Chief Counsel Joshua Prince and Attorney Adam Kraut Testify Before the PA House Judiciary Committee

Today, Chief Counsel Joshua Prince and Attorney Adam Kraut of the Firearms Industry Consulting Group® (FICG®), a division of Civil Rights Defense Firm, P.C., jointly testified before the Pennsylvania House Judiciary Committee regarding a number of anti-Second Amendment and anti-Article 1, Section 21 proposals that were previously discussed during the 6 day hearings on “public safety.” As specified in Exhibit H to the Joint Testimony, there are significant constitutional issues with these proposals, under the U.S. and Pennsylvania Constitutions, and several of the proposals seek to discriminate against the Amish, as a result of their closely-held religious beliefs. Live streaming will be available at RonMarsico.com, and PAHouseGOP.com

Please join us in thanking Attorneys Prince and Kraut for the monumental amount of time expended in the researching and drafting of their joint testimony. As many have inquired about donating to support the time expended, anyone wishing to donate can:

  • Pay via the secure website: Civil Rights Defense Firm, P.C. – Please place “House Judiciary Testimony” in the reference field, or
  • Mail donations to: Civil Rights Defense Firm, P.C., 646 Lenape Rd, Bechtelsville, PA 19505 and include a note or letter stating that it is in relation to House Judiciary Testimony”.

Together, we can ensure that our inalienable rights are never encroached upon!

 


Firearms Industry Consulting Group® (FICG®) is a registered trademark and division of Civil Rights Defense Firm, P.C., with rights and permissions granted to Prince Law Offices, P.C. to use in this article.

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PA Governor Wolf and Republican Members of the General Assembly Seek to Preclude the Amish from Obtaining Guns and Ammunition

Several months ago, a number of bills were submitted by Members of the General Assembly, seeking to prohibit the private transfer of rifles and shotguns – thereby, requiring that all transfers or purchases of any type of firearm, go through a Federal Firearms Licensee – and more recently, Governor Wolf called upon the General Assembly to pass the legislation, which, in violation of the Religious Freedom Restoration Act, would absolutely preclude the Amish from obtaining any type of firearm, due to their closely-held religious convictions, which preclude their picture being taken.

Specifically, House Bill 1400, offered by Representative James Santora (R) with 73 sponsors, and House Bill 2249, offered by Representative Thomas Murt (R) with 17 sponsors, seek to preclude the private party sale of a rifle or shotgun, while House Bill 2251, offered by Representative Thomas Murt (R) with 8 sponsors, seeks to preclude the  purchase of ammunition, except from a Federal Firearm Licensee or gun range and only after a background check is performed. Of course, as there is no way for an entity, absent a Federal Firearms License, to perform a background check, this means that the inclusion of gun range is dubious, as it will have to have a Federal Firearms License to perform the background check.

Pursuant to 18 U.S.C. § 922(t)(1)(C), a Federal Firearm Licensee is barred from selling or transferring a firearm to an individual, unless the individual can produce a “valid identification document (as defined in section 1028(d) of this title) of the transferee containing a photograph of the transferee.”

Due to Pennsylvania having the second largest Amish population in the U.S. and the Amish’s closely-held religious beliefs, pursuant to Exodus 20:4, that preclude the taking of their photograph, the General Assembly, being acutely aware of the federal requirement that an individual produce photo-identification when purchasing a firearm from a federal firearms licensee, not only provided an exemption for private party sales of rifles and shotguns in 18 Pa.C.S. § 6111, but also, exempted those members with closely-held religious beliefs from the photo ID requirement under state law and even provided for photo-less driver licenses and licenses to carry firearms. See, 18 Pa.C.S. § 6111(b)(2), 67 Pa.Code § 73.3(d)(4), and 37 Pa.Code 33.102.

