Category Archives: Firearms Law

PA Firearms Law Seminar – November 1, 2014

On November 1st, 2014, 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 Shooter Supply, will offer a four (4) hour seminar 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 download a copy of the registration form, here.  All registrations are to be mailed or dropped off at King Shooter Supply, 346 E Church Rd, King of Prussia PA 19406. If you have questions, please feel free to contact King Shooter Supply at 610-491-9901 .

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Call to Action – HB 1243 – Strengthening Preemption

I just received notice from Pennsylvania Representative Stephen Bloom that HB 1243, just passed its third consideration in the House by a vote of 143-54. There are only several days left to get this through the Senate and we’re going to need YOUR help!

Emails are insufficient. We’re being outnumbered by 3-1 in calls to Representatives and Senators. We need to change this.

Personal contact by phone calls and snail mail (faxes) are much more effective to get your message to our Senators and then NEED to hear from us.

The contact info for Senate Judiciary Committee is here.

Senator Stewart Greenleaf (R) chairman JC (717) 787-6599 sgreenleaf@pasen.gov
(note Greenleaf is up for re election in 2014 IF Greenleaf is your senator twist arm as required to run HB 1243)

Senator Joseph Scarnati (R) leader of senate – President Pro Tempore (717) 787-7084 everyone must call or fax Senator Scarnati
He is very supportive on Second Amendment issues…. he still needs to hear from US!
jscarnati@pasen.gov

Senator Gene Yaw (R) (717) 787-3280 gyaw@pasen.gov

Senator John Gordner (R) (717) 787-8928 jgordner@pasen.gov

Senator John Eichelberger (R) (717) 787-5490 jeichelberger@pasen.gov

Senator John Rafferty (R) (717) 787-1398 jrafferty@pasen.gov

Senator Randy Vulakovich (R) (717) 787-6538 rvulakovich@pasen.gov

Senator Richard Alloway (R) (717) 787-4651 alloway@pasen.gov

Senator Lisa Boscola (D) (717) 787-4236 boscola@pasenate.com

Senator Andrew Dinniman (D) (717) 787-5709 andy@pasenate.com

Senator Dominic Pileggi (R) (717) 787-4712 swings lots of weight in senate from holding past leadership position of senate dpileggi@pasen.gov

These below on JC probably will not listen unless they are your senators, expect them to vote against HB 1243.

Stress the Rule of Law.

Senator Michael Stack (D) (717) 787-9608 stack@pasenate.com

Senator Daylin Leach (D) (717) 787-5544 dleach@pasenate.com minority chair of JC – past ceasefirepa endorsed candidate going to probably be one of the most vocal against HB 1243 on committee

Senator Wayne Fontana (D) (717) 787-5300 fontana@pasenate.com up for re election in 2014 but has no opponent = no fear factor from voters

Senator Lawrence Farnese (D) (717) 787-5662 farnese@pasenate.com past ceasefirepa endorsed candidate

CALL and/or FAX senators especially Scarnati, Greenleaf, Pileggi (plus others listed) and ask them to pass HB 1243 without any amendments.

Also ask your senator to bug leadership to run HB 1243 as a clean bill

HB 1243 will take at least 3 days in senate for passage.

Getting HB 1243 passed is still do able, but it’s going to take everyone making the extra effort to get this passed in the short time left. Governor Corbett will sign this bill if placed on his desk!

Senator Scarnati as leader of the senate can add more session days IF its required and most importantly IF we make our voices loud enough!

We have the votes for passage in the senate is just a matter of making them feel the heat and making HB 1243 a priority for quick passage with such short session time left.

PLEASE do your part and get HB 1243 passed by the Senate as a clean bill.

Thanks to FOAC (Firearm Owners Against Crime) for the above information.

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Some Positive News from . . . New Jersey?

I am happy to report that New Jersey’s Attorney General, John Hoffman, has issued a new directive in response to the unnerving practice of NJ prosecutors to fully prosecute individuals for relatively minor infractions and misunderstandings of New Jersey’s firearms laws.  In response to outrage over the case of Shaneen Allen – the Pennsylvania woman charged with possession of a firearm in Atlantic County, NJ last year – Attorney General Hoffman released a directive on September 24, 2014, directing prosecutors not to seek prison terms for individuals merely for unlawfully possessing a firearm.

In the directive, Attorney General Hoffman states that “in the absence of case-specific aggravating circumstances, these defendants should not be sentenced to incarceration,” since “imprisonment is neither necessary nor appropriate to serve the interests of justice and protect public safety.”  Rather than seek harsh penalties – a minimum of 3 1/2 years under the Graves Act – prosecutors are instructed to do one of two things: (1) accept an offer of pretrial intervention (PTI) or (2) “tender an initial plea offer that authorizes the court upon conviction to impose a non-custodial probationary sentence.”

As the law stood between 2008 – when the Graves Act was modified – and the time of this Directive, a prosecutor had sole discretion as to admit a Graves Act defendant to PTI, and the bar was set high: a showing of compelling and extraordinary reasons was required to avoid normal prosecution.  Whether the Graves Act defendant received a shortened prison term or probation also was entirely within the realm of the prosecutor’s discretion.

The recent Directive directs prosecutors to offer PTI if there are no aggravating factors or, if the prosecutor finds PTI inappropriate, it all but mandates a prosecutor to make the plea offer for a non-prison sentence.

