Category Archives: Firearms Law

Black Aces Tactical, the SigTac SB15 arm brace and ATF’s misguided determination letter

On November 14th Black Aces Tactical received a determination letter from the Firearms Technology Industry Services Branch (FTISB) regarding their recent submission of what at first glance appears to be a SBS or AOW. Black Aces Tactical was hoping to have the item classified as a “firearm” thus removing it from the purview of NFA entirely.

ftb1  The SigTac SB15 arm brace has caused quite the controversy since its introduction and much to the delight of those in states where SBRs are illegal and those who don’t wish to go through the process of obtaining a NFA firearm. Some contend that the arm brace is a “loophole” or a way to “cheat” the system but the law supports ATF’s determination that the arm brace was never designed or redesigned with the intent for it to be shoulder fired. The determination letter that accompanies each arm brace states that “We find that the device is not designed or intended to fire a weapon from the shoulder.”

atfsig  In March of 2014, Sergeant Joe Bradley of the Greenwood Police Department received a reply from the Firearms Technology Branch (FTB) in response to his question which asked, if an AR-15 type pistol was fired from the shoulder, would it cause the pistol to be reclassified as a Short Barreled Rifle. FTB responded that it would not and that it had previously determined that firing a weapon from a particular position (like placing the buffer tube to one’s shoulder) does not change the classification of the weapon. It further asserts that ATF did not classify the SigTac SB15 arm brace as a stock so its improper usage would not change the weapons classification.

So what’s all the buzz about this new letter from the FTISB to Black Aces Tactical? Black Aces Tactical submitted a sample which they say had an overall length of 27 inches. The sample had a SigTac SB15 arm brace attached as well as a vertical foregrip to the left side. On page 3 of ATF’s response, the FTISB explains what would make a pistol an AOW but since the OAL was greater than 26 inches and NOT concealed on a person, the sample was excluded from being classified as an AOW.

sigbraceusage  FTISB classified the sample as a “firearm” as defined by the Gun Control Act of 1968 and not a “firearm” under NFA, which is what Black Aces Tactical was after. However, FTISB states that should the weapon be concealed its classification may be changed. What’s more troubling is what comes next.

“Should an individual utilize the SigTac SB15 pistol stabilizing brace on the submitted sample as a shoulder stock to fire the weapon from the shoulder, this firearm would then be classified as a “short-barreled shotgun…because the subject brace has then been made or remade, designed or redesigned from its originally intended purpose.

This seems to be a complete contradiction of its earlier determination that when shouldering an AR-15 type pistol, with or without the brace, the classification of the firearm remains the same. So what changed? Nothing.

Unfortunately for ATF, it seems to have missed an important definition in the National Firearms Act. One of the definitions of a “firearm” is a shotgun with a barrel length of less than 18 inches or a weapon made from a shotgun if the weapon has an overall length of less than 26 inches or a barrel less than 18 inches. A shotgun is defined as “a weapon designed or redesigned…and intended to be fired from the shoulder…” Since the sample was never intended to be fired from the shoulder and is not a shotgun, then it surely cannot be a firearm under the National Firearms Act which would exclude it all together from becoming a short barreled shotgun.

Is it possible that ATF has now changed its position on the SigTac SB15 arm brace and is getting ready to issue a determination letter which would result in an individual shouldering an AR-15 type pistol with the brace converting the firearm into an illegal short barreled rifle?

If so, ATF has apparently chosen to ignore the definitions found in the National Firearms Act again. Attaching the brace to a buffer tube and shouldering it is not “making or remaking” nor is it “designed or redesigned ” from its originally intended purpose. ATF even stated in its determination letter that comes with every SigTac Brace that it “does not convert that weapon to be fired from the shoulder.” A rifle is defined as “a weapon designed or redesigned…and intended to be fired from the shoulder…” If ATF is planning to issue a determination letter similar in nature as applicable to AR-15 style pistols, ATF will have failed to reconcile that under NFA an AR-15 style pistol cannot be defined as a “firearm” as it doesn’t meet any of the criteria! An AR-15 style pistol was never a rifle and as such even with a SigTac brace attached falls outside of NFA’s regulation.

I’ve requested the first two pages of the letter along with more information about the sample which was provided to ATF for the determination. While the determination letter is specific to the sample provided, it is possible that Black Aces Tactical has opened Pandora’s box with regards to the SigTac SB15 arm brace and its future, but the law does not support the transformation that ATF suggests.

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Filed under ATF, Firearms Law

Berks County Sheriff Weaknecht No Longer Requiring References on LTCF Applications!

It was announced today that the Berks County Sheriff’s Department will no longer require references for a License to Carry Firearms (LTCF). I have long contended that requiring references on the application is a violation of the confidentiality provisions of 18 Pa.C.S. 6111(g)(3.1) and (i), as merely calling the reference, even without disclosing that the applicant has applied for an LTCF, is a violation of the statutory protections, as the caller would be disclosing the “name” and “identity” of the individual, as a result of the application. This issue was addressed in our Class Action against the City of Philadelphia, which resulted in the City of Philadelphia agreeing not to require references.

