Category Archives: Pennsylvania Firearms Law

FICG Files Letter Against Disclosure of Perry County License to Carry Firearms Applicants

On April 12, 2014, Reporter Sean Sauro reported that Perry County Sheriff Carl Nace was refusing a request by Perry County Auditor Kimberly McMullen to disclose Perry County License to Carry Firearms (LTCF) applicant information. Sheriff Nace correctly stated “They want the names of the people who have gun permits, and that’s confidential … The only ones who can get information are law enforcement under official duty.” But Auditor McMullen was not satisfied and stated “Previously, concealed firearms information was available to the public under the right-to-know law…However, last year, rules were established to exclude this information from public view.” In fact, she “submitted a $6,700 proposal to the commissioners to use Nauman Smith attorneys of Harrisburg to determine whether the records should be released to the auditor.”

To save the tax payers $6,700.00, FICG filed a letter in opposition to the disclosure of confidential LTCF information citing to the civil and criminal penalties for disclosure. You can download a copy of our letter here. As we discuss in our letter, each disclosure results in a $1000 statutory damage (or treble actual damages) and a criminal penalty of a misdemeanor of the first degree. Furthermore, based on Auditor McMullen’s statement that this information was previously being disclosed through Right to Know Law requests, we requested all information on previous disclosures. For those unaware, we are currently litigating a class action lawsuit against the City of Philadelphia for disclosing confidential LTCF information.

We will continue to keep our readers apprised of this situation. If you or anyone you know has had their confidential LTCF information disclosed by any person or entity, please contact us today so that we can discuss your legal options.

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FICG Files Comment in Opposition to ATF 51P

Today, Firearms Industry Consulting Group (FICG), a division of Prince Law Offices, P.C., filed its official Comment in opposition to ATF’s newest rulemaking endeavor, ATF 51P, regarding ATF’s desire to amend the definitions of “adjudicated as a mental defective” and “committed to a mental institution.”

Due to the proposed Rule involving mental health, few in the Firearms Industry wanted to take a stand against this new notice of proposed rulemaking. However, as FICG is dedicated to the protection of our fundamental, inalienable Right to Keep and Bear Arms, I prepared a Comment in opposition, while providing ATF with some alternatives that would further protect those, who have been committed to a mental institution, especially in the absence of due process.

While the comment period closes on Monday, April 7, 2014, at midnight, we are requesting that our readers review our Comment, which can be downloaded here, and submit Comments in support, especially in relation to 1) excluding those individuals, who where committed under the age of 18 from the purview of Section 922(g)(4); 2). excluding those individuals, who, post-commitment, served the state or federal government in a capacity where they were provided a firearm; 3). excluding those individuals, who, post-commitment, obtained Federal Explosives Relief; and 4). excluding any commitment that lack all of the due process guarantees. You can find our arguments relating to these issues and others in Section V (pg 34) of our Comment.

Regardless of whether you suffer from a mental health diagnosis, know someone who suffers from a mental health diagnosis or are just a firearms enthusiast, we all need to take this opportunity to ensure that our rights aren’t further eroded.

 

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Does a PA Bar Applicant Have to Disclose that He/She Filed For or Obtained a License to Carry Firearms?

Recently, I had the opportunity to address whether a Pennsylvania Bar applicant may lawfully and ethically refuse to disclose on the application that he/she filed for or obtained a license to carry firearms (LTCF) because of the confidentiality provisions of 18 Pa.C.S. § 6111(i).

Several weeks ago, a client and soon-to-be Bar applicant contacted me regarding the seemingly required disclosure of his LTCF information. On page 34 of the 40 page application to register to take the PA Bar exam, the applicant is asked:

Have you ever applied for a permit or license, other than one to practice law, that required proof of good character (e.g., CPA, concealed weapons permit, medical professional, teacher, stock broker, etc.)? (emphasis added)

There are then boxes for the applicant to check off either yes or no. An applicant that responds in the affirmative is then asked:

Please provide a separate entry for each permit or license application. Provide the permit or license type, the jurisdiction in which you applied for the license or permit, the disposition of your application for the permit or license, and your permit or license number (if known).

