Tag Archives: license to carry firearms

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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PSP Illegally Disclosing LTCF Information Through NCIC

Over the past couple days, I have received several reports, one from a 911 dispatcher, that approximately 3 days ago, an update was completed to the NCIC system, whereby when an officer in Pennsylvania runs an individual’s driver’s license, if the individual has a license to carry firearms (LTCF), the information relating to the individual’s LTCF is disclosed to the officer and everyone in the call center. This is in violation of the law.

18 Pa.C.S. § 6111(g)(3.1) provides:

Any person, licensed dealer, licensed manufacturer or licensed importer who knowingly and intentionally obtains or furnishes information collected or maintained pursuant to section 6109 [LTCF firearms information] 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. (Emphasis added)

Further, 18 Pa.C.S. § 6111(i) provides, in pertinent part:

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, licensed dealer, 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.

While there has always been an offline database that an officer could query if he/she had reasonable suspicion of a crime relating to the carrying of a firearm or the validity of a LTCF, there is no legal basis for disclosure of confidential LTCF information relative to a driving infraction or merely running one’s driver’s license. Furthermore, even if there was, it is illegal to disclose this information to individuals other than a law enforcement officer acting in the scope of his/her duties. As I understand the new system, it is being relayed to emergency responders, which may even include tow truck drivers that are part of the system.

If you have more information on this new system, please let us know. We will continue to keep our viewers apprised as we learn more.

If you confidential LTCF information has been disclosed, contact us today to discuss your options!

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Attorney General Kane Publishes Report on LTCF Reciprocity Agreements

Today, Pennsylvania Attorney General Kathleen Kane, pursuant to 18 Pa.C.S. 6109(k)(2), published the required annual report on license to carry firearm (LTCF) reciprocity agreements for 2015. You can find a copy here.

Interestingly, although I am acutely aware that Idaho has been reaching out to the Attorney General’s Office for purpose of entering into a reciprocity agreement and I wrote an article last year on whether AG Kane was misleading the General Assembly by failing to disclose the contact with Idaho in her report, once again, this year the Report is silent about Idaho.

Hopefully, the General Assembly will inquire of her as to why we do not have a reciprocity agreement with Idaho.

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Monumental Decision from Commonwealth Court on Confidentiality of License to Carry Firearms Applicant Information

On Friday, May 20th, 2016, the Commonwealth Court issued a monumental decision in John Doe, et al., v. Franklin County, et al., 1634 C.D. 2015, a case that I litigated, where it declared that the disclosure of license to carry firearms (“LTCF”) applicant information to anyone other than law enforcement acting within the scope of their official duties or the applicant (or someone approved by the applicant) violates 18 Pa.C.S. 6111(i), which results 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.”

In a 45 page decision, which reviewed, inter alia, the history of Section 6111(i), the constitutionality of its enactment, the Pennsylvania State Police’s own regulations relating to it and whether a Sheriff can claim High Public Official Immunity in relation to it, the Commonwealth Court declared

“any person, licensed dealer, State or local governmental agency or department” violates Section 6111(i) of the UFA by revealing an “applicant’s name or identity” to a person not (1) authorized to receive such information by statute; (2) involved in the operation or management of the sheriff’s office; (3) representing a law enforcement or criminal justice agency; or (4) otherwise authorized by an applicant. Any other interpretation of Section 6111(i) of the UFA where a License applicant’s confidentiality is not safeguarded would be inconsistent with the UFA’s purpose and structure.

The Court also found that Defendants’ challenge to the constitutionality of how Section 6111(i) was enacted was untimely whether under the doctrine of laches, as Plaintiffs argued, or whether under the Pennsylvania Supreme Court’s decision in Sernovitz v. Dershaw. Accordingly, although Plaintiffs additionally argued that Section 6111(i) was constitutionally enacted, the Court stated that due to the failure of Defendants, or any other party, to bring a challenge regarding its enactment in the past 18 years, any challenge was now untimely.

Furthermore, the Court found that the Sheriff was not entitled to High Public Official Immunity pursuant to Section 6111(i) and therefore declined to consider whether High Public Official Immunity is unconstitutional pursuant to Art 1, Section 11 of the Pennsylvania Constitution, as Plaintiffs had additionally argued.

