Category Archives: Pennsylvania Firearms Law

Has ATF Directed FFLs to Abuse the NICS System?

It’s no secret that ATF told at least one FFL they need to run a NICS check on trustees picking up NFA firearms on behalf of a trust. In a letter addressed to Dakota Silencer, ATF explained:

The term “person” is defined by the GCA at 18 U.S.C. § 921(a)(1), to include “any individual, corporation, company, association, firm, partnership, society, or joint stock company.”

ATF has interpreted the GCA exception in sections 922(t)(3)(B) and 478.102(d)(2) to mean that firearms transfers are exempt from a NICS check when they have been approved under the NFA to the person receiving the firearm. Unlike individuals, corporations, partnerships, and associations; unincorporated trusts do not fall within the definition of “person” in the GCA.

Because unincorporated trusts are not “persons” under the GCA, a Federal firearms licensee (FFL) cannot transfer firearms to them without complying with the GCA. Thus, when an FFL transfers an NFA firearm to a trustee or other person acting on behalf of a trust, the transfer is made to this person as an individual (i.e., not as a trust). As the trustee or other person acting on behalf of the trust is not the approved transferee under the NFA, 18 U.S.C. 5812, the trustee or other person acting on behalf of a trust must undergo a NICS check. The individual must also be a resident of the same State as the FFL when receiving the firearm.

This interpretation is what spawned the blog post “Did ATF’s Determination on NICS Checks Open the Door for Manufacture of New Machineguns for Trusts”  by Chief Counsel Joshua Prince. And as we all know, the NFA Examiners issued a number of approved Form 1s before they had to recall them due to an “error”.

Since this letter was published, a number of FFLs either on their own accord or through advice of counsel have begun to perform background checks when transferring NFA Firearms to trustees. But is this actually required?

A person under the National Firearms Act is defined in 26 U.S.C.A. § 7701:

The term “person” shall be construed to mean and include an individual, a trust, estate, partnership, association, company or corporation.

As defined in the National Firearms Act of 1934, the term firearm means:

 (1) a shotgun having a barrel or barrels of less than 18 inches in length; (2) a weapon made from a shotgun if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 18 inches in length; (3) a rifle having a barrel or barrels of less than 16 inches in length; (4) a weapon made from a rifle if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 16 inches in length; (5) any other weapon, as defined in subsection (e); (6) a machinegun; (7) any silencer (as defined in section 921 of Title 18, United States Code); and (8) a destructive device. 26 U.S.C.S § 5845(a)

maxim

As defined in the Gun Control Act of 1968, the term firearm means:

(A) any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; (B) the frame or receiver of any such weapon; (C) any firearm muffler or firearm silencer; or (D) any destructive device. Such term does not include an antique firearm. 18 U.S.C. § 921(a)(3)

So what’s the big deal you ask? There are a few different issues that need to be addressed.

First, does the GCA of 1968 even APPLY to trusts? As Section 921(a)(1) does not define the term “person” to include an unincorporated trust, there is nothing in the GCA to indicate a trust falls under its purview! As Chief Counsel Joshua Prince pointed out to me in our discussions on this topic, ATF has said that a trust cannot hold an FFL because trusts, by definition, are not a person under the GCA and thus do not fall into the purview of 18 U.S.C. § 923. Yet, in the same breath, ATF is stating that trustees need to have a background check performed when they pick up a NFA item! How is it that ATF can refuse an FFL to a trust, because it is not a person under the GCA and refuse to pierce through the trust to an actual person, while requiring an FFL to, in essence, pierce through the trust to perform a background check for an NFA item?

It would seem that ATF is directing at least one FFL to perform a background check that I can find no legal requirement to perform. To my knowledge there has not been an industry wide newsletter or open letter directing that FFLs perform such a check. And even if there were, there is nothing I can find in the law to suggest that it is actually required.

ATF in a 2011 newsletter to FFLs, addressed the licensing of trusts under federal firearms law. ATF stated that only a person under the GCA could obtain a FFL. ATF went on to say that under Section 921:

“The term ‘person’ does not include trusts.”

