Tag Archives: preemption

More Pennsylvania Cities Decriminalize Marijuana Despite State Law.

With the noted exception of the current Attorney General, there is a growing acceptance of legalize use of marijuana in the United States. Thirty of the fifty states have legalized marijuana for either medical and/or recreational use. As the laws with regards to marijuana use continue to change state by state, the states which have legalized medical and/or recreational marijuana must navigate the conflict between their state law and Federal law which continues to classify marijuana as a prohibited Schedule 1 narcotic – a “harmful substance of no known medical benefit.”

The classification of marijuana as a schedule 1 drug is antiquated and patently false. However, perception and laws are hard to change. Change usually begins at a grass roots level. Within Pennsylvania, several cities have started to pass local ordinances that have decriminalized marijuana. Philadelphia, Pittsburgh, Harrisburg, Allentown, York, and, most recently, Bethlehem have all passed local ordinances essentially reducing the punishment for possession of small amounts of marijuana for personal use, typically 30 grams or less, from a crime to a summary offense subject to a fine.

These local ordinances create a perceived conflict with Pennsylvania State laws. Under Pennsylvania’s Controlled Substance, Drug Device and Cosmetic Act (“CSA”), 35 P.S. §780-113 (a)(16), no person may knowingly possess a controlled substance without a lawful prescription from a doctor. Under the CSA, marijuana is also classified a Schedule 1 controlled substance. Pennsylvania’s penalty for possession of 30 grams or less of flower or 8 grams or less of hashish is a misdemeanor punishable by 30 days in jail and/or a $500 fine. See 35 P.S. §780-113 (a)(31)(i). Possession of more than 30 grams of flower or more than 8 grams of hashish is a misdemeanor with a maximum penalty of 6-12 months incarceration and a $5,000 fine.

So which law applies and how severe can you be punished for possession of a small amount marijuana in theses cities that have decriminalized marijuana. Typically, when there is a conflict between state law and local ordinances, state law preempts the local ordinance. Some local law enforcement authority have argued the CSA preempts all of the local ordinances as they are attempts to alter the penalties under the CSA.

In Holt’s Cigar Co. v. City of Philadelphia, 608 Pa. 146 (2011), the Pennsylvania Supreme Court rejected the argument that the Controlled Substance Act prohibits local regulation in order to create uniformity in the regulation of controlled substances. In Holt’s Cigar, the Supreme Court held that the Act does not prohibit local regulations of controlled substances unless there is an “irreconcilable conflict” between the CSA and the local regulation. The proper standard for determining whether the local ordinances “irreconcilably conflicts” with the Controlled Substances Act was stated by the Supreme Court in Holt’s Cigar.

[I]t has long been the established general rule, in determining whether a conflict exists between a general and local law, that where the legislature has assumed to regulate a given course of conduct by prohibitory enactments, a municipal corporation with subordinate power to act in the matter may make such additional regulations in aid and furtherance of the purpose of the general law as may seem appropriate to the necessities of the particular locality and which are not in themselves unreasonable.

Holt’s Cigar, 608 Pa. at 154. (emphasis added).

The Holt’s Cigar decision makes it clear that local laws with a different penalty do not create an irreconcilable conflict, as long as the local law does not permit what the Act forbids or forbid what the Act permits. The Supreme Court stated that the the nature or severity of the penalties imposed is not determinative and does not eliminate the conflict arising from the discrepancy with respect to mens rea for a particular course of proscribed conduct.” Id.at 165 (emphasis added).

While Holt’s Cigar decision provides some clarity as to whether local municipalities may enact ordinances decriminalizing marijuana, person may still be punished under state laws. Usually, it will depend on the law enforcement authority that arrests and prosecutes the individual. If you are arrested by a state trooper as opposed to the local municipal police, there is a good chance you will be charged with a violation of state law. It will then be up to the local courts and prosecutors on how to proceed with charges and punishment

An interesting enforcement scenario exists in the city of Bethlehem. On June 26, 2018, the Mayor of Bethlehem signed into law Bill No. 16-2018, creating a summary offense for possession of up to 30 grams of marijuana (or eight grams of hashish), possession of marijuana paraphernalia and personal use of marijuana. Under the new law, there is a fine of $25 for a first offense, $50 for a second offense, $100 for a third offense, and $150 fourth offenses or eight hours of community service.

The problem arises with enforcement. The City of Bethlehem is divided between two counties, Lehigh and Northampton. The District Attorney of Lehigh County maintains the position that the CSA preempts local ordinance despite the fact that both Allentown and now Bethlehem – Lehigh County’s largest cities – have decriminalized possession of under 30 grams of marijuana. The District Attorney of Northampton County maintains the opposite position and will enforce the local ordinances. So it is possible you could be punished differently depending on where you are caught in Bethlehem with marijuana.

