Category Archives: Firearms Law

Devastating Decision Regarding Mental Health Commitment Challenges and Firearms Rights

Late last week, the Pennsylvania Supreme Court issued its decision in In re: Nancy White Vencil, 90 MAP 2015, which overturned the Pennsylvania Superior Court’s learned decision finding that a challenge, pursuant to 18 Pa.C.S. § 6111(g)(2), to the sufficiency of an involuntary commitment was to be de novo, supported by clear and convincing evidence, where the burden was, in essence, to rest with the Commonwealth.

Unfortunately, the PA Supreme Court vacated the decision as it concluded that the Superior Court erred since, in its opinion

the plain language of section 6111.1(g)(2) requires a court of common pleas to review only the sufficiency of the evidence to support the 302 commitment, limited to the information available to the physician at the time he or she made the decision to commit the individual, viewed in the light most favorable to the physician as the original decision-maker to determine whether his or her findings are supported by a preponderance of the evidence.

Although the Court acknowledged that “By legislative design, there is no judicial involvement in the decision to effectuate a 302 commitment and no right to appeal the physician’s decision” and therefore affords no due process (an issue which Mrs. Vencil apparently failed to raise (pdf pg. 18 (declaring “Vencil has not challenged the due process protections provided by Section 302 of the MHPA. Nor has she raised a due process argument in connection with her right to keep and bear arms under the United States and/or Pennsylvania Constitutions)), the Court declared that a trial court is only

to review the physician’s findings, made at the time of the commitment, to determine whether the evidence known by the physician at the time, as contained in the contemporaneously-created records, supports the conclusion that the individual required commitment under one (or more) of the specific, statutorily-defined circumstances.

Interestingly, the Court did not address the sufficiency/review of the requisite records for an involuntary commitment, pursuant to 50 P.S. § 7302 and the implementing regulations. This is likely due to this issue not having been raised and therefore was not considered by the Court.

The Court went on to declare that

The Legislature could have broadly created an appeals process under the MHPA for 302 commitments, but it did not; it could have required a de novo hearing but it did not. Instead, it narrowly provided that under 6111(g)(2) of the Uniform Firearms Act, a petitioner is entitled only to have a trial court review the sufficiency of the evidence upon which the commitment was based.

It is also important to note that the Court recognized in fn. 4 (pdf pg. 7) that the Pennsylvania State Police waived any consideration of the statute of limitations. The Court’s acknowledgment of is somewhat concerning as a specific of statute of limitations has not been enacted by the General Assembly and the Court did not specify what the appropriate statute of limitation is for sufficiency challenges to civil mental health commitments.

It is for these reasons, including the lack of requisite due process, that it is imperative that the General Assembly enact a new law regarding mental health commitment appeals, in compliance with all dictates of due process.

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U.S. Government to Withdraw Appeal in Second Amendment As-Applied Challenge Relating to a Mental Health Commitment

As our viewers are aware, I was previously successful in establishing a right to relief in a Second Amendment as-applied challenge involving a mental health commitment – Monumental Decision from the Middle District of Pennsylvania Regarding Mental Health Commitments and the Second Amendment. Thereafter, the U.S. Government filed an appeal to the Third Circuit Court, where the case is currently pending briefing.

Today, the U.S. Government filed a notice with the Third Circuit that the Acting Solicitor General has elected not to sustain the appeal and the Government will be seeking to withdraw the matter in 30 days, as the Government must provide the U.S. Congress with 30 days notice, for the U.S. Congress to intervene if it sees fit. A copy of the letter sent to Speaker Paul Ryan can be downloaded here.

Accordingly, it appears that in 30 days, the appeal will be withdrawn and the only remaining issue will be the attorney fees and costs to be assessed against the Government.

If you have been denied your inalienable right to Keep and Bear Arms as the result of a mental health commitment or non-violent misdemeanor offense, contact us today to discuss your options. Together, we can vindicate YOUR rights!

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Second Seminar: What Happens After You Use Your Firearm In PA

Due to overwhelming demand, as the first seminar on January 7, 2017, from 10-11:30 sold out, we have added a second, identical, seminar from 12-1:30.

