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.
Category Archives: Pennsylvania Firearms Law
In late March, I wrote an article questioning whether ATF directed FFLs to abuse the NICS system in “requiring” a background check on a trustee to be performed on the transfer of a silencer to a trust. Furthermore, I contended that a Pennsylvania FFL who utilized the PICS system to perform such a check was committing a felony of the third degree under state law.
To my knowledge there is a legal service, who will remain unnamed, that advised Pennsylvania based FFLs to stop transferring silencers to trusts relying on the Dakota Silencer letter that had been published. Relying on the faulty logic that ATF utilized, the legal service concluded that because a trust is not defined as a person under the Gun Control Act of 1968, a trustee must undergo a background check in order to have the silencer transferred from the Pennsylvania FFL to the trustee. I am aware of several Pennsylvania FFLs who have either stopped transferring silencers to trustees or have required that individuals undergo background checks.
Prior to the writing of the article I had submitted a Right to Know Law Request to the Pennsylvania State Police asking for:
…all records, including but not limited to, any and all communications (either internal or external), determinations, notes, documents, records, etc. regarding gun/firearms trusts and the Uniform Firearms Act 18 Pa.C.S. 6101, et seq. and whether a background check being performed on a trustee purchasing or receiving a transfer on behalf of the trust is necessary.
I received a response today granting my request in part and denying it in part. The denial was merely based on personal identifying information (phone numbers and email addresses which were redacted). You can find the documents here.
The response includes a chain of emails between Christopher Clark of the Pennsylvania State Police and Susan B. Whitman of ATF. Mr. Clark inquires of Mrs. Whitman whether “ATF requires a NICS check on a trustee picking up a silencer on behalf of a trust”.
Mrs. Whitman replies:
No, ATF does not require a PICS/NICS check or a silencer/suppressor or a NFA firearm. PSP requires a PICS check on all firearms including NFA firearms. Silencer/Suppressors do not meet the PA state definition of firearm.
(Emphasis added, misspellings original).
Mr. Clark then asks if it makes a difference if it is being transferred to a trust or corporation and that he received a call from an attorney who indicated to him that ATF told him there has to be a background check when it involves a trust.
Mrs. Whitman responds:
An ATF Form 4473 is required, but the NICS is not required if the firearm/silencer is subject to the provisions of the National Firearms Act (NFA) and has been approved for transfer. The licensee must keep an ATF Form 4473 on file for all NFA transfers.
Under PA State law, all firearm transfers/sales between licensees require a PICS, therefore the ATF Form 4473 for the NFA firearms would include completing the NICS section and conducting a PICS background check.
A look at the FAQs in the newest edition of the ATF’s Federal Firearms Regulations Reference Guide (Revised September 2014) has an entry P18: “Are there transfers that are exempt from the NICS background check requirement?” The answer in the guide is rather telling.
Firearm transfers are exempt from the requirement for a NICS background check in three situations. These include transfers: (1) to transferees having a State permit that has been recognized by ATF as an alternative to a NICS check; (2) of National Firearms Act weapons to persons approved by ATF; and (3) certified by ATF as exempt because compliance with the NICS background check requirement is impracticable.
[18 U.S.C. 922(t); 27 CFR 478.102(d)]
(Emphasis added). ATF states in its Federal Firearms Regulations Reference Guide, which was updated after the letter sent to Dakota Silencer, that no NICS check is required for a NFA firearm to a person approved by ATF. Since all NFA firearm transfers have to be approved by ATF, there is only one conclusion to draw. No NICS check is required. Period.