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FICG On Behalf of FOAC Files Letter In Response To Jenks Township’s Proposed Illegal Firearm Ordinance

Today, it was reported by ExploreClarion.com that Jenks Township was considering enacting an ordinance prohibiting the discharge of firearms in the township.

 

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As a result, Firearms Industry Consulting Group® (FICG®), a division of Civil Rights Defense Firm, P.C., on behalf of its client, Firearm Owners Against Crime (FOAC), filed a letter in opposition to the proposal; wherein, Chief Counsel Joshua Prince explains the constitutional and statutory protections and case law precluding such regulation. In the event Jenks Township moves forward with the proposal, FOAC is prepared to file a legal challenge against the Township and request the District Attorney to file criminal charges for violations of Section 6120.

If you would like to donate to support this matter, Civil Rights Defense Firm, P.C. would greatly appreciate donations, which can be made online through the Firm’s escrow account here – https://secure.lawpay.com/pages/civilrightsdefensefirm/trust. Simply place FOAC v. Jenks Township  in the reference box.

If you or someone you know has been the victim of an unlawful municipal firearm or ammunition regulation or ordinance, 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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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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Montgomery District Attorney Requested to Investigate and Charge Lower Merion Township for Proposed Firearm Regulation

As our viewers are aware, we became aware on August 30, 2017, that at its upcoming September 19th meeting, Lower Merion Township is considering a new firearm discharge ordinance, even after the Commonwealth Court struck down its current discharge ordinance and held that municipalities may not regulate discharge.

As a result, in a letter sent today, Attorney Joshua Prince formally requested that Montgomery County District Attorney Kevin Steele open an investigation into this matter and file appropriate charges, including for violations of Section 6120 and official oppression.

We hope that District Attorney Steele will take a proactive approach, similar to that of Lancaster County District Attorney Crag Stedman, who recently sent out letters to all law enforcement agencies in Lancaster County advising that municipal regulation of firearms and ammunition is unlawful. Regardless, we would again urge everyone, especially residents and taxpayers in Lower Merion Township, to make the Commissioners aware of your position. The hearing on September 19th will start at 7:30 PM at Township Administration Bldg – 2nd Floor Board Room, 75 East Lancaster Ave, 2nd Floor Board Room Ardmore, Pennsylvania 19003-2323. Their telephone number is 610-649-4000 and you can contact the individual commissioners here.

If your rights have been violated by an illegal firearm or ammunition ordinance or regulation promulgated by a state agency, county, municipality or township, 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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Lower Merion Township Considering Unlawful Firearm Regulation After Losing On The Same Basis – Taxpayers To Be On The Hook!

Today, I became aware that Lower Merion Township is considering a new, unlawful firearm discharge regulation, after having their current discharge provision ruled unlawful by the Commonwealth Court and denied review by the Pennsylvania Supreme Court in Firearm Owners Against Crime, et al. v. Lower Merion Township, 151 A.3d 1172 (Pa. Cmwlth. Ct. 2016) (petition for allocatur denied July 11, 2017).

The new, unlawful proposed ordinance provides, in part:

Section 1. The Code of the Township of Lower Merion, Chapter 109 thereof, entitled Parks and Playgrounds, § 109-16, Firearms; fireworks, shall be amended to provide as follows:

§ 109-16. Discharge of a firearm or bow; dangerous athletic implements; fireworks. Township parks shall be posted to prohibit the discharge of a firearm or bow except where authorized by the Board of Commissioners. The promiscuous use in a park of javelins, discuses or similar athletic equipment dangerous in character is prohibited unless used under the direct supervision of an authorized playground supervisor. The use of firecrackers, fireworks or rockets in a park is prohibited.

The proposal is scheduled be voted on September 19, 2017. Unfortunately, it looks like the taxpayers will further be on the hook, if this ordinance is passed for substantial attorney fees and costs. Although I have not received updated amounts of fees incurred by Lower Merion Township in relation to the FOAC, et al v. Lower Merion Township litigation, as I previously wrote, the insurance company denied coverage, stating:

The POL Coverage Part of the applicable Trust Coverage Document does not provide coverage for the Township in this matter because the plaintiffs are not seeking to recover compensatory damages, but only declaratory and injunctive relief, and because the plaintiffs have alleged in their Complaint that the Township willfully violated 18 Pa. C.S. §6120 and otherwise engaged in willful misconduct in refusing to amend or repeal the allegedly illegal ordinances. The Trust therefore respectfully declines coverage and requests that the Township retain defense counsel at its own expense in this matter.

Accordingly, everyone, especially residents and taxpayers in Lower Merion Township, should make the Commissioners aware of your position. The hearing on September 19th will start at 7:30 PM at Township Administration Bldg – 2nd Floor Board Room, 75 East Lancaster Ave, 2nd Floor Board Room Ardmore, Pennsylvania 19003-2323. Their telephone number is 610-649-4000 and you can contact the individual commissioners here.

