determinations are something we handle on a frequent basis.


The new product on the block that is catching a lot of attention by the industry seems to be the APS 1 Shot Dynamic Pistol Rest. Having had the opportunity to sit down with FATD and discuss the dynamic pistol rest, I can say several issues have arisen. Contrary to the claims of the company, ATF stated that it has no record of receiving any samples of the product in order to issue a determination. Additionally, FATD stated they welcome a sample to be submitted for a determination. This is in stark contrast to the statement that the company has proffered that ATF will not issue a determination.

The company had stated in a Recoil Web article:

“We asked the ATF their opinion and they had none, as it is not a permanent part of the weapon…”

Furthermore, having shown FATD a picture of the product, I was immediately informed that it was a shoulder stock and ATF had previously ruled on “friction stocks” in other determinations. It would behoove APS to submit a sample to ATF in order to have a formal determination on the product, so that individuals can know whether possession of the product with a handgun would potentially subject them to criminal prosecution or not.

Firearms Industry Operations

Good news for licensees. Is there a topic you want ATF to cover for training? Apparently, you can either call your local field office or headquarters to request a seminar on the particular topic. Furthermore, if you receive or have received conflicting information from your local field office, you may want to contact the Firearms Industry Programs Branch to get a “final determination” on the matter. Of course, I’d recommend you get it in writing, which they stated they usually provide a copy of their decision to the field office as well as the licensee with the question.

ATF 41p

ATF 41P was mentioned several times. The news? ATF is still reviewing comments and there is no news as to when/if they will move forward with any kind of final rule. Additionally there are 4 reviewers for the comments and all of them have been assigned to ATF 41P.


ATF 51P has had no action as far as the review of comments on it yet.

General Rulemaking

ATF stated that the priority for rulemaking determinations were ATF 41p, ATF 51P and Reporting of Losses of Firearms in Transit.

Federal Firearms Relief

If the appropriations bill is enacted as written, Federal Firearms Relief would become available again, for the first time since 1992. ATF stated that if the appropriations bill is implemented, they do not currently have an action plan in place to address the forecasted river of applications it will receive.

ATF Ruling 2013-5

ATF also stated that it would be entering into rulemaking to clarify the electronic record keeping for FFLS in relation to Ruling 2013-5. Issues that would be addressed include cloud storage, the maintenance of records offsite but on a server and tracking changes in the bound book.


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Filed under ATF, Firearms Law