Category Archives: Firearms Law

A Very Interesting Decision On City Domestic Violence Convictions Not Triggering A Federal Prohibition

Two days ago, the 10th Circuit Court of Appeals issued a largely overlooked decision in U.S. v. Alexander Pauler, which involved Mr. Pauler’s misdemeanor conviction of domestic violence, pursuant to a municipal ordinance.

Mr. Pauler was previously convicted in 2009 of violating a Wichita, Kansas municipal domestic battery ordinance by punching his girlfriend. As the 10th Circuit declared,

The sole issue before us in this appeal is whether a misdemeanor violation of a municipal ordinance qualifies as a “misdemeanor under . . . State . . . law” when viewed in the context of a statutory scheme that clearly and consistently differentiates between state and local governments and between state statutes and municipal ordinances.

In ruling that Mr. Pauler was not prohibited pursuant to the Gun Control Act, 18 U.S.C. § 921, et seq., and more specifically the Lautenberg amendment, which became 18 U.S.C. § 922(g)(9), the 10th Circuit refreshingly looked to the actual language of the definition of a “misdemeanor crime of domestic violence” found in 18 U.S.C. § 921(a)(33), which provides, in pertinent part that it must bea misdemeanor under Federal, State, or Tribal law.” In this instance, since Mr. Pauler’s conviction was for a municipal crime of domestic violence and not a state crime of domestic violence, the 10th Circuit ruled that he was not prohibited and therefore his conviction for being a prohibited person in possession must be vacated and overturned. 

If you are being charged with being a prohibited person in possession of a firearm, contact Firearms Industry Consulting Group® (FICG®) 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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Firearm Preemption Passes Senate With Veto-Proof Vote

Yesterday, the Pennsylvania Senate passed Senate Bill 5 with a vote of 34 to 16, which is a 2/3rds majority veto-proof vote; however, the vote could have been even stronger if three republicans – Senators Greenleaf, Killion and McGarrigle – had not voted against it. 

At the last minute, there were five amendments proposed to Senate Bill 5 of which only one passed. That one provides that the Attorney General shall provide, within 30 days of enactment, notice of the new law to every municipality. Furthermore, the sections of Senate Bill 5 that provide for preemption and enforcement would not be effective for 60 days. What appears lost in relation to this amendment is the fact that firearm preemption has existed since 1979 and it has been a misdemeanor of the 1st degree. Furthermore, there appears to be some thought that unlike us mere peasants, who do not receive personal notification of new laws that are enacted, that municipalities are of a privileged class that deserve personal notification of the fact that their existing ordinances and regulations are in violation of the law.

While Senate Bill 5 is not perfect for other additional issues that I flagged for those capable of resolving them, it is definitely a step in the right direction.

Senate Bill 5 now moves to the House of Representatives for a vote.

There are three things that must be done:

  1. If you are a constituent of Senator Boscola, please contact her and let her know that you appreciate her vote in favor of holding municipalities accountable.
  2. If you are a constituent of Senators Senators Greenleaf, Killion or McGarrigle, please let them know that their vote against holding municipalities accountable will have consequences in their next election.
  3. Please contact your House Representative member and ask them to vote in favor of SB 5.

Together, we can ensure that municipalities stop violating the law and are held accountable.

If your rights have been violated by an illegal firearm ordinance or regulation, contact Firearms Industry Consulting Group, a division of Civil Rights Defense Firm, P.C., to discuss your legal rights.


Firearms Industry Consulting Group® (FICG®) is a registered trademarkand 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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Brace for Impact…ATF Clarifies Its Illogical Position on Users Shouldering Brace Equipped Pistols.

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Readers may remember the blog article I wrote when ATF dropped a bombshell at SHOT Show 2015 where it released an open letter which stated that the brace was neither designed nor approved to be used as a shoulder stock and that the use of the brace as a shoulder stock constitutes a redesign of the device because a possessor has changed the very function of the item. The letter concluded that “[a]ny individual letters stating otherwise are contrary to the plain language of the NFA, misapply Federal Law, and are hereby revoked,” which sent part of the firearms community into a panic, with the remaining portion laughing at such a ridiculous interpretation of the term “redesign”. (I was in the group laughing).

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However, today is the day where you can all rejoice as ATF, at the behest of SB Tactical, has reexamined its logic (or lack there of) utilized in the open letter. The new determination letter written by Marvin Richardson puts the unfounded fears of the past two years to rest.

