Category Archives: Uncategorized

ATF Announces New Form 4473 – Firearms Transaction Record

screen-shot-2016-11-15-at-3-37-15-pm

The National Shooting Sports Foundation is reporting that on Monday, November 14, 2016, ATF announced that the new 4437 would be required on ALL firearms transactions beginning on January 16, 2017. As you may remember, I previously blogged about ATF soliciting comments on the proposed 4473 and then filed a Comment in Opposition to ATF’s Proposed Changes to the Form 4473. ATF responded to my comment in which it admitted to violating its own regulations but seemingly did not care.

It does seem that ATF took into consideration some of the comments FICG had filed in drafting the new form. One of the biggest problems I took issue with was the certification statement that the transferor (person transferring the firearm) had to sign.

Specifically, the individual signing the form is currently certifying that based upon

“…information in the current ATF Publication ‘State Laws and Published Ordinances’ – it is my belief that it is not unlawful for me to sell, deliver, transport, or otherwise disposes of the firearm(s) listed on this form to the person identified in Section A.”

The issue, as I previously blogged about, is that the ATF Publication “State Laws and Published Ordinances” has not been updated since January of 2011, in violation of ATF’s own regulations. See 27 CFR § 478.24.

ATF in the updated version of the form has changed the language to read that based upon

“…State or local law applicable to the firearms business — it is my belief that it is not unlawful for me to sell, deliver, transport, or otherwise dispose of the rearm(s) listed on this form to the person identified in Section A.”

Essentially, ATF changed the language so that the individual signing the form would not be responsible for referring to the guide that ATF is required to publish by its own regulations but rather be responsible for knowing the applicable state and local laws on their own.

Equally of interest is the new language found over question 11e. In case there was any confusion from licensees or individuals attempting to purchase firearms who utilize medical marijuana, there can be no more confusion. If an individual is a user of medical marijuana, they may not answer no to question 11e.

Marijuana leaf on a white background

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.

ATF did fail to take into consideration an important suggestion that FICG had made. There is no box on the form to indicate the firearm is being transferred to a legal entity. Rather than having licensees use a form, which the licensee has to make on their own, ATF could have simply added a spot on the form to indicate the firearm was being transferred to a legal entity. ATF stated that we were free to submit that suggestion again in the future, which is a comical response, because the reason they said they could not include it was that the form had already been drafted when the suggestion was made. It appears this ideal will turn into a Catch 22.

All in all, from my experience behind the gun shop counter, the revisions to the form (at least the part the transferee or purchaser will be responsible for completing) appear to make it a bit easier for individuals to follow and complete. While ATF could have done a better job listening to some of the suggestions which would have been helpful to licensees, it appears this version of the form is better than the last.

 

Did you find this blog helpful or informative? Be sure to share it with your friends by clicking the buttons below. Don’t forget to like Firearms Industry Consulting Group and Prince Law Offices, P.C. on Facebook by using the “Like” button to the right!

Leave a comment

Filed under ATF, Uncategorized

Pennsylvania Changes Rules of No-Fault Divorce

It’s been a while in coming, but as of October 4th, 2016, the waiting period for a no-fault divorce in Pennsylvania has been reduced from two years to one.  Signed into law by Governor Tom Wolf, the practical effects of the legislation are substantial.  As a practitioner, for instance, I can attest to bemusement clients understandably felt and expressed when they learned that, absent the cooperation and mutual consent of the other spouse, the client had no recourse but to wait two years for his or her divorce decree.  I have also heard the aggravation felt by judges and court administrators in reviewing chronically backlogged dockets, which invariably weighed-down by divorce filings taking the full two years to conclude.  Therefore, halving the statutory wait-time will no doubt force a much needed sense of rapidity to what inherently must feel like an interminable process.  Indeed, many people, including qualified professionals working in the divorce field, had roundly criticized the previous two-year period as nonsensical and/or counter-productive.  At least tacitly, one of the supposed purposes of the heretofore two-year wait time was to encourage parties to reconcile.  However, contrary to such salutary rationale, there has not been much in the way of empirical evidence showing that the wait period achieved that purpose.  To the contrary, as indicated by Doylestown attorney, Mary Cushing Doherty, in her interview with the Morning Call – “…what we’ve learned is that a long mandatory separation period doesn’t help people reconcile…Sometimes the people who were benefiting were manipulators…sometimes they were lawyers dragging out [billable] hours.”  Other commenters have pointed out that to the extent the wait time encouraged rapprochement, there is little logic to believe that one year is not sufficiently long enough for parties to work on their relationship.