However, if H.B. 1400 and H.B. 2249 are enacted, in violation of the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb-1, et seq., the Amish will be precluded from purchasing or having any form of firearm transferred to them, because they will have to obtain the firearm through a Federal Firearms Licensee, which will require that they produce photo-identification. Similarly, issue are likely to arise in relation to HB 2251, as it mandates that a background check be performed, which means that the entity will have to be a Federal Firearms Licensee. Moreover, a search/query of the NICS database would be an abuse of the NICS system, as federal law does not require a background check for the purchase of ammunition and NICS can only be searched/queried for lawful purposes permitted by federal law.

It is truly sad to see Members of our General Assembly seeking to discriminate against those with closely-held religious convictions. Please take some time out of your day to contact your State Legislators and let them know that you oppose these bills and any other bills that seek to discriminate against those with closely-held religious beliefs.

If you or someone you know has been precluded from obtaining firearms or ammunition as a result of your closely-held religious convictions, contact FICG today to discuss your options.

 


Firearms Industry Consulting Group® (FICG®) is a registered trademark and division of Civil Rights Defense Firm, P.C., with rights and permissions granted to Prince Law Offices, P.C. to use in this article.

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PUC Orders 17 Utilities to Return $320+ Million to Consumers Following Federal Tax Reform

The Pennsylvania Public Utility Commission (PUC) on May 17, 2018 issued an Order, puc_sealrequiring a “negative surcharge” or monthly credit on customer bills for 17 major electric, natural gas, and water and wastewater utilities, totaling more than $320-million per year. The refunds to consumers are the result of the substantial decrease in federal corporate tax rates and other tax changes under the Tax Cuts and Jobs Act (TCJA) of 2017, which impacted the tax liability of many utilities.

Additionally, the PUC will consider the effects of federal tax reform on seven other public utilities as part of the investigations for rate cases which have already been filed or are expected to be filed by Aug. 1, 2018. In those situations, the Commission has directed the parties involved to address the impact of any TCJA tax savings as part of the overall rate design for each utility.

Today’s Order, along with a series of orders specific to each affected utility, were approved by 5-0 votes. The PUC’s action today follows an extensive investigation into the effects of federal tax reform on the rates charged by Commission-regulated utilities – which, among other things, reflect annual taxes owed both to the federal and state governments.

“As economic regulators, it is the Commission’s responsibility to ensure that utility rates are just and reasonable. Further, it is necessary for utility rates to reflect relevant tax expenses,” noted PUC Chairman Gladys M Brown in a statement at today’s public meeting. “I believe this work (by PUC staff) has resulted in an innovative answer by this Commission to effectively flow-through the benefits of the TCJA back to customers.”

Vice Chairman Andrew G. Place also praised staff’s work in this complex proceeding and agreed with the Commission’s overall approach. However, he indicated that the utilities’ overall cost of capital and rate of return should apply on the accumulated balances of tax savings for the period between January 1 and June 30, 2018.

Depending on the revenue and tax impact on each utility addressed in today’s PUC orders, the distribution charges on monthly consumer bills are expected to decrease from .56-percent to 8.55-percent. A list of the utilities impacted by today’s PUC orders, along with the anticipated changes in distribution rates, has been posted to the online docket for this matter: M-2018-2641242.  Tax Effects

Public utilities required to begin returning federal tax savings to consumers include Citizens’ Electric Company of Lewisburg, Metropolitan Edison Company, Pennsylvania Electric Company, Pennsylvania Power Company, Pike County Light & Power Company, PPL Electric Utilities Corporation, Wellsboro Electric Company, West Penn Power Company, PECO Energy Company (Gas Division), National Fuel Gas Distribution Corporation, Peoples Gas Company LLC, Peoples Natural Gas Company LLC—Equitable Division, UGI Central Penn Gas Inc., UGI Penn Natural Gas Inc., UGI Utilities, Inc.–Gas Division, Pennsylvania-American Water Company and Pennsylvania-American Water Company—Wastewater.

Utilities not required to take immediate action because of the continuing analysis of tax reform impacts on their current or pending rate cases include UGI Utilities, Inc. (Electric), Columbia Gas of Pennsylvania, Inc., Duquesne Light Company, PECO Energy Company (Electric), York Water Company, Suez Water Pennsylvania, Inc. and Aqua Pennsylvania, Inc.  In each of those situations, any tax savings will be considered as part of the broader evaluation of their rates.