The letter begins by describing the definition of a firearm under the National Firearms Act or NFA, the definition of a rifle or shotgun and that ATF has long held that a pistol with a barrel length of less than 16 inches and an attached shoulder stock is an NFA firearm pursuant to the plain language of the statute. ATF further states that “because the stabilizing brace was not designed as a shoulder stock, ‘use’ of the device as a shoulder stock would constitute a ‘redesign’ of the firearm to which it was attached, resulting in the classification of the firearm as a short-barrel rifle.

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While I don’t have SB Tactical’s letter to ATF, it appears that they made some arguments that ATF’s definition of “use” was indefensible based on some arguments that appear eerily similar to ones I had advanced on this blog, such as misusing a common household item like a screwdriver as a pry bar. ATF responds that the result of accepting such an argument is that a device which was designed, marketed and intended for use only to shoot from the arm, could be attached to a firearm and shouldered without falling into the purview of the NFA. An argument that ATF was quick to expressly reject.

However, ATF continues on “[a]n accessory that can be attached to a firearm in any one of several configurations must be evaluated to determine whether attaching it in each of those configurations constitutes ‘making’ an NFA firearm…” ATF has previously concluded that attaching a handgun to a forearm brace does not “make” a short-barreled rifle because in the configuration that was approved by the Firearms and Ammunition Technology Division (“FATD”) it “is not intended to be and cannot comfortably be fired from the shoulder.”

Here is the part I really like (because ATF seems to adopt something I’ve been saying all along).

If, however, the shooter/possessor takes affirmative steps to configure the device for use as a shoulder-stock — for example, configuring the brace so as to permanently affix it to the end of a buffer tube…removing the arm-strap, or otherwise undermining its ability to be used as a brace — and then in fact shoots the firearm from the shoulder…that person has…”redesigned” the firearm for purposes of the NFA.

(emphasis added). It would now seem that ATF has changed the definition of “redesign” it is utilizing to the actual layman’s term which means that you actually did something to change the design, rather than just simply misuse.

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The letter continues to explain

[t]o the extent the January 2015 Open Letter implied or has been construed to hold that incidental, sporadic, or situational “use” of an arm-brace (in its original approved configuration) equipped firearm from a firing position at or near the shoulder was sufficient to constitute a “redesign”, such interpretations are incorrect and not consistent with ATF’s interpretation of the statute or the manner in which is has been historically enforced.

In short, it seems that ATF has re-examined the perverted logic it used in the January 2015 Open Letter to come to a more rationale determination about the use of a product.

However, there is a note of caution with this happy tale. It is still possible to construct a short barreled rifle from a brace equipped pistol. The letter explains “…an item that functions as a stock if attached to a handgun in a manner that serves the objective purpose of allowing a firearm to be fired from the shoulder may result in ‘making’ a short-barreled rifle, even if the attachment is not permanent.”

As you may remember, I’ve contended that if you purchased a brace with the intent to build a gun that would be fired from the shoulder, if the barrel length is less than 16 inches or the overall length is less than 26 inches, you’ve just created a short barreled rifle. Why is that?

The NFA defines the term firearm to mean among other things “…(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;…”

The term rifle is defined as “a weapon designed or redesigned, made or remade, and intended to be fired from the shoulder and designed or redesigned and made or remade to use the energy of the explosive in a fixed cartridge to fire only a single projectile through a rifled bore for each single pull of the trigger, and shall include any such weapon which may be readily restored to fire a fixed cartridge.”

Key point being that it is intended to be fired from the shoulder. As such, you would have a firearm (Short Barrel Rifle) under the NFA which would be subject to its controls.

 

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Attending the NRA Annual Meeting in Atlanta? Be sure to stop by Room B403 on Thursday from 2 PM to 6 PM, Friday 8 AM to 6 PM or Saturday 8 AM to 4 PM to cast YOUR ballot for me (Adam Kraut) for the 76th seat of the NRA Board of Directors. All NRA Members (regardless of membership level) who have been members prior to March 9, 2017 can vote.

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The Problems With Senate Bill 383 Permitting Teachers To Carry Firearms In Pennsylvania

Recently, there has been a lot of public interest and questions asked about Pennsylvania Senate Bill 383, which seeks to provide school districts with the ability to approve school personnel to carry firearms in schools. As many of you are aware, I full support having armed school personnel in our schools; however, this bill suffers from many issues that appear to have never been considered.

First, it requires the school official to have a license to carry firearms (“LTCF”). Why is this of concern? Well, SB 383 fails to consider that LTCF applicant information is confidential and not subject to disclosure; whereby, the disclosure of such information is a felony of the 3rd degree and permits civil penalties. Specifically, 18 Pa.C.S. § 6111(g)(3.1) provides:

Any person, licensed dealer, licensed manufacturer or licensed importer who knowingly and intentionally obtains or furnishes information collected or maintained pursuant to section 6109 for any purpose other than compliance with this chapter or who knowingly or intentionally disseminates, publishes or otherwise makes available such information to any person other than the subject of the information commits a felony of the third degree.

