Category Archives: Pennsylvania Firearms Law

Lower Merion Township’s Preliminary Objections in Relation to its Unlawful Firearm Ordinance are DENIED

Today, the Honorable Steven Tolliver of the Montgomery County Court of Common Pleas issued a decision and order denying Lower Merion Township’s Preliminary Objections requesting that the complaint filed by Firearm Owners Against Crime (FOAC) and other plaintiffs be dismissed.

In so ruling, Judge Tolliver not only found that the individual plaintiffs sufficiently averred standing to challenge Lower Merion Township’s Ordinance 109-16 (regulating firearms in township parks) but also found that FOAC had established standing on behalf of its members. Judge Tolliver also found that Plaintiffs had sufficiently averred a right to relief.

Lower Merion Township now has 20 days to file an Answer to the Complaint and the action will proceed thereafter. Also, a hearing on Plaintiffs’ Motion for a Preliminary Injunction is scheduled for August 24th.

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Pennsylvania Firearms Law Seminar – July 25, 2015!

On July 25, 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 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 .

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WHAT THE HELLER?

Quite arguably, the 2nd Amendment took a significant step back recently. In Jackson v. City and County of San Francisco, the United States Supreme Court has “voted” to deny certiorari to plaintiff Jackson, et. al’s appeal from the U.S. 9th Circuit’s decision rejecting her challenge of a San Francisco police code which mandates the lock-box storage of firearms in the home and also that such firearms be disabled by a trigger lock. Jackson v. City and County of San Francisco [writ of certiorari denied] 2015 WL 3537821 (2015).   Effectively, this decision on the part of the U.S. Supreme Court a) takes a shotgun shell sized hole out of progress made by proponents of the 2nd Amendment in District of Columbia v. Heller and it progeny, and b) leaves the scope of what may be considered the 2nd Amendment fundamental (or “core”) rights, in serious doubt. See District of Columbia v. Heller, 554 U.S. 570 (2008). One concession that we may have from all this is the rather strident dissent from the denial of certiorari authored by Justice Thomas, and joined by Justice Scalia. In that dissent, Thomas well lambasts the 9th Circuit decision as being “in serious tension” with Heller – for prohibiting “immediate self defense” of the home. Jackson, 2015 WL at 2. The appeal to common sense made by Thomas is also refreshing. That the San Francisco police code prevents citizens from practicing immediate self-defense when they are “most vulnerable”, at home and/or possibly “sleeping” or otherwise “indisposed”, Thomas cannot fathom how such law does not impose a substantial burden. Id.

How Did We Get Here?

Post-Heller, it seemed improbable that any Federal Court could credibly come to the conclusion that the 9th Circuit has in this case – that the San Francisco Police code in question either a) does NOT place a substantial burden on core 2nd Amendment rights OR b) that the level of scrutiny against such law should be something less than the very highest degree possible (strict scrutiny). To illustrate this point, it is first worth revisiting certain aspects of the holding in Heller and understanding how the wishy-washiness of the Heller decision has proximately opened the door to egregious decisions like Jackson. The reader will probably know that the supposed land-mark nature of Heller achieved a few things for pro-Second Amendment advocates – a) The U.S. Supreme Court held that immediate defense of the hearth/home by conventional firearms, goes to the core of 2nd Amendment rights where the full force of the 2nd Amendment presumably comes into play AND b) rational basis review (the lowest level of means-end scrutiny) is never appropriate to assess laws which impede such self-defense by arms in the home. Heller, supra.  Later, McDonald v. Chicago, decided that the 2nd Amendment (and, by extension, Heller) does apply to the respective states, through the 14th Amendment, and is not merely limited to checking laws issued by the federal government. 561 U.S. 742 (2010).

All Over the Place

Critically though, the Heller Court did not specify the level of scrutiny to be applied to such laws (be it strict scrutiny or intermediate scrutiny); the decision also did not fully delineate what constitutes a “substantial burden” on 2nd Amendment rights even in the context of laws regulating the possession of conventional firearms in the home. Justice Scalia, the author of the Heller decision, may not have foreseen just how fatal this failure would prove to be. But, for proof of the bad omen, we need not go any further than the fact that Mr. Heller is still in court – politicians took immediate advantage of the decision’s weakness by legislating other laws making it (still) very difficult to effectively possess firearms in the District of Columbia (e.g. 1 gun/month purchase limit; mandatory expiration of firearms licenses after 3 years; etc.)! See Heller v. District of Columbia, 45 F.Supp.3d 35 (D.C. 2014). The net effect of this failure has also practically allowed various courts to cobble together their own self-serving jurisprudence wherein what amounts to a “substantial burden” on 2nd Amendment rights and (therefore) which level of scrutiny aught to be applied against laws that impede those rights, is left entirely up to the respective court.

