Category Archives: Firearms Law

Are PA Medical Marijuana Patients Prohibited From Possessing and Purchasing Firearms and Ammunition?

Last week, Pennsylvania Governor Tom Wolf announced that the Medical Marijuana Program Patient Registry had reached 3,800 registered patients in its first week of registration. While individuals may be able to lawfully possess marijuana in Pennsylvania under Pennsylvania law if the person is registered on the Patient Registry and has been approved for use by a qualified doctor, Federal law still provides that the possession and/or use of marijuana is unlawful, as a Schedule 1 drug.

Although we have written extensively about the fact that marijuana is federally prohibited and that ATF revised the ATF 4473 form to reflect such, few individuals appear aware that they lose their right to keep and bear arms if they are a current user of marijuana, even if approved for use by a qualified doctor. (As many people are confused, a doctor cannot prescribe marijuana, due to Federal law, but can suggest to a patient that he/she utilize marijuana).

On the most recent version of the ATF 4473, it reflects under question 11e.:

e. Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?

Warning: The use or possession of marijuana remains unlawful under Federal law regardless of whether it has been legalized or decriminalized for medicinal or recreational purposes in the state where you reside.

As a result, more than 3,800 residents of Pennsylvania have presumptively become prohibited under Federal law from possession and purchasing firearms and ammunition.

Moreover, individuals who live in households where a registered medical marijuana patient resides, need to consider the potential ramifications of their own rights to keep and bear arms.

If you are concerned about whether you have lost your right to keep and bear arms as a result of Pennsylvania’s medical marijuana program or your residing in a residence with a medical marijuana user,  contact Firearms Industry Consulting Group today to discuss YOUR rights and legal 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.

Advertisements

Leave a comment

Filed under ATF, Firearms Law, Pennsylvania Firearms Law

Superior Court – Does Natural Corrosion of a Firearm Serial Number Violate Pennsylvania’s Uniform Firearms Act?

Yesterday, the Superior Court issued its decision in Commonwealth v. Ford, 196 ED 2016, in relation to whether natural corrosion (i.e. rust) over a firearm serial number constitutes a violation of Pennsylvania’s Uniform Firearms Act for purposes of possession of a firearm with an obliterated serial number.

Section 6110.2 provides in pertinent part:

No person shall possess a firearm which has had the manufacturer’s number integral to the frame or receiver altered, changed, removed or obliterated. 18 Pa.C.S. § 6110.2(a).

It is important to note that even though the parties stipulated that “serial number on the handgun was obscured by corrosion [and] recovered by polishing,” Philadelphia Court of Common Pleas Judge Carolyn Nichols (the same Judge Nichols who just ran for and was elected to the Superior Court) found Mr. Ford guilty for possessing a firearm with an obliterated serial number.

Accordingly, the Superior Court framed the question before it as:

whether corrosion of manufacturer’s numbers renders them “altered, changed, removed or obliterated” within the meaning of section 6110.2.

After the court correctly noted that the phrase “altered, changed, removed or obliterated” was not defined, it turned to the ordinary dictionary definitions of these terms. After reviewing the definitions, the court held that:

section 6110.2 does not say that a crime takes place when a person possesses a gun whose markings have become illegible due to natural causes.

As a result, Mr. Ford’s conviction for possession of a firearm with obliterated markings was overturned.

If you or someone you know has been charged with possessing a firearm with an obliterated serial number, contact us today to discuss your options!

2 Comments

Filed under Firearms Law, Pennsylvania Firearms Law

PRESS RELEASE: Monumental Mental Health Second Amendment As-Applied Challenge Success

We are extremely proud to announce that Attorney Joshua Prince was successful in a second Second Amendment as-applied challenge in relation to a prior mental health commitment.

As our viewers are likely aware from Attorney Prince’s blog article Monumental Decision from the Middle District Court of Pennsylvania Regarding Mental Health Commitments and the Second Amendment, over a year and three months ago, Attorney Prince was successful in obtaining relief for Mr. Yox, who had previously been involuntarily committed as a juvenile but later went on to honorably serve in our Armed Forces and later as a state correctional officer. Under federal law, Mr. Yox was permitted to possess a firearm and ammunition in his official capacity as a law enforcement officer, but was precluded from possessing a firearm and ammunition in his private capacity. In fact, in providing relief to Mr. Yox, the court 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.