In a 2008 newsletter to FFLs, ATF addressed the transfer of a National Firearms Act firearm to a corporation or other legal entity.

Procedure after approval
Approved NFA transfers are exempt from the NICS background check. So, when the FFL arranges for the disposition of the NFA firearm to a representative of the corporation or other entity, only the ATF
Form 4473, Firearms Transaction Record, must be completed by the representative of the corporation or other entity.

Furthermore, the NICS system isn’t even run by ATF. FBI is responsible for NICS and for what purposes it can be used. 28 C.F.R. § 25.6 provides:

(a) FFLs may initiate a NICS background check only in connection with a proposed firearm transfer as required by the Brady Act. FFLs are strictly prohibited from initiating a NICS background check for any other purpose.

The Brady Act amended § 922 along with a few other sections of Chapter 44.

Looking at 18 U.S.C. § 922(t)(1), it provides:

Beginning on the date that is 30 days after the Attorney General notifies licensees under section 103(d) of the Brady Handgun Violence Prevention Act that the national instant criminal background check system is established, a … licensed dealer shall not transfer a firearm to any other person who is not licensed under this chapter, unless—
(A) before the completion of the transfer, the licensee contacts the national instant criminal background check system established under section 103 of that Act;

Section 922(t)(3) provides:

Paragraph (1) shall not apply to a firearm transfer between a licensee and another person if–…

(B) the Attorney General has approved the transfer under section 5812 of the Internal Revenue Code of 1986;…

If the Attorney General approved the transfer under Section 5812 of the Internal Revenue Code then no NICS check is required. But the devil is in the details. We are talking about a transfer from a licensee to a person and a trust is not a person as defined in 18 U.S.C. § 921. Since the licensed dealer isn’t transferring the firearm to a person, how could the GCA apply at all? Furthermore, why does it matter that the trustee or person acting on behalf of the trust is not the approved transferee under 26 U.S.C. § 5812? What makes them so special that they need a NICS check performed? A person who comes in to pick up a NFA firearm on behalf of a corporation or a LLC isn’t the approved transferee. Yet, ATF doesn’t seem to have any qualms about that individual picking up a NFA firearm without a NICS check under the 18 U.S.C. § 922(t)(3)(B) exemption.

Moreover, 28 C.F.R. § 25.6 prohibits FFLS from utilizing the NICS system for any other purpose than required by the Brady Act. Ostensibly, FFLs cannot comply with what ATF purportedly wants them to do; access NICS to perform a background check on a Trustee picking up a NFA firearm.

Utilizing the NICS system for purposes other than allowed by Subpart A of the National Instant Criminal Background Check System as defined by 28 C.F.R. §§ 25.1-25.11 shall result in a fine not to exceed $10,000 and the possible cancellation of NICS inquiry privileges. Which can more or less be read as the loss of ability to conduct business as a FFL, if it is canceled.

Even if the NICS query would not be illegal to perform, there is another issue under Pennsylvania law!

Pennsylvania defines firearm very differently. In 18 Pa.C.S. § 6102 a firearm is defined as:

Any pistol or revolver with a barrel length less than 15 inches, any shotgun with a barrel length less than 18 inches or any rifle with a barrel length less than 16 inches, or any pistol, revolver, rifle or shotgun with an overall length of less than 26 inches. The barrel length of a firearm shall be determined by measuring from the muzzle of the barrel to the face of the closed action, bolt or cylinder, whichever is applicable.

As you are probably aware, the Pennsylvania State Police act as a point of contact for the NICS system. However, Pennsylvania law only allows for limited uses of the PICS system. These uses are defined in 18 Pa.C.S. § 6111.

psp

Section 6111(b) requires that:

No … licensed dealer shall sell or deliver any firearm to another person … until the conditions of subsection (a) have been satisfied and until he has:

(1) For purposes of a firearm as defined insection 6102 (relating to definitions), obtained a completed application/record of sale from the potential buyer or transferee…

(2) Inspected photoidentification of the potential purchaser or transferee…

(3) Requested by means of a telephone call that the Pennsylvania State Police conduct a criminal history, juvenile delinquency history and a mental health record check.