Problematically, courts invariably reference Heller as the seminal authority on what aught to be the scope of 2nd Amendment rights, but do so to reach shockingly different conclusions of law. How do we, for instance, square recent federal court decisions like Ezell v. Chicago (City of Chicago laws which prohibited the operation of gun ranges within city limits while requiring gun-training as a pre-requisite for licensing found to violate the 2nd Amendment as the 7th Circuit held that those laws, in light of Heller, effectively prevented persons from practicing self-defense of the home) or Gowder v. Chicago (where the Federal District Court of the Northern District of Illinois struck state law which forbade permits to persons formerly convicted of non-violent misdemeanors as unconstitutional and triggering strict scrutiny as it, in light of Heller, prevented protection of the home) WITH the 9th Circuit’s decision in Jackson? See Ezell v. Chicago, 651 F.3d 684 (7th Cir. 2011); Gowder v. Chicago, 923 F.Supp.2d 1110 (N.D. Ill. 2012). Besides Jackson, there are any number of a host of other puzzling decisions, in theory referencing Heller, but in practice deviating from Heller, and again underlining a distinct lack of consistency in overall 2nd Amendment litigation – For instance, U.S. v. Chovan (the 9th Circuit rules that federal prohibition of persons convicted of misdemeanor-level domestic violence does not impose any cognizable burden on 2nd Amendment rights, in spite of Heller, and therefore does not trigger any heightened scrutiny – rational basis review being appropriate); Or try Kwong v. Bloomberg (New York City ordinance imposing a $340.00 administrative registration fee for each firearm, upheld by the 2nd Circuit; despite making it practically prohibitive to own a firearm in New York City and though imposing a fee some six times larger than other municipalities of the state, the 2nd Circuit found that such law does not substantially burden the 2nd Amendment and chose to apply only intermediate scrutiny). U.S. v. Chovan, 735 F.3d 1127 (9th Cir. 2013); Kwong v. Bloomberg, 723 F.3d 160 (2d Cir. 2013).

Where Do We Go From Here?

  If anything, these cases (and Jackson in particular) underline how badly in disrepair the state of 2nd Amendment law is, post-Heller, and how much the U.S. Supreme Court should be involved to set forth a solid and repetitive framework for lower courts to follow. Justices Thomas and Scalia appear to realize this. Indeed, the dissent is also notable for how it moves to set the record straight on  Heller so as to save that decision from the ambiguity it has unwittingly fallen into. Specifically, Thomas chided lower courts about their conventional invocation of Heller as a means for them to independently “balance” the perceived burden imposed by a given law on 2nd Amendment rights and (thus) independently apply some appropriate level of scrutiny, on a sliding-scale. Rather, Thomas states that no part of Heller stands for such a proposition and that the takeaway from Heller should have been the obligation of a court to scrutinize “text, history, and tradition.”  Jackson, supra. Thomas’s dissent also debunked an especially favorite contemporary reference to Heller, where courts have taken that decision to mean that anything less than an outright prohibition on the possession of firearms in the home, does not equate to a substantial burden on 2nd Amendment rights.  Id.  But ultimately, when things are all said and done, a dissent is but a footnote in history. For all Thomas’s and Scalia’s upbraiding of Jackson and lower courts’ evisceration of Heller, nothing will necessarily be accomplished on the strength of those words alone.

Citizens of our fair Commonwealth, who also happen to be gun-rights activists, can rest assured though that laws like the one at issue in Jackson are not likely to ever menace the 2nd Amendment in Pennsylvania. There are at least a couple of reasons for this – Pennsylvania’s Uniform Firearms Act has no such onerous regulation and (furthermore) § 6120(a) of the Act preempts any municipality from regulating in this same field. However, for those concerned with a big picture assessment on the state of the 2nd Amendment today you may well ask yourselves, what the Heller was the 9th Circuit and/or the U.S. Supreme Court, thinking?

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Chester County Sheriff Carolyn Bunny Welsh Does Not Require References on LTCF Applications!