Unfortunately, the court had previously dismissed his co-plaintiff’s (Mr. Keyes’) identical arguments on the basis that the Pennsylvania Superior Court had already considered his Second Amendment challenge and found against him in In re Keyes. After rendering its decision on Plaintiff Yox’s claims, Mr. Keyes filed a request for the court to reconsider its prior ruling and arguing that it would be a manifest injustice if the court were deny him relief based on the faulty decision of the Pennsylvania Superior Court.

On October 4, 2016, Judge John E. Jones, III. overturned his prior holding finding that Mr. Keyes’ Second Amendment as-applied claim was barred and declared that Mr. Keyes “is in a materially identical situation” to Mr. Yox and that denying Keyes, while granting relief to Mr. Yox, would seem to constitute an “inequitable administration of the law” and “manifest injustice.”Judge Jones specifically declared in finding that the Pennsylvania Superior Court incorrectly analyzed his prior Second Amendment challenge:

The result is that Keyes is left behind while his co-Plaintiff receives full relief simply because Keyes pursued his Second Amendment claims in what turned out to be the wrong court. He is left with no recourse to receive vindication of his constitutional right to bear arms, even though this Court has, for all material purposes, made clear that his claim has full merit. This is a grossly unfair and inequitable result.

Judge Jones went on to state that “[w]e would be hard pressed to think of a better example of an inequitable administration of the laws, and it is a circumstance that cries out to be rectified.”

Thereafter, extensive discovery ensued and the Government and Mr. Keyes filed cross-motions for summary judgment. Yesterday, in an initially sealed memorandum (which was unsealed today with the consent of Mr. Keyes), Judge Jones, after providing a substantial and substantive analysis of the law and evidence of record, declared:

We have been presented with no evidence to indicate that disarming those who went through a period of mental illness and suicide attempts over a decade ago and who have regularly carried firearms in their professional capacity since that time reasonably fits within the governmental interest to promote safety. As such, 18 U.S.C. § 924(g)(4) cannot withstand intermediate scrutiny in the face of Keyes’ as-applied challenge. Enforcement of the statute against Keyes therefore violates his right to keep and bear arms – a right guaranteed to him by the Second Amendment to the United States Constitution.

More importantly, telling of Judge Jones’ character and being an ardent defender of constitutional rights, he further declared:

We freely acknowledge our mindfulness of the fact that this decision is rendered in a time when our country appears awash in gun violence. Given the tenor of the times, it would be easy and indeed alluring to conclude that Plaintiff lacks any recourse. But to do so would be an abdication of this Court’s responsibility to carefully apply precedent, even when, as here, it is less than clear. Our jurisprudence and the unique facts presented guide us to the inescapable conclusion that if the Second Amendment is to mean anything, and it is beyond peradventure that it does, Plaintiff is entitled to relief.

Please join us in congratulating Attorney Prince for this monumental victory, as well as, Judge Jones for ensuring that for every wrong committed, the court has the power to correct it.

If you or someone you know has been involuntarily committed and is now prohibited from purchasing and possessing firearms and ammunition, contact us today to discuss your options.

4 Comments

Filed under ATF, Firearms Law, Pennsylvania Firearms Law

The Protection in Lawful Commerce of Arms Act and the Fate of Slide Fire in the Aftermath of Las Vegas

bush-plcaa

In October of 2005, the Protection in Lawful Commerce of Arms Act (PLCAA) took effect. Its purpose was simple – to shield manufacturers and sellers of qualified products from civil suits brought by victims and/or their families for the misuse of their product. Congress specifically stated in its findings that

Businesses in the United States that are engaged in interstate and foreign commerce through the lawful design, manufacture, marketing, distribution, importation, or sale to the public of firearms or ammunition products that have been shipped or transported in interstate or foreign commerce are not, and should not, be liable for the harm caused by those who criminally or unlawfully misuse firearm products or ammunition products that function as designed and intended.

slidefire

Nine (9) days after the tragedy in Las Vegas, the first lawsuit has been filed against Slide Fire by three (3) individuals. Which begs the question, does the PLCAA shield Slide Fire and other manufacturers of accessories from such a lawsuit? This article will have 3 different sections: 1) what the PLCAA is and protects, 2) whether I believe Slide Fire is protected under the PLCAA, and 3) why it is important for manufacturers of firearm accessories to obtain an FFL.

