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More Pennsylvania Cities Decriminalize Marijuana Despite State Law.

With the noted exception of the current Attorney General, there is a growing acceptance of legalize use of marijuana in the United States. Thirty of the fifty states have legalized marijuana for either medical and/or recreational use. As the laws with regards to marijuana use continue to change state by state, the states which have legalized medical and/or recreational marijuana must navigate the conflict between their state law and Federal law which continues to classify marijuana as a prohibited Schedule 1 narcotic – a “harmful substance of no known medical benefit.”

The classification of marijuana as a schedule 1 drug is antiquated and patently false. However, perception and laws are hard to change. Change usually begins at a grass roots level. Within Pennsylvania, several cities have started to pass local ordinances that have decriminalized marijuana. Philadelphia, Pittsburgh, Harrisburg, Allentown, York, and, most recently, Bethlehem have all passed local ordinances essentially reducing the punishment for possession of small amounts of marijuana for personal use, typically 30 grams or less, from a crime to a summary offense subject to a fine.

These local ordinances create a perceived conflict with Pennsylvania State laws. Under Pennsylvania’s Controlled Substance, Drug Device and Cosmetic Act (“CSA”), 35 P.S. §780-113 (a)(16), no person may knowingly possess a controlled substance without a lawful prescription from a doctor. Under the CSA, marijuana is also classified a Schedule 1 controlled substance. Pennsylvania’s penalty for possession of 30 grams or less of flower or 8 grams or less of hashish is a misdemeanor punishable by 30 days in jail and/or a $500 fine. See 35 P.S. §780-113 (a)(31)(i). Possession of more than 30 grams of flower or more than 8 grams of hashish is a misdemeanor with a maximum penalty of 6-12 months incarceration and a $5,000 fine.

So which law applies and how severe can you be punished for possession of a small amount marijuana in theses cities that have decriminalized marijuana. Typically, when there is a conflict between state law and local ordinances, state law preempts the local ordinance. Some local law enforcement authority have argued the CSA preempts all of the local ordinances as they are attempts to alter the penalties under the CSA.

In Holt’s Cigar Co. v. City of Philadelphia, 608 Pa. 146 (2011), the Pennsylvania Supreme Court rejected the argument that the Controlled Substance Act prohibits local regulation in order to create uniformity in the regulation of controlled substances. In Holt’s Cigar, the Supreme Court held that the Act does not prohibit local regulations of controlled substances unless there is an “irreconcilable conflict” between the CSA and the local regulation. The proper standard for determining whether the local ordinances “irreconcilably conflicts” with the Controlled Substances Act was stated by the Supreme Court in Holt’s Cigar.

[I]t has long been the established general rule, in determining whether a conflict exists between a general and local law, that where the legislature has assumed to regulate a given course of conduct by prohibitory enactments, a municipal corporation with subordinate power to act in the matter may make such additional regulations in aid and furtherance of the purpose of the general law as may seem appropriate to the necessities of the particular locality and which are not in themselves unreasonable.

Holt’s Cigar, 608 Pa. at 154. (emphasis added).

The Holt’s Cigar decision makes it clear that local laws with a different penalty do not create an irreconcilable conflict, as long as the local law does not permit what the Act forbids or forbid what the Act permits. The Supreme Court stated that the the nature or severity of the penalties imposed is not determinative and does not eliminate the conflict arising from the discrepancy with respect to mens rea for a particular course of proscribed conduct.” Id.at 165 (emphasis added).

While Holt’s Cigar decision provides some clarity as to whether local municipalities may enact ordinances decriminalizing marijuana, person may still be punished under state laws. Usually, it will depend on the law enforcement authority that arrests and prosecutes the individual. If you are arrested by a state trooper as opposed to the local municipal police, there is a good chance you will be charged with a violation of state law. It will then be up to the local courts and prosecutors on how to proceed with charges and punishment

An interesting enforcement scenario exists in the city of Bethlehem. On June 26, 2018, the Mayor of Bethlehem signed into law Bill No. 16-2018, creating a summary offense for possession of up to 30 grams of marijuana (or eight grams of hashish), possession of marijuana paraphernalia and personal use of marijuana. Under the new law, there is a fine of $25 for a first offense, $50 for a second offense, $100 for a third offense, and $150 fourth offenses or eight hours of community service.

The problem arises with enforcement. The City of Bethlehem is divided between two counties, Lehigh and Northampton. The District Attorney of Lehigh County maintains the position that the CSA preempts local ordinance despite the fact that both Allentown and now Bethlehem – Lehigh County’s largest cities – have decriminalized possession of under 30 grams of marijuana. The District Attorney of Northampton County maintains the opposite position and will enforce the local ordinances. So it is possible you could be punished differently depending on where you are caught in Bethlehem with marijuana.

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The Supreme Court recognizes privacy right to cell phone location history.

