Tag Archives: Joshua Prince

Are PA Medical Marijuana Patients Prohibited From Possessing and Purchasing Firearms and Ammunition?

Last week, Pennsylvania Governor Tom Wolf announced that the Medical Marijuana Program Patient Registry had reached 3,800 registered patients in its first week of registration. While individuals may be able to lawfully possess marijuana in Pennsylvania under Pennsylvania law if the person is registered on the Patient Registry and has been approved for use by a qualified doctor, Federal law still provides that the possession and/or use of marijuana is unlawful, as a Schedule 1 drug.

Although we have written extensively about the fact that marijuana is federally prohibited and that ATF revised the ATF 4473 form to reflect such, few individuals appear aware that they lose their right to keep and bear arms if they are a current user of marijuana, even if approved for use by a qualified doctor. (As many people are confused, a doctor cannot prescribe marijuana, due to Federal law, but can suggest to a patient that he/she utilize marijuana).

On the most recent version of the ATF 4473, it reflects under question 11e.:

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.

As a result, more than 3,800 residents of Pennsylvania have presumptively become prohibited under Federal law from possession and purchasing firearms and ammunition.

Moreover, individuals who live in households where a registered medical marijuana patient resides, need to consider the potential ramifications of their own rights to keep and bear arms.

If you are concerned about whether you have lost your right to keep and bear arms as a result of Pennsylvania’s medical marijuana program or your residing in a residence with a medical marijuana user,  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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Superior Court – Does Natural Corrosion of a Firearm Serial Number Violate Pennsylvania’s Uniform Firearms Act?

Yesterday, the Superior Court issued its decision in Commonwealth v. Ford, 196 ED 2016, in relation to whether natural corrosion (i.e. rust) over a firearm serial number constitutes a violation of Pennsylvania’s Uniform Firearms Act for purposes of possession of a firearm with an obliterated serial number.

Section 6110.2 provides in pertinent part:

No person shall possess a firearm which has had the manufacturer’s number integral to the frame or receiver altered, changed, removed or obliterated. 18 Pa.C.S. § 6110.2(a).

It is important to note that even though the parties stipulated that “serial number on the handgun was obscured by corrosion [and] recovered by polishing,” Philadelphia Court of Common Pleas Judge Carolyn Nichols (the same Judge Nichols who just ran for and was elected to the Superior Court) found Mr. Ford guilty for possessing a firearm with an obliterated serial number.

Accordingly, the Superior Court framed the question before it as:

whether corrosion of manufacturer’s numbers renders them “altered, changed, removed or obliterated” within the meaning of section 6110.2.

After the court correctly noted that the phrase “altered, changed, removed or obliterated” was not defined, it turned to the ordinary dictionary definitions of these terms. After reviewing the definitions, the court held that:

section 6110.2 does not say that a crime takes place when a person possesses a gun whose markings have become illegible due to natural causes.

As a result, Mr. Ford’s conviction for possession of a firearm with obliterated markings was overturned.

If you or someone you know has been charged with possessing a firearm with an obliterated serial number, contact us today to discuss your options!

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PRESS RELEASE: Monumental Decision Imposing Financial Judgment on Pennsylvania State Police for Violating Second Amendment Rights!

Addressing several issues of first impression, the Commonwealth Court on Wednesday issued a 20 page decision and entered a judgment of approximately $6,500.00 against the Pennsylvania State Police (PSP) for erroneously denying an individual his right to keep and bear arms.

With eight pages of the decision addressing the factual and procedural background, the case is somewhat complex; however, stated succinctly, the individual applied for a firearm and was denied by the PSP. Although he submitted a Pennsylvania Instant Check System (PICS) Challenge, where he provided the PSP with copies of the original charging documents reflecting that he had only been charged with and pled guilty to a summary offense, the PSP ignored the documentation and issued a final determination that he was prohibited. Thereafter, he retained Attorney Joshua Prince for an appeal to the Pennsylvania Attorney General. After the PSP received the appeal, which included copies of all the documents the individual originally submitted, the PSP called Attorney Prince to inform him that the PSP was overturning its decision but that they would not issue a letter confirming the reversal.