(4) Received a unique approval number for that inquiry from the Pennsylvania State Police and recorded the date and the number on the application/record of sale form.

(5) Issued a receipt containing the information from paragraph (4), including the unique approval number of the purchaser….

Section 6111(f)(1) provides:

For the purposes of this section only … “firearm” shall mean any weapon which is designed to or may readily be converted to expel any projectile by the action of an explosive or the frame or receiver of any such weapon.

Even with the expanded definition of firearm for the purposes of this section, a silencer does not fit into the criteria spelled out by the General Assembly!

So what does all of this mean?

Section 6111(g)(3) states:

Any … licensed dealer … who knowingly and intentionally requests a criminal history, juvenile delinquency or mental health record check or other confidential information from the Pennsylvania State Police under this chapter for any purpose other than compliance with this chapter … commits a felony of the third degree.

Even if FFLs could contact NICS to perform a background check on a trustee when delivering a NFA Firearm without abusing the system, a Pennsylvania FFL will be committing a felony of the third degree under state law!

nics

FFLs who are conducting background checks on trustees due to their interpretation of the Dakota Silencer letter or legal advice they received may wish to inquire with their counsel as to whether or not they actually need to perform one. There does not appear to be any basis in the law for such a requirement. Section 921 does not include an unincorporated trust in the definition of a “person” and the Attorney General would have approved the transfer under 26 U.S.C.A. § 5812 to the trust!

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PRESS RELEASE: Lawsuit Filed Against Lower Merion Township Regarding Its Illegal Firearm Ordinance

Today, Firearms Industry Consulting Group, a division of Prince Law Offices, P.C., filed an 24 page Complaint, plus exhibits, against Lower Merion Township on behalf of Firearm Owners Against Crime (FOAC) and two individual plaintiffs regarding the Township’s illegal and unconstitutional firearm ordinance – Section 109-16. In the Complaint, Chief Counsel Joshua Prince argues that the Township’s ordinance violates 18 Pa.C.S. § 6120 and Article 1, Section 21 of the Pennsylvania Constitution, for which even Township Manager McNelly admitted and which is included as an exhibit.

Although the Township was provided an opportunity to repeal its illegal ordinance, in direct defiance of the state crime of Official Oppression, as well as, Section 6120, the Commissioners, contrary to the advice of their solicitor, refused to repeal or amend Section 109-16.

It is unfortunate that Township’s taxpayers will be burdened by the Township’s elected officials believing it is acceptable, and even gloating, that they are violating the Crimes Code and refusing to repeal such illegal provisions.

As it is a misdemeanor of the first degree to violate Section 6120, pursuant to 18 Pa.C.S. § 6119, we call upon Montgomery County District Attorney Risa Ferman, who is currently running for judge in Montgomery County, to bring charges against the Township and its representatives for their violations of the Crimes Code, including conspiracy, official oppression, and Section 6120. It is time that our elected officials be held accountable for their actions.

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Celebrating the ATF’s Decision Regarding SS109/M855 Ammunition? NOT SO FAST…

While many organizations are celebrating the putative victory in relation to the ATF’s announcement of earlier today that it would “not at this time seek to issue a final framework”, Firearms Industry Consulting Group (FICG), a division of Prince Law Offices, P.C., would caution our viewers and the Firearms Industry that ATF can likely, at any time, seek to move forward with a final framework without any further notice or comment.

Today, ATF posted on its website:

Notice to those Commenting on the Armor Piercing Ammunition Exemption Framework

Thank you for your interest in ATF’s proposed framework for determining whether certain projectiles are “primarily intended for sporting purposes” within the meaning of 18 U.S.C. 921(a)(17)(C). The informal comment period will close on Monday, March 16, 2015. ATF has already received more than 80,000 comments, which will be made publicly available as soon as practicable.