For those unaware of the seminar, Chief Counsel Joshua Prince and Attorney Adam Kraut of Firearms Industry Consulting Group (FICG), a division of Prince Law Offices, P.C., in conjunction with former JAG E. Allen Chandler of Firearms Legal Protection and King Shooters Supply, will provide an hour and a half seminar on what happens after you use your firearm in Pennsylvania. For only $10, you will be provided information on the legal consequences of a violent encounter and how to avoid common mistakes that can cost you money, and even your freedom, if you should become involved in a self-defense situation.

All attendees must per-register, and if there is extensive demand, we may schedule another seminar later in the day. To register, simply visit King Shooter Supply’s website.

Brought to you by your PA Firearms Lawyer® and your PA Gun Attorney® and home of the Armor Piercing Arguments®.

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Social Security Administration Publishes Final Rule Relating to NICS Improvement Amendments Act of 2007

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It has been well reported that the Social Security Administration (“SSA”) had been passing along information of individuals that it deemed unable to handle their financial affairs to NICS for the purposes of preventing them from purchasing a firearm due to being “adjudicated as a mental defective.”

In May of this year, the SSA published a Notice of Proposed Rulemaking. It received over 91,000 comments relating to the proposed rule. Of those, 86,860 were identical letters submitted by various individuals of a single advocacy group, opposing the proposed rule.

On December 19, 2016, the SSA published a Final Rule on the Federal Register pertaining to its regulations. While the regulations take effect on January 18, 2017 compliance is not required until December 19, 2017.

Public Comments

There were a number of comments on various issues, which I will recap a few points quickly below before moving on to explain the final rule and its impact.

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Second Amendment and Equal Protection

A number of individuals commented that “these rules would violate the affected individuals’ rights under the Second Amendment to the Constitution, and would also violate their equal protection rights under the Constitution. Most of these comments were provided in largely identical letters, and they asserted that our rules would take firearms away from elderly recipients of Social Security retirement benefits.”

SSA responds stating that “[t]he criteria we will use under these rules do not focus on one age group, such as the elderly or recipients of Social Security retirement benefits, nor do they categorize and treat individuals who are similarly situated differently.” Further, “[w]e do not intend under these rules to report to the NICS any individual for whom we appoint a representative payee based solely on the individual’s application for and receipt of Social Security retirement benefits.”

With regard to the Second Amendment claim, the SSA cites to District of Columbia v. Heller, 554 U.S. 570 (2008) for the proposition that “[l]ike most rights, the right secured by the Second Amendment is not unlimited,” and that “nothing in [the Court’s] opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill.” Heller at 626.

Unfortunately, the Heller decision gives no guidance as to what constitutes mentally ill. Is an individual who was diagnosed with OCD “mentally ill”? Where does one draw the line exactly?

Due Process

Individuals commented that the due process rights of the beneficiaries would be violated because the beneficiaries would not be able to appeal the decision prior to the inclusion of their information being reported to NICS, raised concerns about adequate notice being given to the beneficiary who might be reported and argued the costs of pursuing relief should an individual be reported to NICS would be onerous.

SSA responded stating that “[a]ffected individuals will have the opportunity to apply for relief from the Federal firearms prohibitions imposed by 18 U.S.C. 922(g)(4) at any time after our adjudication has become final…we will provide individuals with advance notice at the commencement of the adjudication that we may report their information to NICS if we find they meet the criteria for reporting when the adjudication is final.”

SSA goes on to state that they “will provide oral and written notice to the beneficiary at the commencement of the adjudication, which we define as after we have determined that he or she meets the medical requirements for disability based on a finding that his or her impairment(s) meets or medically equals the requirements of the mental disorders listings, but before we find that he or she requires a representative payee.”

Notice is extremely important and a lot of times never given to individuals. SSA incorporating both oral and written notice to an individual is pleasantly surprising, given a the litany of issues I see where an individual is never told that a finding may result in their Second Amendment rights being taken from them.

Lastly, regarding the cost of pursuing relief, SSA dismissed the concerns by stating they will not impose a fee in connection with a request for relief and that it believes the cost to obtain the evidence it would require for such a request for relief as “reasonable”.

Part of the criteria of the new rule is that the individual appealing the decision will provide the SSA medical evidence in the form of a statement of the individual’s current mental health status as well as their mental health during the preceding five years from the applicant’s primary mental health provider. Such evaluations are typically performed by a psychologist and cost anywhere between $1,500 to $2,000 on average.