Furthermore, the citation to the Brady Bill language in 18 U.S.C. 922 at the bottom of the FAQ references the same provision I cited in my previous article on the subject. The regulation that is referenced states:
(d) Exceptions to NICS check. The provisions of paragraph (a) of this section shall not apply if—…
(2) The firearm is subject to the provisions of the National Firearms Act and has been approved for transfer under 27 CFR part 479…
As there have been some emails and comments on this post, it is appropriate to update it so there is no confusion. In PA and from what I understand, several other states, the definition of a firearm does not include a silencer. However, in PA SBRs, SBSs, Machine Guns and AOWs would require a FFL to conduct a PICS check as the definition of firearm would include those items. I apologize if anyone was misled. This was strictly in the context of a silencer. As always, consult with your legal counsel before making any decisions.
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On Sunday, May 24, 2015, from 10am to 2pm, Chief Counsel Joshua Prince from the Firearms Industry Consulting Group, a division of Prince Law Offices, P.C., and Attorney Eric Winter from Prince Law Offices, P.C. will present on federal and state firearms law issues at the Heritage Guild of Easton, 70 Hilton Street, Easton, PA 18042. This seminar is being offered in support of Girly and a Gun and the Heritage Guild. The cost is $25 to Girly and a Gun. All attendees must RSVP by May 15, 2015.
Attorneys Prince and Winter will discuss everything from the types of firearms that we can own in PA, to what constitutes a prohibited person under state and federal law, to firearm estate planning, to use of force in a self-defense situation. There will also be a question and answer period for anyone to ask any questions that they may have. How often do you get unfettered access to firearms legal advice for a 4 hour period, for a mere $25?!?!
This is your opportunity to learn about Pennsylvania and Federal Firearms Law, while having all your questions answered and supporting both Girly and a Gun and the Heritage Guild! Make sure to sign up as soon as possible, as the venue does have capacity restrictions and it will be on a first come, first serve basis. Based on prior seminars, this will sell out quickly!
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’s redaction of donor information. You can download a copy of the determination here. OOR found
The City has not met its burden of demonstrating that responsive donor information may be redacted under Section 708(b)(13) of the RTKL
[T]he City is directed to provide an unredacted donor list to the Requester within thirty days.
It will be interesting to see whether the City complies.
The Thin Blue Label…A Tale of Confidential Information and a Glock Representative Demanding a Pennsylvania FFL Violate the Crimes Code
Trop Gun made a big splash on social media and forums on Thursday for their refusal to show Glock employees their 4473s for customers who had purchased guns through the Blue Label Program. In response to Trop’s refusal to show the Glock representative the 4473s, Glock terminated Trop from the Blue Label Program. You can read Trop’s response to having their Blue Label Program participation revoked here. For those who are unfamiliar, the Blue Label Program allows law enforcement, military, Glock Shooting Sports Foundation (GSSF) members and several other select individuals to purchase Glock pistols at a reduced price.
The Blue Label Program imposes certain requirements on dealers when selling “blue label” guns. Those requirements include collecting a copy of the individuals credentials (photocopy of their ID), filling out a form that certifies the sales representative saw the credential if a photocopy cannot be made or collecting the GSSF coupon that GSSF members bring. Glock requires that these be attached to the 4473.
According to Trop, when the Glock representative came to do an audit of the “blue label” firearms that were sold, the representative demanded access to view records relating to “blue label” sales including access to the 4473s. Trop Gun wisely refused the representative’s request. After attempting to find a solution that would allow the Glock representative to be satisfied that the “blue label” sales were only made to qualified individuals and arriving at nothing that would satisfy the demands of the Glock representative, Trop Gun was terminated from the Blue Label Program.
While Trop Gun refused the Glock representative access to the 4473s based on their position of protecting their customer’s privacy, there appears to be a more pertinent reason to deny the Glock representative access. It’s a violation of the Pennsylvania Crimes Code for a Pennsylvania FFL to disclose information provided by the transferee in relation to the purchase of a firearm.
