Tag Archives: confidentiality

Franklin County Sheriff Contends He’s Immune From Judicial Oversight

In a brief filed before the Pennsylvania Supreme Court, the Franklin County Sheriff has taken an eerily Orwellian position that he is immune from judicial oversight and cannot be held liable for his actions – even those explicitly violating state law.

As our viewers are aware, on May 20, 2016, the Commonwealth Court issued a monumental decision in  John Doe, et al., v. Franklin County, et al., 1634 C.D. 2015 regarding the confidentiality of license to carry firearms (LTCF) applicant information, wherein, among other things, it held that the disclosure of LTCF applicant information through the use of un-enveloped postcards was a breach of the confidentiality provision found in 18 Pa.C.S. 6111(i).

As a result, Franklin County, former Franklin County Sheriff Dane Anthony, and the other defendants, appealed the decision to the PA Supreme Court, where they asked the Court to grant review of the entire Commonwealth Court’s decision, including as to whether the use of un-enveloped postcards constituted a public disclosure. On December 21, 2016, the PA Supreme Court generally denied their request to review the decision; however, it agreed to consider “[w]hether the General Assembly intended to abrogate high public official immunity when it enacted 18 Pa. C.S. §6111(i)” in relation to Defendant former Franklin Co Sheriff Dane Anthony.

On January 30, 2017, the Defendants filed their brief contending that former Sheriff Dane Anthony is entitled to high public official immunity and that sheriffs “should not be burdened with monstrous litigation and damage exposure about possible incidental viewing of a postcard years ago.” More disconcerting, they argue that the Commonwealth Court’s decision “threatens to gut absolute immunity for public officials into no real protection at all.” (Of course, as discussed below, they seem to ignore the fact that high public official immunity was seemingly abolished by the PA Supreme Court in the 1970’s and even if it wasn’t, it is unconstitutional under the Pennsylvania Constitution). However, it is their main argument that is absolutely Orwellian:

statements or acts of high public officials which are made in the course of and within the scope of their official powers or duties give them complete immunity from legal redress. (emphasis added)

It would seem that this position goes directly contrary to the oath declared, pursuant to Article VI, Section 3, by all Sheriffs in Pennsylvania, especially in light of Article 1, Section 11. The oath set-forth in Article VI declares:

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.

Contrary to the oath, the Sheriff’s position is directly in conflict with Article 1, Section 11 of the Pennsylvania Constitution, which declares that “[s]uits may be brought against the Commonwealth in such manner, in such courts and in such cases as the Legislature may by law direct,” since high public official immunity is common law (e.g. judicially created) and has never been enacted by the General Assembly. (For those reviewing the docket, as Franklin County, et al., failed to timely submit their reproduced record, they were required to petition the Court to allow them to untimely file their reproduced record, which the Court granted).

Surprisingly, the PA Sheriff’s Association filed an Amicus Curiae brief contending that sheriffs in Pennsylvania should be entitled to high public official immunity and immune from judicial review.

In response, on February 2, 2017, we filed our brief explaining that (1) high public official immunity was seemingly abolished by the Pennsylvania Supreme Court’s decision Ayala v. Phila. Bd. of Pub. Educ., where it abolished governmental immunity; (2) high public official immunity is inapplicable to 18 Pa.C.S. 6111; and (3) high public official immunity is unconstitutional.

Yesterday, the Defendants filed their reply brief , which appears to be designed to merely confuse the Justices into believing they actually have an argument.

The Court will now decide whether to hold oral argument on the matter or merely issue a decision based on the briefs. We’ll keep you apprised of further action in this matter.

If you or someone you know has had their confidential license to carry firearms applicant information disclosed, contact us today to discuss today to discuss YOUR rights. Dedicated to the protection of your Second Amendment and Article 1, Section 21 rights, we are YOUR PA Firearms Lawyers.

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

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

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

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

Moreover, in conducting the investigation, the Sheriff is to

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

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

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

Any person, … who knowingly and intentionally obtains or furnishes information collected or maintained pursuant to section 6109 for any purpose other than compliance with this chapter or who knowingly or intentionally disseminates, publishes or otherwise makes available such information to any person other than the subject of the information commits a felony of the third degree.

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

Confidentiality.  All information provided by the … applicant, including, but not limited to, the … applicant’s name or identity, furnished by … any applicant for a license to carry a firearm as provided by section 6109 shall be confidential and not subject to public disclosure. In addition to any other sanction or penalty imposed by this chapter, any person,… State or local governmental agency or department that violates this subsection shall be liable in civil damages in the amount of $ 1,000 per occurrence or three times the actual damages incurred as a result of the violation, whichever is greater, as well as reasonable attorney fees.

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

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

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

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

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Settlement APPROVED in Philadelphia Class Action Lawsuit Regarding Disclosure of Confidential LTCF Information

I am proud to announce that today, Judge Jacqueline Allen signed a Final Order approving the settlement that was reached with the City of Philadelphia in the matter of John Doe, et al.,  v. City of Philadelphia, et al, Philadelphia Court of Common Pleas docket no. 121203785, stemming from the City’s posting and disclosing of what we alleged was confidential license to carry firearms (LTCF) information. You can download a copy of the original Press Release related to the Preliminary Approval – here.

As a result of the Settlement, the City will pay $1.425 million to the class and will be separately responsible for the costs of administering the settlement. Further, and of similar importance, the City has agreed to a number of policy changes, which can be found starting on page 11 of the Settlement Agreement, including:

  1. Not to disclose LTCF applicant information either electronically or in-person;
  2. Annual training of the Philadelphia Police Department and Philadelphia License and Inspection Board of Review on the confidentiality of LTCF applicant information;
  3. Customer service training for the Philadelphia Gun Permit Unit;
  4. Posting a copy of the LTCF Application Notice on its website and where LTCF applications and appeals can be submitted or obtained, as well as, providing a copy to anyone who has his/her LTCF denied or revoked;
  5. The City will not require references on the LTCF application and will not contact any references listed on the LTCF application;
  6. The City will not require lawful immigrants or US Citizens with a US Passport to provide naturalization papers;
  7. The City will not require any applicant to disclose whether he/she owns a firearm during the LTCF application process;
  8. The City will not deny an application because the applicant answered “no” to any question regarding whether the applicant had been charged/convicted of any crime where the applicant received a pardon or expungement from the charge or conviction;
  9. The City will process all LTCF applications within 45 calendar days;
  10. The City will remit $15.00 to any applicant who is denied within 20 days;
  11. The City will not require LTCF applicants or holders to disclose to law enforcement that they have an LTCF, that they are carrying a firearm or that they have a firearm in the vehicle; and
  12. The City will not confiscate an LTCF or firearm, unless there is probable cause that the LTCF or firearm is evidence of a crime. In the event an LTCF or firearm is confiscated, the officer must immediately provide a property receipt, which shall include the pertinent information

A copy of the signed and filed Settlement Agreement can be downloaded – here. As the Final Order has not yet been docketed, it is not currently available for download. A copy of the Second Amended Complaint can be downloaded – here.

 

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