On May 22, 2018, the U.S. Supreme Court issued an important decision extending the Fourth Amendment right against unlawful search and seizure into the digital age. In Thomas Ivory Carpenter v. United States, the Court sided with the privacy rights of cellphone users over law enforcement using private tracking data compiled and saved by cell phone companies. At issue was whether the Fourth Amendment required law enforcement to obtain a warrant before accessing cell phone location history from cell phone service providers.

The Supreme Court recognized the importance and prominence of cell phones in an individual’s daily life and the right to privacy of the sensitive information generated by the cell phone’s use.

The Court stated that there are 396 million cell phone service accounts in the United States for a Nation of 326 million people. Cell phones perform their wide and growing variety of functions by connecting to a set of radio antennas called “cell sites” mounted on towers, light posts, flagpoles, church steeples, or the sides of buildings. Cell sites typically have several directional antennas that divide the covered area into sectors. Cell phones continuously scan their environment looking for the best signal, which generally comes from the closest cell site. Cell phones, smartphones, tablets, and other devices tap into the wireless network several times a minute whenever their signal is on. Each time the smart device connects to a cell site, it generates a time-stamped record known as cell-site location information (CSLI). Wireless carriers collect and store CSLI for their own business purposes, including finding weak spots in their network and applying “roaming” charges when another carrier routes data through their cell sites. In addition, wireless carriers often sell aggregated location records to data brokers, without individual identifying information. Carriers retained CSLI for the start and end of incoming calls,text messages and routine data connections. Accordingly, modern cell phones generate increasingly vast amounts of increasingly precise CSLI.

In December of 2010, there were a series of robberies in Michigan and Ohio of cell phones, ironically. Several cell phones stores were robbed of their cell phones at gunpoint. Eventually, the FBI arrested four men suspected of the robberies. One of the men confessed and provided names and cell phone numbers of accomplices including the petitioner, Timothy Carpenter.

Prosecutors applied for court orders under the Stored Communications Act (“SCA”) to obtain cell phone records for Carpenter and several other suspects. The SCA permits the Government to compel the disclosure of certain telecommunications records when it “offers specific and articulable facts showing that there are reasonable grounds to believe” that the records sought “are relevant and material to an ongoing criminal investigation.” The SCA stops short of requiring that prosecutors demonstrate probable cause, which is necessary to obtain a warrant.

Federal Magistrate Judges issued two orders directing Carpenter’s wireless carriers to disclose the CSLI for Carpenter’s telephone at call origination and at call termination for incoming and outgoing calls during the four-month period when the string of robberies occurred.

Law enforcement was able to track Carpenter’s locations and connect Carpenter to the crimes by obtaining more than 100 days’ worth of his smartphone location data records without a warrant. The location data records placed his phone in over 12,000 locations including when he was at church and whether or not he spent the night at home.

Before his trial, Carpenter argued that obtaining the records constituted a Fourth Amendment search, and therefore the police should have needed a warrant. His motion was denied, and the Sixth Circuit Court of Appeals later upheld the case.

The Supreme Court reversed and remanded with Chief Justice Roberts providing the deciding vote and writing the majority opinion.

The Court held that the acquisition of Carpenter’s CSLI records was a Fourth Amendment search. The Fourth Amendment protects not only property interests but certain expectations of privacy as well. Thus, when an individual “seeks to preserve some thing as private,” and his expectation of privacy is “one that society is prepared to recognize as reasonable,” official intrusion into that sphere generally qualifies as a search and requires a warrant supported by probable cause.

The Court further held that the digital data at issue, personal location information maintained by a third party, does not fit neatly under existing precedents but lies at the intersection of two lines of cases. One set of cases addressing a person’s expectation of privacy in his physical location and movements. The other set of cases addresses a person’s expectation of privacy in information voluntarily turned over to third parties.

The third-party doctrine, as first set forth in United States v. Miller, 425 U. S. 435 (no expectation of privacy in financial records held by a bank), and Smith v. Maryland, 442 U. S. 735 (no expectation of privacy in records of dialed telephone numbers conveyed to telephone company) holds that information customers voluntarily provide to a third party is outside the bounds of Fourth Amendment protections and, therefore, law enforcement does not need a warrant in order to access that information.

The Supreme Court stated that the third-party doctrine partly does not apply given “the nature of the particular documents sought” and “legitimate ‘expectation of privacy’ concerning their contents.” The Supreme Court cited prior case law where the court had already recognized that individuals have a reasonable expectation of privacy in the whole of their physical movements. Additionally, the Supreme Court recognized in many way CSLI is not voluntarily provided by the cell phone users but automatically obtained when the cell phone is used in some form.

The Supreme Court found the Government did not obtain a warrant supported by probable cause before acquiring Carpenter’s cell-site records. It acquired those records pursuant to a court order under the SCA, which required the Government to show “reasonable grounds” for believing that the records were “relevant and material to an ongoing investigation” which falls well short of the probable cause required for a warrant.

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Supreme Court declines to extend automobile exception to Fourth Amendment to vehicles parked in driveways or curtilage of home.