Although ATF endeavored to create a proposal that reflected a good faith interpretation of the law and balanced the interests of law enforcement, industry, and sportsmen, the vast majority of the comments received to date are critical of the framework, and include issues that deserve further study. Accordingly, ATF will not at this time seek to issue a final framework. After the close of the comment period, ATF will process the comments received, further evaluate the issues raised therein, and provide additional open and transparent process (for example, through additional proposals and opportunities for comment) before proceeding with any framework.

As ATF’s original Notice of Proposed Framework likely constituted a procedural rule, it was not likely subject to the notice-and-comment procedures under the Administrative Procedural Act, except for the ammunition specifically addressed. This may be why ATF erred on the side of caution in permitting comments but did not notice such comment period in the Federal Register. Regardless, ATF opened the door by permitting comments through March 16, 2015, and it is imperative that all individuals and entities that desire to comment on its proposed framework submit comments in opposition before the close of the comment period on Monday, March 16th. Contrary to ATF’s statement, as has been consistently reflected under the current Administration, an open and transparent process is anything but what has been provided, as will be further explained in FICG’s Comment in opposition. Further, although ATF states that it will further study the issues raised, assuming any framework constitutes a procedural rule, with the exception of the ammunition specifically addressed, ATF could move forward without any further notice or comment period.

It is for these reason that FICG believes it is imperative that all interested parties continue to submit their comments in opposition to the proposed framework through Monday, March 16th. In the next coming days, FICG will submit and post its extensive Comment regarding the proposed framework to ensure that all relevant and pertinent issues are raised and preserved, in protection of the Firearms Industry and the Second Amendment to the U.S. Constitution.

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Did Attorney General Kane Mislead the General Assembly and Fail in Her Statutory Duty?

As many of you are aware, I previously blogged on Attorney General Kathleen Kane’s 2013-2014 Annual Firearms Reciprocity Report, which the Attorney General is required, by law, to complete annually and submit to the General Assembly. Based on information I recently obtained, it is now questionable whether AG Kane purposely left out information from her report and failed in her statutory duty to enter into a reciprocity agreement with Idaho.

Pursuant to 18 Pa.C.S. § 6109(k)(2), the Attorney General is statutorily required to provide the General Assembly with an annual report regarding the reciprocal status with other states. Further, pursuant to 18 Pa.C.S. § 6109(k)(1),

The Attorney General shall have the power and duty to enter into reciprocity agreements with other states providing for the mutual recognition of a license to carry a firearm issued by the Commonwealth and a license or permit to carry a firearm issued by the other state. (Emphasis Added)

On July 1, 2014, Stephanie Altig, Deputy Attorney General of Idaho, sent a letter to Attorney General Kane requesting the establishment of a reciprocity agreement. Attorney General Kane, without any explanation, declared that “upon review of Idaho’s relevant statutory provisions, we have determined that at this time, Pennsylvania is unable to enter into a reciprocal agreement with Idaho.” You can download a complete copy of the response here.

AG Response to IdahoAttorney General Kane’s refusal to explain why a reciprocal agreement is not possible is extremely disconcerting given that Idaho’s Enhanced Concealed Carry Licensing requirements far exceed the Commonwealth’s requirements for a license to carry firearms. As a result, Deputy Attorney General Altig sent a follow up letter of August 19, 2014 to Pennsylvania Chief Deputy Attorney General Robert Mulle, inquiring as to why a reciprocal agreement was not possible, based on the enhanced requirements. To this day, neither Attorney General Kane nor Chief Deputy Mulle has responded to the letter.

In reviewing the 2013-2014 Firearm Reciprocity Report, Attorney General Kane fails to inform the General Assembly of Idaho’s inquiry. In fact, Idaho is not listed or specified anywhere in the report. Was this an attempt to hide this information or otherwise mislead the General Assembly?

As it appears that Attorney General Kane shirked her duty to enter into a reciprocity agreement with Idaho, as required by Section 6109(k)(1), she may have committed the highest level misdemeanor crime that we have in the Commonwealth, as a violation of Section 6109(k)(1) is a misdemeanor of the 1st degree, pursuant to Section 6119, which can be punished up to 5 years in jail.

