Tag Archives: Pennsylvania State Police

PSP is Denying Firearm Purchases for Medical Marijuana Card Holders, even after Governor Wolf stated that “We Won’t Take Guns Away”

Although Pennsylvania Governor Tom Wolf recently declared that “[w]e won’t take gun away” from medical marijuana users, the Pennsylvania State Police (“PSP”) has not received the memo, as we have seen several instances where individuals who merely obtained a medical marijuana card – in the absence of actual use – have been denied by the PSP.

Specifically, starting in at least early December, the PSP began placing individuals who are medical marijuana licensees into “undetermined status,” when they attempted to purchase a firearm. If the individual challenged the determination through a Pennsylvania Instant Check System Challenge, the PSP responds that the basis is that the individual is a “Current Medical Marijuana Card Holder.”

PSP Marijuana Response

This obviously begs the question of how this information came into the possession of the PSP, since pursuant to Pennsylvania’s Medical Marijuana Act, 35 P.S. § 10231.101, et seq., and more specifically, 35 P.S. § 10231.302, all patient applicant information is confidential and not subject to disclosure. Furthermore, the implementing regulation relating to the confidentiality provision, 28 Pa. Code § 1141.22,  explicitly states that “[t]he name or other personal identifying information of a patient … who applies for or is issued an identification card” is confidential and “will not otherwise be released to a person unless pursuant to court order.” As the application is submitted to the Pennsylvania Department of Health, only the Department of Health should have access to this information, absent a court order.

As I am sure litigation will ensue, we just may find out, at some point, how the PSP obtained this confidential information.

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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Pennsylvania State Police Reiterate ATF Position on Medicinal Marijuana

marijuana

It should come to no surprise that the Pennsylvania State Police (“PSP”) have issued a position statement in relation to Pennsylvania’s new card carrying medicinal marijuana users. Once again, individuals who seek to use marijuana for medicinal purposes are forced to choose between the comfort they find in medicine or their constitutional rights.

Marijuana is still a Schedule I narcotic under federal law, which means that regardless of what state law says, at the federal level, it is still illegal to possess. Medicinal marijuana has grown in popularity since California legalized it in 1996 with a majority of states legalizing it in some form. However, the federal government has not taken any action to legalize it for medicinal purposes and DEA recently declined to reclassify it.

Medical marijuana card holders in Pennsylvania should take note of the following. It has been ATF’s position since 2011, that if an individual is merely in possession of a medical marijuana card, they are prohibited from purchasing a firearm. This is based on the theory that the transferor would have “reasonable cause to believe” that the person is an “unlawful user or addicted to a controlled substance.” In other words, it could be inferred that you fit that category by merely possessing a license, regardless of whether you obtained it for actual use or a political statement.

The statement also tells individuals that “[i]t is unlawful for you to attempt to purchase a firearm under Federal law and you will be denied during your Pennsylvania State Police background check, due to prohibitions under 18 U.S.C. § 922(g)(3),” which would seem to suggest that the information of medical marijuana users will be contained in the PSP’s central repository of information and/or sent to NICS.

IMPORTANT NOTE: I have not researched the medical marijuana law to see if that is the case or whether there are HIPAA concerns, etc., this is just a theory.

The PSP also states that an individual is unable to lawfully obtain a License to Carry Firearms (“LTCF”) and that “[t]he sheriff should not process your application if you truthfully indicate to the sheriff that you are the holder of a Medical Marijuana Card.” Moreover, the PSP continue to say “you will be denied during the Pennsylvania State Police background check, which occurs as part of the LTC application or renewal process,” again suggesting information pertaining to medical marijuana users are retained by the PSP and/or transmitted to NICS.

Perhaps most interesting about the PSP’s statement is this

It is unlawful for you to keep possession of any firearms which you owned or had in your possession prior to obtaining a Medical Marijuana Card, and you should consult an attorney about the best way to dispose of your firearms.  Again, this is due to prohibitions under 18 U.S.C. § 922(g)(3).

Essentially, PSP is contending that you are an unlawful user of a controlled substance if you obtain a medical marijuana card. However, possession of a card does not automatically equate to the use of the substance. So for individuals who seek to obtain a medical marijuana card for a political statement, be aware of the PSP’s position on the matter. That is one that will eventually require litigation.