What is the PLCAA?

The PLCAA precludes a qualified civil liability action from being brought in Federal or State court. While the wording of § 7902 is rather simple, it is the definitions are where the real analysis takes place.

The law defines a qualified civil liability action as

a civil action or proceeding…brought by any person against a manufacturer or seller of a qualified product…for damages, punitive damages, injunctive or declaratory relief, abatement, restitution, fines, or penalties, or other relief, resulting from the criminal or unlawful misuse of a qualified product by the person or a third party…

In order to better understand what the law protects, we’ll need to examine the definitions of a few other terms.

The term “manufacturer” means

with respect to a qualified product, a person who is engaged in the business of manufacturing the product in interstate or foreign commerce and who is licensed to engage in business as such a manufacturer under [The Gun Control Act]

The term “seller” means

with respect to a qualified product—

(A) an importer (as defined in section 921(a)(9) of [The Gun Control Act]) who is engaged in the business as such an importer in interstate or foreign commerce and who is licensed to engage in business as such an importer under [The Gun Control Act];

(B) a dealer (as defined in section 921(a)(11) of [The Gun Control Act]) who is engaged in the business as such a dealer in interstate or foreign commerce and who is licensed to engage in business as such a dealer under [The Gun Control Act]; or

(C) a person engaged in the business of selling ammunition (as defined in section 921(a)(17)(A) of [The Gun Control Act]) in interstate or foreign commerce at the wholesale or retail level.

Qualified product is another term that Congress defined. A qualified product

means a firearm (as defined in subparagraph (A) or (B) of section 921(a)(3) of [The Gun Control Act]), including any antique firearm (as defined in section 921(a)(16) of [The Gun Control Act]), or ammunition (as defined in section 921(a)(17)(A) of [The Gun Control Act]), or a component part of a firearm or ammunition, that has been shipped or transported in interstate or foreign commerce. (Emphasis added).

The law does provide six (6) specific exemptions to the general rule. They include

(i) an action brought against a transferor convicted under section 924(h) of [The Gun Control Act], or a comparable or identical State felony law, by a party directly harmed by the conduct of which the transferee is so convicted;

(ii) an action brought against a seller for negligent entrustment or negligence per se;

(iii) an action in which a manufacturer or seller of a qualified product knowingly violated a State or Federal statute applicable to the sale or marketing of the product, and the violation was a proximate cause of the harm for which relief is sought, including—

     (I) any case in which the manufacturer or seller knowingly made any false entry in, or failed to make appropriate entry in, any record required to be kept under Federal or State law with respect to the qualified product, or aided, abetted, or conspired with any person in making any false or fictitious oral or written statement with respect to any fact material to the lawfulness of the sale or other disposition of a qualified product; or

     (II) any case in which the manufacturer or seller aided, abetted, or conspired with any other person to sell or otherwise dispose of a qualified product, knowing, or having reasonable cause to believe, that the actual buyer of the qualified product was prohibited from possessing or receiving a firearm or ammunition under subsection (g) or (n) of section 922 of [The Gun Control Act];

(iv) an action for breach of contract or warranty in connection with the purchase of the product;

(v) an action for death, physical injuries or property damage resulting directly from a defect in design or manufacture of the product, when used as intended or in a reasonably foreseeable manner, except that where the discharge of the product was caused by a volitional act that constituted a criminal offense, then such act shall be considered the sole proximate cause of any resulting death, personal injuries or property damage; or

(vi) an action or proceeding commenced by the Attorney General to enforce the provisions of [The Gun Control Act]or [The National Firearms Act].
Simply put, in order to be protected under the PLCAA, the person manufacturing or selling the product has to 1) fall within the definition of “manufacturer”, “seller” or “trade association” (which I did not cover in this article), 2) manufacture or sell a qualified product, and 3) be sued by a person for a person’s criminal or unlawful misuse. If none of the six enumerated exemptions apply, the lawsuit must be dismissed.

