Category Archives: Constitutional Law

Franklin County Sheriff Contends He’s Immune From Judicial Oversight

In a brief filed before the Pennsylvania Supreme Court, the Franklin County Sheriff has taken an eerily Orwellian position that he is immune from judicial oversight and cannot be held liable for his actions – even those explicitly violating state law.

As our viewers are aware, on May 20, 2016, the Commonwealth Court issued a monumental decision in  John Doe, et al., v. Franklin County, et al., 1634 C.D. 2015 regarding the confidentiality of license to carry firearms (LTCF) applicant information, wherein, among other things, it held that the disclosure of LTCF applicant information through the use of un-enveloped postcards was a breach of the confidentiality provision found in 18 Pa.C.S. 6111(i).

As a result, Franklin County, former Franklin County Sheriff Dane Anthony, and the other defendants, appealed the decision to the PA Supreme Court, where they asked the Court to grant review of the entire Commonwealth Court’s decision, including as to whether the use of un-enveloped postcards constituted a public disclosure. On December 21, 2016, the PA Supreme Court generally denied their request to review the decision; however, it agreed to consider “[w]hether the General Assembly intended to abrogate high public official immunity when it enacted 18 Pa. C.S. §6111(i)” in relation to Defendant former Franklin Co Sheriff Dane Anthony.

On January 30, 2017, the Defendants filed their brief contending that former Sheriff Dane Anthony is entitled to high public official immunity and that sheriffs “should not be burdened with monstrous litigation and damage exposure about possible incidental viewing of a postcard years ago.” More disconcerting, they argue that the Commonwealth Court’s decision “threatens to gut absolute immunity for public officials into no real protection at all.” (Of course, as discussed below, they seem to ignore the fact that high public official immunity was seemingly abolished by the PA Supreme Court in the 1970’s and even if it wasn’t, it is unconstitutional under the Pennsylvania Constitution). However, it is their main argument that is absolutely Orwellian:

statements or acts of high public officials which are made in the course of and within the scope of their official powers or duties give them complete immunity from legal redress. (emphasis added)

It would seem that this position goes directly contrary to the oath declared, pursuant to Article VI, Section 3, by all Sheriffs in Pennsylvania, especially in light of Article 1, Section 11. The oath set-forth in Article VI declares:

I do solemnly swear (or affirm) that I will support, obey and defend the Constitution of the United States and the Constitution of this Commonwealth and that I will discharge the duties of my office with fidelity.

Contrary to the oath, the Sheriff’s position is directly in conflict with Article 1, Section 11 of the Pennsylvania Constitution, which declares that “[s]uits may be brought against the Commonwealth in such manner, in such courts and in such cases as the Legislature may by law direct,” since high public official immunity is common law (e.g. judicially created) and has never been enacted by the General Assembly. (For those reviewing the docket, as Franklin County, et al., failed to timely submit their reproduced record, they were required to petition the Court to allow them to untimely file their reproduced record, which the Court granted).

Surprisingly, the PA Sheriff’s Association filed an Amicus Curiae brief contending that sheriffs in Pennsylvania should be entitled to high public official immunity and immune from judicial review.

In response, on February 2, 2017, we filed our brief explaining that (1) high public official immunity was seemingly abolished by the Pennsylvania Supreme Court’s decision Ayala v. Phila. Bd. of Pub. Educ., where it abolished governmental immunity; (2) high public official immunity is inapplicable to 18 Pa.C.S. 6111; and (3) high public official immunity is unconstitutional.

Yesterday, the Defendants filed their reply brief , which appears to be designed to merely confuse the Justices into believing they actually have an argument.

The Court will now decide whether to hold oral argument on the matter or merely issue a decision based on the briefs. We’ll keep you apprised of further action in this matter.

If you or someone you know has had their confidential license to carry firearms applicant information disclosed, contact us today to discuss today to discuss YOUR rights. Dedicated to the protection of your Second Amendment and Article 1, Section 21 rights, we are YOUR PA Firearms Lawyers.