The Commission also noted that one Pennsylvania public utility saw no financial impact or an increased federal tax liability as the result of TCJA. Per today’s order, Columbia Water Company is directed to file a tariff or tariff supplement within 10 days, replacing their current rates, which were declared to be “temporary” by Commission action in March 2018.

Finally, the Commission investigation determined that two utilities are receiving only a small increased tax liability from TCJA – Peoples Natural Gas Company LLC and Newtown Artesian Water Company. For these two utilities, the Commission’s previous order declaring their rates to be temporary will continue, subject to annual reconciliation.

Desire more specific assistance regarding PUC matters or energy law, contact attorney Jeffrey A. Franklin at Prince Law Offices, P.C.

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Trump to Alleviate ITAR Obligations for Firearm and Ammunition Manufacturers and Gunsmiths

As our readers are aware, for almost a decade, I have blogged about the obligation of firearm and ammunition manufacturers to register with the Department of State, Directorate of Defense Trade Control (DDTC) under the International Traffic in Arms Regulations (ITAR), which implement the Arms Export Control Act (AECA), as well as, DDTC’s stepped up enforcement against Federal Firearm Licensees (FFLs) starting in 2012. More recently, the DDTC issued guidance, which placed many gunsmiths out of business because it declared that most gunsmithing activities constituted manufacturing, which in turn required registration at a cost of $2,250, per year, in addition to the compliance costs. After years of requests that firearms and ammunition under Categories I, II and III of the U.S. Munitions List be moved over under the Department of Commerce, today the Department of State has published on its website proposed regulatory changes, which will afford a 45 day comment period, once formally published in the Federal Register. While the proposed changes are monumental, as described below, there are concerns regarding the proposed regulatory changes, which necessitate that those effected obtain competent counsel to timely file comments for DDTC’s consideration. DDTC.jpg

The 42 page proposal provides significant changes in that non-automatic and semi-automatic firearms and ammunition, as well as parts and defense services related thereto, that are currently regulated by Category I, II or III of the U.S. Munitions List will be moved over to the Export Administration Regulations (EAR), which are administered by the Department of Commerce and where there does not exist a registration requirement for the mere manufacture of controlled items, nor is there an annual fee (however, licensing requirements for exports will remain but under EAR). However, fully automatic firearms and ammunition for linked or beltfed firearms will remain under ITAR.

While the proposal is extremely beneficial for many FFLs and it is not surprising that fully automatic firearms are remaining under ITAR, for some unknown reason, silencers, all silencer parts and defense services related thereto, will will remain under ITAR (however, flash suppressors will be moved over under EAR). Additionally, magazine manufacturers that manufacture magazines that have a capacity in excess of 50 rounds must also continue to register under ITAR. This places a monumental burden on small and mid-sized silencer and magazine manufacturers, especially when one considers the compliance requirements and costs, beyond the yearly registration cost of $2,250.

If you or your company wants to file a comment requesting that DDTC consider moving silencers, large capacity magazines, or other items over under EAR, contact Firearms Industry Consulting Group (FICG) to discuss your options, as FICG has a number of attorneys with the necessary experience and understanding of the issues surrounding Administrative Law, the Gun Control Act, the National Firearms Act, and the Arms Export Control Act to ensure that any comment is properly and thorough prepared.

For those interested in some of the comments that FICG has drafted and filed on behalf of Industry Members and itself in opposition to rulemaking by ATF, see:

FICG Files Comment in Opposition to ATF – 41P – ATF’s proposed (and later enacted) rule to impose additional burdens on fictitious entity applications.

FICG Files Comment on behalf of David Goldman, Esq. of GunTrustLawyer.com in Opposition to ATF-41P

FICG Files Comment in Opposition to ATF 51P – ATF’s proposed rule to ATF’s to amend the definitions of “adjudicated as a mental defective” and “committed to a mental institution.”