I agree.  As a legal action, the purpose of divorce is generally not intended to cause acrimony but rather facilitate the “orderly and just dissolution of a marriage”, as aptly stated by PBA President Sara Austin.  No-fault divorce under Pennsylvania law is intended to be a natural corollary to mutual no-fault divorce (Sec. 3301(c) of the Pa. Divorce Code, requiring only a 3-month waiting period).  In either iteration of divorce, the clear and stated objectives have everything to do with addressing issues of child custody (where applicable), disposing of joint assets, liabilities, other purely economic concerns.  Fault-divorce, which is contingent on a spouse alleging some wrongdoing as a basis for divorce, is rarely ever resorted to as it generally deemed irrational for failing most any cost-benefit analysis. See Sec. 3301(a) of the Pa. Divorce Code.

Sponsored by Luzerne County State Representative, Tarah Toohil, the specific legislative amendments effected by Act 102 are essentially two-fold.  Most significantly, of course, the legislation makes change to Sec. 3301(d) of the Pa. Divorce Code, which had previously articulated the two-year wait period.  However, also of note, the Act also amends Sec. 3323 to include language mandating that courts now consider the economic protections of minor children before granting a bifurcation (i.e. a final divorce decree pending resolution of other matters related to the separation).  This other aspect of Act 102 is consonant with statements made to the press by Representative Toohil: “Divorce is always difficult, especially for the children who may be involved… By reducing the waiting period to one year, the emotional trauma is far less for children whose family situation is being decided more quickly. In addition, the shorter waiting period allows the couple’s financial situation to be resolved more quickly and at less expense, so they can tend to their children’s well-being.”

Leave a comment

Filed under Uncategorized

Election Day For Marijuana

It’s election day for marijuana. The number of states legalizing marijuana for medicinal and/or recreational use continues to grow. Five more states have ballot initiatives for the legalization of recreation/adult use marijuana and four more states have medical marijuana ballot initiatives.

Arizona, California, Maine, Massachusetts, and Nevada are all states with existing medical marijuana programs who are now voting on ballot initiatives that would legalize recreation/adult use marijuana for state residents 21 years or older.

Arizona is voting on Proposition 205, The Legalization and Regulation of Marijuana Act. Proposition 205 would legalize the possession of up to 1 ounce of marijuana,
allow adults to grow up to 6 marijuana plants in an enclosed, locked space within their residences, and possess the marijuana produced by those plants in the location where it was grown. A limit of the total marijuana plants grown in a single residence would be limited to 12.

Proposition 205 would allocate taxes to school construction, full-day kindergarten programs, public drug education and more.

Proposition 205 appears likely to pass as register voters support it 50 % to 40%.

California is voting on Proposition 64, The Adult Use of Marijuana Act (AUMA). AUMA would legalize the possession of 1 ounce of marijuana flower, or up to 8 grams of cannabis concentrate, the cultivation of up to 6 plants, and the industrial cultivation of industrial hemp.

AUMA would create a tax and regulatory system with the tax resources being allocated toward environmental protection and remediation, youth substance abuse prevention, medical marijuana research and local governments.

California Polls suggests that voters support passing AUMA 52% to 41%.

Maine voters will have The Marijuana Legalization Act on the ballot. The Maine act would legalize for recreational purposes the possession of up to 2 1/2 ounces of marijuana and the possession, cultivation and transportation of up to 6 flowering marijuana plants, 12 immature marijuana plants and unlimited seedlings, and possession of all the marijuana produced by the marijuana plants at that person’s residence.