Thereafter, Attorney Prince filed a complaint against the PSP, pursuant to the Criminal History Record Information Act (CHRIA), while the case proceeded before the Attorney General. The PSP would later stipulate, before the Attorney General, that the individual was not prohibited; however, the PSP opposed the CHRIA action and argue that (1) the PSP was entitled to sovereign immunity for any damages and (2) that the individual was foreclosed in bringing a CHRIA action, since he had filed an appeal to the Attorney General.

The Commonwealth Court, in response to the PSP’s assertion of sovereign immunity, declared that the

PSP did originally maintain incorrect criminal history record information with respect to Haron in violation of section 9111 of CHRIA, which wrongfully resulted in the denial of his constitutional right to purchase a firearm for a period of several months and required him to ultimately obtain counsel.

The court then went on to find

that the maintenance of incorrect criminal records resulting in an unwarranted denial of a constitutional right to purchase a firearm constitutes “aggrievement.” Because Haron was aggrieved, he is entitled to recover actual and real damages, consistent with section 9183(b)(2) of CHRIA, in the amount of $1,500.00, which represents the retainer fee that Haron was required to pay to obtain counsel to represent him [before the AG] in this matter. Additionally, Haron is entitled to reasonable costs of litigation and attorney fees.

In relation to the PSP’s second assertion that he was precluded in instituting and maintaining an action under CHRIA because he filed an appeal to the Attorney General, the court declared:

we do not believe that Haron’s initial choice to proceed under the UFA forecloses any potential relief under CHRIA. Indeed, the only relief available under the UFA appears to be correction of an individual’s criminal history records, whereas CHRIA provides other potential relief in the nature of an injunction and/or damages.

While the judgment is minuscule in relation to the deprivation of a constitutional right, we hope that this case will give the PSP pause in what has become its standard operating procedure to ignore documentation submitted by an unrepresented individual in a PICS Challenge and to force individuals to prove that they are not prohibited, when the burden rests with the PSP to prove that the individual is prohibited.

If your rights have been denied the purchase/transfer of a firearm or your rights violated by the PSP, 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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If You Thought ITAR Was Bad…Firearm and Ammunition Manufacturing, Importing (and Gunsmithing) Taxes

Recently, attorney Adam Kraut with Firearms Industry Consulting Group, a division of Prince Law Offices, P.C., blogged about the guidance recently issued by the Directorate of Defense Trade Control (DDTC) relating to its interpretation of what constitutes manufacturing under the Arms Export Control Act (AECA) and its implementing regulations, the International Trafficking in Arms Regulations (ITAR). Although I have blogged about ITAR’s applicability to the Firearms Industry for a long time, including my 2012 article that DDTC was stepping up enforcement of ITAR against the Firearms Industry and thereafter, ATF’s notice to firearm and ammunition manufacturers that they are likely required to register, the Firearms Industry has generally responded in absolute shock to DDTC’s recent guidance that AECA/ITAR regulates the Firearms Industry, even though it has since its implementation in 1976. While some of DDTC’s guidance does go beyond AECA/ITAR, such as requiring gunsmiths to register if they’re merely threading barrels, that is a battle that will need to be fought in court, if the Firearm Industry wants to challenge DDTC.

Nevertheless, there is another, potentially more encompassing law, the Firearm and Ammunition Excise Tax (FAET), which was first imposed by the Revenue Act of 1918. You can find it at 26 U.S.C. §§ 4181-4219 and the regulations at 27 C.F.R. Part 53. It is currently enforced by a separate agency, the Alcohol and Tax Trade Bureau, although referred to as TTB.

So, if you thought it was difficult enough remembering the definition of a “firearm” or what constitutes “manufacturing” under the Gun Control Act (GCA) and now AECA/ITAR, get ready, because FAET’s definition of a firearm and manufacturing is separate and distinct. While a book could be written on the intricacies of FAET, the exemptions, and the exceptions (yes, exemptions are different from the exceptions), this article is merely intended to give the Firearms Industry a heads up that they need to ensure their compliance not just with the GCA or AECA/ITAR, but also the FAET.