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The Second Amendment: Enforcing the Heller Decision

While at a conference last week I had the pleasure of attending a panel discussion entitled:  “The Second Amendment:  Enforcing the Heller Decision.”  A panel that included voices from across the political spectrum engaged in a give-and-take that well summarized developments in recent years.  The discussion was recorded and you can view it here.  I was quite pleased to have an opportunity to ask the panel to address the “as applied” challenges of the kind that Firearms Industry Consulting Group has helped to spearhead, and to find broad consensus on the panel for expanding the favorable case law through careful presentation of such cases.

My colleague, Josh Prince, has blogged much more extensively about the “as applied” challenges both with regard to non-violent, non-felony convictions as well as with regard to isolated encounters with the mental health establishment.  FICG has had success with such challenges.

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Numerous Verified Reports of Voting Machine Issues in Pennsylvania

As some of you are aware, I am serving in Berks County as a Poll Watcher. Prior to today, I had little concern over the voting machines used by Pennsylvania, as they are 30+ years old and not connected to the internet. However, today my concern has changed.

I have seen numerous verified reports from across the Commonwealth of voting machines specifying the Democratic candidates, when an individual has selected the straight Republican candidates button. This has been a confirmed issue in Lebanon County, as reported by PennLive – Voting Machine Error that Showed Republicans Voting Democrat Fixed. There is also the report from the Schuylkill County Republican Committee of the same thing:

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I also have a report from Berks County – Muhlenberg 10th, that the same issue was occurring. There are also reports from Exeter, identical in nature.

While currently all information is supporting that votes cast for the candidates specified by the light next to his/her name is being correctly recorded, it is questionable of whether that information can be definitively known at this time, given the way in which the data is recorded in these machines.

Accordingly, any voter should specify the individual candidates that he/she desires to vote for and not click the button to vote straight party.

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6th Circuit Acknowledges Second Amendment As-Applied Challenges To Mental Health Commitments

As our readers are aware, in July, I was successful in arguing in Keyes, et al. v. Lynch, et al., before the Middle District of Pennsylvania that a life long prohibition on an individual as a result of a single, isolated mental health commitment violated his Second Amendment rights, as-applied to him. Today, the 6th Circuit Court of Appeals has issued a decision in Tyler v. Hillsdale County Sheriff’s Dept., et al., acknowledging the same.

The 6th Circuit agreed with an argument that I made in Keyes that the Heller Court’s pronouncement that it was not casting doubt on the ability of the Congress to limit possession of firearms to “the mentally ill” was specific to those who are currently mentally ill, as opposed to those who might, at one time, have a bout of depression or decompression.

As the U.S. Government has now appealed Keyes to the Third Circuit, even after the Binderup/Suarez decision, we expect that the Third Circuit will rule identically to the 6th Circuit and affirm the Middle District’s decision.

If you are prohibited under federal law as a result of a mental health commitment, contact us today to discuss your options. Together, we can fight for your inalienable right to Keep and Bear Arms.

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US Supreme Court Decision Affects Firearms Rights – Ability to Obtain Relief from Certain DUIs!

On June 23, 2016, the U.S. Supreme Court decided that case of Birchfield v. North Dakota, 14-1468, in which the Court held that while implied consent laws relative to driving under the influence (DUI) may impose civil penalties, it is unconstitutional for them to impose criminal penalties for refusing to consent.

Specifically, as the Syllabus to the decision declares:

Motorists may not be criminally punished for refusing to submit to a blood test based on legally implied consent to submit to them. It is one thing to approve implied-consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply, but quite another for a State to insist upon an intrusive blood test and then to impose criminal penalties on refusal to submit. There must be a limit to the consequences to which motorists may be deemed to have consented by virtue of a decision to drive on public roads. Pg 36-37

So how does this affect your firearm rights?

Under Pennsylvania law, if an individual refuses his/her consent relative to a second (or third) DUI, the criminal grading becomes a misdemeanor of the 1st degree, which is federally prohibiting for purposes of purchasing and possessing firearms and ammunition. I previously blogged about a similar situation in Pennsylvania, when the Pennsylvania Superior Court decided Musau. Unfortunately, as a result of the Superior Court’s decision, the General Assembly amended the statute, so that anyone who refused consent on a second (or third) DUI would be penalized by a misdemeanor of the first degree, instead of an ungraded misdemeanor (which would not be prohibiting under state or federal law).