The Marijuana Legalization Act appears likely to pass as polls show it is supported by 50 % – 41 % margin.

The Massachusetts initiative would legalize possession up to 1 ounce of marijuana outside of an individual’s residence, possession of up to 10 ounces of marijuana in an enclosed, locked space within their residences, growing up to 6 marijuana plants in an enclosed, locked space within their residences and possess the marijuana produced by those plants in the location where it was grown.

No more than 12 total marijuana plants can be grown in a single residence.

Massachusetts initiate also seems likely to pass.

Nevada is voting on legalizing recreational/adult use marijuana allowing possession of 1 ounce of marijuana and allowing anyone who does not live within 25 miles of a marijuana store to grow up to 6 marijuana plants.

Nevada is also creating a tax and regulatory system with taxes being allocated to supporting schools and K-12 education.

Four states are voting on legalizing medical marijuana, Arkansas, Florida, Montana and North Dakota.

Arkansas is voting on Issue 6, the Arkansas Medical Marijuana Amendment, which would legalize medical marijuana for 17 qualifying conditions. It is uncertain whether Issue 6 will pass.

Florida’s initiative, Amendment 2, is likely to pass as recent survey suggest that 73% percent of the voters support it.

Montana is voting to reinstate medical marijuana laws after legislative restrictions made it impossible for them to work.

North Dakota is voting on Initiated Statutory Measure 5, The North Dakota Medical Marijuana Legalization Initiative, which would legalize medical marijuana for debilitating medical conditions. Recent polls suggest 47 % support it as opposed to 41% who don’t. 50% is required to pass.

Currently 4 states have legalized recreational/adult use marijuana and 25 states have legalized some sort of medical marijuana program. If all ballot initiatives pass, a total of 28 states will have legalized marijuana in some form. Nine states will have legalized recreation/adult use of marijuana. If all recreational/adult use ballot initiatives pass, nearly a quarter of all Americans will reside in areas where recreational use marijuana is legal.

Leave a comment

Filed under Uncategorized

Ballot selfie? PA Law and the First Amendment Collide

If you are planning on snapping a “selfie” in the voting booth this Tuesday, you may find yourself on the wrong side of the law.

dutch_voting_selfie

25 Pa.C.S. § 3530 prohibits a voter from showing “his ballot or the face of the voting machine voted by him to be seen by any person with the apparent intention of letting it be known how he is about to vote.” A person who violates this section “shall be guilty of a misdemeanor, and, upon conviction thereof, shall be sentenced to pay a fine not exceeding one thousand ($1,000) dollars, or to undergo an imprisonment of not more than one (1) year, or both, in the discretion of the court.”

While the law does not make it a crime to show a ballot after it has been cast, any revelation prior to the vote being cast appears to be punishable. This would seemingly include any live streaming activities as well. It also appears to conflict with one’s First Amendment right to free speech.

In fact, a Federal Court held in September that a New Hampshire ban on “ballot selfies” was unconstitutional. The law challenged made it unlawful for voters to snap a picture of their ballot and post it on social media.

The Pennsylvania Department of State (DoS) issued a guidance on rules in effect at the polling place on election day in October of this year. Under the section entitled “Electronic Devices” the DoS states that the Election Code does not address the use of electronic devices in the polling place and as such, counties should “adopt common sense rules that take into account the need for order in the polling place and the right of citizens to vote unimpeded.”

In particular, the guidance notes that “[r]ecent court cases have found a First Amendment right to take “ballot selfies”. Therefore, the DoS recommends that “voters who want to take a picture of themselves voting take care that they not disclose the selections of voters other than themselves. The Department recommends that voters wait until after they leave the polling place to post ballot selfies on social media.”

While the law has not changed here in Pennsylvania, it would seem that the trend on a national level would indicate that if an individual were to challenge the law in relation to “ballot selfies” they would be successful on First Amendment grounds.

Leave a comment

Filed under Uncategorized

Political Speech – Carrying a Firearm While Voting in PA – It’s Lawful!

