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Perry County Sheriff Nace Does Not Require References on LTCF Applications!

Consistent with a growing number of county sheriffs, Perry County Sheriff Carl Nace is not requiring license to carry firearms (LTCF) applicants to included references on the LTCF application.

I have long contended that 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. More recently, in November, Berks County Sheriff Eric Weaknecht also announced that he was no longer requiring LTCF applicants to submit references.

I would like to thank Sheriff Nace and Sheriff Weaknecht, both of whom are devoted to the protection of the Second Amendment, for taking this action and ensuring compliance with Pennsylvania’s confidentiality provisions.

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Ringing in the New Year ATF Style…

It figures that I’d be sitting at my computer browsing Facebook on New Years Eve and stumble across a post from Thordsen Customs, which stated that they received a determination letter from ATF regarding their custom buffer tube covers and CAA Saddles, which was posted 4 hours before midnight…Happy New Years Eve!

It seems that Thordsen requested some clarification to its design as it had been recently redesigned. The letter was submitted back at the beginning of October and the reply was from the 18th of December, which Thordsen states they received on the 23rd. In fact, Thordsen has published their thoughts on the letter along with the original response from ATF on their website after having taken the time to review it. You can view their thoughts here.

In the determination request letter, Thordsen asked ATF to examine three different samples. They asked if their buffer tube covers with the saddles allowed the AR pistol to retain its classification as a “pistol”, when utilizing their spacers to accommodate people of varying statures and whether the use of a receiver extension (buffer tube) with their cover and a side saddle, for the purpose of providing a stable cheek weld and safer handling, was permissible on a pistol variant that does not require a receiver extension to function.

Letter to ATF from Thordsen Customs

ATF’s Response to Thordsen Customs

Firearms Technology Industry Services Branch (FTISB) begins its response by defining the terms “handgun”, “pistol”, “rifle” and “firearm”. FTISB notes that their focus is to determine whether the items constitute a “firearm” as defined in the Gun Control Act of 1968 (GCA) or the National Firearms Act of 1934 (NFA).

The response notates that a shoulder stock provides a means to support a firearm and easily aim it.

Finding that the submitted samples were designed to enhance a “cheek weld” of an AR type shoulder stock or pistol buffer tube, FTISB correctly determines that none of the items submitted were “firearms” as defined by the GCA.

The letter continues on to state that “FTISB finds that the submitted saddle devices are not designed to support the AR-type pistol in the shoulder of the shooter during firing but, rather, to rest against the shooter’s cheek.” As such, FTISB correctly finds that the attachment of the saddle to an AR type pistol does not change the classification of a pistol to a SBR. FTISB notes “…as long as the saddle device as evaluated and installed to an AR-type pistol, is not designed or redesigned and intended to contact the shoulder and is not used as a shoulder stock, it’s possession and use would not be prohibited.” (Emphasis added).

Thordsen Customs Buffer Tube Cover with Saddle Photo Credit: Haus of Guns

Thordsen Customs Buffer Tube Cover with Saddle
Photo Credit: Haus of Guns

FTISB then explains that [t]he receiver extension/buffer tube on an AR-type pistol serves a legitimate, vital function in the operation of the weapon system; and if utilized as originally designed is not considered to be a shoulder stock. Further, a pistol that has an AR-type buffer tube or similar component assembled to it, which consequently allows for the installation of a saddle/cheek enhancement accessory, is not classified as a SBR; nor unlawful to possess.”

Here is the paragraph everyone is going to want to take a long hard look at. “However, if a pistol assembled with an AR-type buffer tube or similar component; which in turn, redesigns the subject AR-type pistol to be designed or redesigned and consequently intended to be fired from the shoulder; an NFA weapon as defined in 26 U.S.C. § 5845(a)(3); has been made.”

FTISB concludes that the information in the letter is only intended for use by the addressed individual or company with regard to a specific scenario described within the correspondence, which is newly included language not previous found in any FTISB/FTB determination response.

So what happened? Well, it appears very clear that FTISB and ATF as a whole are paying very close attention to what people are doing and how they are utilizing products, including reviewing internet postings, pictures and videos. All of the stabilization/cheek enhancement products on the market have a legitimate purpose and have assumedly been approved by FTISB at some point. But, it appears that some individuals are not looking to purchase these products for their legitimate purpose and use and instead intentionally intend to misuse them from the moment they are purchased.