Consistent with a growing number of county sheriffs, Chester County Sheriff Carolyn Bunny Welsh is not requiring license to carry firearms (LTCF) applicants to included references on the LTCF application. I reached out to Sheriff Welsh at the beginning of May about her position on the references, as a friend of mine was applying for a LTCF and did not know if he had to include them.

Chester County Sheriff Carolyn “Bunny” Welsh

Chester County Sheriff Carolyn “Bunny” Welsh

Sheriff Welsh responded that she does not require the references and she believes the deputies at the front counter tell people that references are not required. Sheriff Welsh has a longstanding reputation for being rights oriented, so her response was no surprise. In 2013, the Chester County Sheriff’s Office raffled off an AR-15 to raising $20,000 for their K-9 unit.

As Chief Counsel Joshua Prince has long contended 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. Last November, Berks County Sheriff Eric Weaknecht also announced that he was no longer requiring LTCF applicants to submit references. More recently in January, it came to light that Perry County Sheriff Carl Nace does not require references on LTCF applications.

I would like to thank Sheriff Welsh, Sheriff Nace and Sheriff Weaknecht for following the letter of the law and not requiring references on their LTCF applications.

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Lancaster 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 of Lancaster’s redaction of donor information. You can download a copy of the determination here.  OOR found

Because Section 708(c) prevents the application of 65 P.S. 67.708(b)(13) to financial records as a matter of law, the City has not established that the records of donations to its Legal Defense Fund are exempt from public access.

and

Although the donations were solicited for a specific, arguably-political purpose (the defense of a lawsuit filed by the NRA), because the City is a non-partisan, political subdivision and the donor list documents the City’s receipt of funds into the City’s bank account, the City has not established that revealing the names and other information concerning the donors would infringe upon the freedom of association provided by the Pennsylvania and United States Constitutions.

and

The City, however, did not subsequently submit any materials in support of withholding records responsive to Items 3 and 4 from public access. Accordingly, based on the lack of evidence provided by the City, the City has not overcome its burden of proof. See 65 P.S. § 67.708(a)(1).

and most importantly,

For the foregoing reasons, Requester’s appeal is granted and the City is required to provide the Requester with all responsive records within thirty days. This Final Determination is binding on all parties.

It will be interesting to see whether the City complies.

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Lower Merion Township – Taxpayers on the Hook for Legal Expenses related to Illegal Firearms Ordinance

As our viewers are aware, we filed suit against Lower Merion Township regarding its illegal firearm ordinance on March 20, 2015 and its request for a Stay was denied on May 14, 2015. In litigating this matter, on April 30, 2015, I filed a Right to Know Law (RTKL) request seeking documents in the Township’s possession relating to Section 109-16, since the Township filed Preliminary Objections to stay discovery and a decision on the merits.

In responding to my RTKL request, the Township turned over a number of documents, including the most recent attorney billing of May 11, 2015 from High Swartz in the amount of $4,900 and a March 27, 2015 letter from Delaware Valley Insurance Trust denying coverage in relation to the lawsuit. Specifically, the letter states

The POL Coverage Part of the applicable Trust Coverage Document does not provide coverage for the Township in this matter because the plaintiffs are not seeking to recover compensatory damages, but only declaratory and injunctive relief, and because the plaintiffs have alleged in their Complaint that the Township willfully violated 18 Pa. C.S. §6120 and otherwise engaged in willful misconduct in refusing to amend or repeal the allegedly illegal ordinances. The Trust therefore respectfully declines coverage and requests that the Township retain defense counsel at its own expense in this matter.

Accordingly, the residents of Lower Merion Township will be responsible for all the costs incurred by its counsel, as well as, our attorney fees and costs, when the matter is decided in our favor. It is unfortunate that the Lower Merion Township Commissioners have elected to defend its illegal ordinance at the taxpayers expense. If you are a resident of Lower Merion Township, you should let the Commissioners know that you do not appreciate your money being used for their political views.

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Lower Merion Township’s Request for Stay is DENIED.

Today, the Honorable Bernard Moore of the Montgomery County Court of Common Pleas denied Lower Merion Township’s request for stay pending the outcome of Leach v. Commonwealth, 585 MD 2014. A copy of the Order is available here. Accordingly, the matter will move forward and Plaintiffs expect that a hearing on their Preliminary Injunction will be held within the next couple weeks.

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