Final Rule

In order for an individual to be reported to NICS, they have to meet the five (5) criteria spelled out in Section 421.110.

Adjudicated as a mental defective, in accordance with 18 U.S.C. 922(g)(4), as amended, means a determination by a court, board, commission, or other lawful authority that a person, as a result of marked subnormal intelligence, or mental illness, incompetency, condition, or disease: Is a danger to himself or others; or lacks the mental capacity to contract or manage his own affairs.

An individual will have been “adjudicated as a mental defective” if during SSA’s claim development and adjudication process, or when SSA takes certain post-entitlement or post-eligibility actions, SSA will identify any individual who:

  1. Has filed a claim based on disability;
  2. Has been determined to be disabled based on a finding that the individual’s impairment(s) meets or medically equals the requirements of one of the Mental Disorders Listing of Impairments (section 12.00 of appendix 1 to subpart P of part 404 of this chapter) under the rules in part 404, subpart P, of this chapter, or under the rules in part 416, subpart I, of this chapter;
  3. Has a primary diagnosis code in our records based on a mental impairment;

    Primary diagnosis code means the code we use to identify an individual’s primary medical diagnosis in our records. The primary diagnosis refers to the basic condition that renders an individual disabled under the rules in part 404, subpart P, of this chapter, or under the rules in part 416, subpart I, of this chapter.

  4. Has attained age 18, but has not attained full retirement age; and
  5. Requires that his or her benefit payments be made through a representative payee because we have determined, under the rules in part 404, subpart U, of this chapter, or the rules in part 416, subpart F, of this chapter, that he or she is mentally incapable of managing benefit payments.

These criteria will be applied to capability findings that are made in connection with initial claims on or after December 19, 2017 and capability findings that are made in connection with continuing disability reviews (including age-18 disability redeterminations under § 416.987) on or after December 19, 2017. The latter provision will only apply in instances with respect to capability findings in which SSA appoints a representative payee for an individual in connection with a continuing disability review.

If the individual does not meet all five of the aforementioned requirements, then they will not be reported to NICS.

The regulations provide that if SSA determines the person is “mental defective” they will provide both oral and written notice to the affected individual that:

(a) A finding that he or she meets the criteria in § 421.110(b)(1) through (5), when final, will prohibit the individual from purchasing, possessing, receiving, shipping, or transporting firearms and ammunition, pursuant to 18 U.S.C. 922(d)(4) and (g)(4);

(b) Any person who knowingly violates the prohibitions in 18 U.S.C. 922(d)(4) or (g)(4) may be imprisoned for up to 10 years or fined up to $250,000, or both, pursuant to 18 U.S.C. 924(a)(2); and

(c) Relief from the Federal firearms prohibitions imposed by 18 U.S.C. 922(d)(4) and (g)(4) by virtue of our adjudication is available under the NIAA.

If an individual is reported, they may request relief from SSA as to the determination. Per Section 421.150 an application for relief must be in writing and include the information required by § 421.151. It may also include any other supporting data that the SSA or the applicant deems appropriate. When an individual requests relief under this section, SSA will also obtain a criminal history report on the individual before deciding whether to grant the request for relief.

Section 421.151 requires the applicant provide:

  1. A current statement from the applicant’s primary mental health provider assessing the applicant’s current mental health status and mental health status for the 5 years preceding the date of the request for relief; and

    The statement must specifically address:
    (i) Whether the applicant has ever been a danger to himself or herself or others; and
    (ii) Whether the applicant would pose a danger to himself or herself or others if we granted the applicant’s request for relief and the applicant purchased and possessed a firearm or ammunition.

  2. Written statements and any other evidence regarding the applicant’s reputation.

    The statements must specifically:
    (i) Identify the person supplying the information;
    (ii) Provide the person’s current address and telephone number;
    (iii) Describe the person’s relationship with and frequency of contact with the applicant;
    (iv) Indicate whether the applicant has a reputation for violence in the community; and
    (v) Indicate whether the applicant would pose a danger to himself or herself or others if we granted the applicant’s request for relief and the applicant purchased and possessed a firearm or ammunition.