In yet another victory for Fourth Amendment advocates, the Supreme Court on May 29, 2018 ruled against a warrantless search and examination of motorcycle under a tarp in the driveway of a home.   In the matter of Ryan Austin Collins vs. Virginia, No. 16-1027, the Court in a 8-1 decision reversed the lower court’s decision which upheld a warrantless search of motorcycle under the so-called automobile exception to the Fourth Amendment.

An orange and black motorcycle was believed to have been stolen and in the possession of Mr. Collins. Apparently Mr. Collins was proud of his accomplishment and posted photos of the stolen motorcycle parked in his driveway on his Facebook profile. The police discovered the photos on Mr. Collins’ Facebook profile, drove to his house and observed what appeared to be the motorcycle under a tarp parked in Mr. Collin’s driveway. The arresting police officer acting without a search warrant, walked to the top of the driveway, removed the tarp, confirmed that it was the stolen motorcycle, returned the tarp, and waited for Mr. Collins to return.

Upon his return Mr. Collins was arrested and charged with receiving stolen property. At trial, Mr. Collins sought to suppress the evidence on the grounds that the police had violated his Fourth Amendment rights when they had trespassed on Mr. Collins’s house curtilage (driveway) to conduct a warrantless search. Mr. Collins was convicted of receiving stolen property. The conviction was affirmed by the Virginia Court of Appeals who found “numerous exigencies justified both the entry onto the property and the moving of the tarp to view the motorcycle and record its identification number.” The Virginia Supreme Court also affirmed the conviction holding that the warrantless search was justified under the so-called automobile exception to the Fourth Amendment. The State Supreme Court held that the police officer had probable cause to believe that the motorcycle was contraband, and that the warrantless search was justified.

The central question before the Supreme Court was whether the so-called automobile exception to the Fourth Amendment, which allows the police certain latitude to search vehicles on public streets without a warrant, also allows the police to walk up a driveway without a warrant and search a vehicle parked in the area near a house.

The so-called automobile exception, first articulated in Carroll v. United States, 267 U.S. 132 (1925), allows police to search a car without a warrant if the car is “readily mobile” and they have probable cause to believe that it contains evidence of a crime.

The Court began its Fourth Amendment discussion by examining the intersecting case law of the so-called automobile exception to the warrant requirement with case law extending the protection against warrantless searches to the curtilage of a home. The “curtilage” of a home being the area immediately surrounding the house, where residents expect privacy.

In its near unanimous opinion written by Justus Sonia Sotomayor, the Court held that the driveway where Mr. Collins’ motorcycle was parked was part of the curtilage protected by the Fourth Amendment. Justice Sotomayor further wrote, “To allow an officer to rely on the automobile exception to gain entry to a house or its curtilage for the purpose of conducting a vehicle search would unmoor the exception from its justifications, render hollow the Fourth Amendment protection the Constitution extends to the house and its curtilage, and transform what was meant to be an exception into a tool with far broader application,”

The court explained that the justification for the automobile exception doesn’t consider a resident’s privacy interest in his home and its curtilage at all; rather, the rationale rests on the twin ideas that cars can easily be moved and are subject to regulation simply by virtue of being on the roads.

The stated that there are no Supreme Court’s cases that indicates the automobile exception allows a police officer to enter the home or its curtilage without a warrant to search a vehicle – if anything, the court has emphasized the need to treat “automobiles differently from houses.”

The sole dissent in the case was filed by Justice Samuel Alito, who stated that “The Fourth Amendment prohibits ‘unreasonable’ searches,” and that, “What the police did in this case was entirely reasonable.”

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U.S. Supreme Court Finds That An Unauthorized Driver In Lawful Possession of Rental Car Has A Right To Privacy

On May 14, 2018, the United States Supreme Court held that people who borrow rental cars from friends are afforded the same protections against unlawful searches as the authorized driver. In the matter of Terrence Byrd v. United States, 2018 WL 2186175, the Supreme Court justices unanimously held “ the mere fact that a driver in lawful possession or control of a rental car is not listed on the rental agreement will not defeat his or her otherwise reasonable expectation of privacy”.

In September of 2014, Pennsylvania State Troopers pulled over a car driven by Terrence Byrd. Byrd was the only person in the rental car which had been rented by his fiancée, Latasha Reed in Wayne, New Jersey. Reed rented the car with Byrd present but failed to list Byrd as authorized driver on the rental agreement. The rental agreement specifically stated that “PERMITTING AN UNAUTHORIZED DRIVER TO OPERATE THE VEHICLE IS A VIOLATION OF THE RENTAL AGREEMENT.”

Shortly after Reed rented the car, Byrd returned with the car to his home in Patterson, New Jersey to get his belongings and later departed in the car alone for Pittsburgh, Pennsylvania. After driving three hours, Byrd was stopped by Pennsylvania Troopers on Rt. 81, near Harrisburg, Pennsylvania.

The Troopers became suspicious of Byrd because he was driving with his hands at the “10 and 2” position on the steering wheel, sitting far back from the steering wheel, and driving a rental car. Based on these observations, the Troopers decided to follow Byrd and, a short time later, stopped him for a possible traffic infraction.