Unfortunately, although 18 Pa.C.S. 6109(h) explicitly states that $1.50 of the fee paid is for purposes of the issuing authority sending the renewal notice, the Court declined to find that a civil cause of action exists for a Sheriff’s failure to issue renewal notices. Although the Plaintiffs brought a common law claim for breach of fiduciary duties, the Court found the Defendants were protected from that claim by the Political Tort Claims Subdivision Act.

While I am disappointed with certain determinations of the Court, I was pleased to see that many of my arguments and research were utilized by the Court in its decision and that it reached the proper conclusion regarding the confidentiality of LTCF applicant information.

If your confidential LTCF information was disclosed in some manner, whether via postcard, sign-in sheet or otherwise, contact us today so we can discuss your rights. You can reach us at info@princelaw.com or 888-313-0416.

 

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Montgomery County Sheriff Sean Kilkenny Does Away With Unlawful Local Police Checks for LTCF Applicants!

Newly-elected Montgomery County Sheriff Sean Kilkenny has rescinded the unlawful practice of requiring the Local Police Check Card for License to Carry Firearms (LTCF) applications that was imposed by previous sheriffs. I was alerted to the change in police from a Facebook posting by the Lower Pottsgrove Township Police Department.

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Earlier this month I had sent the new Sheriff a letter asking that he review the policies and practices of the outgoing Sheriff Bono. I specifically requested Sheriff Kilkenny look into the unlawful practice of requiring references on the application as well as the Local Police Check Card.

I had the opportunity to speak with the Sheriff’s Solicitor earlier this morning. He did state that the Sheriff was reviewing the policies and procedures of the office and will be making changes. I was informed they were reviewing the practice of requiring references on the applications.

While new to the position of Sheriff, it appears that Sheriff Kilkenny is wasting no time in reviewing the policies and procedures of the office and making the appropriate changes. Join me in thanking Sheriff Kilkenny in reversing a longstanding unlawful practice that placed an additional burden on individuals in Montgomery County seeking LTCFs.

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U.S. Supreme Court Asked to Hear Another Second Amendment Case

Today attorney Tom Odom of Prince Law Offices, P.C., will file with the U.S. Supreme Court a brief on behalf of Firearms Owners Against Crime (“FOAC”) and Firearms Industry Consulting Group (“FICG”), in support of the request of Tab Bonidy and the National Association for Gun Rights to review a decision of the U.S. Court of Appeals for the Tenth Circuit.

Bonidy is a responsible, law-abiding citizen with a permit to carry a firearm who lives in rural Colorado.  Like millions of other Americans, he obtained such a permit so that he might be prepared to defend himself outside of his home.  When the U.S. Postal Service advised Bonidy that he would be subject to prosecution simply for momentarily storing his firearm in the trunk of his vehicle in an unsecured parking lot made available for postal patrons, Bonidy sought a determination that applying the postal regulation to him under such circumstances would violate the Second Amendment.

The area where Bonidy lives is sufficiently rural that there is no home delivery of mail, the lobby of the post office is open to the public at all times so that individuals may retrieve mail from their post office boxes, and the post office does not maintain any regular security employees.  Nonetheless, the Tenth Circuit stated that both the lobby and the unsecured parking lot where Bonidy proposed to lock the firearm in the trunk of his vehicle constituted “secure places” beyond the scope of the Second Amendment right articulated by the U.S. Supreme Court in District of Columbia v. Heller, 554 U.S. 570 (2008).

In the belief that Bonidy’s case presents a superior opportunity for the U.S. Supreme Court to make clear that the Second Amendment is not exclusively limited to self-defense within one’s own home, FICG prepared the brief in support of Bonidy’s petition for certiorari on a pro bono basis.  FOAC joined in the effort and covered the cost of the printing of the briefs.

The decision below was reported as Bonidy v. United States Postal Service, 790 F.3d 1121 (10th Cir. 2015).  The U.S. Supreme Court docket number is 15-746.  Here is a link to the brief filed with the court.

UPDATE: On behalf of the U.S. Postal Service the Solicitor General (“SG”) requested and was granted additional time to file a brief in opposition to U.S. Supreme Court review. While the SG’s position is not surprising, the fact that the SG will file a brief at this stage indicates concern that the case could represent one of the 3% or so requests for review that the Court grants.

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