Section 6111(i) then provides, in pertinent part:

Confidentiality.  All information provided by the … applicant, including, but not limited to, the … applicant’s name or identity, furnished by … any applicant for a license to carry a firearm as provided by section 6109 shall be confidential and not subject to public disclosure. In addition to any other sanction or penalty imposed by this chapter, any person, licensed dealer, State or local governmental agency or department that violates this subsection shall be liable in civil damages in the amount of $ 1,000 per occurrence or three times the actual damages incurred as a result of the violation, whichever is greater, as well as reasonable attorney fees.

Second, the bill does nothing to address the confidentiality of this information and how a school district is to protect the disclosure of this information. Who is entitled within the school district to see and have access to this information? Are logs to be kept of who views it and when? Is any training on the confidentiality of LTCF applicant information to be provided to school officials who have access to this information? If so, how frequently? Are logs to be kept of their training? These are all important issues that are not addressed, in any form, by the bill.

I also question why an LTCF is the determining criteria instead of the person being Act 235 certified. It would seem to be far more logical to me to remove the LTCF requirement and replace it with an Act 235 requirement.

Third, and most concerning is the fact that without the confidentiality of this information being addressed in SB 383, one wonders whether such information will be disclosed to the public, including through Right To Know Law (“RTKL”) requests. If so, now an individual intent on harming our children, including a potential terrorist or terrorist group, could learn, in advance, whether a school district has any armed personnel. If so, the criminal/terrorist is likely to target those school personnel first. If, on the other hand, a RTKL request comes back stating that there are no relevant records, such would highlight that there are no armed personnel and that the school is an extremely soft target.

Although I support arming our school personnel, SB 383 fails to address many significant concerns and therefore, I cannot support it in its current form. My hope is that the General Assembly takes action to correct SB 383.

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Say What?!?! Philadelphia Gun Permit Unit Isn’t All Bad And Is Actively Working To Make Licensing Compliant With The Law

As our readers are likely aware, I have frequently addressed Philadelphia’s arrogance and non-compliance with Pennsylvania’s Uniform Firearms Act, 18 Pa.C.S. § 6101, et seq. and have sued them several times in relation thereto, including a prior class action that resulted in a $1.45 million dollar settlement and numerous policy changes. However, I truly believe that we must acknowledge when they take positive steps towards ensuring compliance, even if, there are other issues, where they still are not compliant with the law.

Although I will not disclose the name of the individual within the Gun Permit Unit (commonly referred to as the “GPU”), I can state that there is at least one individual, who holds a significant position within the GPU, who believes that everyone eligible should have at least one firearm and a license to carry firearms (“LTCF”). This individual has been working behind the scenes to change the GPU’s policies that we constantly complain about and which are contrary to 18 Pa.C.S. § 6109.

Most recently, I learned that the GPU started tracking the dates of LTCF applications to ensure determinations on licenses are made within 45 calendar days. The GPU worked closely with its IT department, so that it can generate spreadsheets reflecting, among other things, (1) the date of application; (2) deadline date (e.g. 45 calendar days from date of application); (3) the date of PICS denial (if any); (4) date of denial by City (if such occurs); (5) date notification is sent to the applicant; (6)  the date issued; and (7) the elapsed time. This information is frequently being reviewed by an individual in the GPU to ensure the GPU’s  compliance with Section 6109 and to benchmark their processing of LTCFs.

It is my understanding that this was first implemented in March 2017 and that for March the average elapsed time was 28 days! More surprising, although we’re only half way through April, it is my understanding that the average determination time is 14 days! This is a MONUMENTAL improvement that should not go unnoticed. While this doesn’t mean that such is guaranteed to continue or that there won’t be outliers, it is extremely promising.

I also understand that all GPU employees have been trained that if an applicant comes in at or after the 45 day mark and his/her application has not been processed that the file is to be immediately pulled and determination made, which is again a monumental improvement.

Please join me in thanking the GPU in implementing these changes and safeguards to their practices involving the issuance of LTCFs (I bet you never thought you’d hear me say that!).

If you have questions about applying for an LTCF, had your LTCF denied or revoked or had your confidential LTCF applicant information disclosed, contact Firearms Industry Consulting Group, a division of Civil Rights Defense Firm, P.C., to discuss your legal rights.


Firearms Industry Consulting Group® (FICG®) is a registered trademarkand 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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Results of a Right to Know Law Request to the PA Game Commission Regarding Their Survey of Hunters and Semi-automatics for Big Game Hunting

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Recently, after I blogged about the list of approved animals to hunt with a semi-automatic in PA, I submitted a Right to Know Law request to the PA Game Commission.