While I have blogged on the topic extensively, several individuals have requested that I write an article including all the pertinent information (and include new Dept. of State guidance on the topic) in one article, as many residents of Pennsylvania are unaware of their right to carry a firearm while voting, unless their polling location is located at a place which is prohibited under state law, discussed below. The right to carry a firearm while voting is a political statement protected under the First and Second Amendment. In that vein, I did a short video on the right to carry a firearm, while voting. For those interested in a more in-depth review of the general right to carry a firearm while voting in Pennsylvania, keep reading.

Carrying while Voting Joshua Prince

During the last two election cycles, I wrote about this issue: Can You Vote While Carrying a Firearm in PA? and It’s Legal to Carry a Firearm, While Voting! In fact, since those articles, more and more counties (and the PA Dept. of State) are realizing and recognizing the lawful right of the people to vote, while carrying a firearm. Before we get into more recent instances of counties recognizing the right of the people, it is important to review the laws in relation to voting, while carrying a firearm.

Pursuant to 18 PA.C.S. 6120,

No county, municipality or township may in any manner regulate the lawful ownership, possession, transfer or transportation of firearms, ammunition or ammunition components when carried or transported for purposes not prohibited by the laws of this Commonwealth.

Furthermore, pursuant to the PA Supreme Court’s decision in Commonwealth v. Hawkins, 547 Pa. 652, 657 (1997), and 18 PA.C.S. 6108, one may lawful carry openly in the Commonwealth, with the exception of the City of Philadelphia, unless the individual has a License to Carry Firearms (LTCF). In Hawkins, the Court, citing to its prior precedent in Ortiz v. Commonwealth, declared,

In all parts of Pennsylvania, persons who are licensed may carry concealed firearms. 18 Pa.C.S. § 6108. Except in Philadelphia, firearms may be carried openly without a license. See Ortiz v. Commonwealth, 545 Pa. 279, 681 A.2d 152, 155 (1996) (only in Philadelphia must a person obtain a license for carrying a firearm whether it is unconcealed or concealed; in other parts of the Commonwealth, unconcealed firearms do not require a license).

Thus, it is generally lawful to openly or conceal carry a firearm (pursuant to a valid LTCF, issued pursuant to 18 PA.C.S. 6109), as there does not exist a state law precluding such activity. However, there are several exceptions. First, if the polling location is in a court facility, an individual would be precluded from carrying at that polling location because of 18 PA.C.S. 913, which provides, “A person commits an offense if he:(1) knowingly possesses a firearm or other dangerous weapon in a court facility;” however, the law goes on to declare,

Each county shall make available at or within the building containing a court facility by July 1, 2002, lockers or similar facilities at no charge or cost for the temporary checking of firearms by persons carrying firearms under section 6106(b) or 6109 or for the checking of other dangerous weapons that are not otherwise prohibited by law. Any individual checking a firearm, dangerous weapon or an item deemed to be a dangerous weapon at a court facility must be issued a receipt. Notice of the location of the facility shall be posted as required under subsection (d).

Hence, although you cannot carry into a court facility, which is a polling location, the court facility/polling location must provide lockers for the temporary checking of the firearm.

The second issue is polling locations at schools. Pursuant to 18 PA.C.S. 912,

A person commits a misdemeanor of the first degree if he possesses a weapon in the buildings of, on the grounds of, or in any conveyance providing transportation to or from any elementary or secondary publicly-funded educational institution, any elementary or secondary private school licensed by the Department of Education or any elementary or secondary parochial school.

However, there is an defense provided for in that section, which declares,

It shall be a defense that the weapon is possessed and used in conjunction with a lawful supervised school activity or course or is possessed for other lawful purpose.

Unfortunately, “other lawful purpose” is not defined and our viewers are aware that I am currently litigating a case before the Superior Court – Commonwealth v. Goslin – on whether the defense of “other lawful purposes” allows one to possess a weapon on school grounds. (If you’re in a position to donate to the Goslin litigation, Mr. Goslin would greatly appreciate it and the information is included in the above link).