However, pursuant to 18 Pa.C.S. § 6111(i) all LTCF information is confidential:

Confidentiality. All information provided by the potential … applicant, including, but not limited to, the … applicant’s name or identity, furnished by … any applicant for a license to carry a firearm as provided by section 6109 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. (emphasis added).

Upon becoming aware of this (having forgotten about having to respond to this question when I applied for the Bar exam), I agreed to draft a letter to the Pennsylvania Board of Law Examiners requesting an official determination that a Bar applicant may lawfully and ethically not respond to the question of whether he/she has applied for or obtained an LTCF as the information is confidential under Pennsylvania law. I sent the expedited request on March 23, 2014, because all Bar applications must be filed by April 15, 2014.

On April 1, 2014, the PA Board of Law Examiners graciously granted my request to expedite the formal decision by responding back that:

However, due to the  unresolved issues with respect to the confidentiality of the information concerning a concealed weapons permit, you are advised that your client in completing his July 2014 Pennsylvania bar application may answer the question dealing in part with whether he had ever applied for a concealed weapons permit in the negative (assuming that he had not applied for any of the other applicable permits or licenses) notwithstanding the fact that he had in fact applied for and was issued such a permit.

Attorney Joseph Rengert, Counsel to the Board, went on to explain that:

Your client should then indicate in response to the last question on the electronic application which requires disclosure of other relevant information, that it was his intent to not provide any response to the question dealing with concealed weapons permits due to confidentiality concerns but that since this was not an available option for him in completing the application, he answered no to the question. Given the constraints of the electronic application process which do not permit an applicant to not answer a question, the fact that your client answered no to the question about having applied for a concealed weapons permit with the accompanying explanation noted above will not be considered an untruthful response to that question on the bar application.”

A copy of the April 1, 2014 letter from the PA Board of Law Examiner can be downloaded here.

While not an ultimate decision that a Bar applicant does NOT have to respond to question 34 for future Bar applications or that the question will definitively be modified in accordance with Section 6111(i), and while acknowledging that some form of disclosure is still being required by the Board in accordance with the above directions, given the extremely short notice and willingness by the Board to timely act, my client and I are extremely appreciative of the actions and determination of the Board. We expect, based on the positive response received, that a final determination will be made by the Board, before the next Bar exam, that a Bar applicant does not need to respond to question 34 in relation to a PA LTCF.

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The Constitutional Right Against Self Incrimination Applies Even to the PA Game Commission

By Tom Beveridge

Jack Coble of Perry County believes in his constitutional rights.   In fact, he spent thousands of dollars to fight a citation he received from a Pennsylvania Game Commission officer – and he won!

On November 7, 2012, a Deputy Wildlife Conservation Officer Steven Shaffer entered Mr. Coble’s farm to investigate a tip about “jacklighting” deer on his property.   Jacklighting is an illegal method of spotlighting and shooting deer at night.   Mr. Coble was home recuperating from serious hand injury when he was questioned by the deputy.   He denied any knowledge of such activities, but left his home to drive around his 120 acre farm followed by the deputy.   When they arrived at the barn, the deputy and Mr. Coble came upon his daughter and another man with the carcass of a deer.

As reported by the Associated Press, Deputy Shaffer testified that Mr. Coble became “irate” at this point and ordered him off of his land.   Apparently, the deputy did not leave as requested, but testified that, when things “calmed down, he [Mr. Coble] admitted to being present when the deer was shot.”   Thereafter, Deputy Shaffer apparently cited Mr. Coble with a summary charge of the fourth degree (the fine totaling $150) under section 2126(a)(6) of Title 34 of the Game and Wildlife Code.   This section states that it is unlawful for any person acting under the provisions for “destruction for agricultural protection” – an assumption apparently made by the deputy – to “refuse to answer, without evasion, upon request of any representative of the [PA Game] commission, any pertinent question pertaining to the killing or wounding of any game or wildlife killed or wounded, or the disposition of the entire carcass or any part thereof.”  Deputy Shaffer believed Mr. Coble was “being evasive” and, therefore, cited him under this section.