It will be interesting to see how the Attorney General responds to inquiries regarding her failure to disclose the communications with Idaho to the General Assembly, as well as, the breach of her duty to enter into a reciprocal agreement with Idaho.

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Default Judgment Entered Against the City of Harrisburg, et al. in Firearm Preemption Litigation

Today, the Dauphin County Prothonotary entered a default judgment for Plaintiff Howard Bullock against the City of Harrisburg, Mayor Eric Papenfuse and Police Chief Thomas Carter in the amount of “$21,140 plus such additional sums as may be assessed at trial.”  You can download an entire copy of the Default Judgment here.

Screen Shot 2015-03-03 at 4.18.03 PM

This default judgment stems from a lawsuit filed against the City of Harrisburg, Mayor Eric Papenfuse and Police Chief Thomas Carter by Firearm Owners Against Crime (FOAC), Kim Stolfer, Joshua First and Howard Bullock, as a result of their illegal firearm ordinances.

On February 13, 2015, the Defendants removed FOAC, Kim Stolfer and Joshua First to the United States District Court, Middle District of Pennsylvania; however, they left Howard Bullock’s claims pending before the Dauphin County Court of Common Pleas. As the Defendants failed to file a responsive pleading to Plaintiff Bullock’s claims, even after being provided the requisite 10 day notice, the Dauphin County Prothonotary entered a default judgment for Mr. Bullock against the Defendants.

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Your Papers, Please.

On February 17, 2015 State Representative Cruz introduced draconian legislation that could only be described out of a play book from the Weimar Republic prior to the passage of the Gesetz über Schußwaffen und Munition (Law on Firearms and Ammunition) in 1928 which required citizens to get a license from police to acquire firearms. See Nazi Firearms Laws and the Disarming of the German Jews, Pg. 487-488.

weimar

House Bill 503, the Firearm Registration Act, requires that:

All firearms in this Commonwealth shall be registered in accordance with this section. It shall be the duty of a person owning or possessing any firearm to cause the firearm to be registered. No person within this Commonwealth may possess, harbor, have under the person’s control, transfer, offer for sale, sell, give, deliver or accept any firearm unless the person is the holder of a valid registration certificate for the firearm. No person within this Commonwealth may possess, harbor, have under the person’s control, transfer, offer for sale, sell, deliver or accept any firearm which is unregisterable under this act.

Representative Cruz was kind enough to leave exemptions for firearms owned by federal, state or local governments, duty related firearms to out of state police and corrections officers, firearms owned by manufacturers, transporters or retailers (provided they have the correct licensing), private security personnel (but their employer must own and maintain, as well as register the firearm) and individuals participating in recreational firearm activity in the Commonwealth or passing through provided that the firearm is either broken down or unloaded and cased.

The proposed legislation does not allow for individuals to obtain a registration certificate if they were convicted of a crime of violence, were convicted in the last five years of any violation of law relating to use, possession or sale of narcotics or are otherwise ineligible to possess a firearm under State or Federal law.

What is problematic with this proposed restriction, in addition to it being ill conceived, is that a crime of violence is not defined in this bill OR under 18 PA.C.S. § 6102. Ostensibly, this could mean that a summary conviction for a disorderly conduct involving a kick, punch, or shove could count and bar a person from being able to register their firearm.

disorderly

Simply put, if this bill was to pass and you are a resident of the Commonwealth of Pennsylvania, Representative Cruz would want you to get in line to register them with the Pennsylvania State Police (PSP). But the bill doesn’t simply require that individuals register their firearms. It asks for a fairly large amount of information, some of which the federal government doesn’t even require when purchasing a gun.

The bill proposes that every person who is required to register under the act submit an application to the (PSP) which would include:

(1) The name, home and business address, telephone number, date of birth and Social Security number of the applicant.

(2) The age, sex and citizenship of the applicant.

(3) The name of the manufacturer, the caliber or gauge, model, type and serial number of each firearm to be registered.