The applicant may obtain written statements from anyone who knows the applicant, including but not limited to clergy, law enforcement officials, employers, friends, and family members, as long as the person providing the statement has known the applicant for a sufficient period, has had recent and frequent contact with the beneficiary, and can attest to the beneficiary’s good reputation. At least one statement must be from an individual who is not related to the applicant by blood or marriage.

The burden is on the applicant to show that he/she is not likely to act in a manner dangerous to public safety and that granting relief from the prohibitions imposed by 18 U.S.C. 922(d)(4) and (g)(4) will not be contrary to the public interest. Assuming those criteria are met, the SSA may grant relief. Unfortunately, the regulation does not state that they shall grant relief.

SSA’s regulations provide that a decision maker who was not involved in making the finding that the applicant’s benefit payments be made through a representative payee will review the evidence and act on the request for relief. If the request is denied, the applicant will have 60 days to file a petition for review in a Federal District Court. If the application for relief is approved, SSA will provide the applicant with written notice as to the reason for their decision, inform them that they are no longer prohibited under 18 U.S.C. 922(g)(4) from purchasing, possessing, receiving, shipping, or transporting firearms or ammunition based on the prohibition that we granted the applicant relief from, and inform the Attorney General of the decision in order to remove the applicant from the NICS database.

SSA has 365 days to act upon an application pursuant to NICS Improvement Amendments Act.

 

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ak4nra_logo-01smallIf you are an NRA Life, Endowment, Patron or Benefactor member or an annual member of the past 5 consecutive years I ask that you please consider me in the upcoming election for the Board of Directors in February of 2017. Ballots will be mailed in the February issue of the NRA magazine to which you are subscribed. For more information, please visit www.adamkraut.com.

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Seminar: What Happens After You Use Your Firearm In PA

On January 7, 2017, Chief Counsel Joshua Prince and Attorney Adam Kraut of Firearms Industry Consulting Group (FICG), a division of Prince Law Offices, P.C., in conjunction with former JAG E. Allen Chandler of Firearms Legal Protection and King Shooters Supply, will provide an hour and a half seminar on what happens after you use your firearm in Pennsylvania. For only $10, you will be provided information on the legal consequences of a violent encounter and how to avoid common mistakes that can cost you money, and even your freedom, if you should become involved in a self-defense situation.

All attendees must per-register, and if there is extensive demand, we may schedule another seminar later in the day. To register, simply visit King Shooter Supply’s website.

Brought to you by your PA Firearms Lawyer® and your PA Gun Attorney® and home of the Armor Piercing Arguments®.

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Major Pennsylvania Firearm Cases of 2016

As the year is coming to a close, I thought it important to document some of the monumental court decisions that Firearms Industry Consulting Group® (FICG®), a division of Prince Law Offices, P.C., obtained in 2016, as well as, some other cases of importance.

We were successful in a monumental case of first impression in obtaining a decision from the Commonwealth Court holding that all license to carry firearms applicant information is confidential and not subject to disclosure. The court held that disclosure through an un-enveloped postcard was a public disclosure.

The Pennsylvania Supreme Court in Commonwealth v. Childs re-affirmed that the Castle Doctrine is an inalienable/inherent right.

There was the U.S. Supreme Court decision in Birchfield v. North Dakota that held that a state may not imposed additional criminal sanctions or penalties on someone refusing a breathalyzer or blood draw. Although we were not involved in the Birchfield decision, as a result of the decision, we were able to get numerous individual relief from previously prohibiting convictions and plea deals.

In another case of first impression, we were successful in a Second Amendment as-applied challenge in relation to a mental health commitment. The District Court even declared:

Indeed, Mr. Yox provides the perfect test case to challenge § 922(g)(4), as the illogical contradiction of being able to possess firearms in his professional capacities but not being able to possess a firearm for protection in his own home puts in relief a factual scenario where an as-applied Second Amendment challenge to this statute may succeed.

Indeed, if Mr. Yox were not to succeed on his as-applied challenge, we cannot imagine that there exists any person who could.

In a monumental order, the Superior Court vacated its decision in Commonwealth v. Goslin and ordered re-briefing and argument on whether Mr. Goslin, who merely possessed a lawful pocket knife on school grounds, was entitled to the defense of his possession constituting an “other lawful purpose.” This was after the Superior Court had issued a devastating opinion holding that one could only possess a weapon on school grounds if it related to and was necessitated by the reason the individual was on school grounds. We now await the court’s decision.