In the course of the traffic stop the troopers learned that the car was rented and that Byrd was not listed on the rental agreement as an authorized driver. The Troopers discovered that Byrd had identification under two different possible alias. The Troopers further discovered that Byrd had prior convictions for weapons and drug charges as well as an outstanding warrant for a probation violation in New Jersey. Byrd then revealed he had a “blunt” in the car and offered to retrieve it for them. The Troopers declined Byrd’s offer and continued to seek consent to search the car, though they stated they did not need consent because he was not listed on the rental agreement. The Troopers began a thorough search of the car and trunk. In the trunk, the Troopers found a laundry bag containing body armor and found 49 bricks of heroin.

The evidence was turned over to federal authorities, who charged Byrd with distribution and possession of heroin with the intent to distribute in violation of 21 U. S. C. §841(a)(1) and possession of body armor by a prohibited person in violation of 18 U. S. C. §931(a)(1). Byrd moved to suppress the evidence as the fruit of an unlawful search. The United States District Court for the Middle District of Pennsylvania denied the motion, and the Court of Appeals for the Third Circuit affirmed.

The Court of Appeals recognized that a “circuit split exists as to whether the sole occupant of a rental vehicle has a Fourth Amendment expectation of privacy when that occupant is not named in the rental agreement”; but it noted that Circuit precedent already had “spoken as to this issue . . . and determined such a person has no expectation of privacy and therefore no standing to challenge a search of the vehicle.”

In its Opinion, the Supreme Court recognized that one who owns and possesses a car, like one who owns and possesses a house, almost always has a reasonable expectation of privacy in it, but it is more difficult to define and delineate the legitimate expectations of privacy of others. The Court stated that a person does not always need to have a recognized common-law property interest in the place searched to be able to claim a reasonable expectation of privacy in it.

On the other hand, the Supreme Court also noted that legitimate presence on the premises of the place searched, standing alone, is not enough to accord a reasonable expectation of privacy, because it “creates too broad a gauge for measurement of Fourth Amendment rights.”

The Supreme Court explained that “[l]egitimation of expectations of privacy by law must have a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society. The Supreme Court further noted that the two concepts in cases like Byrd’s case are often linked. “One of the main rights attaching to property is the right to exclude others,” and, in the main, “one who owns or lawfully possesses or controls property will in all likelihood have a legitimate expectation of privacy by virtue of the right to exclude.”

In rejecting the Government’s position that only authorized drivers of rental cars have expectations of privacy in those vehicles, the Court saw no reason why the expectation of privacy that comes from lawful possession and control and the attendant right to exclude would differ depending on whether the car in question is rented or privately owned by someone other than the person in current possession of it.

The central inquiry was whether Byrd had lawful possession of the car.  The Court reasoned that under some circumstances ‘wrongful’ presence at the scene of a search would not enable a defendant to object to the legality of the search. A car thief would not have a reasonable expectation of privacy in a stolen car. However, Byrd was a permissive driver of the rental car and therefore, had the right to exclude others and a reasonable expectation of privacy.

The Supreme Court vacated the judgment of the Court of Appeals and remanded the case to further consider two of the Government’s arguments: that one who intention- ally uses a third party to procure a rental car by a fraudulent scheme for the purpose of committing a crime is no better situated than a car thief; and that probable cause justified the search in any event.

Attorneys arguing on behalf of Byrd argued that 115 million car rentals take place annually in the United States and if the government won, police would have an incentive to pull over a rental car driver who commits a traffic violation because police will know they can search the car if the driver isn’t on the rental agreement.

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PA Attorney General Reviews Reciprocity Agreements and Nixes Virginia

On Monday, PA Attorney General Josh Shapiro held a press conference wherein he “announced his office ha[d] completed an exhaustive review of concealed carry reciprocity agreements with all 49 other states, as required under Pennsylvania law.” Notably, the Attorney General’s website has been updated with a handy chart.

2000px-Seal_of_the_Attorney_General_of_Pennsylvania.svg

The announcement specified that Pennsylvania now recognizes the licenses of 29 other states (previously it was 28). Notably, Idaho and Alabama were added to the recognized states. However, Virginia was removed. As of May 16, 2018, Virginia residents will no longer be able to carry in Pennsylvania pursuant to a Virginia Concealed Handgun Permit.

Pouring salt into an already open wound, the Attorney General has also specified that non-resident permits will no longer be recognized in PA. Which means that in order to lawfully carry a concealed firearm in Pennsylvania, according to the Attorney General, you must be a resident of the state which has issued the license and be over twenty-one years of age.

There are two manners in which Pennsylvania recognizes reciprocity. The first is found in 18 Pa.C.S. § 6106(b)(15) and allows the Attorney General to recognize, without a written agreement, another state’s license. This is predicated on the condition that the other state recognizes Pennsylvania License to Carry Firearms (“LTCF”) and that the laws governing firearms in that state are sufficiently similar to Pennsylvania’s.