As was noticeably absent in the letter discussed in my blog post Cinderella and ATF’s Determination: The Fairy Tale of an AR Pistol to SBR through Magic, this letter does mention intent, in fact several times. Let’s revisit the definition of rifle under the GCA and NFA.

A rifle as defined under the GCA is “…a weapon designed or redesigned, made or remade, and intended to be fired from the shoulder…” A rifle as defined by NFA is “…a weapon designed or redesigned, made or remade, and intended to be fired from the shoulder…” So we see that a rifle is the same in the pertinent part under the GCA and NFA.

But what about the term “firearm”? Under NFA a firearm is defined in the pertinent part as “…(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…”

taxstamp

So what’s going on? Well, it seems that ATF didn’t appreciate people purchasing various stabilization products/cheek weld enhancements for the purpose of avoiding the payment of the NFA tax (which could constitute tax evasion). This is why the intent aspect, as stated in the definition, is important. If an individual purchases one of these products intending to use it in the manner for which it was made and then misuses it, as ATF previously held in the Bradley letter, he/she has done nothing illegal. There is no law dictating the end use of a product. However, if an individual purchases one of these products to install on their pistol and intends to use it as a faux stock, he/she has very clearly created an illegal SBR.

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Abrakadabra from Pistol to Short Barreled Rifle and ATF’s Magical Nonsense

ATF is at it again in their latest determination later. Previously, I discussed their determination in relation to the sample that Black Aces Tactical submitted and hinted that ATF might be shifting its view on stabilizing braces.

In the newest letter addressed to Martin Ewer, the Firearms Technology Industry Services Branch (FTISB) examined a device called the Blade AR Pistol Stabilizer (“Stabilizer”). The device itself incorporates a flexible stabilizing “fin” which is designed for the user to rest on the inside of their forearm when shooting the pistol. The “fin” stabilizes any lateral movement the user may experience without the device.

blade

Blade-AR-without-strap-1-250x151Blade-AR-with-strap-1-250x163

The letter notes that the literature included with the sample states the Stabilizer is not designed nor intended to enable a user to fire a weapon from the shoulder (Page 1 of the letter). FTISB correctly finds that attaching the Stabilizer does not turn the pistol into a “firearm” as defined by NFA, but then states “provided the Blade AR Pistol Stabilizer is used as originally designed and NOT as a shoulder stock.” (Emphasis added).

ATF determination2

The issue with FTISB’s latest determination is they are attempting to classify a firearm based on the end users use of an attachment designed and intended to be used in a certain way. A rifle is defined by the Gun Control Act of 1968 as “a weapon designed or redesigned, made or remade, and intended to be fired from the shoulder…” (Emphasis added). While a short barreled rifle is defined as “a rifle having one or more barrels less than sixteen inches in length…” (Emphasis added).

The letter to FTISB stated that the device was not designed OR intended to enable a user to fire a weapon from the shoulder. So how does FTISB come to the conclusion that an end user shouldering the Stabilizer turns the firearm into an item regulated by NFA? If the device is not designed or intended to enable a user to fire a weapon from the shoulder then it would seem like a natural progression of logic that affixing the device to an AR Pistol would not satisfy the statutory requirements of being a rifle. And if the firearm in question isn’t a rifle, it couldn’t possibly become a short barreled rifle. Even if an end user used the device in a manner inconsistent with its intended purpose, that doesn’t mean that the person created a rifle. Using this twisted logic, wrapping paracord around a pistol buffer tube and shouldering it would transform an AR pistol into a firearm regulated by NFA because it wasn’t being used as “originally designed”.

ar-pistol-buttstock

Referring back to a letter written by the Firearms Technology Branch (FTB) in March of 2014, FTB stated that “FTB classifies weapons based on their physical characteristics. While usage/functionality of the weapon does influence the intended design, it is not the sole criteria for determining the classification of the weapon….FTB previously determined…that the firing of a weapon from a particular position, such as placing the receiver extension of an AR-15 type pistol on the user’s shoulder, does not change the classification of a weapon…Using such an accessory improperly would not change the classification of the weapon per Federal law…” (Emphasis added).

bradley letter

Allow me to pose this hypothetical to you using the logic in this latest determination letter. If an individual attaches the Stabilizer to his AR pistol, goes to the range, shoots it as the manufacturer intended and then hands it to his friend who shoulders it, did it just become an illegal short barreled rifle? Given what FTISB put in their determination letter it would seem that way. This begs the question, is ATF actually classifying the firearm based on what it is or how it MIGHT be used?