Mr. Coble hired Donald Zagurskie, Esquire, to defend him against this charge.   Attorney Zagurskie successfully argued that it is a violation of Mr. Coble’s Fifth Amendment right against self incrimination to cite him for not answering or evasively answering questions of the deputy.   In fact, this section of the Game Code effectively forced Mr. Coble to answer the deputy’s questions or be punished at the discretion of the officer.

In what this attorney calls a very commendable act, the Perry County Prosecutor handling the matter agreed with Attorney Zagurskie’s argument stating that it certainly had merit and did not contest Mr. Coble’s appeal.   Although the Prosecutor, believed to be Daniel Stern, Esquire, notified the Game Commission and Attorney General’s office of his decision not to contest the appeal, neither office initiated any actions to intervene in the matter or pursue the matter further.

So, what does this mean for Pennsylvania sportsmen?  While this section of the Game Code is very narrowly applied, it means that you should not be intimidated by Fish or Game Wardens who tell you that you must answer their questions or face a penalty.   It means that you have a Constitutional right against self incrimination and a right to consult an attorney.   I strongly suggest that anyone who is questioned by any such officers be very respectful to their authority, but never be intimidated or forced to answer questions.  Simply advise the officer that you wish to consult with your attorney before answering any further questions – regardless of the circumstances!   You should feel free to contact our office at any time – day or night – and use our emergency number to obtain legal advice, and, if necessary, legal representation to protect your rights.  Call us anytime, toll free, at 888-313-0416.  Not only are we devoted to protecting your Second Amendment rights, but ALL of YOUR Constitutional Rights!

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U.S. Supreme Court Decides What Constitutes Domestic Violence

Today, in the matter of U.S. v. Castleman, 12–1371, the U.S. Supreme Court issued its decision relating to what constitutes a “misdemeanor crime of domestic violence.”

The brief background is that in 2001 Mr. Castleman pled guilty in Tennessee to “intentionally or knowingly caus[ing] bodily injury to” the mother of his child, in violation of Tenn. Code Ann. §39–13–111(b). In 2008, the ATF learned that he was selling guns, allegedly on the black market. A grand jury in the Western District of Tennessee indicted him on two counts of violating §922(g)(9) and several other charges. His attorney then moved to have the charges dismissed because his Tennessee “conviction did not qualify as a ‘misdemeanor crime of domestic violence’ because it did not ‘ha[ve], as an element, the use . . . of physical force,’ § 921(a)(33)(A)(ii).” The District Court agreed, holding that “the ‘use of physical force’ for §922(g)(9) purposes” must entail “violent contact with the victim.” The court held that a conviction “under the relevant Tennessee statute cannot qualify as a ‘misdemeanor crime of domestic violence’ because one can cause bodily injury without ‘violent contact’—for example, by ‘deceiving [the victim] into drinking a poisoned beverage’.” A divided panel of the U.S. Court of Appeals for the Sixth Circuit affirmed the decision but held that its rationale was based on “the degree of physical force required by §921(a)(33)(A)(ii) is the same as required by §924(e)(2)(B)(i), which defines ‘violent felony’.”

The Supreme Court, in reversing the Trial Court and Sixth Circuit, held that it attributes “the common-law meaning of ‘force’ to §921(a)(33)(A)’s definition of a ‘misdemeanor crime of domestic violence’ as an offense that ‘has, as an element, the use or attempted use of physical force.’ We therefore hold that the requirement of ‘physical force’ is satisfied, for purposes of §922(g)(9), by the degree of force that supports a common-law battery conviction.” While this portion, in essence, makes sense given the statutory language, the Court then decides to define “physical force,” and in so doing, redefines, in the context of domestic violence, absent any Legislative intent, what constitutes physical force.

To begin the Court starts by stating, “‘Domestic violence’ is not merely a type of ‘violence’; it is a term of art encompassing acts that one might not characterize as ‘violent’ in a nondomestic context.” (Really? So if Steve pulls my hair and is convicted, since we aren’t domestic partners, he isn’t prohibited; but if Steve pulls his girlfriend’s hair, he is prohibited – yeah that sounds like Equal Protection under the law). The Court then provides an example of what all is encapsulated by physical force: “‘[A] battery may be committed by administering a poison or by infecting with a disease, or even by resort to some intangible substance,’ such as a laser beam” and then holds that “It is impossible to cause bodily injury without applying force in the common-law sense.” (Really? See below for Justice Scalia’s take on this broad sweeping approach). The Court goes on to state that “most physical assaults committed against women and men by intimates are relatively minor and consist of pushing, grabbing, shoving, slapping, and hitting” and then declares:

the Seventh Circuit noted that it was “hard to describe . . . as “violence” “a squeeze of the arm [that] causes a bruise.” Flores v. Ashcroft, 350 F. 3d 666, 670 (2003). But an act of this nature is easy to describe as “domestic violence,” when the accumulation of such acts over time can subject one intimate partner to the other’s control. If a seemingly minor act like this draws the attention of authorities and leads to a successful prosecution for a misdemeanor offense, it does not offend common sense or the English language to characterize the resulting conviction as a “misdemeanor crime of domestic violence.”

This is consistent with the Pennsylvania Commonwealth Court’s decision in PSP v. McPherson, 831 A.2d 800 (Cmwlth. 2002) (holding that a misdemeanor disorderly conduct guilty plea (without any hearing) can prohibit an individual pursuant to 18 U.S.C. 922(g)(9)).

It is important to note that the Court dismissed any argument under the Second Amendment, as the constitutionality of 922(g)(9), either facially or as applied to him, was not argued by Castleman.

Justice Scalia’s concurring opinion is somewhat entertaining (as always). While he agrees in the result, he raises grave concern with the Court’s new definition of physical force -

Unfortunately, the Court bypasses that narrower interpretation of §921(a)(33)(A)(ii) in favor of a much broader one that treats any offensive touching, no matter how slight, as sufficient. That expansive common-law definition cannot be squared with relevant precedent or statutory text.

In reviewing the Legislative debate and intent, Justice Scalia states:

I think it far more plausible that Congress enacted a statute that covered domestic-violence convictions in four-fifths of the States, and left it to the handful of nonconforming States to change their laws (as some have), than that Congress adopted a meaning of “domestic violence” that included the slightest unwanted touching.

Justice Scalia, in true Scalia-fashion, then informs us of his true feelings about the Court’s decision

That is to say, an act need not be violent to qualify as “domestic violence.” That absurdity is not only at war with the English language, it is flatly inconsistent with definitions of “domestic violence” from the period surrounding§921(a)(33)(A)(ii)’s enactment.

He then goes on to raise concern with the amicis’ definitions of domestic violence and where it may lead the Court in the future

amici’s definitions describe as “domestic violence” acts that “humiliate, isolate, frighten, . . . [and] blame . . . someone”; “acts of omission”; “excessive monitoring of a woman’s behavior, repeated accusations of infidelity, and controlling with whom she has contact.” Brief for National Network to End Domestic Violence et al. as Amici Curiae 5–8, and nn. 7, 11.

and

The offerings of the Department of Justice’s Office on Violence Against Women are equally capacious and (to put it mildly) unconventional.Its publications define “domestic violence” as “a pattern of abusive behavior . . . used by one partner to gain or maintain power and control over another,” including“[u]ndermining an individual’s sense of self-worth,” “name-calling,” and “damaging one’s relationship with his or her children.” See, e.g., Domestic Violence, online at http://www.ovw.usdoj.gov/domviolence.htm (all Internet materials as visited Mar. 21, 2014, and available in the Clerk of Court’s case file).

After acknowledging, as all of us do, that there is nothing more abhorrent than violence against women (and men), he declares in relation to the amici – But when they (and the Court) impose their all embracing definition on the rest of us, they not only distort the law, they impoverish the language. When everything is domestic violence, nothing is. (emphasis added)

Clearly, the issue of domestic violence is an issue that requires attention; however, the pendulum went from the absence of action to the overall encompassment of everything being domestic violence. Why is it that Steve should be permitted to pull my hair and not become a prohibited person but if he pulls his girlfriend’s hair, he will become a prohibited person? Why do I deserve a lesser status as a victim? How are the laws applying equally to Steve, his girlfriend and myself? And lastly, last time I checked, it was the Congress that enacted laws, not the Supreme Court. In this decision, the Supreme Court has sought fit to define, in broad sweeping terms, the definition of physical force, which is an act that only the Congress should be empowered to undertake. The Court has gone way beyond interpreting the Legislative intent, as Justice Scalia properly notes.