The other manner is by written agreement. 18 Pa.C.S. § 6019(k)(1) provides:

The Attorney General shall have the power and duty to enter into reciprocity agreements with other states providing for the mutual recognition of a license to carry a firearm issued by the Commonwealth and a license or permit to carry a firearm issued by the other state. To carry out this duty, the Attorney General is authorized to negotiate reciprocity agreements and grant recognition of a license or permit to carry a firearm issued by another state.

Virginia and Pennsylvania had entered into a written reciprocity agreement on January 3, 2007. The agreement was amended on March 15, 2013 during the tenure of disgraced former Attorney General, now convicted felon, Kathleen Kane. Notably, the statute is silent as to the ability of the Attorney General to rescind a reciprocity agreement. However, that does not appear to have stopped Attorney General Shapiro.

Moreover, Section 6109(k)(2) requires that “[t]he Attorney General shall report to the General Assembly within 180 days of the effective date of this paragraph and annually thereafter concerning the agreements which have been consummated under this subsection.” (emphasis added). Based on the plain language of the statute, it would seem the General Assembly wished to be apprised of the states with which the Attorney General entered into written reciprocity agreements on an annual basis. Further, this would imply that if the General Assembly believed the agreement to be inappropriate, it could act to revoke its status, rather than leaving that to the discretion of the Attorney General.

Below is a list of states that Pennsylvania recognizes the permits of. You can find more information in the PDF provided by the Office of the Attorney General here.

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With PA Representative Sims Censoring Pro-Second Amendment Comments, FICG Files Letters of Objection with House Judiciary Committee Members

Earlier today, Attorney Joshua Prince and Adam Kraut sent letters to the Chairman of the Pennsylvania House of Representatives Judiciary Committee and all of its members regarding the current proceedings pertaining to gun control legislation.

They encourage you all to contact the Chairman and members of the Committee to demand further hearings with input from the citizens of the Commonwealth. For more information, see Attorney Prince’s prior blog article here.

Attorneys Prince and Kraut request all Pennsylvanians to join them on Monday April 30th at 10 AM in the rotunda of the Capitol Building in Harrisburg for the Annual Pennsylvania Right to Keep and Bear Arms Rally. Attorney Prince is scheduled to speak at the event.

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Pennsylvania Firearm Rights in the Crosshairs – The Rights That Stand to be Infringed

Starting this week, at the direction of Chairman Ron Marisco, the Pennsylvania House Judiciary Committee held week-long “Public Safety – gun laws and violence” hearings regarding numerous pending firearms-related bills, which seek to restrict firearm rights in Pennsylvania in every regard from outright banning all semi-automatic firearms and high capacity magazines to banning any part that “accelerates the rate of fire of semi-automatic firearm[s].” More disconcerting than Chairman Marisco’s scheduling of these hearings is the fact that seemingly in violation of Article 1, Section 20 of the Pennsylvania Constitution, even though he acknowledges that they are “public hearings,” he specifically precluded interested parties in testifying regarding these bills and stated to Bobby Lawrence (former US Senate Candidate) that if others want a voice then let them do it through e-mails to legislators or by Letters to the Editor.

As reflected below, the General Assembly does not have the first clue about the interplay between the state and federal firearm laws or the existing firearm laws here in Pennsylvania and federally. Nor do many of the Members have any respect for the State or U.S. Constitution. It is for these reasons that testimony is absolutely necessary from interested parties.

Thus, as explained below and as a result of Chairman Marisco’s statement and preclusion of interested parties being afforded to testify, it is imperative that you not only contact your state representative and senator, but additionally contact Chairman Marisco and all other members of the House Judiciary Committee regarding your opposition to any infringement of your constitutional rights. (The contact information for the House Judiciary Members is at the bottom of this article and I would encourage everyone to FAX any respectful correspondences on these issues to your representatives and the member of the House Judiciary Committee and then call to confirm their receipt of your fax, since some Members are contending that they have not received ANY correspondences in opposition to these bills). More importantly, it is imperative that you let your voice be heard, regardless of these Members’ political affiliation, as many of this anti-Article 1, Section 21 and Second Amendment bills are being proposed by alleged Republicans)

For those interested in the transcripts and video/audio from the PA Legislative Services (PLS) in relation to these hearings (as the Committee has failed, without explanation, to post the formal transcripts – also be aware, as it doesn’t appear that the videos are compressed, it may take a while to download them):

  1. Transcript and video from hearing on Monday, April 9th, at 11 AM, Room 140 – Main Capitol;
  2. Transcript and video from hearing on Tuesday, April 10th at 10 AM, Room 140 – Main Capitol;
  3. Transcript and video from hearing on Wednesday, April 11th at 10 AM, Room 140 – Main Capitol;
  4. Transcript and video from hearing on Monday, April 16th at 10:30 AM, Room 205 – Ryan Office;
  5. Transcript and video from hearing on Tuesday, April 17th at 9:30 AM, Room 140 – Main Capitol;
  6. Transcript and video from hearing on Wednesday, April 18th at 9:00 AM, Room 205 – Ryan Office.

