Category Archives: Pennsylvania 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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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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Oral Argument in Commonwealth v. Goslin – Possession of a Weapon on School Grounds

Today, the Superior Court, en banc, heard oral argument in the matter of Commonwealth v. Goslin, 1114 MDA 2015, where Mr. Goslin was previously convicted for merely possessing a lawful pocketknife on school property.

As many of our viewers are aware, I was previously successful in having the court vacate its prior decisions and order re-briefing and re-argument.

The en banc panel of the Superior Court was comprised of Judges Bender, Bowes, Panella, Lazarus, Ott, Stabile, Dubow, Moulton and Ramson.

As soon as I began my argument, the Judges began to pepper me with questions, including a very direct question by Judge Bowes of whether the prior (vacated) decision of the Superior Court violated the Second Amendment. As I had argued in our briefs, I responded that if the Court were to find, consistent with its prior decision, that an individual may only possess a weapon on school property relative to a school activity or course, it would violate the Second Amendment. I used this this opportunity to provide an example – I explained that my alma mater, The Hill School in Pottstown, PA, is a boarding school, where both the students and teachers live on campus. If the Court were to affirm its prior decision, teachers would be foreclosed in possessing firearms in their homes, which the U.S. Supreme Court found was at the “core” of the Second Amendment in Heller and would therefore result in the law being unconstitutional. Judge Bowes nodded her head in agreement.

At that point, Judge Moulton inquired whether the school in this matter was not one where teachers lived on campus. After confirming that such was my understanding, he then stated then that isn’t applicable to the case before us. At that point, I respectfully responded that it is to the extent the Court resorts to statutory construction, as one of the criteria to be considered is the unintended consequences of a particular interpretation. At that point, Judge Moulton stated that there were numerous unintended consequences of the prior ruling, as pointed out in our briefs.

Judge Bowes asked me to then explain our position on the defense found in Section 912(c) providing for two separate and distinct circumstances. I explained that in relation to the first, where the weapon is possessed in relation to a school activity or course, the General Assembly permitted both “possession” and “use”; whereas, in the second, where a weapon is possessed for “other lawful purposes,” I explained that the General Assembly only permitted possession. I then went on to explain that although “use” would generally be prohibited in relation to the “other lawful purpose” clause, an individual could still use the weapon, if such was necessitated, under the statutory provisions for justification or self defense. Judges Lazarus, Bowes, Bender, Stabile and Dubow all seemed to be nodding their heads in agreement. I further explained that the laws of the Commonwealth define that which is unlawful; not that which is lawful. As the Superior Court has previously held that a pocket knife not only has a lawful purpose, but a “common lawful purpose”, Mr. Goslin’s conduct clearly meets the criteria of possession for an “other lawful purpose.”

Judge Lazarus then asked me (based on an argument in our brief) if an officer, who was attending a parent teacher conference, possessed a firearm during that time, whether he would have violated the statute. I responded that he would not, assuming the Court were to agree with our interpretation, as the officer would have no unlawful purpose; however, if the Court were to affirm its prior decision, then the officer’s possession of a firearm would not be necessitated by his reason for being on school grounds and he would be in violation of the statute. Judge Lazarus and several others nodded their heads in agreement.

At that point, Judge Moulton asked me to address the vagueness issue and whether that would preclude a criminal conviction, as we had additionally argued in the alternative. I explained that although we believe the statute was not vague, if learned jurists of the Superior Court could not agree on what constituted a lawful purpose, then the statute must be found to be too vague to support a criminal conviction, as no lay person could possibly know whether or not his/her conduct was lawful. All the judges seemed to agree with that proposition.