18 Pa.C.S. § 6111(i) of the Pennsylvania Crimes Code reads:
Confidentiality.–All information provided by the potential purchaser, transferee or applicant, including, but not limited to, the potential purchaser, transferee or applicant’s name or identity, furnished by a potential purchaser or transferee under this section…shall be confidential and not subject to public disclosure. In addition to any other sanction or penalty imposed by this chapter, any person, licensed dealer, State or local governmental agency or department that violates this subsection shall be liable in civil damages in the amount of $1,000 per occurrence or three times the actual damages incurred as a result of the violation, whichever is greater, as well as reasonable attorney fees.
As Section 6111 pertains to the sale or transfer of firearms, the information provided by the transferee is confidential and not subject to public disclosure. This prohibition of disclosure would surely include the Glock representative who arrives at a Pennsylvania FFL to conduct an audit of “blue label” sales. Furthermore, any FFL who did provide the 4473s and/or Pennsylvania Record of Sale to a Glock representative would be in violation of Section 6111(i) and subject to civil penalties in the amount of $1,000 per occurrence or three times the actual damages incurred as a result of the violation, as well as reasonable attorney fees!
Ostensibly, as the credentials Glock requires individuals to provide in order to purchase a “blue label” gun are being provided for the purchase of a firearm, there may be an argument that the disclosure of those credentials are in violation of Section 6111.
All FFLs in Pennsylvania who are Blue Label Program members should be aware of this issue. If a Glock representative requests information pertaining to an audit for “blue label” guns and the PA FFL provides them with any information furnished by the transferee, that FFL could be civilly liable under the Pennsylvania Crimes Code. Perhaps the next Pennsylvania FFL who is ordered to disclose their 4473s for a Glock “blue label” audit would be better suited in pointing out the request is asking them to violate the Pennsylvania Crimes Code. Maybe after reviewing this matter more closely, Glock will reconsider their termination of Trop’s Blue Label Program participation, as they were asking Trop Gun to potentially open themselves up to civil liability.
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City of Lancaster’s RTKL Disclosures Regarding It’s Unlawful Defense Fund, Including the Mayor’s Chief of Staff “Need[s] Dope”
As most of our viewers are aware, on February 25, 2015, I submitted a Right to Know Law (RTKL) Request on the City of Lancaster in relation to the litigation of NRA v. City of Lancaster and the defense fund it instituted to pay for that litigation. Specifically, I requested the following:
This is a request for all records, including, but not limited to, financial records pursuant to Section 102, since January of 2015, relating to the National Rifle Association (NRA) v. City of Lancaster, including, but not limited to, the following:
(1) All records, including, but not limited to, City of Lancaster’s Legal Defense Fund, information of which can be found at http://www.commonsenselancaster.com and http://www.cityoflancasterpa.com/blog/message-mayor-gray-nra-lawsuit. As provided for by Section 102, this specifically includes, but is not limited to, the names, addresses, and amounts of any donations to/receipts by the City of Lancaster;
(2) All records, including, but not limited to, all financial accounts and financial institutions utilized by the City of Lancaster, in relation to request (1);
(3) all records, including, but not limited to, contracts, communications, and billings, from or to Dechert, LLP or any other law firm or attorney hired to review the legal issues relating to request (1); and
(4) Any other record in any way relating to the current litigation in NRA v. City of Lancaster.
On March 4, 2015, the City requested 30 days to respond, which it is permitted under the RTKL. On April 1, 2015, I received a response from the City stating that “Your request is granted” and that the records would be disclosed upon my payment of $104.50. It is notable that no exemptions were claimed in the response; rather, as reflected on the face of the March 4, 2015 letter, my request was granted.
Understanding that the City had granted my request in full (per the City’s April 1, 2015 letter stating such), I paid the $104.50 (418 pages at .25 cents per page). On April 6, 2015, I received the City’s disclosures, now denying in part my request and claiming exemptions not previously asserted. (Nice how that works; AFTER someone has paid pursuant to an understanding that the request was granted in full, they then deny in part the request…but, I digress. This will be an issue for the Office of Open Records (OOR) in my future appeal). The City categorized the disclosures into 12 sub-parts (A – L). The categories and links to download the applicable documents are as follows:
In Production A., it reflects that the City has taken in over $18,000 in donations. Of course, contrary to their original grant of my request, they redacted the donor names and contact information. Again, this issue will be addressed in my future appeal to OOR.