From the transcripts and videos, you will see that they are discussing SB 17, SB 18, SB 383, SB 501, HB 175, HB 671, HB 832, HB 870, HB 1233, HB 1400, HB 1872, HB 2060, HB 2097, HB 2109HB 2149, HB 2150, and  HB 2216.

HB 1872

House Bill 1872, sponsored by Representatives Madeleine Dean (D) and Dom Costa (D), seeks to “Ban Rapid Fire or ‘Multiburst Trigger Activators’ in Pennsylvania.” The text can be found here. This bill seeks to change 18 Pa.C.S. § 908 – Prohibited Offensive Weapons to include “possession of an accelerated trigger activator purchased or otherwise obtained by the defendant prior to the effective date of this paragraph.” It then goes on to define “accelerate trigger activator” as a “part or combination of parts designed and intended to accelerate the rate of fire of a semi-automatic firearm to simulate the rate of fire of a machinegun”

First and foremost, the sponsors apparently are completely unaware of numerous applicable U.S. and State constitutional provisions that result in this proposal being unconstitutional. As held by the U.S. Supreme Court in U.S. v. Miller, 307 U.S. 174 (1939), the Second Amendment to the U.S. Constitution specifically protects military weapons, which is inclusive of machineguns. Although there is no equivalent decision under Article 1, Section 21 of the Pennsylvania Constitution, unlike its federal counterpart, the PA Constitution declares that “[t]he right of the citizens to bear arms in defense of themselves and the State shall not be questioned,” which is then acknowledged to be an inalienable right by Article 1, Section 25, which provides that “[t]o guard against transgressions of the high powers which we have delegated, we declare that everything in this article is excepted out of the general powers of government and shall forever remain inviolate.” (emphasis added).

Even if Article 1, Section 21 and the Second Amendment were not applicable, this proposal is unconstitutional under the ex post facto law provisions of Article 1, Section 17 of the Pennsylvania Constitution and Article 1, Section 10, Clause 1 of the U.S. Constitution. It would also constitute an unlawful taking, without just compensation, under Article 1, Section 10 of the Pennsylvania Constitution and the 14th Amendment to the U.S. Constitution.

Didn’t these Members of the General Assembly take an oath to uphold the State and U.S. Constitutions? I am pretty sure they did, as such is specifically required by Article VI, Section 3, which declares:

Senators, Representatives and all judicial, State and county officers shall, before entering on the duties of their respective offices, take and subscribe the following oath or affirmation before a person authorized to administer oaths.

“I do solemnly swear (or affirm) that I will support, obey and defend the Constitution of the United States and the Constitution of this Commonwealth and that I will discharge the duties of my office with fidelity.”

The oath or affirmation shall be administered to a member of the Senate or to a member of the House of Representatives in the hall of the House to which he shall have been elected.

Any person refusing to take the oath or affirmation shall forfeit his office.

What about making thousands of law-abiding individuals in Pennsylvania, overnight, into criminals, by their mere possession of these devices, without any means or opportunity to dispose of them? By the way, in case you were unaware, a violation of Section 908 is a misdemeanor of the first degree, which will result in the person being prohibited, in perpetuity, from purchasing and possessing firearms and ammunition, pursuant to 18 U.S.C. § 921(g)(1) – but that’s inconsequential, because we need to do something to solve a non-existent problem, right? While the sponsors and the media would have you believe that bump stocks were utilized in the horrific Las Vegas shooting, the Preliminary Investigative Report of shooting, although listing several bump stocks as having been recovered, does not list them as having been utilized in the attack.

Setting the constitutional issues aside, the sponsors lack an engineering understanding that the cyclic rate of a firearm is determined not by how fast or slow a particular person or device can cause the firearm to cycle but rather based on the fastest speed at which the firearm can operate. As reflected in this video, Jerry Miculek can out-shoot a bump stock and is FAR more accurate. Does that mean that Jerry Miculek will be automatically imprisoned if he steps foot in Pennsylvania? What about competition triggers? Are they to be included in this?

 

SB 17

Senate Bill 17, sponsored by Wayne Fontana (D), seeks to ban, with limited exceptions, semi-automatic firearms, including HANDGUNS and shotguns, and large capacity magazines and institute a registry of semi-automatic firearms. The text can be found here. This bill would require an individual owning a semi-automatic firearm to obtain a “certificate of possession” from the Pennsylvania State Police and then an individual who is granted a certificate of possession is limited to the locations where he/she may possess the semi-automatic rifle. Better yet, the Pennsylvania State Police could deny you because of your “character and reputation,” which is not defined. Also, you will be charged a fee of $15, per firearm, every four years. Moreover, there is no grandfathering provision in relation to large capacity magazines and turns law-abiding individuals into criminals overnight. Of interesting note, since this is being offered as a result of the Parkland shooter, we now know that the Parkland shooter did NOT use large capacity magazines.