In 2007, Mr. Gregory Rotz, openly carried his firearm while voting, and as a result, the Franklin County Sheriff’s Department revoked his LTCF. By Order dated January 8, 2008, Franklin County Judge John Waller found that no law had been broken and directed that his LTCF be returned to him. And this isn’t the only time that the Franklin County Sheriff’s Department has violated the law. There is currently a class action lawsuit against the Sheriff’s Department for disclosing confidential LTCF application information, where the Commonwealth Court recently ruled that the Sheriff’s Department did, in fact, violate the confidentiality provision. But, I digress.

October 29, 2010, the Pa. Dept. of State, Bureau of Commissions, Elections & Legislation, issued a letter entitled “Clarification Regarding Firearm Polling Locations,” which, in part, declared,

The Pennsylvania Uniform Firearms Act does not allow county boards of election to enact resolutions or any other rules and regulations prohibiting firearms from polling places.

However, even after the issuance of that letter, I became involved in a situation in Northampton County in 2012, where an individual was temporarily precluded from voting, while lawfully openly carrying a firearm. As a result of an amicable resolution of the matter, Northampton County has now placed on its website information that it is lawful to possess a firearm while voting, http://www.northamptoncounty.org/northampton/cwp/view.asp?a=1533&Q=621057&northamptonNav=|34800|&northamptonNav_GID=1988. Furthermore, additional safeguards have been implemented in Northampton County, including, but not limited to, poll worker training and providing a copy of the policy to any Common Pleas Judge presiding over Election Court on Election Day.

More recently, in October of 2016, the Pa. Dept. of State issued Guidance on Rules in Effect at the Polling Place on Election Day (yeah, the title is a bit awkward). As a result of a letter that I sent to the Dept. of State several months ago regarding the carrying of firearms while voting and the general lack of training of polling officials on the lawfulness, the Dept. of State included information in the guidance. Specifically, the guidance states:

Voters who have a legal right to carry a firearm cannot be prohibited from entering the polling place to vote…a voter with a legal right to carry a firearm may not be precluded from voting.

I cannot stress enough how important it is to vote, regardless of whether or not you carry a firearm. While I believe voting while carrying a firearm is a political statement, the failure of so many citizens to become involved in the political process may result in us losing our right to make any political statement, as evidenced by the current state of our Union.

If you, a family member or someone you know is precluding from voting, while carrying a firearm, contact us immediately – 888-313-0416 or info@princelaw.com – so that we can discuss your options. We cannot let our Rights be eroded by ignorance.

Leave a comment

Filed under Firearms Law, Uncategorized

First Step to Starting Your Business

“First Step to Starting Your Business” is Friday, November 4!

Prince Law Offices, P.C.

sbdc_header_text
Prince Law Offices, P.C. attorney Jeffrey A. Franklin will be presenting at “First Step to Starting Your Business” in cooperation with the Kutztown University of Pennsylvania Small Business Development Center.  
First Step to Starting Your Business (Lancaster, PA)
Date: Nov 4, 2016 10:30am – 12:30pm
Registration Deadline: 11/4/2016 8:00 AM (EDT)
Point of Contact: Kutztown SBDC (877) 472-7232
Center: Kutztown SBDC
Fee: None
Location: 454 New Holland Ave Suite 300 Lancaster, PA 17602 , Lancaster PA 17602
 
This workshop covers a number of critical issues relevant to starting and operating a small business. Professional presenters include attorneys, insurance agents, accountants, financial specialists and zoning and codes staff. The workshop is designed for both entrepreneurs thinking about opening their first business and existing business owners looking for a “checkup”.
Desire more specific assistance regarding your business formation, agreements, intellectual property, trademarks, zoning, real estate law, cyber security, insurance, etc…

View original post 9 more words

Leave a comment

Filed under Uncategorized

BREAKING: BATFE Has Not Changed Anything Relating to Fingerprints for NFA Firearms

screen-shot-2016-09-27-at-9-53-33-am

This morning TheFirearmBlog.com posted a story which stated that ATF had revised its ruling in relation to fingerprints for NFA firearms. The article claims that ATF now requires law enforcement agencies to take fingerprints rather than anyone qualified to. To support this position the article links to ATF’s Explosives website.