When Berks County Sheriff Eric Weaknecht became aware of this issue, he determined that references should not be required on the LTCF application and accordingly, stopped requiring them, effective today. Berks County is very fortunate to have such a great Sheriff, who is open to reconsidering past positions of his Department. This isn’t the first time that he has changed his Department’s position and procedures in relation to LTCFs. Sheriff Weaknecht was the first in the Commonwealth to implement an internal appeal process for an individual whose LTCF was denied or revoked. I understand this process has been very successful and other counties have inquired of him for specifics, as they too are considering implementing an internal appeal process.  Please make sure to support Sheriff Weaknecht during his next election cycle.

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Filed under Firearms Law, Pennsylvania Firearms Law

HB 80 Litigation – Dechert, LLP Representing the Cities Pro-Bono?

As many are aware, yesterday,  Senator Daylin Leach, Senator Vincent J. Hughes, Senator Lawrence M. Farnese, Representative Cherelle L. Parker, Representative Edward C. Gainey, the City of Philadelphia, the City of Pittsburgh, and the City of Lancaster filed suit in the Commonwealth Court against the Commonwealth of Pennsylvania, Speaker of the House Samuel H. Smith, Lieutenant Governor James F. Cawley, and Governor Tom Corbett regarding the constitutionality of HB 80. The docket number is 585 MD 2014.

Representing Senator Farnese, Senator Hughes, Representative Parker, Representative Gainey, the City of Pittsburgh, City of Philadelphia and the City of Lancaster are attorneys Martin Black and Robert Masterson of the law firm of Dechert, LLP, which is allegedly handling the matter pro-bono. (The City of Philadelphia is additionally being represented by attorneys Richard Feder and Eleanor Ewing of Philadelphia’s law department). Per LancasterOnline, Lancaster Mayor Rick Gray informed Reporter Bernard Harris that “Lancaster’s participation in the lawsuit will not cost city taxpayers any money, Gray said. The law firm taking the case is not charging a fee.

Anyone seeking legal representation in the future should be aware of Dechert, LLP’s position in this matter and should consider whether its views align with yours.

UPDATE: A copy of the Petition can be found here.

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Filed under Firearms Law, Pennsylvania Firearms Law

Corbett signs bill granting Conservation Officers use of body cameras

A new development in the Fish and Game code grants Waterway Conservation Officers (WCO), Game Commission Officers (GCO) and Wildlife Conservation Officers (WLCO) (but not their deputies) the ability to wear body cameras in the performance of their official duties. The new law requires that the individual must have received training on the use of body cameras in an approved course by the Pennsylvania State Police.

Waterway Conservation Officers are charged with enforcing the laws of the Commonwealth relating to fish and watercraft with the power to arrest individuals who violate the law. They also have the ability to search and seize, as well as, enter upon land or waterways in the performance of their duties.

Game Commission Officers and Wildlife Conservation Officers are charged with enforcing the laws of the Commonwealth relating to game or wildlife with the power to arrest individuals who violate the law. They also retain the power to search and seize, as well as, enter upon land or water in the performance of their duties.

What does this mean for you? If you have contact with a WCO, GCO or WLCO in the future, there is a high likelihood that they will be recording the interaction between themselves and you. This means that anything you say and/or do will be recorded and could possibly be used against you at a later time if you are charged in a court of law. As a result of the training requirement, the admission of any video or audio recording could provide some interesting avenues for suppression, if the attorney is cognizant of the issue.

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.

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Filed under Constitutional Law, Hunting

HB 80 Signed by Governor Corbett

Yesterday, Governor Corbett signed HB 80, which amended 18 Pa.C.S. § 6120, our firearm preemption statute, in several keys ways. Section (A.2) now provides:

A person adversely affected by an ordinance, a resolution, regulation, rule, practice or any other action promulgated or enforced by a county, municipality or township prohibited under subsection (a) or 53 Pa.C.S. § 2962(g) (relating to limitation on municipal powers) may seek declaratory or injunctive relief and actual damages in an appropriate court.

Further Section (A.3) provides:

Reasonable expenses.–A court shall award reasonable expenses to a person adversely affected in an action under subsection (a.2) for any of the following:

(1) A final determination by the court is granted in
favor of the person adversely affected.

(2) The regulation in question is rescinded, repealed or
otherwise abrogated after suit has been filed under
subsection (a.2) but before the final determination by the
court.

The definition section now includes:

“Person adversely affected.” Any of the following:

(1) A resident of this Commonwealth who may legally possess a firearm under Federal and State law.

(2) A person who otherwise has standing under the laws of this Commonwealth to bring an action under subsection (a.2).

(3) A membership organization, in which a member is a person described under paragraph (1) or (2).

“Reasonable expenses.” The term includes, but is not limited to, attorney fees, expert witness fees, court costs and compensation for loss of income.