FICG Files Comment in Opposition to ATF 29P on Behalf of Dead Air Armament – ATF’s advanced notice of proposed rulemaking regarding silencer engravings.

FICG Files Comment in Opposition to ATF’s Proposed Changes to the 4473 Form

 


Firearms Industry Consulting Group® (FICG®) is a registered trademark and division of Civil Rights Defense Firm, P.C., with rights and permissions granted to Prince Law Offices, P.C. to use in this article.

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U.S. Supreme Court Finds That An Unauthorized Driver In Lawful Possession of Rental Car Has A Right To Privacy

On May 14, 2018, the United States Supreme Court held that people who borrow rental cars from friends are afforded the same protections against unlawful searches as the authorized driver. In the matter of Terrence Byrd v. United States, 2018 WL 2186175, the Supreme Court justices unanimously held “ the mere fact that a driver in lawful possession or control of a rental car is not listed on the rental agreement will not defeat his or her otherwise reasonable expectation of privacy”.

In September of 2014, Pennsylvania State Troopers pulled over a car driven by Terrence Byrd. Byrd was the only person in the rental car which had been rented by his fiancée, Latasha Reed in Wayne, New Jersey. Reed rented the car with Byrd present but failed to list Byrd as authorized driver on the rental agreement. The rental agreement specifically stated that “PERMITTING AN UNAUTHORIZED DRIVER TO OPERATE THE VEHICLE IS A VIOLATION OF THE RENTAL AGREEMENT.”

Shortly after Reed rented the car, Byrd returned with the car to his home in Patterson, New Jersey to get his belongings and later departed in the car alone for Pittsburgh, Pennsylvania. After driving three hours, Byrd was stopped by Pennsylvania Troopers on Rt. 81, near Harrisburg, Pennsylvania.

The Troopers became suspicious of Byrd because he was driving with his hands at the “10 and 2” position on the steering wheel, sitting far back from the steering wheel, and driving a rental car. Based on these observations, the Troopers decided to follow Byrd and, a short time later, stopped him for a possible traffic infraction.

In the course of the traffic stop the troopers learned that the car was rented and that Byrd was not listed on the rental agreement as an authorized driver. The Troopers discovered that Byrd had identification under two different possible alias. The Troopers further discovered that Byrd had prior convictions for weapons and drug charges as well as an outstanding warrant for a probation violation in New Jersey. Byrd then revealed he had a “blunt” in the car and offered to retrieve it for them. The Troopers declined Byrd’s offer and continued to seek consent to search the car, though they stated they did not need consent because he was not listed on the rental agreement. The Troopers began a thorough search of the car and trunk. In the trunk, the Troopers found a laundry bag containing body armor and found 49 bricks of heroin.

The evidence was turned over to federal authorities, who charged Byrd with distribution and possession of heroin with the intent to distribute in violation of 21 U. S. C. §841(a)(1) and possession of body armor by a prohibited person in violation of 18 U. S. C. §931(a)(1). Byrd moved to suppress the evidence as the fruit of an unlawful search. The United States District Court for the Middle District of Pennsylvania denied the motion, and the Court of Appeals for the Third Circuit affirmed.

The Court of Appeals recognized that a “circuit split exists as to whether the sole occupant of a rental vehicle has a Fourth Amendment expectation of privacy when that occupant is not named in the rental agreement”; but it noted that Circuit precedent already had “spoken as to this issue . . . and determined such a person has no expectation of privacy and therefore no standing to challenge a search of the vehicle.”

In its Opinion, the Supreme Court recognized that one who owns and possesses a car, like one who owns and possesses a house, almost always has a reasonable expectation of privacy in it, but it is more difficult to define and delineate the legitimate expectations of privacy of others. The Court stated that a person does not always need to have a recognized common-law property interest in the place searched to be able to claim a reasonable expectation of privacy in it.

On the other hand, the Supreme Court also noted that legitimate presence on the premises of the place searched, standing alone, is not enough to accord a reasonable expectation of privacy, because it “creates too broad a gauge for measurement of Fourth Amendment rights.”