If your rights have been violated by an illegal firearm or ammunition ordinance or regulation promulgated by a state agency, county, municipality or township, 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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District Attorney Stedman Issues Firearm Preemption Letter

Today, I obtained a copy of a letter that Lancaster County District Attorney Craig Stedman issued regarding unlawful ordinances in violation of Pennsylvania’s preemption statute, which was sent to all the police departments in Lancaster County, as a result of my recent success in Firearm Owners Against Crime (FOAC) v. Lower Merion Township.

As our viewers are aware, 18 Pa.C.S. § 6120 provides, inter alia,

No county, municipality or township may in any manner regulate the lawful ownership, possession, transfer or transportation of firearms, ammunition or ammunition components when carried or transported for purposes not prohibited by the laws of this Commonwealth.

The case law, including from the Pennsylvania Supreme Court, has been “crystal clear” than only the General Assembly can regulate firearms and ammunition, as the entire field is preempted. See, Nat’l Rifle Ass’n v. City of Philadelphia, 977 A.2d 78, 82 (Pa. Cmwlth. 2009). In FOAC v. Lower Merion Township, the Commonwealth Court held that, inter alia, the township’s discharge ordinance was unlawful due to state preemption. See, FOAC v. Lower Merion Township, 151 A.3d 1172 (Pa. Cmwlth. Ct. 2016) (petition for allocatur denied July 11, 2017 ).

As a result, District Attorney Stedman issued a letter to all Lancaster County police departments reminding them than any local ordinances regulating firearms and ammunition are unlawful. Specifically, he unequivocally stated:

The Pennsylvania Commonwealth Court held, appropriately, that any such county, municipal, or township ordinance designed to regulate firearms is specifically preempted by the Pennsylvania Constitution and 18 § 6120 of the Uniform Firearms Act. (emphasis added)

And that

the Pennsylvania Supreme Court has clearly denied all municipalities the power to regulate firearms and the Uniform Firearms Act prohibits a township from regulation concerning the ownership, possession, transfer or transportation of firearms or ammunition “in any manner”, to include ordinances on parks. (emphasis added).

Because of District Attorney Stedman’s prior commitment and dedication to the Second Amendment and Article 1, Section 21, I previously endorsed him for Judge of the Superior Court and this letter has only solidified in my mind that my prior endorsement was proper.

As such, I am respectfully asking that you vote for him in November to ensure that our inalienable rights are protected.

To learn more about Craig Stedman for Superior Court, check out his website and Facebook page. Obviously, if you are in a financial position to be able to donate to his campaign, I am sure he would greatly appreciate support!

If your rights have been violated by an illegal firearm or ammunition ordinance or regulation promulgated by a state agency, county, municipality or township, 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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South Heidelberg Township To Require Firearm Renters To Do What?!?!

Over the weekend, it was reported by Reporter Keith Dmochowski of the Reading Eagle that during the South Heidelberg Township Board of Supervisors meeting on Thursday, August 10th, the Board of Supervisors agreed to require C.P. Tactical Solutions Inc. to enter into “a written agreement requiring background checks for gun rentals.” The article goes on to declare:

Solicitor Michael Gombar said that holding C.P. Tactical Solutions Inc. to a signed pledge will ensure that firearms are rented responsibly, despite the fact that background screenings for firearm rentals are not mandated by the township.

More interestingly, Solicitor Gombar further stated, in relation to a question as to why the Township hasn’t enacted an ordinance requiring such background checks of all firearm businesses, that

[t]he concern with putting anything into law is not necessarily that this company will not abide by it, but that the NRA and other gun-rights lobbies make it their point to find municipalities that are setting regulations, and fight them.

Nevertheless, Solicitor Gombar went on to declare that:

the terms of the agreement would allow police and code officers to perform random checks as a safeguard against potential violations…[and] that legal action would be pursued if the shop fails to provide background checks after signing the agreement. (emphasis added).

As a result, Firearms Industry Consulting Group® (FICG®), a division of Civil Rights Defense Firm, P.C., filed a letter on behalf of its client, Firearm Owners Against Crime (FOAC), advising that any such agreement would result in felony and misdemeanor violations under the law and that FOAC was considering legal action, if the Township proceeded with the agreement. It appears that Solicitor Gombar and the elected Township Officials have failed to review federal and state law, both of which preclude the use of the background checks system (NICS and PICS, respectively), except in relation to the sale or transfer of ownership of a firearm. As an onsite firearm rental does not constitute a sale or transfer of a firearm, any use of NICS or PICS would be abusive and result in violations of federal and state law. They also appear unaware of the confidentiality provisions of Pennsylvania law, which also provide for civil liability, where confidentiality is breached.

If you or someone you know has been the victim of an unlawful municipal firearm or ammunition regulation or ordinance, 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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