(4) Two photographs taken within 30 days immediately prior to the date of filing the application equivalent to passport size showing the full face, head and shoulders of the applicant in a clear and distinguishing manner.

(5) Additional information as the Pennsylvania State Police may deem necessary to process the application.

But it gets worse. In addition to part 5 being vague, applicants would be required to submit fingerprints as part of the application process and PSP would also conduct a background check at the time of application. Within 30 days PSP would notify an individual if they were approved or denied.

ct gun

Connecticut Gun Owners stand in line to register their guns in 2013

If an individual were approved, the PSP would issue a certificate which would contain their name, residence, date of birth, photograph and other information PSP deemed necessary. HB 503 states that the certificate shall be carried with the firearm and shall be exhibited to police upon demand for inspection. The proposed certificates would need to be renewed yearly, at a cost of $10 per application.

If the applicant is denied and exhausts the administrative remedies the Bill directs that the applicant must surrender the firearm for which the application was denied to PSP. And we all know that PSP has never made a mistake as to an individual’s ability to own and possess a firearm. Not to mention, the bill doesn’t allow the individual to transfer their property to another because under §3(a):

No person within this Commonwealth may…transfer, offer for sale, sell, give, deliver…any firearm unless the person is the holder of a valid registration certificate for the firearm.

The Bill also requires that individuals who hold a registration certificate shall within 48 hours: Notify PSP regarding any theft, loss or destruction of the firearm, change of information on the certificate, the sale, transfer or other disposition of the firearm and return the certificate to PSP after a firearm is lost, stolen, destroyed or otherwise disposed of.

Lastly, the Bill requires that a registrant

Keep any firearm in the registrant’s possession unloaded and disassembled or bound by a trigger lock, gun safe or similar device unless the firearm is in the registrant’s immediate possession and control while at the registrant’s place of residence or business or while being used for lawful recreational purposes within this Commonwealth.

Disassembled is not defined by this proposed bill or § 6102 either! Are we to understand disassembled as merely field stripped or is it further than that?

glock

If this bill doesn’t have you concerned, it should. Representative Cruz is proposing that every firearm you possess as an individual be registered with the state. History has shown that firearms registries ultimately lead to bad things. In addition to knowing your firearm collection, the bill would allow the PSP to know WHERE the firearms are kept!

This proposed draconian law would require individuals to prove ownership to the police by having them produce a certificate of registration upon demand! While the likelihood is that this bill will not make it out of committee, it is important to keep an eye on such legislation. Our current governor would be delighted to sign such an oppressing bill. And this isn’t the first time Representative Cruz has introduced this bill!

How can you prevent it from seeing the light of day?

Contact the members on the Judiciary Committee and tell them not to let HB 503 out of committee.

After the initial writing of this blog, it has come to my attention via the American Gun Owners Alliance that the Senate has a similar bill (SB 503) which has been referred to their Judiciary Committee as well.

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Motion for Stay is DENIED in NRA v. Lancaster

It was reported earlier this week that the City of Lancaster’s request for a Stay, pending the constitutional challenge in Leach v. Commonwealth of Pennsylvania, 585 MD 2014, was denied. However, today an Order was issued dated February 13, 2015, which granted the City’s request for a stay.

At my request, Attorney Adam Kraut of our firm called the Lancaster County Prothonotary to determine whether a second order had been issued, which vacated the the February 13, 2015 Order and denied the stay. Attorney Kraut learned that no such second order had been issued and that the only order was the February 13, 2015 Order. At that point, he reached out to reporter Nephin and Judge’s chambers to determine why it was reported that the Stay was denied, when the Order reflects that it was granted. It was thereafter learned that the Order was granted in error and that the Request for Stay had been denied. Upon learning of the error, Judge Madenspacher immediately issued a new Order, vacating the February 13, 2015 Order and denying the Request for Stay.

Thanks to the diligent efforts of Attorney Kraut, the proper order has been issued. Absent his devotion, it is unknown when this issue would have come to light.

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