 

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PSP Issues Notice to Act 235 Agents Regarding the Anderson Decision

As our viewers are aware, in August of this year, a devastating en banc opinion was issued by the Pennsylvania Superior Court in Commonwealth v. Anderson, where it ruled that an individual who is Act 235 certified is not entitled to carry a firearm to and from work, absent a license to carry firearms, regardless of the language in Act 235 that requires a private security guard carry his/her certificate when “on duty or going to and from duty and carrying a lethal weapon.”

Today, the Pennsylvania State Police issued a notice to all Act 235 agents informing them of the decision and stating that it would be advisable for them to obtain a license to carry firearms. Specifically, the email notification declares:

Dear _____,
Please note that in August 2017, the Pennsylvania Superior Court issued an opinion in Commonwealth v. Anderson, ___ A.3d ___ (Aug. 23, 2017), and ruled that an Act 235 certification is not a substitute for a license to carry. Agents are reminded of the Regulations governing Act 235, at Section 21.26(d), which state “The issuance of a certification card to a privately employed agent does not grant the agent the right or privilege to carry, possess, own, or have under his control a firearm contrary to 18 Pa.C.S. § § 6101—6120 (relating to Uniform Firearms Act).” In light of this ruling, it may be prudent for agents to obtain a license to carry their firearms while in an off-duty status, including traveling to and from places of employment, or in instances where agents are required to conceal a firearm on duty, including loaded carry inside of a vehicle. Agents should direct questions regarding this to their employers.
Sincerely,

Major Troy S. Lokhaiser
Executive Director

As I originally stated in the blog article from August 24th, if you are an Act 235 security guard, it is now imperative that you obtain a license to carry firearms, immediately. Likewise, if you are a law enforcement officer, including constable, sheriff, deputy or police officer, even a Pennsylvania State Trooper, you must immediately obtain a license to carry firearms, based on the Superior Court’s decision in Anderson.

If you or someone you know is being prosecuted for carrying a firearm absent a license to carry firearms, contact FICG today to discuss your 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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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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PSP PICS System Stripped of Funding for 2017-2018

At midnight last night, in the absence of Governor Wolf taking any action, HB 218 became law, which, inter alia, stripped the Pennsylvania State Police of the $4,575,000 of additional funding sought by the PSP for the Pennsylvania Instant Check System (PICS) for 2017-2018.

HB-0218-PICS_Budget_Appropriation-17-06-29-ZERO

As you can see, although the PSP putatively did not have any remaining PICS funds from the 2016-2017 budget (unlike every other appropriation), the PSP has $9.8 million in a restricted account, just for use for PICS and which was generated from PICS. So much for PSP’s argument that they lose money in relation to PICS. I also have on good information that $3.3 million of the $9.8 million was just added last year. Requests for more information regarding the receipt of funds to this restricted account have been requested.

While some savvy individuals reviewing HB 218 might point to the $8,757,000 seemingly being appropriated for the “Firearm Records Check Fund,” it is important to explain that such is the removal of that amount from the PSP’s restricted account, reducing it from $9.8 million to approximately $1 million.

It is time for the citizens of Pennsylvania to stop paying millions of dollars, each year, for a broken and duplicative system, when the FBI offer NICS to us for free.

 

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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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ALERT – PA FFLs, PSP Has No Authority To Conduct Inspections

It has recently come to my attention that the Pennsylvania State Police (PSP) is conducting compliance inspections of PA Federal Firearms Licensees (FFLs) without warrants. Unlike the federal law provision found in 18 U.S.C. 923(g)(1)(B)(ii) that provides ATF with the authority to conduct a compliance inspection once every 12 months without a warrant, no similar provision exists in Pennsylvania law. Further, unlike with a Federal Firearms License, where the ATF issues the FFL, in Pennsylvania, it is the county sheriff that issues the Pennsylvania firearms sales license, not the PSP.

Accordingly, the PSP has no authority or jurisdiction, absent a lawfully executed warrant or your consent, to inspect your records or premise. If the PSP comes to your store and demands to review your records, you should immediately inform them that you do not consent to a search of your premise or records and request that they produce a warrant. You should also immediately contact an attorney for representation and anticipate ATF to conduct a compliance inspection in the near future.

If you or a FFL you know is approached by the PSP, you should immediately contact us so that we can ensure your rights are protected. Remember, Rule 1 is never speak with the police and Rule 2 is never consent to a search, even if you believe your records to have been maintained in strict compliance.

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