Does the PLCAA Protect Slide Fire?

While there is plenty of caselaw regarding the PLCAA, I have not seen any where accessories have been implicated. Obviously, the crux of the argument with regards to the PLCAA applying to Slide Fire would be that their product is a component part.

As we saw above, in order for the PLCAA to apply, Slide Fire must either meet the definition of Manufacturer or Seller. Fortunately for Slide Fire, they are a Type 07 FFL, which puts them into the definition of a Manufacturer under the PLCAA.

Screen Shot 2017-10-10 at 11.21.50 AM

The Slide Fire stocks are qualified products (being that they are “a component part of a firearm”). So it would naturally follow that the PLCAA would apply.

 

Why is it Important Manufacturers of Firearm Accessories Obtain an FFL?

If you haven’t guessed by now, we need to return to the definitions. The protection of the PLCAA is extended to manufacturers, importers, and dealers who are licensed under the Gun Control Act (also persons engaged in the business of selling ammunition at the wholesale or retail level). By obtaining an FFL, a company can place itself under the umbrella of the PLCAA, where they may otherwise not have the protections of the Act.

Had Slide Fire not been a licensed manufacturer (or dealer or importer) it is likely that they would be an open target to be sued without the PLCAA coming into play.

 

screen-shot-2016-12-14-at-8-54-53-pm

Did you find this blog article helpful or informative? Be sure to pass it along to a friend who may benefit from the information by using the buttons below. Don’t forget to like Firearms Industry Consulting Group on Facebook by clicking the “Like” button on the right.

5 Comments

Filed under Firearms Law, Uncategorized

Part 2: Lower Merion Township – Taxpayers on the Hook for Legal Expenses related to Illegal Firearms Ordinance

As I reviewed back in May of 2015, the Lower Merion Township taxpayers were already on the hook for approximately $4,900 in legal fees, as a result of its unlawful firearm ordinances.  Although the Commonwealth Court declared the ordinances unlawful and the PA Supreme Court refused to hear the Township’s appeal of the matter, the Township has nevertheless enacted a new discharge ordinance on September 19, 2017 and the Montgomery County Court of Common Pleas will hear argument in late-October regarding the Township’s violation of the Commonwealth Court’s decision. While the litigation continues, I was interested in just how much the taxpayer of Lower Merion Township have paid in relation to it, so I submitted another Right to Know Law request. Today, I received their response.

While the billings take some time to calculate, since the prior billings, it appears that another $26,514.44 was paid, resulting in a total attorney fee of over $31,000 through July of this year. It is unfortunate that the Lower Merion Township Commissioners have elected to not only defend their illegal ordinances but also enact new ordinances in violation of the law at the taxpayers expense. If you are a resident of Lower Merion Township, you should let the Commissioners know that you do not appreciate your money being used for their political views.

2 Comments

Filed under Firearms Law, Pennsylvania Firearms Law

PRESS RELEASE: Monumental Decision Imposing Financial Judgment on Pennsylvania State Police for Violating Second Amendment Rights!

Addressing several issues of first impression, the Commonwealth Court on Wednesday issued a 20 page decision and entered a judgment of approximately $6,500.00 against the Pennsylvania State Police (PSP) for erroneously denying an individual his right to keep and bear arms.

With eight pages of the decision addressing the factual and procedural background, the case is somewhat complex; however, stated succinctly, the individual applied for a firearm and was denied by the PSP. Although he submitted a Pennsylvania Instant Check System (PICS) Challenge, where he provided the PSP with copies of the original charging documents reflecting that he had only been charged with and pled guilty to a summary offense, the PSP ignored the documentation and issued a final determination that he was prohibited. Thereafter, he retained Attorney Joshua Prince for an appeal to the Pennsylvania Attorney General. After the PSP received the appeal, which included copies of all the documents the individual originally submitted, the PSP called Attorney Prince to inform him that the PSP was overturning its decision but that they would not issue a letter confirming the reversal.