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Mistake for Me; Jail for Thee

By Allen R. Thompson, Esq.

The Supreme Court of the United States continued to tighten the scope and meaning of the Fourth Amendment on Monday. In Heien v. North Carolina, the Court almost unanimously held that a “reasonable” mistake of law could provide the basis for reasonable suspicion and, therefore, any evidence obtained thereafter could be admissible in court.

To state the facts briefly, Nicholas Heien and Maynor Vasquez were driving on the highway, when Sergeant Matt Darisse noticed that the driver (Vasquez) appeared suspicious. He followed Vasquez and noticed that one brake light was out. He then pulled Vasquez over, thought that he and Heien appeared nervous, and eventually obtained consent to search the vehicle. During the search, Sgt. Darisse found a bag of cocaine in a duffel bag. Heien and Vasquez were arrested and Heien eventually moved to suppress the cocaine as the fruit of an invalid search. The trial court declined, but the appeals court reversed, holding that because North Carolina law only requires one brake light, there was no violation, making the search “objectively unreasonable.” The North Carolina Supreme Court reversed the appeals court, finding that the mistake of law was reasonable and, therefore, did not violate the Constitution. The Supreme Court then took the case on appeal.

Justice Roberts wrote the opinion in which 7 other Justices joined (only Justice Sotomayor dissented). Finding that the 4th Amendment protects individuals only from unreasonable searches and seizures, and agreeing with the North Carolina Supreme Court that Sgt. Darisse’s interpretation of the law was reasonable, he found that no violation occurred.

Heien argued, however, that it was inherently unfair to hold police officers to a lower standard of legal knowledge than an average citizen. In essence, if ignorance of the law is no excuse for an average citizen, it cannot be fair that a police officer – ostensibly trained in the law – may be ignorant of the law. In response, Justice Roberts correctly stated that “the government cannot impose criminal liability based on a mistaken understanding of the law.” (Slip op. at 12). For example, “if the law required only one [working rear lamp], Sergeant Darisse could not issue a valid ticket by claiming he reasonably thought drivers needed two.” (Id.)

Justice Roberts does not complete the logic equation, however. If the state cannot impose criminal liability based on a misunderstanding of the law, then the evidence gathered during a search premised on an incorrect reading of the law cannot be the basis for a criminal conviction, as it was here. The logical conclusion to Justice Roberts’ rationale is to immunize Sgt. Darisse from civil liability; instead, Justice Roberts and the majority of the Court seem to imply that a reasonable mistake of the law should only excuse the individual who made the mistake, leaving the consequences of the mistake to rest upon the victim of the misunderstanding.

Justice Roberts’ decision turns the “ignorance of the law” maxim on its head. Based on Heien, ignorance of the law (if “reasonable”) may both shield an officer from liability and be used to obtain evidence to convict. This is quite the win-win for the state. Instead of allowing for “reasonable” mistakes as to the law, the maxim should be repealed in its entirety. No one – neither police officers nor average citizens – should be held personally accountable for honestly misinterpreting a poorly drafted law. Perhaps in an era when the law was not quite as ubiquitous and voluminous, “ignorance of the law is no excuse” was an appropriate adage. Today, however, as can be seen with the detail in which the legislature regulated tail and brake lights, state codes encompass sometimes over a hundred volumes of thin-paged, small-font pages. Thus, it is impossible to know every single law and the “ignorance of the law” adage should be considered obsolete, rather than controlling. Holding Sgt. Darisse personally accountable for misinterpreting the North Carolina legislature’s unclear statute would not forward that goal and would, in fact, only serve to affirm the principle; but neither should Mr. Heien be forced to suffer the consequences of Sgt. Darisse’s mistake.