 

SB 18

Senate Bill 18, sponsored by Wayne Fontana (D), seeks to provide for “extreme risk orders,” where in ex parte hearings (i.e. in the absence of due process) an individual can be stripped of their constitutional right to Keep and Bear Arms. The text can be found here. Better yet, it even provides immunity to the person seeking an extreme risk order, even if there were purposeful omissions or misstatements in the petition!

 

HB 2216

House Bill 2216, sponsored by Warren Kampf (R), seeks to ban any devices that can “accelerate the rate of fire of a semiautomatic firearm” and “large capacity ammunition magazines” which is defined as any magazine that can accept more than 10 rounds or 5 shotgun shells. The text can be found here. Once again, apparently Representative Kampf has no understanding of the State or Federal Constitution and would, overnight, turn law-abiding individuals into criminals, as it fails to grandfather pre-existing large capacity magazines and fails to provide any means or opportunity to dispose of them.

 

HB 2251

House Bill 2251, sponsored by Thomas Murt (R), seeks to, inter alia, define “ammunition,” “gun ranges” and  “other weapons,” prohibit prohibited person from possessing or manufacturing ammunition (even though 18 U.S.C. § 922(g) already prohibits such), then requires background checks on the purchase of all ammunition – including from a gun range (which may not have an FFL and would therefore be precluded from performing a background check) – precludes any purchase of ammunition that does not occur face-to-face and precludes individuals from purchasing ammunition in another state and then bringing it into Pennsylvania, without it going through an FFL. The text can be found here.

 

HB 1233

House Bill 1233, sponsored by Thomas Murt (R), seeks to monumentally revise Pennsylvania’s Mental Health and Procedures Act, permitting far more individuals to constitute “qualified professionals,” makes it much easier for an individual to be committed under Sections 302 and 303, and fails to address the unconstitutionality of Section 302 (i.e. as held by Judge Kim Gibson of the Federal District Court for Western District of Pennsylvania, a Section 302 commitment lacks any form of due process). The text can be found here.

 

HB 1400 and HB 2249

House Bill 1400, sponsored by James Santora (R), and House Bill 2249, sponsored by Thomas Murt (R), seeks to preclude private party sales and references them, erroneously, as a “gun show loophole.” The text can be found here for HB 1400 and here for HB 2249. While it putatively provides an exception, where the individual purchased a firearm from the same dealer within 48 hours, the language requires the person to produce a copy of a record/application of sale form, which is only utilized when the individual purchases a firearm under the definition provided by Section 6102 (i.e. generally speaking, a handgun). Thus, if an individual purchased a rifle from the same dealer, the exception would not apply, as the purchaser would be unable to produce a record/application of sale form.

 

HB 832

House Bill 832, sponsored by Madeleine Dean (D), seeks to re-victimize those who have had a firearm stolen, by criminalizing their failure to report, within 72 hours, their victimization. The text can be found here. In what other context would anyone ever consider criminalizing the failure of a victim of crime to report that crime?

 

HB 2109

House Bill 2109, sponsored by Stephen McCarter (D), seeks to permit firearm restraining orders, which permits the assessment of fees and costs against the subject of an issue firearm restraining order, as well as, ex parte orders, in violation of all tenants of due process. The 52 pages of text can be found here.

 

HB 2252

House Bill 2252, sponsored by Thomas Murt (R), seeks to duplicate the existing mental prohibition (see 18 U.S.C. 924(g)(4) and 18 PA.C.S. 6105(c)(4)) for those who are involuntarily committed to outpatient treatment. The text can be found here.

 

HB 2097

House Bill 2097, sponsored by Jason Dawkins (D), seeks to prohibit anyone who is merely arrested for or charged with a putative domestic violence offense, in the absence of due process, from possessing and purchasing firearms. The text can be found here. As everyone is aware, an individual who is subject to a Protection From Abuse Order or is convicted of a domestic violence offense is already prohibited under state and federal law (see, 18 Pa.C.S. §§ 6105(a.1)(2), (c)(6), (c)(9); 18 U.S.C. §§ 922(g)(8), (9)) Worse yet, reflecting the absence of any consideration in the drafting of this bill, it provides that any such prohibition would apply, for example, in a situation where one criminally trespasses on the property of or steals money or other object from an intimate partner.

 

SB 501 and HB 2060

House Bill 2060, sponsored by Representative Marguerite Quinn (R), and Senate Bill 501, sponsored by Senator Thomas Killon (R), are another solution in search of a problem, seeks to require an individual who is prohibited as a result of a domestic violence conviction or Protection from Abuse Order to turn in his/her firearms and ammunition, even though 18 U.S.C. §§ 922(g)(8) already requires such. The text can be found here for HB 2060 and here for SB 501. Moreover, the requirement to turn over one’s firearms would be restricted to either a law enforcement department or a dealer, even though the current law additionally provides for third-party safekeeping permits and CeaseFirePA has been unable to show a single occasion where an individual gained access to firearms from a third-party safekeeper. Oh yeah, they also fail to mention that if an individual who holds a safekeeping permit permits access to the firearms by the prohibited person, it is already a misdemeanor of the first degree, pursuant to 18 Pa.C.S. § 6105(a.1)(5); whereby, once again, under 18 U.S.C. § 921(g)(1), the individual will be barred, in perpetuity, from possessing and purchasing firearms and ammunition.