As I had reserved 5 minutes of rebuttal time, my time was up (in actuality, after the buzzer went off for my initial 10 mins, the Judges continued to ask question for at least another 3-4 mins). At this point the Assistant District Attorney (ADA) tried to start his opening remarks and got hammered with questions. The Court was somewhat rentless in questioning why the DA would bring charges in this, of all, situations, especially where they were arguing that the statute was vague. In this vein, the Court asked why the DA would not use prosecutorial discretion not to charge, instead of moving forward with charging where they acknowledge the statute is vague. Judge Lazarus asked why would they bring this specific charge in this context, to which the ADA responded that they had also previously filed charges for Terroristic Threats. Judge Lazarus almost fell out of her chair at the ADA’s statement and she even clarified that “You’re telling us, that because he took a pocketknife out of his pocket and placed it on the table, during a conference at school, that such constituted a terroristic threat?” When the ADA confirmed such, I truly believe based on Judge Lazarus’ facial expressions that she thought she was living in the twilight zone.

At this point, Judge Lazarus posed the question to the ADA that she posed to me. The ADA conceded that if this Court’s prior holding was affirmed (as they were arguing for), then the officer would have violated the statute. Judge Lazarus immediately asked if he would prosecute the officer. Although the ADA may have responded, I never heard an actual response and it was quite clear that Judge Lazarus was incensed by the DA’s position in this matter. Judge Stabile followed up by asking (based on an argument in our brief) whether a student, who possessed a baseball bat on school property for use after school in a non-school related activity was in violation. The ADA conceded that under their interpretation, such would be a violation. Judge Stabile shook his head seemingly in amazement at the DA’s position.

Before long, the ADA’s time was up and I think he was relieved to be done; but, I still had 5 minutes reserved for rebuttal.

First, I used the opportunity to respond to the ADA’s comment that the purpose this statute was enacted was to protect students from violence. I explained that we have laws on the book precluding murder, voluntary and involuntary manslaughter, aggravated and simple assault, terroristic threats and recklessly endangering another person, including the inchoate crimes of attempt, solicitation and conspiracy, most of which have far harsher grading than Section 912 and which have not stopped criminals from committing crimes in schools or in society at large. Several judges nodded in agreement.

I also used that time to draw to the Court’s attention another statute, Section 908 – Prohibited Offensive Weapons, where we see similar language utilized. There, it talks about weapons that have no “common lawful purpose.” I explained that this shows that the General Assembly, where it believes appropriate, knows how to even limit lawful purposes to those that are “common” but that the General Assembly in Section 912 permitted all lawful purposes, regardless of how common or uncommon they are. At that point, my time was up and I respectfully requested that the Court reverse the trial court, enter a finding of not guilty and hold that an individual may possess a weapon on school grounds, provided that it is not utilized for unlawful purposes.

As our readers are aware, unfortunately,  Mr. Goslin is not in a position to fund this litigation. Therefore, if you are in a position to be able to help fund this matter, Mr. Goslin would greatly appreciate donations which can be made online through our Firm’s escrow account here – https://secure.lawpay.com/pages/princelaw/trust. Simply place Goslin Appeal in the Matter No/Client Name box.

We will keep our viewers apprised of the Superior Court’s ultimate decision in this matter

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Allegheny County Sheriff’s Department Violates the Law in Issuing Unlawful LTCF

Today, I became aware of an article by Stephen J. Nesbitt and Jonathan D. Silver of the Pittsburgh Post-Gazette entitled Sheriff’s Office deletes photos of Pirate Parrot ‘gun license’ in which it not only alleges, but provides proof, that the Allegheny County Sheriff’s Office issued a license to carry firearms (LTCF) to a fictitious mascot – Pirate Parrot – in violation of the Uniform Firearms Act (UFA).

The article includes a photo of the LTCF that was issued (interestingly reflecting an issuance date of 4/2/15), which the article declares was taken down off of the Sheriff Office’s social media page but which Allegheny County Sheriff Mullens confirmed the existence of.

While some may not be alarmed and may believe it to be humorous, there are significant legal consequences. First, and foremost, a license to carry firearms can only be issued to an “individual,”after the requisite investigation, pursuant to 18 Pa.C.S. 6109. Clearly, the Pirate Parrot is not an individual and a quick review of the LTCF Application, which is promulgated by the Pennsylvania State Police, confirms that it would be an impossibility for the Sheriff to issue an LTCF due to the Pirate Parrot lacking identification, which is defined in 37 Pa.Code. 33.102.

