Lawsuit Filed Against Montgomery County Sheriff’s Illegal and Unconstitutional Firearm Licensee Inspection Policy

Today, Chief Counsel Joshua Prince and attorney Dillon Harris of the Firearms Industry Consulting Group, a division of Civil Rights Defense Firm, P.C., filed suit in the Commonwealth Court on behalf of Grant Schmidt, Shot Tec, LLC, and the Second Amendment Foundation (SAF) against Pennsylvania State Police Commissioner Christopher Paris and Montgomery County Sheriff Sean Kilkenny relating to the PSP’s promulgation of an unconstitutional regulation purporting to authorize warrantless searches of PA License to Sell Firearm licensees and Sheriff Kilkenny’s policy, beyond the scope of the unconstitutional regulation, to not only seize licensees in the absence of probable cause and a warrant, but to also force them to respond to questions and provide any requested documents.

The background to this involves the PSP’s promulgation of 37 Pa.Code 33.116(c), which in the absence of any legal authority and in violation of Article 1, Sections 8, 9, 25, and 26 and Article 2, Section 1 of the Pennsylvania Constitution, provides:

By signing the application, the applicant is acknowledging that if a license be granted, the applicant gives permission to the Pennsylvania State Police, or their designee, and the issuing authority to come to the licensee’s business location and inspect the premises, records, and documents without a warrant, to ensure compliance with this chapter, and the act.

As the Uniform Firearms Act, specifically 18 Pa.C.S. 6112 and 6119, requires a retail dealer seeking to sell or transfer firearms to obtain a License to Sell Firearms, an applicant is forced, involuntarily, to execute the PSP’s promulgated form, which the PSP contends permits it, its designee, or the issuing authority to inspect the records in the absence of probable cause and a warrant. Of course, beyond the fact that the General Assembly never enacted any law involving the inspection of License to Sell Firearm licensees and never delegated any authority to the PSP in this regard (nor could it), Section 33.116’s putative waiver of the probable cause and warrant requirement is violative of Article 1, Sections 8, 25, and 26 of the Pennsylvania Constitution.

Not to be outdone, Sheriff Kilkenny recently announced a policy, based upon Section 33.116, whereby he contends that not only can his deputies come in to inspect the records in the absence of probable cause and warrant, but that his deputies can seize the licensee or his/her/its representatives for 1-2 hours and force them to respond to questions and provide any requested documents; all in violation of Article 1, Sections 8, 9, 25, and 26 of the Pennsylvania Constitution. His policy also seeks to violate licensees for not having what he deems “safe storage,” even though the PSP has never defined such. Perhaps most disconcerting, especially given that he is an PA licensed attorney, is that his policy provides for the revocation of a licensee’s License to Sell Firearms if they refuse to comply by asserting their constitutional rights…

You can find a copy of the complaint, here. A motion for a preliminary injunction will be forthcoming.

If you or someone you know has been the victim of an unlawful firearm regulation or policy, contact FICG today to discuss your options.

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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.