As always, the information is provided by an anonymous source. Had the source or TheFirearmBlog.com looked at where the information came from, they would have clearly been able to see that this is simply not true. I’m a bit disappointed in TheFirearmBlog.com because usually they are an excellent source for correct information.

The problem is that the link goes to the Explosives portion of the website, NOT the firearms part. This is the same link that SilencerCo had previously used to support its position that Silencer Shop’s Secure Identity Documentation (SID) system would not be acceptable for the purposes of NFA firearms when it had sent an email to a major distributor earlier this year.

The link the article points to states:

How do I get my fingerprints taken?

Fingerprints must be submitted on Fingerprint Identification Cards, FD–258 that have been issued by ATF. The fingerprint cards must contain the following ORI information: WVATF0900; ATF–NATL EXPL LIC, MARTINSBURG WV. These fingerprint cards may be obtained by contacting the Federal Explosives Licensing Center at 877-283-3352 or the ATF Distribution Center at 703-870-7526 or 703-870-7528. The fingerprint cards must be completed by your local law enforcement authority.

Last Reviewed September 23, 2016

Emphasis added. Further if we look at the website the link goes to, we can clearly denote it is in the explosives area by looking at the information found on the left and above the question.

screen-shot-2016-09-27-at-9-43-04-am

ATF’s own Q&A relating to ATF 41F states that a licensee may take fingerprints provided they are properly equipped.

Q. May a Federal firearms licensee fingerprint a customer? As an FFL dealer, can we fingerprint our customers?

A. Fingerprints may be taken by anyone who is properly equipped to take them (see instructions on ATF Form 1, Form 4, Form 5, and Form 5320.23). Therefore, applicants may utilize the service of any business or government agency that is properly equipped to take fingerprints.”

As if there were any doubt, let us head to the regulations to review them.

In relation to the transfer of an NFA firearm, 27 C.F.R. § 479.85 Identification of Transferee states:

(a) If the transferee is an individual, such person shall:

….

(2) Attach to the application two properly completed FBI Forms FD-258 (Fingerprint Card). The fingerprints must be clear for accurate classification and should be taken by someone properly equipped to take them.

In relation to the making of an NFA firearm, 27 C.F.R. § 479.63 Identification of Applicant states:

(a) If the applicant is an individual, the applicant shall:

….

(2) Attach to the application two properly completed FBI Forms FD-258 (Fingerprint Card). The fingerprints must be clear for accurate classification and should be taken by someone properly equipped to take them.

(b) If the transferee is not a licensed manufacturer, importer, or dealer qualified under this part and is a partnership, company, association, trust, or corporation, such person shall:

(2) Except as provided in paragraph (c) of this section, attach to the application –

(iv) Two properly completed FBI Forms FD-258 (Fingerprint Card) for each responsible person. The fingerprints must be clear for accurate classification and should be taken by someone properly equipped to take them.

(b) If the applicant is not a licensed manufacturer, importer, or dealer qualified under this part and is a partnership, company (including a Limited Liability Company (LLC)), association, trust, or corporation, the applicant shall:

(2) Except as provided in paragraph (c) of this section, attach to the application –

(iv) Two properly completed FBI Forms FD-258 (Fingerprint Card) for each responsible person. The fingerprints must be clear for accurate classification and should be taken by someone properly equipped to take them.

Once again, we see there is no support for the proposition ATF changed anything. If you are applying to make or transfer an NFA firearm you can roll your own fingerprints, utilize Silencer Shop’s SID kiosk, have your FFL roll your fingerprints or head over to your local law enforcement to have them taken.

Did you find this blog article helpful? Be sure to share it with your friends by using the buttons below. Don’t forget to like Firearms Industry Consulting Group and Prince Law Offices, P.C. on Facebook by clicking the “like” button to the right.

1 Comment

Filed under ATF, Firearms Law, Gun Trusts, Uncategorized