This suit was not a civil rights action seeking damages under 42 U.S.C.A. s. 1983. Rather, it was a criminal appeal. So while Sgt. Darisse may not be civilly liable for the violation of Mr. Heien’s rights, it is all the more unfair that his misinterpretation directly caused Mr. Heien to be criminally liable.

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Hunters, Landowners and Permission to Hunt

There are two kinds of property to hunt on, those which are public and those which are not. Private property offers a number of advantages over public, mainly that the landowner controls who can and cannot hunt on it.

So how does one obtain permission to hunt private property in Pennsylvania? It’s simple actually, you just need to ask the landowner. While the permission doesn’t have to be written, conventional wisdom dictates getting it in writing is best for you. It gives you something to point to if at a later time the landowner claims you did not have permission to hunt on their property.

I have created an agreement which a hunter, trapper or fisherman can bring to the landowner and have them sign in order to enjoy the use of their land for a period of time that the two parties agree to. Are you not the person looking to gain permission but give it? The document creates protections for both parties. Landowners are increasingly becoming more concerned with liability of others on their land and this kind of agreement might be the deciding factor which allows you to start or continue hunting on their property.

If you are interested in obtaining a permission to hunt agreement, contact me today at 610-845-3803!

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C&R Licensee applications, FFL Licensee applications and Responsible Persons Questionnaire

ATF recently posted two notices in the Federal Register. One stated that they would be combining ATF Form 7 (5310.12) and ATF Form 7CR (5310.16), the applications for an FFL and Curios and Relics license, respectively. The other notice is for the creation of a Responsible Persons Questionnaire (RPQ) for use with the new proposed form. I’ve included both proposed forms at the bottom of this blog post.

A poster on AR15.com stated that if the proposed changes go through “C&R applicants will not only still need to get CLEO signoff, but they will also need to submit fingerprints and photographs.” In the post, he includes a quote from an e-mail he received from ATF about the proposed changes.

18 U.S.C. §923(a) which deals with individuals engaged in the business of importing, manufacturing, or dealing in firearms, or importing or manufacturing ammunition, specifically proscribes that an individual applying must submit fingerprints and photographs. §923(b) which addresses individuals obtaining a license as a collector omits that requirement. While the law does not have any specific requirement, it is not outside the realm of possible that ATF could enter rulemaking to require that. That is not the case currently.

Looking at the proposed changes, there is no indication that ATF intends for C&R applicants to submit fingerprints and photographs, which is contrary to the post on AR15.com. Nevertheless, on December 10th, I e-mailed Tracey Robertson from ATF to inquire as to whether ATF intended for a C&R applicant to submit fingerprints and photographs with their application. She responded later that day stating “Photo and fingerprint card are not required for C&R licenses. This will not change with the proposed new forms.” She went on to say that the changes are to combine the forms in order to make the processing more efficient and eliminate common mistakes made by individuals.

After obtaining a copy of the proposed forms, it is evident there is no requirement for C&R applicants to include photographs or fingerprints. The proposed RPQ does indeed have a place for an individual’s photograph. The box to the right does include the instructions that all RPQs, fingerprint cards, photographs and application fees should be mailed to the address below. While at first glance it might seem that it is required for all license applications, the form includes, in rather conspicuous bold font, that Type 03 license applications (those for C&Rs) are NOT required to submit a fingerprint or photograph. The proposed form for the replacement of the current Form 7 and Form 7CR also states in Instruction 6 “A fingerprint card and photograph are not required if applying for a Type 03 license only.”

Nevertheless, there is a problem with ATF’s proposed changes. As the Firearms Industry Consulting Group (FICG)® is often on the forefront of industry happenings (such as the blog post which created a number of applications for Form 1 machine guns that has now gained national attention, ATF 41P commentary, etc.), it came to our attention that ATF’s proposed regulation is in contradiction with 18 U.S.C. §926(b) which requires 90 days notice before proscribing a rule or regulation. These proposed changes have only given individuals 60 days notice to comment.

Proposed Form 7

Proposed RPQ

 

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Landlord-Tenant: Brief Overview

A residential lease is where the landlord and tenant enter into a contract to lease premises, real property, for the sole purpose of living. The real property is used as a home.

The classic example of a lease is for an apartment. The lease can also be for a house or mobile home.