The FAET provides that a tax of 10% is due on the sale price for pistols/revolvers and 11% on all other firearms and shells and cartridges. Anyone manufacturing or importing any taxable product must file quarterly with the TTB on its 5300.26 Form (except, you do NOT need to submit a return for periods where no tax is due). BUT, what is a firearm? What are shells and cartridges? And what constitutes manufacturing or importing? And there are exceptions/exemptions, right?

Firearms

As I mentioned about FAET’s definition is NOT identical to the definition found in the GCA. FAET defines a firearms as:

Any portable weapons, such as rifles, carbines, machine guns, shotguns, or fowling pieces, from which a shot, bullet, or other projectile may be discharged by an explosive.

So, if the firearm is not “portable,” it is not taxable; however, pursuant to ATF Ruling 97-2, portable means the weapon can be lifted and carrier by an average person. In that ruling, ATF found that a Model 1919 was portable.

Further, for a firearm to be taxable, it must be complete. Thus, frames and receivers are not taxable; however, selling a firearm in breakdown condition (e.g. all parts present but not assembled) does not exclude it from being a taxable firearm. (Also, don’t think that you can just sell, for example, an AR-15 without a bolt and then, three weeks later, send the customer the bolt, to avoid the tax – REMEMBER, there is a difference between tax avoidance (which is lawful) and tax evasion (which is unlawful)).

Unlike under the GCA, antique firearms ARE firearms and ARE taxable under the FAET and include matchlock, flintlock and perscussion cap firearms. Moreover, unlike the GCA, silencers/suppressors are NOT included under the FAET.

Oh and for the real kicker? Pursuant to ATF Ruling 94-6, a manufacturers own use of a firearm it manufactured for purposes of a demonstration results in a taxable occurrence. Moreover, if a manufacturer lends a firearm to a evaluator for review, such constitutes a taxable occurrence.

Shells/Cartridges

Shells and cartridges is defined in the regulations as:

Any article consisting of a projectile, explosive, and contained that is designed, assembled, and ready for use in firearms, pistols or revolvers.

Like with firearms, all components of the ammunition must be present. Hence, blank ammunition with no projectile is exempt. HOWEVER, the sale of un-assembled ammunition kits (e.g. all components present), less than lethal ammunition, marker ammunition with plastic projectiles…etc are all taxable.

Like with firearms, if a manufacturer uses its own ammunition for a demonstration or its own business purposes, it must pay the applicable tax.

Who’s a Manufacturer?

Of course, we also have to define what constitutes a manufacturer, since I already told you that it was not consistent with the GCA or AECA/ITAR. Under the FAET, a manufacturer is defined as:

Any person who produces a taxable article from scrap, salvage, or junk material, or from new or raw materials by processing, manipulating, or changing the form of an article or by combining or assembling 2 or more articles.

Hence, it is not just the manufacture of a new firearm from raw materials that results in the manufacture of a firearm; but rather, it also includes the change in the form of the firearm (or ammunition). Under Revenue Ruling 69-325, it was held that the converting of military rifles into “sport-type” rifles by removing the wooden stock, cutting off the end of the barrel and installing a new front site constituted a change in form of the firearm and resulted in the manufacture of a firearm, for purposes of the FAET.

In this vein, TTB on its publication Gunsmith Information declares that merely “[c]utting off part of the barrel of a firearm is, of itself, an act of manufacture.” (see page 2 of the publication).

However, there can be a distinction between a fabricator and a manufacturer (resulting in a drastic tax liability difference), depending on who owns the materials at the time the firearm or ammunition is to be manufactured. In some occasions, the customer, if he/she provides all the materials, can actually constitute the manufacturer of the firearm/ammunition under the FAET.

Who’s an Importer?

Of course, this article wouldn’t be complete without defining an importer, since they too come under the FAET. An importer is defined as:

Any person who brings a taxable article into the U.S. from a source outside the U.S.