As a result of the U.S. Supreme Court’s decision in Birchfield, those individuals in Pennsylvania who have been convicted or pled guilty to a misdemeanor of the first degree as a result of a second (or third) DUI, due to their refusal to consent, have been subjected to an unlawful sentence and have a limited opportunity to file for relief under Pennsylvania’s Post-Conviction Relief Act (PCRA).

Therefore, if you or a family member were convicted of a second or third DUI, where you refused to submit to chemical testing, contact us immediately, as you have the ability to petition the court to have your conviction properly reflect the grading as an ungraded misdemeanor, which would not trigger a state or federal firearms disability.

As Federal Firearms Relief is not currently available and the Pennsylvania Board of Pardons does not with any frequency grant pardons to those who have been convicted of repeat offenses, this may be your ONLY extremely limited opportunity to obtain relief!

Contact Us Today to Discuss YOUR Rights and How We Can Restore Your Right to Keep and Bear Arms – info@princelaw.com or 888-313-0416

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ATTENTION: The 9th Circuit amends the 2nd Amendment…

The last time I checked, neither state government nor the Courts had any power, real or imagined, to amend the U.S. Constitution.  A recent ruling from the 9th Circuit, however, suggests maybe I need to check again.  In a decision that confounds common sense, plain reading of the Constitutional text as much as it creates a legal non-sense, a divided 9th Circuit upheld Cal. Penal Law §25400 and §25655, which generally makes it unlawful to conceal carry firearms in public AND limits a license to conceal-carry to a finding of “good cause” by the issuing sheriff.  Peruta v. San Diego, 2016 WL 3194315 (9th Cir. June 9, 2016).

The procedural history of this case is itself dubious.  First, it should be noted that Peruta technically consisted of consolidated cases wherein plaintiffs challenged essentially the same local (county-level) iteration of §25400 and §25655.  The named plaintiff, Peruta, brought a Second Amendment suit against the County of San Diego.  Interestingly also, this case was the 9th Circuit’s rehearing and reversal of its own decision in Peruta I (742 F.3d 1144 (9th Cir. 2014)) wherein an en banc panel of the 9th had previously found good cause requirements unconstitutional.  The Sheriff of the San Diego, after Peruta I, declined to appeal for a rehearing, but that’s where the state of California intervened – prompting a hearing before the full Court – Peruta II.  San Diego county’s iteration of the good cause requirement defines such as…

…a set of circumstances that distinguish the applicant from the mainstream and causes him or her to be placed in harm’s way.  Simply fearing for one’s personal safety alone is not considered good cause.

The other case – Richards v. Prieto, Cnty. of Yolo, involved the named Plaintiff, Richards, bringing suit on the same grounds as plaintiff Peruta, but against Yolo County’s own version of the good cause requirement.  Amazingly, the County of Yolo does not bother to even define good cause (as if the concept wasn’t vague and arbitrary enough under California state law), rather the County instructs its residents that there are certain circumstances which, definitively, do or do not give rise to good cause.  Among those circumstances:

Victims of violent crime and/or documented threats of violence [yep]

Self protection and protection of family [nope]

Business owners who work all hours in remote areas and are likely to encounter dangerous people and situations [yep]

Personal safety due to job conditions or duties placed on the applicant by their employer [nope]

In a written opinion of truly amazing acrobatics – The 9th Circuit somehow sidestepped the very plain language of the Second Amendment, and also putatively avoided going as far as (explicitly) finding that the Second Amendment ensures no right, whatsoever, to publicly possessing a firearm for self-protection(“That question was left open by the Supreme Court in Heller, and we have no need to answer it here.”)  The problem is, California law also forbids open-carry, pursuant to Cal. Penal Law §26350.  Therefore, as a practical matter now, a private citizen cannot legally possess firearms in public for the purpose of self-protection.  Oh well, the catch-22 there was clearly not a concern for the Court.  Isn’t the narrow grounds approach to jurisprudence refreshing?