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Third Class City Code Reenacted with Firearm Protections

Like to most Pennsylvanians, it is probably a surprise to our readers that the Third Class City Code, 53 P.S. § 35101, et seq., was up for reenactment, as it was set to expire. Yesterday, March 19, 2014, Governor Corbett signed the re-codification, SB 497, into law.

Few would even take note of the re-codification but it was on our radar, as there were provisions within the Third Class City Code, which could be argued, if reenacted, to trump our right to conceal carry pursuant to a valid license to carry firearms and to trump our firearm and ammunition preemption statute that is found in 18 Pa.C.S. § 6120. Therefore, we worked with Firearm Owners Against Crime and the Legislature to ensure that our firearm preemption statute was not infringed.

Under the previous version, enacted in the 1930s, the Third Class City Code in 53 P.A. 37403 (26) provided

Regulate guns, et cetera.–To regulate, prohibit, and prevent the discharge of guns, rockets, powder, or any other dangerous instrument or combustible material within the city, and to prevent the carrying of concealed deadly weapons.

The Legislature would thereafter in 1995 enact Pennsylvania’s Uniform Firearms Act, 18 Pa.C.S. § 6101, et seq., which included provisions dealing with the concealed carrying of firearms in 18 Pa.C.S. § 6109  and firearm and ammunition preemption in 18 Pa.C.S. § 6120. Section 6120 specifically provides

(a) General rule.–No county, municipality or township may in any manner regulate the lawful ownership, possession, transfer or transportation of firearms, ammunition or ammunition components when carried or transported for purposes not prohibited by the laws of this Commonwealth.

Our concern was that if the Third Class City Code was reenacted, there would exist arguments, under Pennsylvania’s Statutory Construction Act, 1 Pa.C.S. § 1501, et seq., that the Third Class City Code would trump Sections 6109 and 6120. Pursuant to 1 Pa.C.S. § 1936

Whenever the provisions of two or more statutes enacted finally by different General Assemblies are irreconcilable, the statute latest in date of final enactment shall prevail.

Further, under 1 Pa.C.S. § 1933

Whenever a general provision in a statute shall be in conflict with a special provision in the same or another statute, the two shall be construed, if possible, so that effect may be given to both. If the conflict between the two provisions is irreconcilable, the special provisions shall prevail and shall be construed as an exception to the general provision, unless the general provision shall be enacted later and it shall be the manifest intention of the General Assembly that such general provision shall prevail.

Therefore, we worked with Firearm Owners Against Crime and the Legislature to ensure that the legislative intent in enacting Sections 6109 and 6120 was not encroached upon. While far from perfect (and we did attempt to strengthen the language, have the discharge portion removed and have knives excluded), we were able to have the language changed in the new Section 2423 to

Regulate Discharge of Guns and Deadly Weapons.–To the extent permitted by Federal and other State law, council may regulate, prohibit, prevent the discharge of guns and prevent the carrying of concealed deadly weapons. (emphasis added)

By including the above language, the Legislature clearly indicated that Sections 6109 and 6120 still apply and therefore, third class municipalities may not regulate the concealed carrying of firearms and ammunition. As some may be aware or remember from our litigation in Dillon v. City of Erie, the City of Erie is a City of the Third Class. The Legislature, aware of the Erie litigation, wanted to ensure that no argument existed that it could regulate, in any manner, the possession and transport of firearms and ammunition.

We greatly appreciate all the hard work of Firearms Owners Against Crime and the Legislature in ensuring that our inalienable right to keep and bear arms was not encroached upon by cities of the third class.

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Preliminary and Permanent Injunction Granted Against the City of Erie

On February 21st, 2014, Erie Court of Common Pleas President Judge Ernest DiSantis, Jr. issued an Order granting not only Justin Dillon’s request for a preliminary injunction against the City of Erie’s Ordinance 955.06 but also his request for a permanent injunction. In the very simple Order, Judge DiSantis wrote, “AND NOW, this 21st day of February 2014, in light of the Pennsylvania Commonwealth Court’s January 7, 2014 decision, it is hereby ORDERED that the plaintiff’s request for a preliminary injunction is GRANTED. It is further ORDERED that the injunction is made permanent effective today.”