The Supreme Court explained that “[l]egitimation of expectations of privacy by law must have a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society. The Supreme Court further noted that the two concepts in cases like Byrd’s case are often linked. “One of the main rights attaching to property is the right to exclude others,” and, in the main, “one who owns or lawfully possesses or controls property will in all likelihood have a legitimate expectation of privacy by virtue of the right to exclude.”

In rejecting the Government’s position that only authorized drivers of rental cars have expectations of privacy in those vehicles, the Court saw no reason why the expectation of privacy that comes from lawful possession and control and the attendant right to exclude would differ depending on whether the car in question is rented or privately owned by someone other than the person in current possession of it.

The central inquiry was whether Byrd had lawful possession of the car.  The Court reasoned that under some circumstances ‘wrongful’ presence at the scene of a search would not enable a defendant to object to the legality of the search. A car thief would not have a reasonable expectation of privacy in a stolen car. However, Byrd was a permissive driver of the rental car and therefore, had the right to exclude others and a reasonable expectation of privacy.

The Supreme Court vacated the judgment of the Court of Appeals and remanded the case to further consider two of the Government’s arguments: that one who intention- ally uses a third party to procure a rental car by a fraudulent scheme for the purpose of committing a crime is no better situated than a car thief; and that probable cause justified the search in any event.

Attorneys arguing on behalf of Byrd argued that 115 million car rentals take place annually in the United States and if the government won, police would have an incentive to pull over a rental car driver who commits a traffic violation because police will know they can search the car if the driver isn’t on the rental agreement.

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Lehigh Co District Attorney Martin’s Political Grandstanding Attempt to Limit Firearm Rights

On May 9, 2018, Lehigh County District Attorney James Martin issued his Report and Appendix on Pennsylvania State Trooper Bird’s justified use of force against an armed assailant in a Walmart parking lot. In both the Report and Appendix, it mentions on numerous occasions that the firearm utilized was previously a 80% frame – seemingly unaware that all firearms, at some point in the manufacturing process, are 80% complete. More disconcerting, DA Martin states that he will contact “Federal and State Legislators in the hope that corrective legislation may be promulgated” as this is a “a serious ‘loophole’ that should be closed by legislation at both the federal and state levels.” More specifically, he intends to call upon Federal and State Legislators to require 4473s and background checks on individuals, who wish to purchase firearm parts,  as such would “not seem to [him] to be too burdensome.”

But was an 80% frame, manufactured by the suspect – Aaron Ibrahem – and later utilized by him in this incident? Or is there far more to the story? The Report and Appendix suggest that there is far more to the story and that DA Martin is using this opportunity for political grandstanding.

In turning to the last paragraph on page 5 and onto page 6 of the Report, several statements stand out to me.

The pistol which had been removed from Ibrahem’s lap by Trooper DelGaizo was later identified as a Polymer80, model: PF940V2, caliber: .40 S&W. This particular model is sold as a frame that is 80% complete in its manufacturing. The area that holds the fire control mechanisms is completely solid and does not qualify as a firearm under the definition of a firearm according to the BATF….[it] can be purchased without a background check or ATF E-Form 4473 being completed and filed at time of purchase.

This part is legally correct. Now, here’s where it gets interesting –

An E-Trace revealed that the firearm had been sold in Texas on March 20, 2018. The investigation revealed that the buyer had only purchased the lower polymer portion (the “frame” or “receiver”) of a Glock, without the upper portion and/or any trigger parts. (emphasis added)

Hold up, if this item was not a firearm at the time of purchase, an E-Trace would not yield any result, as the item would not constitute a firearm and it would be improper for an FFL to maintain any record or perform a background check in relation to a non-firearm. Thus, as of the time of sale in March of 2018, to an unknown buyer, the gun was a firearm and not an 80% frame. (I note that the incident with Trooper Bird occurred on March 28, 2018 and I question whether the date specified should reflect March 20, 2017 or whether the firearm made it from Texas to Pennsylvania and into the possession of Ibrahem in under 8 days).