Generally, the FAET focuses on who arranges for the article to be imported as a principal, not the agent.

Exemptions and Exceptions?

All the exemptions and exceptions under FAET are too numerous for this article but some of the more important and applicable ones are:

  1. Purchase by specifically enumerated military departments using appropriated funds (be cautious, not all military departments are enumerated);
  2. Sales to state or local governments (including Indian Tribal Governments and the United Nations);
  3. Sales to non-profit educational organizations (see 26 U.S.C. § 170(b)(1)(A)(ii) for a definition)
  4. Firearms subject to the National Firearms Act, where the tax is paid (be cautious SOTs, as your SOT fee is not the payment of the tax for a particular firearm. Accordingly, in some occasions, it may make more sense to pay the manufacturing tax ($200.00) on the manufacture of an NFA firearm rather than pay the 11% tax);
  5. Manufacturers of less than an aggregate of 50 pistols. revolvers, or firearms during a calendar year (this does NOT apply to manufacture of shells or cartridges); and
  6. Personal use is exempted, per 27 C.F.R. 53.112(b).

The Good Aspect to FAET?

The only good thing about FAET is that all tax revenue goes into a trust fund, which can only be used for wildlife restoration and hunter safety training.

Confused?

If you’re still confused about the FAET’s application to your situation or need to submit a request for determination to the TTB, we are here to help. Give us a call at 888-313-0416 or send us an email at Info@PrinceLaw.com.

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Firearms Law Seminar – August 6, 2016 at King Shooter Supply!

On August 6, 2016, Chief Counsel Joshua Prince and Attorney Eric Winter of Firearms Industry Consulting Group (FICG), a division of Prince Law Offices, P.C., in conjunction with King Shooters Supply, will offer a four (4) hour seminar on state and federal firearms law at their store located at  346 E Church Rd, King of Prussia, Pennsylvania 19406.

The cost is $10 and you must register early, as last time it sold out fast. You can find out further information on King Shooters Supply’s website.  To register, sign up on the website here. If there are no more spots available, the class will show out of stock. If you have questions, please feel free to contact King Shooters Supply at 610-491-9901 .

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Press Release: Chief Counsel Joshua Prince Awarded NRA Defender of Freedom Award

It is with distinct honor and privilege that we announce that Chief Counsel Joshua Prince has been awarded the National Rifle Association (NRA) 2016 Defender of Freedom Award. Recognizing his “outstanding leadership and conspicuous achievement in defend of liberty and the preservation of the Right to Keep and Bear Arms for all law-abiding citizen of the United States of America,” Executive Vice President Wayne LaPierre bestowed this great honor on Joshua.

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Please join us in congratulating Joshua in this monumental achievement.

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Pennsylvania Firearms Law Seminar – August 6, 2016 – All Donations Go To The NRA Civil Rights Defense Fund!

On August 6, 2016, Chief Counsel Joshua Prince, Attorney Eric Winter and Attorney Adam Kraut of Firearms Industry Consulting Group (FICG), a division of Prince Law Offices, P.C., in conjunction with King Shooters Supply, will offer a four (4) hour seminar from 10am to 2pm on state and federal firearms law at their store located at  346 E Church Rd, King of Prussia, Pennsylvania 19406.

The cost is $10 and all proceeds will go to the NRA Civil Rights Defense Fund (CRDF). The NRA CRDF provides and ensures legal and financial assistance to selected individuals and organizations defending their right to keep and bear arms. The also sponsor legal research and education on a wide variety of gun-related issues, including the meaning of the Second Amendment and nature of the right to keep and bear arms provision in state constitutions. Prince Law Offices has been the recipient of previous litigation funding from them. For those who are unable to attend or desire to further support the NRA CRDF, please consider making a donation to the NRA CRDF on their website.

Please make sure to register early, as last time it sold out fast. You can find out further information on King Shooters Supply’s website.  If you have questions, please feel free to contact King Shooters Supply at 610-491-9901 .

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