This has effectively permanently enjoined the City of Erie from enforcing Ordinance 966.05(b).

Further, in relation to the criminal charges that were pressed against Mr. Dillon and seven other individuals, at the request of the City’s assistant solicitor, Kenneth Zaks, Judge Stephanie Domitrovich nolle prossed all the charges in her Order of February 24, 2014.

A Rally in support of Justin Dillon and the seven other individuals that were cited (now known as the Erie 8) is scheduled for Saturday, April 12, 2014 at 2pm in Perry Square.

This litigation would not have been possible without the support of the NRA Civil Rights Defense Fund (CRDF), Gun Owners of America, and numerous other individuals that donated. Unfortunately, since it was necessary to appeal to the Commonwealth Court, the court costs and attorney fees are substantial. Anyone wishing to donate can do so here.

It is worth noting that since the Commonwealth Court ruled in this matter, several municipalities, such as Falls Township and Bristol Borough, have not only indefinitely tabled new firearms ordinances but additionally amended their existing regulations in compliance with Section 6120. I hope everyone will support HB 805 and HB 2011, so that Section 6120 can be amended to include for attorney fees and costs so that individuals, like Justin, will be compensated for enforcing Section 6120 against municipalities that ignore the Legislature’s dictate.

The Erie 8 are currently considering their options in relation to filing suit against the City for deprivation of their civil liberties.

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The Great Pennsylvanian Trunk Gun

If you ever read Internet gun forums or overhear conversations at a gun store you will often hear many people asking for firearm recommendations for a variety of reasons. The reasons range from everyday practical ones, such as concealed carry protection to more esoteric ones…like bear protection.  On the more esoteric side of the equation you will often hear of people desiring to have a “trunk or truck gun.”

The term can be applied to handguns or long guns, but in general, the term is more commonly applied to long guns. The general concept behind the “trunk gun” is that if someone spots game while out in a rural area they would be able to hunt it. The other is the potential use of the firearm in some type of self defense situation (possibly an ambush) where having a long gun at their disposal would be helpful.

This is all fine and well, but for residents of Pennsylvania there are several legal issues that they should be aware of before they embark on their “Battle Van.”

The first and perhaps most important consideration is that it is illegal in the state of Pennsylvania to have a loaded long gun in one’s vehicle. This is not purely out of a gun control related issue, but also out of game law and concerns about poaching (it is also illegal under the Uniform Firearm Act). Since one is generally not allowed to hunt from a car (without special permission from the Pennsylvania Game Commission), the presumption (rightly or wrongly) is that a person with a loaded long gun in their vehicle is going to attempt to take game from their car. The text of Chapter 25, Section 2503, of the Game and Wildlife Code is in fact titled Loaded firearms in vehicles and states:

Except as otherwise provided in this title, it is unlawful for any person to have a firearm of any kind in or on or against any conveyance propelled by mechanical power or its attachments at any time whether or not the vehicle or its attachment is in motion unless the firearm is unloaded.

Now at first glance that would ban people from carrying loaded handguns in the cars too (when in possession of a valid License to Carry Firearms). However, one of the exceptions is:

A person carrying a loaded pistol or revolver when in possession of a valid firearms license.

It should be noted that it is illegal to transport a loaded long gun in your carry, regardless of whether you have a Pennsylvania Licence to Carry Firearms (as discussed further below). The penalty for having a loaded long gun in your car is a summary offense of the 4th degree, if the vehicle is in motion. It is a summary offense of the 5th degree in all other circumstances.

It should also be noted that carrying a loaded rifle is also illegal per section 6106.1 of the Uniform Firearm Act under the heading: Carrying loaded weapons other than firearms which states:

Except as provided in Title 34 (relating to game), no person shall carry a loaded pistol, revolver, shotgun or rifle, other than a firearm as defined in section 6102 (relating to definitions), in any vehicle. The provisions of this section shall not apply to persons excepted from the requirement of a license to carry firearms under section 6106(b)(1), (2), (5) or (6) (relating to firearms not to be carried without a license) nor shall the provisions of this section be construed to permit persons to carry firearms in a vehicle where such conduct is prohibited by section 6106.