The lease is a contact between the landlord and tenant for the tenant or tenants to live in a home, apartment, or mobile home.

Almost everything that is created, memorialized, between parties—legally created—is bound by contractual law and equitable remedies and a lease is not excluded. The lease terms should follow the Landlord Tenant Act and its progeny. Depending on the facts one would also be liable with a Tort action. See Pugh v. Holmes, 486 Pa. 272, 405 A.2d 897 (1979); Staley v. Bovril, 553 Pa. 112, 718 A.2d 283 (1998); “The Landlord and Tenant Act of 1951.” 68 Pa. Stat. Ann. § 250.101

All residential leases include the implied warranty of habitability and the covenant of quiet enjoyment, simply meaning a tenant, or tenants have a right to live in a healthy, habitable, and safe environment, and to enjoy, possess, the leases premises without disturbances.

Usually, a lease is made for a term of one year. At the end of the year, the tenant is given the option to renew. If, there is no renewal, or nothing done by the landlord before the renewal, or all parties (Landlord and Tenant) remain silent and the tenant stays, the lease becomes a Month-to-Month lease, and it is the custom that the previous terms of the lease are followed.

On the other hand, once the lease term is up, whatever the term is for, the landlord does not have to renew the lease and the tenant would have to vacate, hopefully peacefully—there is no self-help eviction in Pennsylvania.

Both the landlord and tenant or tenants have rights and duties. The leased premises must be kept in good condition, the condition it was at the time of the lease, at minimum.

Any problems, repairs needs, bug problems, etc., with the lease premises should be conveyed to the landlord in writing. The landlord will have a reasonable amount of time to cure, fix the problems. However, if after a reasonable amount of time has passed, a reasonable amount of time would depend on the problem, and the landlord has not cured the problem, depending on how the problem effected the leased premises, either all or part of the premises, the tenant would be evicted or constructive evicted from parts of the leased premises, and could withhold rent by paying rent when it is due each month to the prothonotary located at the main courthouse where you live. The rent would be held in escrow. The tenant would then have to file a complaint with the Magisterial District Justice in order to prove that the Landlord violated the lease by not curing, fulfilling his or her duty to keep the leases premises in good repair, a habitable, safe, and sanitary—no bug infestations, heat in the winter, no black mold, etc.

With a residential lease, in order for the landlord to evict the tenant written notice to vacate, quit, eviction, must be either posted on the leased premises or hand delivered to the tenant. The notice must include the reason for eviction. For a lease of lease than one year a notice to quit must be served upon the tenant and from time of service has fifteen (15) days

A landlord must file a notice to quit to regain possession of real property excluding mobile homes … “(1) Upon the termination of a term of the tenant, (2) or upon forfeiture of the lease for breach of its conditions, (3) or upon the failure of the tenant, upon demand, to satisfy any rent reserved and due.” . . . “in case of the expiration of a term or of a forfeiture for breach of the conditions of the lease where the lease is for any term of one year or less or for an indeterminate time, the notice shall specify that the tenant shall remove within fifteen days from the date of service thereof, and when the lease is for more than one year, then within thirty days from the date of service thereof. In case of failure of the tenant, upon demand, to satisfy any rent reserved and due, the notice shall specify that the tenant shall remove within ten days from the date of the service thereof.” 68 Pa. Stat. Ann. § 250.501.

“In case of the expiration of a term or of a forfeiture for breach of the conditions of the lease involving a tenant of a mobile home park as defined in the ‘Mobile Home Park Rights Act,’ where the lease is for any term of less than one year or for an indeterminate time, the notice shall specify that the tenant shall remove within thirty days from the date of service thereof, and when the lease is for one year or more, then within three months from the date of service thereof. In case of failure of the tenant, upon demand, to satisfy any rent reserved and due, the notice, if given on or after April first and before September first, shall specify that the tenant shall remove within fifteen days from the date of the service thereof, and if given on or after September first and before April first, then within thirty days from the date of the service thereof.” 68 Pa. Stat. Ann. § 250.501

Remember, this is a brief and general overview of Landlord-Tenant Law. It is very simple to start the process by filing a complaint with MDJ where you live, whether one is a landlord or tenant, but it is always better to have an attorney on you side, especially if there is an appeal since that is when it really gets complicated.

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