These changes are substantial, as they now provide the ability to sue a municipality that promulgates an unlawful ordinance, even in the absence of enforcement, and obtain attorney fees and costs, even where the municipality rescinds its unlawful ordinance after the lawsuit is filed but before a final determination is made. These changes were in a large part related to the litigation that I handled in Dillon v. City of Erie and the accompanying criminal matters, where the City of Erie’s ordinance was found to be unlawful, yet the Erie 8 (as they became known), were required to defend against the criminal charges, without right to recoup their attorney fees, under Section 6120.

Although it is a misdemeanor of the 1st degree, pursuant to 18 Pa.C.S. § 6119, to even promulgate such an unlawful ordinance, most municipalities thumbed their nose at the Commonwealth by enacting such illegal ordinances. Now, both aggrieved individuals and organizations can bring suit against these municipalities to force them to comply with the law. It is unfortunate that it has come to this – where local government can violate state law, without any concern for prosecution; yet, the individual, if he or she violates the municipalities illegal ordinance, must fear prosecution. With Governor Corbett’s signature on HB 80, now municipalities can be held accountable for their actions.

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Filed under Firearms Law, Pennsylvania Firearms Law

Settlement APPROVED in Philadelphia Class Action Lawsuit Regarding Disclosure of Confidential LTCF Information

I am proud to announce that today, Judge Jacqueline Allen signed a Final Order approving the settlement that was reached with the City of Philadelphia in the matter of John Doe, et al.,  v. City of Philadelphia, et al, Philadelphia Court of Common Pleas docket no. 121203785, stemming from the City’s posting and disclosing of what we alleged was confidential license to carry firearms (LTCF) information. You can download a copy of the original Press Release related to the Preliminary Approval - here. This was a collaborative effort between Benjamin R. Picker, Esquire of McCausland Keen & Buckman, Jonathan Goldstein, Esquire of McNelly & Goldstein, LLC, Jon Mirowitz, Esquire, and myself.

As a result of the Settlement, the City will pay $1.425 million to the class and will be separately responsible for the costs of administering the settlement. Further, and of similar importance, the City has agreed to a number of policy changes, which can be found starting on page 11 of the Settlement Agreement, including:

  1. Not to disclose LTCF applicant information either electronically or in-person;
  2. Annual training of the Philadelphia Police Department and Philadelphia License and Inspection Board of Review on the confidentiality of LTCF applicant information;
  3. Customer service training for the Philadelphia Gun Permit Unit;
  4. Posting a copy of the LTCF Application Notice on its website and where LTCF applications and appeals can be submitted or obtained, as well as, providing a copy to anyone who has his/her LTCF denied or revoked;
  5. The City will not require references on the LTCF application and will not contact any references listed on the LTCF application;
  6. The City will not require lawful immigrants or US Citizens with a US Passport to provide naturalization papers;
  7. The City will not require any applicant to disclose whether he/she owns a firearm during the LTCF application process;
  8. The City will not deny an application because the applicant answered “no” to any question regarding whether the applicant had been charged/convicted of any crime where the applicant received a pardon or expungement from the charge or conviction;
  9. The City will process all LTCF applications within 45 calendar days;
  10. The City will remit $15.00 to any applicant who is denied within 20 days;
  11. The City will not require LTCF applicants or holders to disclose to law enforcement that they have an LTCF, that they are carrying a firearm or that they have a firearm in the vehicle; and
  12. The City will not confiscate an LTCF or firearm, unless there is probable cause that the LTCF or firearm is evidence of a crime. In the event an LTCF or firearm is confiscated, the officer must immediately provide a property receipt, which shall include the pertinent information

A copy of the signed and filed Settlement Agreement can be downloaded – here. As the Final Order has not yet been docketed, it is not currently available for download. A copy of the Second Amended Complaint can be downloaded – here.

 

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Filed under Firearms Law, Pennsylvania Firearms Law

New DUI Law That Affects Firearms Rights

I previously blogged about the Monumental Firearms Law related Decision from the Superior Court in relation to DUI. In Commonwealth v. Musau, 2013 PA Super 159, the Superior Court held that an individual who, during a first or second DUI, refused to provide blood or breath testing, could only be punished by a maximum of six (6) months in jail, although it is graded as a misdemeanor of the 1st degree. As the maximum sentence that could be imposed was six months, although graded as a misdemeanor of the 1st degree, such a conviction would not trigger the federal disability, pursuant to 18 U.S.C. 922.

Today, Governor Corbett signed SB 1239, which effectively changed section 3802, so that the maximum sentence that can be imposed upon an individual who, during a first or second DUI, refuses to provide blood or breath testing, is five years, which consistent with most misdemeanors of the first degree. Accordingly, those individual who are now convicted under the amended DUI Code will be prohibited under 18 U.S.C. 922 from possessing or purchasing a firearm, regardless of the sentence imposed.

Of course, there are constitutional questions of whether an individual’s Right to Keep and Bear Arms can be infringed in relation to non-violent misdemeanor crimes. If you have been convicted of a non-violent misdemeanor offense and wish to discuss what options you have to petition the federal courts or are facing a DUI related to a refusal to submit to chemical testing, contact us today.

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Filed under Firearms Law, Pennsylvania Firearms Law