A violation of this law is considered a summary offense, but unlike the game code violations cited earlier, it is simply a summary offense, not one of a particular degree. It would seem at first that section 6106.1 would allow the carrying of a loaded long arm in ones car, however, one has to look at the definition of a firearm under the Uniform Firearm Act which states:

“Firearm.” 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.

Hence a normal rifle or shotgun (as opposed to a duly registered National Firearms Act weapon) would not qualify as a firearm, and thus not be exempted by a person holding a Licence to Carry Firearms.

The next question that must be looked at is what a loaded firearm is and is not. Thankfully the Uniform Firearms Act has a definition on both what is loaded and unloaded in regards to a firearm. The bolded language was added a few years ago.

A firearm is loaded if the firing chamber, the nondetachable magazine or, in the case of a revolver, any of the chambers of the cylinder contain ammunition capable of being fired. In the case of a firearm which utilizes a detachable magazine, the term shall mean a magazine suitable for use in said firearm which magazine contains such ammunition and has been inserted in the firearm or is in the same container or, where the container has multiple compartments, the same compartment thereof as the firearm. If the magazine is inserted into a pouch, holder, holster or other protective device that provides for a complete and secure enclosure of the ammunition, then the pouch, holder, holster or other protective device shall be deemed to be a separate compartment.

As can be seen in the language of the Uniform Firearms Act, if a loaded magazine is secured in a separate pouch than the firearm would not be considered loaded. However, it would not be “at the ready” which for some is the desire of the “trunk or truck gun.”

The second major item of concern is the idea that the firearm would be ideal for hunting small game that one may find in their travels. The major issue with this is that Pennsylvania, unlike other states, does not recognize any animal as lawful to hunt that is not a game species (with some limited exceptions regarding wild pigs), and all game species are regulated in when and how they can be hunted. You are not simply allowed to hunt wild squirrel or wild deer whenever you wish, even if it’s on your property (this does not include “wildlife preserves.”) You are however allowed certain protections in killing game or wildlife in protection of one’s property and also in self-defense.

While there may valid reasons or desires for keeping a “trunk or truck gun” there are also several important laws a person must keep in mind to ensure their compliance with the laws of the Commonwealth, many which may render the concept of a ready to use “trunk” gun a moot point, such as requiring that the individual have a license to carry firearms (LTCF), pursuant to 18 Pa.C.S. 6106. Otherwise, if an individual does not have an LTCF, he/she is extremely restricted in his/her transport of firearms. Therefore, it is extremely important that you speak with an attorney knowledgeable about PA’s firearms law regarding your specific situation before you consider a “trunk” gun.

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PA’s Coyote Control Incentive Program Legislation

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By Tom Beveridge.

Over the Holidays, I had the opportunity to run a trapline in Northwestern Pennsylvania with some good friends of mine.  We connected with some beavers and a gray fox, as well as two mature coyotes.   Several people encouraged us to contact the Pennsylvania Game Commission to collect our “bounty” on these two dogs.    Unfortunately, however, there appears to be some confusion as to the state of the legislation surrounding this “bounty” which I hope to clarify in this article.

On June 17, 2013, Representative Michael Peifer (R), along with several other Representatives, introduced House Bill 1534 known as the Coyote Control Incentive Program.  Under this Bill, the Pennsylvania Game Commission (PGC) may create and control a coyote control incentive program to compensate properly licensed hunters and furtakers $25.00 for each lawfully harvested coyote.  Funding for this program will entail the transfer of $700,000.00 annually from the Game Fund to a special account with the remaining balance used for other purposes at years end.   As written, the Bill merely allows for the use of this money to establish and run the program, as well as pay each bounty.   The Bill will be effective 60 days after becoming law.

Upon introduction, HB 1534 was immediately referred to the House Committee on Game and Fisheries.  Thereafter, it was returned to the House and recommitted to the Appropriations Committee on December 10, 2013.   On December 11, 2013, the House passed the Bill and it was referred to the Senate.   On December 13, 2013, the Senate referred the Bill to to the Senate Committee on Game and Fisheries where it remains as this writing.

