National Cyber Security Awareness Month

DHS logoOctober is National Cyber Security Awareness Month which is an annual campaign to raise awareness about the importance of cybersecurity. The Internet touches almost all aspects of everyone’s daily life. National Cyber Security Awareness Month (NCSAM) is designed to engage and educate partners through events and initiatives to raise awareness about the importance of cybersecurity, provide them with tools and resources needed to stay safe online, and increase the resiliency of the Nation in the event of a cyber incident.

More information is available from www.dhs.gov/national-cyber-security-awareness-month.  A free toolkit is available here: https://www.dhs.gov/stopthinkconnect-toolkit.

If you or your business have legal questions or concerns regarding disaster preparedness, computer law, privacy, or cybersecurity law matters, contact attorney Jeffrey A. Franklin at Prince Law Offices.

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

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

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

Indeed, Mr. Yox provides the perfect test case to challenge § 922(g)(4), as the illogical contradiction of being able to possess firearms in his professional capacities but not being able to possess a firearm for protection in his own home puts in relief a factual scenario where an as-applied Second Amendment challenge to this statute may succeed.

Indeed, if Mr. Yox were not to succeed on his as-applied challenge, we cannot imagine that there exists any person who could.

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

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

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

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

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

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

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

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

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

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

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FDA requests removal of Opana ER for risks related to abuse

by Karl Voigt

Patients who are taking the pain medication Opana are now facing its manufacturer’s withdrawal of the medication from the market.

Earler this year, the US Food and Drug Administration (FDA) concluded that Opana ER “exposes patients and other users to the risks of opioid addiction, abuse, and misuse, which can lead to overdose and death”. The drug has been available since 2006.

The manufacturer, Endo Pharmaceuticals based in Malvern PA, has been withdrawing the medication from pharmacies since June. Supplies are nearly gone and patients should consult with their physicians for a suitable alternative.

The FDA has made no secret that they intend to review other opioid painkillers.

 

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

bush-plcaa

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

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

slidefire

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

What is the PLCAA?

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

The law defines a qualified civil liability action as

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

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

The term “manufacturer” means

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

The term “seller” means

with respect to a qualified product—

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Does the PLCAA Protect Slide Fire?

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

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

Screen Shot 2017-10-10 at 11.21.50 AM

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

 

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

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

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

 

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

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

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

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Filed under Firearms Law, Pennsylvania Firearms Law

One company is trying to make a profit before Pennsylvania’s medical marijuana program commences.

Back in June of this year, the Pennsylvania Department of Health granted 12 medical marijuana grower/processor permits to the following companies:

Prime Wellness of Pennsylvania (Berks County)
Franklin Labs (Berks)
Pennsylvania Medical Solutions (Lackawanna)
Standard Farms (Luzerne)
Ilera Healthcare (Fulton)
AES Compassionate Care (Franklin)
Terrapin Investment Fund 1 (Clinton)
GTI Pennsylvania (Montour)
AGRiMED Industries of PA (Greene)
PurePenn (Allegheny)
Holistic Farms (Lawrence)
Cresco Yeltrah (Jefferson)

Under Pennsylvania’s Medical Marijuana Act, in order to obtain a grower/processor permit, an applicant had to pay a nonrefundable $10,000 initial application fee and along with $200,000 for the actual permit. The grower/processor also had to prove it had $2 million in capital on hand. Despite the steep price, the health department still received 177 applications for grower/processor permits and generated $1,770,000.00 in nonrefundable application fees.(The Department of state also received 280 applications for a dispensary permit which required payment of a $5,000.00 in non refundable initial application fees, or $1,400,000.)

Of the 177 applicants, only 12 grower/processor permits were issued so the demand was great. Now apparently one of the successful permit applicants is trying to sell the rights to his permit. Franklin Labs, LLC in Reading, Berks County is willing to sell 100% of Franklin Labs including the grower/processor permit for $20 million dollars. Franklin Labs also applied for a special clinical research (CR) license, and only applied for the grow permit as a backup plan. The CR license would allow the company to partner with a teaching hospital to conduct research on medical cannabis. Companies that are granted CR permit will receive permits to open a growing facility as well as six storefront dispensaries for selling oil-based cannabis products.

Under Pennsylvania’s Medical Marijuana Act, the issuance of a permit is a revocable privilege and any permit issued may not be transferred to any other person or location. Apparently, Franklin Labs is trying to circumvent the Act by selling of the whole company lock, stock, and barrel. The Department of Health has issued a statement saying that “no permit may be sold or transferred without approval from the Department of Health” but what about an entire company. Needless to say, this has caused some unsuccessful applicants to requests that Department of Health revoke Franklin Labs’ permit.

There is significant risk in purchasing Franklin Labs and its permit for $20 million dollars. The cost of applying for a permit during Phase II of the applications will still be $210,000.00. While there is no guarantee, the risk is still only the non-refundable $10,000.00 and whatever costs are incurred as part of the application process. While those costs could be significant, they are not likely to near $20 million dollars. Additionally, the Pennsylvania Department of Health could revoke the permit at any time or choose not to re-new it the next year. Despite the risk, Medical Marijuana is big business and it would not surprise me if an existing company in a state such as Colorado or California saw the sale of Franklin Labs as an opportunity to expand into Pennsylvania.

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House Bill 1840 Seeks to Resurrect Workers’ Compensation IREs

by Karl Voigt

The Pennsylvania legislature has exerted its first effort to resurrect Impairment Rating Evaluations (IREs). These evaluations for years served to limit worker’s compensation wage loss benefits to 604 weeks, potentially leaving disabled workers with no source of income.

Earlier this year, the Pennsylvania Supreme Court ruled that IREs as enacted are unconstitutional. The result of this ruling is that exams are no longer performed and that benefits are no longer subject to the 604 week limit.

Naturally, litigation has ensued and carriers are pressuring lawmakers to bring the IRE  process back.

The text of the bill can be found here. It is unknown how viable this proposed legislation is, considering the Commonwealth’s budget woes.

 

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