For the icing on the cake, it also provides that any firearm turned into the police would be considered “abandoned” after a year. I especially like the absurdity of the search of the “database of firearm sales,” when 18 Pa.C.S. § 6111.4 specifically prohibits the maintenance of any registry of firearms and when the sales database is only related to handguns. Better yet, it permits, in violation of due process and the takings provisions, for the entity that has possession of the firearm(s) to sell them and retain the proceeds.

 

HB 870 and SB 383

House Bill 870, sponsored by Representative Cris Dush (R), and Senate Bill 383, sponsored by Senator Donald White, seeks to permit armed school personnel (which I am in favor of) but both fail to address the issues I previously raised here and here to SB 383. The text can be found here for HB 870 and here for SB 383. I have written an extensive amendment for SB 383 or HB 870, which would address all of the relevant concerns, and am waiting for it to be offered.

 

As emails can be easily deleted without the recipient reviewing them and numerous Members have stated that they have not received any correspondences in opposition to these bills, I am imploring you to FAX any respectful correspondences to your Representative and House Judiciary Members, and then follow up via phone call to ensure that they all received your correspondence. If you wish to additionally send a copy via email, their respective email addresses are listed below.

The House Judiciary Members are:

  1. Chairman Ron Marsico – (717) 783-2014, Fax: (717) 705-2010 RMarsico@pahousegop.com;
  2. Democratic Chair Joseph Petrarca – (717) 787-5142, Fax: (717) 705-2014 JPetrarc@pahouse.net;
  3. Tarah Toohil – (570) 453-1344, Fax: (570) 459-3946 TToohil@pahousegop.com;
  4. Stephen Bloom – (717) 772-2280, Fax: (717) 705-2012 SBloom@pahousegop.com;
  5. Becky Corbin – (717) 783-2520, Fax: (717) 782-2927 BCorbin@pahousegop.com;
  6. Sheryl Delozier – (717) 783-5282, Fax: (717) 772-9994 SDelozie@pahousegop.com;
  7. Harold English – (717) 260-6407, Fax: (717) 783-5740 HEnglish@pahousegop.com;
  8. Garth Everett – (717) 787-5270, Fax: (717) 772-9958 GEverett@pahousegop.com;
  9. Barry Jozwiak – (717) 772-9940, Fax: (717) 782-2925 BJozwiak@pahousegop.com;
  10. Kate Klunk – (717) 787-4790, Fax: (717) 782-2952 KKlunk@pahousegop.com;
  11. Jerry Knowles – (717) 787-9029, Fax: (717) 782-2908 JKnowles@pahousegop.com;
  12. Tedd Nesbit – (717) 783-6438, Fax: (717) 782-2943 TNesbit@pahousegop.com;
  13. Rick Saccone – (717) 260-6122, Fax: (717) 787-9174 RSaccone@pahousegop.com;
  14. Paul Schemel – (717) 263-1053, Fax: (717) 263-1059 PSchemel@pahousegop.com;
  15. Todd Stephens – (717) 260-6163, Fax: (717) 782-2898 TStephen@pahousegop.com;
  16. Jesse Topper – (717) 787-7076, Fax: (717) 782-2933 JTopper@pahousegop.com;
  17. Martina White – (717) 787-6740, Fax: (717) 782-2929 MWhite@pahousegop.com;
  18. Bryan Barbin – (814) 487-4041, Fax: (814) 487-4043 BBarbin@pahouse.net;
  19. Ryan Bizzarro – (717) 772-2297, Fax: (717) 780-4767 RBizzarro@pahouse.net;
  20. Tim Briggs – (717) 705-7011, Fax: (717) 772-9860  TBriggs@pahouse.net;
  21. Dom Costa – (717) 783-9114, Fax: (717) 780-4761 DCosta@pahouse.net;
  22. Tina Davis – (717) 783-4903, Fax: (717) 783-0682 TDavis@pahouse.net;
  23. Jason Dawkins – (717) 787-1354, Fax: (717) 780-4789 JDawkins@pahouse.net;
  24. Madeleine Dean – (717) 783-7619, Fax: (717) 780-4754 MDean@pahouse.net;
  25. Joanna McClinton – (717) 772-9850, Fax: (717) 783-1516 JMcClinton@pahouse.net;
  26. Dan Miller – (717) 783-1850, Fax: (717) 780-4756 DMiller@pahouse.net;
  27. Gerald Mullery – 570) 636-3500, Fax: (570) 636-3502 GMullery@pahouse.net.

 

If you or someone you know has had their right to Keep and Bear Arms infringed, 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.

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