While debate continues on the feasibility and necessity of this program, the Bill is still under consideration in our legislature and is not law.   Even if approved, this Bill will not take effect prior to the upcoming coyote hunts in Pennsylvania, such as Mosquito Creek Sportsman’s Association hunt scheduled on February 21, 22 and 23.

Does Pennsylvania need a coyote bounty?  I cannot comment on the science aspect of this question.   However, as a hunter and trapper, I can tell you we have far more coyotes than ever before.   And yes, they do indeed have a serious effect on small game and deer populations.   Also, coyotes have no natural predators.   Controlling their population is left to predator hunters and trappers.   With fur prices higher than in years past, more hunters and trappers will be pursuing the coy-dog, but perhaps an extra $25.00 per dog may be the additional incentive needed.

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PRESS RELEASE: Attorney Joshua Prince Secures Major Victory Against City of Erie

Today, the Commonwealth Court issued its decision in Justin Dillon v. City of Erie, 1038 CD 2013, which dealt with, in part, whether the City’s ordinance prohibiting the possession of firearms in City parks, Ordinance 955.06(b), was invalid due to 18 Pa.C.S. Section 6120 – a municipal firearm regulation preemption statute. A copy of the decision can be found here.

In the 13 page decision by President Judge Pelligrini, the Court found that the trial court erred in finding that Mr. Dillon did not have a clear right to relief, because Section 6120 “preempt Section 955.06(b) by its own terms and by the case law and precludes the City from regulating the lawful possession of firearms.” Furthermore, the Court found that the trial court erred in finding that Mr. Dillon did not demonstrate that he would suffer an immediate and irreparable injury. Citing to City of Erie v. Northwestern Pennsylvania Food Council, 322 A.2d 407, 412 (Pa. Cmwlth. 1974), the Court held that

Pennsylvania law does not require a person to be prosecuted to find that he has suffered irreparable harm, and a litigant is relieved of demonstrating this prerequisite where, as here, the only remedy available was prosecution under Section 955.99 of the City’s Ordinances based on his violation of Section 955.06(b).

Therefore, the Court declared, “Because Section 6120(a) prohibits the City from regulating the lawful possession of firearms, an irreparable injury is present in this case.” Lastly, in turning to the remaining contested issues for an injunction, the Court held

[T]he City’s unlawful regulation of the lawful possession of firearms shows that a greater injury will occur by refusing to grant the injunction because Section 955.06(b) of the City’s Ordinances is unenforceable; the injunction is reasonably suited to abate the offending activity by enjoining the enforcement of this unlawful and unenforceable ordinance; and the injunction will not adversely affect the public interest because the City was prohibited from enacting Section 955.06(b) and the ordinance is, again, unlawful and unenforceable.

As a result, the Court ordered that

[The] portion of the order denying preliminary injunctive relief with respect to the enforcement of Section 955.06(b) of the City’s Ordinances is reversed; and the case is remanded to the Court of Common Pleas of Erie County with the direction to enter an order granting Justin Dillon’s request for a preliminary injunction and to dispose of his request for a permanent injunction enjoining the enforcement of Section 955.06(b) in accordance with the foregoing opinion.

However, in relation to the lost and stolen handgun ordinance, Ordinance 739.01, the Court was split in the decision, 4 – 3. The majority held “the trial court properly denied preliminary injunctive relief with respect to Section 739.01 because Dillon does not have standing to obtain the requested relief” because “there is no allegation that Dillon has lost his firearm or will lose his firearm in the future, and there is no indication that Section 739.01 or the penalties outlined in Section 739.99 will ever be applicable to him.”

In dissent to this portion of the Decision, Judge Brobson issued a dissenting Opinion, joined by Judge Leavitt and Judge McCullough, declaring that while the decision is consistent with prior case law of the Commonwealth Court, “I, however, continue to believe that our precedent in this regard is in error and should be revisited.”

We all at Prince Law Offices, P.C. and Firearms Industry Consulting Group would like to congratulate Attorney Joshua Prince on this victory. We also want to acknowledge all the assistance Attorney Allen Thompson provided in the litigation of this matter. Lastly, this litigation would not have been possible without the continued support of the NRA Civil Rights Defense Fund (CRDF). We thank all of those involved who contributed to this litigation.

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