Moreover, in conducting the investigation, the Sheriff is to

  • (1)  investigate the applicant’s record of criminal conviction;
  • (2)  investigate whether or not the applicant is under indictment for or has ever been convicted of a crime punishable by imprisonment exceeding one year;
  • (3)  investigate whether the applicant’s character and reputation are such that the applicant will not be likely to act in a manner dangerous to public safety;
  • (4)  investigate whether the applicant would be precluded from receiving a license under subsection (e)(1) or section 6105(h) (relating to persons not to possess, use, manufacture, control, sell or transfer firearms); and
  • (5)  conduct a criminal background, juvenile delinquency and mental health check following the procedures set forth in section 6111 (relating to sale or transfer of firearms), receive a unique approval number for that inquiry and record the date and number on the application.

Clearly, it is an impossibility for the Sheriff to conduct such an investigation in relation to a fictitious entity. One must question whether the unique approval number was obtained (whereby false information was provided to the Pennsylvania Instant Check System (PICS)) and whether the Pirate Parrot was charged for his LTCF, since certain portions of the amount collected must be remitted to the State Treasury, pursuant to Section 6109(h)(3). All of these violations, pursuant to 18 Pa.C.S. 6119, would be misdemeanors of the first degree.

But there are further violations of the law. Pursuant to 18 Pa.C.S. 6111(g)(3.1),

Any person, … 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.

And then there are the civil consequence of disclosing LTCF applicant information, as provided by Section 6111(i)

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,… 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.

Plus, there are violations related to the Allegheny County Sheriff Department’s inclusion of false information into the Pennsylvania State Police’s database of LTCF applicant information.

What is most disconcerting is that this is the same Sheriff’s Office that imposes unlawful regulations on applicants who apply for LTCFs. As set-forth in Section 6109, only the PSP is to promulgate the form to apply for an LTCF and the criteria for denying an individual is found in Section 6109(e). Yet, in the absence of any criteria found within Section 6109(e), the Allegheny County Sheriff’s Department denies individuals who, prior to a finding of guilt, have an open case in any court and of any type (including traffic citations, parking tickets, fish and game, etc). It also denies anyone with a closed case in any court where exists a remaining case balance, even where the individual has a payment plan with the court. And lastly, in direct violation of Section 6109, the Allegheny County Sheriff’s Department refuses to accept and process applications for non-PA Resident Licenses.

It would be nice if the Allegheny County Sheriff’s Department spent more time on complying with the law than violating the law…but all may not be lost. Given the issuance of Pirate Parrot’s LTCF, now there exists a legal and constitutional basis, under Equal Protection, to challenge all of the Sheriff Departments denials and illegal requirements. More importantly, some in the Sheriff’s Department may have the opportunity to keep former Attorney General Kathleen Kane company in jail.

If you believe your confidential LTCF applicant information has been disclosed by an individual or governmental agency, contact us today to discuss your options!

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PSP Illegally Disclosing LTCF Information Through NCIC

Over the past couple days, I have received several reports, one from a 911 dispatcher, that approximately 3 days ago, an update was completed to the NCIC system, whereby when an officer in Pennsylvania runs an individual’s driver’s license, if the individual has a license to carry firearms (LTCF), the information relating to the individual’s LTCF is disclosed to the officer and everyone in the call center. This is in violation of the law.

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 [LTCF firearms information] 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. (Emphasis added)

Further, 18 Pa.C.S. § 6111(i) provides, in pertinent part:

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.

While there has always been an offline database that an officer could query if he/she had reasonable suspicion of a crime relating to the carrying of a firearm or the validity of a LTCF, there is no legal basis for disclosure of confidential LTCF information relative to a driving infraction or merely running one’s driver’s license. Furthermore, even if there was, it is illegal to disclose this information to individuals other than a law enforcement officer acting in the scope of his/her duties. As I understand the new system, it is being relayed to emergency responders, which may even include tow truck drivers that are part of the system.

If you have more information on this new system, please let us know. We will continue to keep our viewers apprised as we learn more.

If you confidential LTCF information has been disclosed, contact us today to discuss your options!

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