Category Archives: Firearms Law

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(2) The regulation in question is rescinded, repealed or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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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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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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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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