Thereafter, Attorney Prince filed a complaint against the PSP, pursuant to the Criminal History Record Information Act (CHRIA), while the case proceeded before the Attorney General. The PSP would later stipulate, before the Attorney General, that the individual was not prohibited; however, the PSP opposed the CHRIA action and argue that (1) the PSP was entitled to sovereign immunity for any damages and (2) that the individual was foreclosed in bringing a CHRIA action, since he had filed an appeal to the Attorney General.

The Commonwealth Court, in response to the PSP’s assertion of sovereign immunity, declared that the

PSP did originally maintain incorrect criminal history record information with respect to Haron in violation of section 9111 of CHRIA, which wrongfully resulted in the denial of his constitutional right to purchase a firearm for a period of several months and required him to ultimately obtain counsel.

The court then went on to find

that the maintenance of incorrect criminal records resulting in an unwarranted denial of a constitutional right to purchase a firearm constitutes “aggrievement.” Because Haron was aggrieved, he is entitled to recover actual and real damages, consistent with section 9183(b)(2) of CHRIA, in the amount of $1,500.00, which represents the retainer fee that Haron was required to pay to obtain counsel to represent him [before the AG] in this matter. Additionally, Haron is entitled to reasonable costs of litigation and attorney fees.

In relation to the PSP’s second assertion that he was precluded in instituting and maintaining an action under CHRIA because he filed an appeal to the Attorney General, the court declared:

we do not believe that Haron’s initial choice to proceed under the UFA forecloses any potential relief under CHRIA. Indeed, the only relief available under the UFA appears to be correction of an individual’s criminal history records, whereas CHRIA provides other potential relief in the nature of an injunction and/or damages.

While the judgment is minuscule in relation to the deprivation of a constitutional right, we hope that this case will give the PSP pause in what has become its standard operating procedure to ignore documentation submitted by an unrepresented individual in a PICS Challenge and to force individuals to prove that they are not prohibited, when the burden rests with the PSP to prove that the individual is prohibited.

If your rights have been denied the purchase/transfer of a firearm or your rights violated by the PSP, contact Firearms Industry Consulting Group today to discuss YOUR rights and legal 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.

5 Comments

Filed under Firearms Law, Pennsylvania Firearms Law

Montgomery District Attorney Requested to Investigate and Charge Lower Merion Township for Proposed Firearm Regulation

As our viewers are aware, we became aware on August 30, 2017, that at its upcoming September 19th meeting, Lower Merion Township is considering a new firearm discharge ordinance, even after the Commonwealth Court struck down its current discharge ordinance and held that municipalities may not regulate discharge.

As a result, in a letter sent today, Attorney Joshua Prince formally requested that Montgomery County District Attorney Kevin Steele open an investigation into this matter and file appropriate charges, including for violations of Section 6120 and official oppression.

We hope that District Attorney Steele will take a proactive approach, similar to that of Lancaster County District Attorney Crag Stedman, who recently sent out letters to all law enforcement agencies in Lancaster County advising that municipal regulation of firearms and ammunition is unlawful. Regardless, we would again urge everyone, especially residents and taxpayers in Lower Merion Township, to make the Commissioners aware of your position. The hearing on September 19th will start at 7:30 PM at Township Administration Bldg – 2nd Floor Board Room, 75 East Lancaster Ave, 2nd Floor Board Room Ardmore, Pennsylvania 19003-2323. Their telephone number is 610-649-4000 and you can contact the individual commissioners here.

If your rights have been violated by an illegal firearm or ammunition ordinance or regulation promulgated by a state agency, county, municipality or township, contact Firearms Industry Consulting Group today to discuss YOUR rights and legal 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.

3 Comments

Filed under Firearms Law, Pennsylvania Firearms Law, Uncategorized