In Production G., Travelers’ January 30, 2015 letter, (pdf pg 6) is enlightening. Specifically, on pdf pg 8, Travelers reviews its exemptions for “wrongful acts.” Travelers’ letter goes on to state:
To the extent that Plaintiff seeks damages in connection with a “wrongful act” committed by or on behalf of the City in the conduct of the City’s duties, the following exclusions may apply;…
Well that doesn’t sound good…So, let’s see what the Carrier goes on to disclaim on the next page:
Plaintiff requests a declaration that the Ordinance is pre-empted by state statute. Plaintiff also seeks to enjoin the City from enforcing the Ordinance. To the extent that any loss, cost or expense for complying with any injunctive or other non-monetary relief is assessed against the City, there would be no coverage for those damages. In addition, the claims for injunctive and declaratory relief do not qualify as damages under the Policy. Therefore, the injunctive, declaratory and non-monetary relief claims are disclaimed.
Uh oh…last I checked, Section 6120 applied to declaratory and injunctive relief, unless the party had actual damages. Maybe, I’m in error, as it has been at least 2 hours since I’ve thought about Section 6120. Nope, Section 6120 (a.2) provides that an aggrieved individual “may seek declaratory or injunctive relief and actual damages.” Since actual damages are not in play in NRA v. City of Lancaster, the City is liable for ALL costs and fees awarded by the court, contrary to Mayor Gray’s statement that the City only has a $25,000 deductible. I think the residents of Lancaster might be interested to learn that per Travelers’ disclaimer, they’re on the hook for ALL the fees and costs associated with this litigation.
Butl, Travelers isn’t done yet.
The Complaint seeks punitive damages if available. Directly assessed punitive damages are uninsurable in Pennsylvania and any award for such punitive damages would not be covered by the City’s policy with Travelers.
Wow…that’s too bad because those multi-million dollar verdicts tend to result from punitive damages. I guess the taxpayers will have to cough up that money, as well, all because the Mayor and City Council believe they are above the law.
But things only get worse in the disclosures.
In Production J., (pdf pg 42) Patricia Brogan, Mayor Gray’s Chief of Staff declares:
Actually, I NEED dope…
This stuff is too good to make up. I wonder if the good Mayor will oppose the drug laws and defend his Chief of Staff in her need for illicit drugs. Inquiring minds want to know Mayor Gray…
More interesting tidbits from the disclosures include the City’s relationship with Everytown for Gun Safety (formerly Mayors Against Illegal Guns – boy, they sure do change names frequently, especially when a lot of their members are convicted of deplorable crimes) (Production J. at pdf pg 65). Production J. also reflects the City’s desire, from the start, to utilize any donations for purposes beyond the litigation in NRA v. City of Lancaster. See, Production J. at pdf pg 143.
There are some more beneficial tidbits in the disclosures that I’ll save for later…like during the appeal or when the time is right. Someone in the City might want to take a second look at the IRS exemptions…especially, when the case law already establishes that a lost and stolen ordinance violates pre-amendment Section 6120.
As many of our viewers are aware, almost a year ago, on April 19, 2014, I submitted a written request to the Pennsylvania Gaming Control Board to invalidate Section 465a.13, as it violated 18 Pa.C.S. § 6109(m.3). In June, I heard from Chief Counsel of the PA Gaming Control Board that the issue had been forwarded to Attorney General Kane. 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.”
Yesterday, April 16, 2015, the Board convened and repealed the firearm regulations in Section 465a.13. You can find a copy of the final approved rule on the Independent Regulatory Review Commission’s website – here.
We are still waiting to hear from DCNR, L&I and State regarding the repeal of their unlawful regulations.