The most recent decision was in relation to Lower Merion Township’s illegal firearm ordinances, which precluded individuals from possessing and utilizing firearms in their parks, in direct contravention of Article 1, Section 21 of the Pennsylvania Constitution and our state preemption, found in 18 Pa.C.S. 6120. The Commonwealth Court found that Firearm Owners Against Crime (FOAC) was entitled to an injunction.

These are but a few of the extremely important, pro-Second Amendment, decisions that were rendered this year in Pennsylvania.

If your rights have been violated, contact us today to discuss your options! Together, we can ensure that YOUR constitutional rights aren’t infringed!

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Commonwealth Court Finds Lower Merion Township’s Firearm Regulations UNLAWFUL

Today, in a case that I handled, the Commonwealth Court issued a decision in Firearm Owners Against Crime (FOAC), et al. v. Lower Merion Township, 1693 C.D. 2015, reversing the trial court and finding that FOAC was entitled to a preliminary injunction against Lower Merion Township’s unlawful firearm regulations.

The background to the case is that in 2011, Lower Merion Township passed an ordinance amending section 109-16 of its Code (Ordinance) to prohibit persons from “carry[ing] or discharg[ing] firearms of any kind in a park without a special permit, unless exempted.” Lower Merion Township, Pa., Code §109-16. The Ordinance imposes a maximum fine of $600.00 per violation and authorizes the police to remove violators from Township parks or recreation areas.

In 2014, FOAC  contacted the Township and alleged that the Ordinance violated section 6120 of the Pennsylvania Uniform Firearms Act (UFA) because it improperly restricted firearm possession in Township parks. Upon review, the Township determined that the Ordinance was consistent with the UFA because it only prohibited the unlawful possession of firearms in parks and, therefore, chose not to repeal or revise it. Shortly thereafter, FOAC and a resident of the Township filed suit in the Montgomery County Court of Common Pleas and sought a preliminary injunction that the court denied. The underlying appeal ensued.

Reaffirming the PA Supreme Court’s decision in Ortiz v. Commonwealth, 681 A.2d 152 (Pa. 1996), the Commonwealth Court found that FOAC’s right to relief was clear. Specifically, the Commonwealth Court declared

Rather, the critical upshot is our recognition that Ortiz’s “crystal clear holding” prohibits this Court from endorsing the argument that a cognizable distinction exists between regulating lawful activity and unlawful activity.

Moreover, based on Commonwealth Court Judge Pelligrini’s prior footnote (known as fn. 9) in Dillon v. City of Erie, 3 A.3d 467 (Pa. Cmwlth. 2014) (en banc), the Township attempted to argue that it could regulate as a private property owner. In explicitly rejecting the Township’s argument, the Court held that

the UFA explicitly prohibits a township from regulating “in any manner” and contains no express exemptions authorizing a township to enact ordinances permitting firearm regulation on its property, i.e., parks, comparable to that contained in the Game Law…Therefore, the Township’s argument that Firearm Owners’ right to relief is not clear based on its authority to regulate its parks as a property owner pursuant to Wolfe is unpersuasive.

Furthermore, the Court found the Township’s arguments that immediate and irreparable harm would not result as absurd, given the statutory proscription on regulating firearms and ammunition. Likewise, the Court found that “refusing an injunction would sanction the Township’s continued statutory violations of the UFA and, therefore, be injurious to Firearm Owners and the public” and that “the last nonconstested status existed prior to the Township’s enactment of the Ordinance. Therefore, an injunction enjoining the Ordinance would restore the parties to their last uncontested status and preserve the status quo.”

For those interested, you can download copies of our Brief and Reply Brief, by clicking on the applicable prior text.

Please join me in thanking FOAC for remaining steadfast in its dedication to defending Article 1, Section 21 and 18 Pa.C.S. 6120. I would highly encourage anyone in a financial position to do so, to donate to FOAC so it can continue to support important litigation defending our Rights.

#BestHanukahPresentFromTheCommonwealthCourtEVER! #MerryChristmasSenatorLeach #SenatorLeachITookMyBestShotAndWON! (This is in relation to your comment that I should take my “best shot” at 1:27 mark – http://www.nbcphiladelphia.com/news/local/Gun-Rights-Supporters-Rally-in-Suburban-Philadelphia-296381701.html)

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