Importantly, there are three criteria for this Directive to apply: (1) the firearm was lawfully acquired in another jurisdiction; (2) possession of the firearm, under the same circumstances, would have been lawful in the individual’s jurisdiction; and (3) the individual was mistaken in believing that he or she was lawfully in possession in New Jersey.

In addition to the above factors, in order to gain PTI, the prosecutor must consider the following:

(1) the level of the firearm’s exposure to New Jersey residents would be minimal (i.e was it stored in a trunk or carried on the person in public, and whether the firearm was loaded);

(2) criminal history and/or any other crimes occurring at the moment (i.e. was the possession discovered because the individual was pulled over for a headlight violation, or was the person engaged in a drug deal or assault?);

(3) volunteering the information (as in the Allen case);

(4) checking the firearm in for safe-keeping (for example, checking the firearm into a hotel front desk demonstrates the lack of intent to do harm and the genuine mistake as to NJ firearms law);

(5) did the individual actually know that he or she was in violation of New Jersey law by carrying the firearm?

While certainly less than perfect, and still subject to a fair amount of prosecutorial discretion, this is a step in the right direction for New Jersey.

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Notarization of Legal Documents, including Gun Trusts, in Pennsylvania

In the past few weeks, I have had two different clients who encountered difficulty in having a notary public verify their signature of legal documents. In the first case, the notary objected because he could not independently confirm whether the statements in an affidavit were true. In the second case, the notary objected because the document was designed to permit the signer to add to a listed schedule of assets of a trust, rather than having all the assets listed before being signed. In both cases, we advised our clients that our office staff would gladly provide notary services that were being improperly withheld.

The role of a notary public in Pennsylvania is defined by statute. The legislature adopted the Revised Uniform Law on Notarial Acts (“RULONA”) which was signed into law on October 9, 2013. Section 302 of RULONA defines six “notarial acts”:

  1. taking an acknowledgment;
  2. administering an oath or affirmation;
  3. taking a verification on oath or affirmation;
  4. witnessing or attesting a signature;
  5. certifying or attesting a copy or deposition; and
  6. noting a protest of a negotiable instrument.

None of those acts purport to include any power to investigate the underlying matter. That fact is made abundantly clear by the definition of each of the notarial acts.

An acknowledgment is defined as “a declaration by an individual before a notarial officer that . . . the individual has signed a record for the purpose stated in the record.” Section 305(a) explains that the duty of the notary is to determine that “the individual appearing before” him “has the identity claimed” and that the “signature on the record is the signature of the individual.” That is, the notary simply witnesses that the individual appearing before him signed the statement, not that the statement is true.

When administering an oath of affirmation, the notary does not vouch for the truth of the statements made by the individual being placed under oath any more than upon administering an oath in open court a bailiff or court clerk is responsible to determine whether the testimony of a witness is truthful.

A notary taking a verification on oath or affirmation means that the notary asks someone to swear that statements are true, not that the notary is swearing they are true. The process is defined as “[a] declaration, made by an individual on oath or affirmation before a notarial officer, that a statement in a record is true.” Section 305(b) explains that the duty of the notary is to determine that “the individual appearing before [him] and making the verification has the identity claimed” and that the “signature on the statement verified is the signature of the individual.”

When witnessing a signature, the notary represents only that the stated individual signed the document. Section 305(c) explains that the duty of the notary is to determine that “the individual appearing before [him] and signing the record has the identity claimed” and that the “signature on the record is the signature of the individual.” Similarly, when a notary is certifying a copy, he represents only that the copy truly reflects the original, not that statements in the original document are true. Section 305(d) explains that the notary “shall determine that the copy is a complete and accurate transcription or reproduction of the record or item.”

Although certain portions of RULONA were amended on July 9, 2014, in Act 119, none of the amendments address the provisions at issue here.

I feel silly for having to write this explanation. The Pennsylvania Association of Notaries (“PAN”) was incredulous when I explained the problem. PAN publishes a “practical guide” for notaries in Pennsylvania. It explains with respect to an affidavit, for example:

 Your customer—called an affiant in this case—is responsible for the truth and accuracy of the statement he or she makes on the affidavit. You are responsible for guaranteeing, by your signature and seal, that the customer personally appeared and was properly identified, and that you administered an oath or affirmation. You are also responsible for guaranteeing that the customer signed the affidavit in front of you.

Hopefully these explanations may help to minimize future refusals to provide notary services. If a notary still improperly refuses to provide service, complaints may be filed with the Secretary of the Commonwealth. An on-line complaint form can be found here.

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Putting Attorney General Kane’s Legal Opinion to Good Use

Today, utilizing Attorney General Kane’s August 5, 2014, Legal Opinion Letter, I submitted letters to a number of Commonwealth agencies requesting that they rescind their regulations in relation to possession of firearms, which are inconsistent with Pennsylvania’s Crimes Code, referred to as Title 18. Those letters include:

  1. Pennsylvania State System of Higher Education (PASSHE) – here.
  2. Pennsylvania Department of Conservation and Natural Resources (DCNR) – here.
  3. Pennsylvania Department of Labor and Industry (L&I) – here.
  4. Pennsylvania Department of State – here.

As I hear back from these agencies as to what action they will be taking, I will let our readers know.

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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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