I sought records which included the survey itself, any and all responses, and documents relating to the selection of those who would receive the survey, information (age, county) of the individual completing the survey.

The cost to produce the records I requested would be almost $400, as there were an estimated 1,473 pages of records that were responsive to my request. I was informed that approximately 75% of the respondents returned the survey via the USPS, which accounted for the cost associated with the production of the records.

The Commission did furnish me with the responses that were returned electronically (523 responses). Please note, this only accounts for 1/4 of the total responses received.

I sent the responses I received to a fellow member on AR15.com who is more well versed in decoding the information provided. He responded that “the sample, at least the observable portion, is rather skewed geographically and by age.”

He found that within the partial dataset there was a high degree of correlation between the ownership of a semi-automatic firearm and support and a high degree of non-ownership and strong opposition. Out of the 523 respondents that I received results for, less than 40% owned a semi-automatic rifle. It was further explained that opposition increased with age as well as counties that had the highest opposition rates also had the highest rate of response.

He also noted concerns relating to the sample population. In order to determine whether a representative sample of PA hunters were surveyed, we would need more information such as a summary detail on the CID pool from which the sample was drawn and populations by county with counts by age.

As for the methodology, I was told that the survey recipients were chosen via a SQL Server Reporting Services (SSRS) report that utilizes a data source based around a T-SQL query that makes use of the built-in NEWID function. Since, that stuff is a bit beyond my knowledge scope as to technology and databases, the response may have well have been in french.

The was it was explained to me was that, the “function assigns each distinct Customer ID (CID) number within the given parameters a randomly generated globally unique ID number.  An example of this ID looks like  6F9619FF-8B86-D011-B42D-00C04FC964FF.  These Customer ID numbers are sorted by the generated ID. The desired number of CID’s are taken from the top of the sorted list.  These randomly select CID’s are then joined with the associated demographic information.” 

As my technical resource notes

The sampling method used, (randomly assigning a Global ID and sorting in alphanumeric order)  is inherently flawed, as there is no way to ensure that the resulting sample is representative of the hunter population as a whole. The preferred method used throughout market research would be a “stratified random sample.”
By using county and age as strata, the PGC would have ensured, with 99% confidence, that the sample group was completely representative of the 900,000+ PA hunter population.
Choosing not to use this method, in conjunction with the vague statement “within given parameters,” indicates incompetence at best, or intent at worst.

I’d like to remind readers that I am only working with a portion of the data that the Commission received. Without the rest of the information, we are only looking at a small portion of the picture. But it does seem to raise questions as to the validity in which the survey was conducted.

 

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Does Delta Airlines New Policy to Zip Tie Luggage Containing Firearms Violate Federal Law?

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Guns.com is reporting that Delta Airlines has quietly changed its policy related to passengers who are flying with guns. According to the NBC Affiliate in Fort Lauderdale

The airline will now have special tags to alert ground handlers to not put bags carrying weapons on the general carousel.

The baggage will go directly to a baggage service agent who is required to perform an ID check on the passenger who picks up the luggage, sources told NBC 6. The agent must then use zip ties to secure the bag.

This policy was apparently implemented after the shooting that occurred in the Fort Lauderdale airport, after the criminal retrieved his luggage, went to the bathroom to load his firearm and then proceeded to murder five people and injure six others.

Interestingly enough, it appears that Delta may be in violation of federal law by implementing such a policy.

18 U.S.C. § 922(e) provides:

It shall be unlawful for any person knowingly to deliver or cause to be delivered to any common or contract carrier for transportation or shipment in interstate or foreign commerce, to persons other than licensed importers, licensed manufacturers, licensed dealers, or licensed collectors, any package or other container in which there is any firearm or ammunition without written notice to the carrier that such firearm or ammunition is being transported or shipped; except that any passenger who owns or legally possesses a firearm or ammunition being transported aboard any common or contract carrier for movement with the passenger in interstate or foreign commerce may deliver said firearm or ammunition into the custody of the pilot, captain, conductor or operator of such common or contract carrier for the duration of the trip without violating any of the provisions of this chapter. No common or contract carrier shall require or cause any label, tag, or other written notice to be placed on the outside of any package, luggage, or other container that such package, luggage, or other container contains a firearm.

(emphasis added).

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Tags that are usually put INSIDE the luggage to indicate the firearm is unloaded.

It would seem, at least based upon what NBC is reporting, that Delta’s policy is potentially in direct contravention with what is prohibited by federal law. Perhaps Delta was unaware of the prohibitions against marking luggage containing firearms before it implemented its policy.

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