And then it gets more interesting –

The purchase had been made from Spokane Archery in Washington State. The buyer had filled out an ATF E-Form 4473, as required, for the lower receiver.

Huh? The prior sentence said the firearm was sold in Texas, now it was sold in Washington State (it may be that the use of the word “sold” in the prior portion was actually intended to mean “transferred” whereby, the money to purchase the firearm was sent to Spokane Archery in Washington State and upon receipt, the firearm was sent to the FFL in Texas for transfer – however, the mention in the following sentence of a 4473 seemingly being complete by Spokane Archery makes this interpretation questionable). Regardless, we know that a 4473 was filled out “as required” because the frame was a firearm, not an 80% frame; thus, it was a firearm at the time that the suspect obtained it – a suspect who was already prohibited under 18 U.S.C 922(g) from receiving it and the person who transferred/sold it to the suspect was prohibited from such by 18 U.S.C. 922(a)(5), and (d).

Let’s see if the Appendix can shed any light on the above.

The investigation revealed that only the lower polymer portion of the Glock, without the upper and any trigger parts, was purchased from Spokane Archery in Washington State by a person from Texas. This purchase was legal because the ATF E-Form 4473 (Firearms Transaction Record) had been submitted. That portion of the Glock purchased legally, is referred to as the “frame,” or the “lower receiver” of the firearm.

So once again, it confirms that the item purchased by an unidentified person, who was not the suspect, was a firearm as a 4473 had been completed and submitted. This is the first time that the word “submitted” is used in relation to the 4473 (in the Report, it only states that it was filled out) and it is important, as we now know that the background check was performed on the unidentified purchaser. However, the Appendix then declares that “It is believed that [Ibrahem] then ‘manufactured’ a firearm by obtaining the lower portion (frame/receiver) of the weapon by purchasing a so-called ‘Polymer 80″‘on the Internet.”

Huh? Both the Report and Appendix establish that Ibrahem did NOT purchase a 80% frame but rather purchased/obtained a firearm, in violation of the law. Section 922(g) specifies those individual, who are prohibited from purchasing and possessing firearms and ammunition and there is no dispute that Ibrahem was prohibited. Further, Section 922(d) precluded the seller from selling/transferring the firearm (and potentially the ammunition) to Ibrahem. As the firearm constituted a firearm and Ibrahem and the seller lived in different states, the seller was also prohibited from selling/transferring the firearm (and potentially the ammunition) to Ibrahem, per Section 922(a)(5).

While acknowledging that the seller and Ibrahem violated Federal and State law without concern, DA Martin is now calling upon Federal and State Legislators to further restrict law-abiding individuals’ rights. If only laws existed against murder, it wouldn’t happen, right?

 

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Attorney Joshua Prince to Testify before the PA House Judiciary Committee

Chief Counsel Joshua Prince of the Firearms Industry Consulting Group® (FICG®), a division of Civil Rights Defense Firm, P.C., has been requested to testify before the Pennsylvania House Judiciary Committee on May 22, 2018, regarding the anti-Second Amendment proposals that are pending before it, which we previously blogged about in our article – Pennsylvania Firearm Rights in the Crosshairs – The Rights That Stand to be Infringed.

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Prince Testimony House Judiciary

As it is anticipated that Chief Counsel Prince will spend more than 30 hours preparing his testimony in response to the almost 20 anti-Second Amendment bills that are pending, any donations in support would be greatly appreciated. Anyone wishing to donate can:

  • Pay via the secure website: Civil Rights Defense Firm, P.C. – Please place “House Judiciary Testimony” in the reference field, or
  • Mail donations to: Civil Rights Defense Firm, P.C., 646 Lenape Rd, Bechtelsville, PA 19505 and include a note or letter stating that it is in relation to House Judiciary Testimony”.

Firearms Industry Consulting Group® (FICG®) is a registered trademark and division of Civil Rights Defense Firm, P.C., with rights and permissions granted to Prince Law Offices, P.C. to use in this article.

 

 

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