Irrespective of whether the reader belongs to the so-called textualist school of judicial philosophy, or that of the living Constitution, the ruling has to be seen as a baffling one.  I could have sworn that the Second Amendment states, in relevant part, “…the right to keep and bear arms shall not be infringed.”  Webster’s Dictionary includes the following definition of the word “bear” as including “to produce” and/or “to bring forth”.  Further, the Constitutional Convention’s inclusion of “bear” after stating “keep” rationally indicates that keeping and bearing are not one in the same thing – that the latter is an additional right, not to be confused with the former.  Sure, the Court engaged in an expansive quest for historical precedent to state’s prohibiting public carrying of weapons, but precedents can be found from the reverse side as well.  The writer finds it indicative of the weakness of the Court’s opinion that a majority of the 9th Circuit’s historical assessment looked to monarchical English history, first and foremost.

Well there you have it, the 9th has effectively taken the “bear” out of “…keep and bear arms…” – an amendment, as I see it.  Who needs Congress or a Constitutional Convention when you have overreaching judges.

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United States v. Texas

Here at the Prince Law Blog, we have been committed to providing continued coverage of what is quickly proving to be among the most definitive cases of the SCOTUS’s current calendar year – United States v. Texas.

The last we blogged, the United States had promptly appealed the split decision of the 5th Circuit Court of Appeals, which itself had upheld a U.S. district court injunction against the President’s executive action known as DAPA (Deferred Action for Parents and Lawful Permanent Residents).

SCOTUS granted certiorari, and oral arguments were heard yesterday…and the world waits with baited breath.

One thing is certain, the current post-Scalia dynamic of the Court will have an exceptionally large bearing on the result.  According to creditable accounts of yesterday’s arguments, there were many pointed exchanges between counsel and Justices all seeming to portend a stark split among the justices (the 4 liberal-moderates on one side; the 3 conservatives on the other).  Therefore, most of the pundits are especially fascinated with the line of questioning from the potential swing voter(s), Roberts and Kennedy.  Also, it should be noted that a 4-4 split decision would NOT result in a precedent, meaning the decision of the 5th Circuit would remain in place.

To briefly recap, the questions before the Court are as follows:

  • Do the (26 plaintiff) States have standing to challenge the Administration’s exercise of deferred action/prosecutorial discretion? More specifically, does the state-borne cost associated with providing drivers’ licenses to beneficiaries of deferred action qualify as an injury or harm under normative jurisprudential standards?

 

  • Does the DAPA program go beyond the powers conferred to the Executive by Congress? In other words, is DAPA merely an extension of the President’s right to enforce immigration law or is it indicative of the President purporting to create new law (therefore invading the Congressional province)? Relatedly, has the President violated the Take Care clause of the Constitution by abdicating his duty to “faithfully” carry out immigration law.

 

  • Must DAPA be considered void for not technically following the Notice and Comment requirements of the APA?

 

As this blogger sees it, the most unfortunate aspect of this case, as I mentioned previously, is that the outcome might yet be influenced (if not hijacked outright) by sheer bloody-minded politics.  Instead of a reasoned, purely legal and/or textual assessment of a) the powers of the Executive branch in the context of setting immigration policy; b) whether an administration’s immigration policy can even be challenged in court; c) the lengthy history of the Executive branch’s use of prosecutorial discretion and deferred action programs and other non-extraneous factors, the furor here seems more to be about conservative outrage that the current Administration has made a decision that they do not agree with in principle.

It is a pity that, when it’s all said and done, no points might be given to the Administration for taking initiative in tackling, as best it knows how, arguably the biggest socioeconomic and humanitarian issue in the United States today.  Is it realistic or even decent governance to expect the more than 4 million persons present without legal status can be expected to continue to live in the shadows perpetually?  Do we really imagine that we can simply deport all these people without enormous cost, both financial and social?   In this bloggers humble opinion, this case is about politics making an issue out of pragmatism, and attempting to coopt the law in that effort.  Where Congress has failed to act, the President apparently has.  Now leadership is branded as lawlessness.  Go figure.

The folks at Scotus Blog, typically thorough fashion, have done a wonderful job putting together a United States v. Texas “symposium” – a series of discussions having a diversity of learned viewpoints on the case.

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