Tag Archives: PSP

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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Berks County DA Dismisses Charges in Relation to Putative Domestic Violence

This week, attorney Jorge Pereira, in conjunction with Chief Counsel Joshua Prince, was successful in having the Berks County District Attorney dismiss felony charges against a client in relation to him putatively providing false information on an application to purchase a firearm as a result of a prior conviction, which the Pennsylvania State Police (PSP) erroneously contended was related to domestic violence.

In this matter, the client previously pleaded guilty to a crime involving physical contact; however, as documented in all of the court filings in that matter, the physical contact was in relation to a woman who was a former girlfriend at the time the incident occurred.  Pursuant to 18 U.S.C § 921(a)(33)(A), for a crime to constitute domestic violence, it must be “committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim.”

As the client was never married to, shared a child with or cohabited with the victim, and the victim was not a girlfriend of the client at the time, the conviction was not the result of domestic violence. Although the PSP erroneously denied him, the Berks County DA agreed that he was not prohibited under state or federal law, as it was not a crime of domestic violence, and moved to have the charges dismissed.

In these situations, it is imperative to have counsel that understands the subtle differences in the statutory and regulatory law to ensure that your rights are protected. If you, your family members or friends are ever charged with any crimes or have firearms law issues, we are here to help defend YOUR rights. Contact us today!

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Police Recordings and the Right to Know Law

Earlier this month, Attorney Allen Thompson authored a post Yes, You Can Record Police Officers During The Course of Their Official Duty. The following day, the Commonwealth Court of Pennsylvania released its decision in Pennsylvania State Police v. Grove, 1146 C.D. 2014. The primary issue in Grove was whether the video recordings of interactions between law enforcement officers and members of the public in a public place were exempt from disclosure under the Right to Know Law (RTKL).

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Grove had requested a copy of the police report and any video and/or audio taken by the officers at the site of an accident. The Pennsylvania State Police (PSP) denied the request for video and/or audio recordings claiming those recordings were exempt as records “pertaining to audio recordings, telephone or radio transmissions received by emergency dispatch personnel, including 911 recordings,” under Section 708(b)(18)(i) of the RTKL. In its denial, the PSP provided a verification that gave no description of the video or audio or the nature or purpose of the records, but only concluded that they were exempt from disclosure.

Grove appealed the decision to the Office of Open Records (OOR), the administrative agency that handles RTKL appeals. The OOR issued a final determination ordering the PSP to provide copies of the recordings to Grove, as the verification that PSP submitted was not sufficient to show the recordings were records exempt under Section 708(b)(18)(i). The PSP appealed the decision to the Commonwealth Court.

The Court, exercising its discretion to permit a party to enlarge the record on appeal and consider additional evidence, allowed the PSP to submit an affidavit. The affidavit established that there were two video recordings responsive to Grove’s request. Id. at 5. The first recording had no audio component, while the second one did. The second recording included interviews of the two drivers and bystanders regarding the accident. Id.

psp stop

More importantly, the affidavit set forth how the recording system is operated and the guidelines for its use. The recording equipment is activated and begins recording when a trooper activates his emergency lights or sirens. PSPs internal field regulations state that the equipment is to be used to document investigative work and also to record traffic and criminal stops, in-progress vehicle and crimes code violations, police pursuits, patrol vehicle travel when lights and sirens are activated, prison transports and other incidents the member deems appropriate while acting in performance of their duties. Id. at 6.

The PSP argued that the recordings were exempt from disclosure under Section 708(b)(16)(i) of the RTKL, which provides for the exemption of:

 A record of an agency relating to or resulting in a criminal investigation, including:

(i) Complaints of potential criminal conduct other than a private criminal complaint.

(ii) Investigative materials, notes, correspondence, videos and reports.

(iii) A record that includes the identity of a confidential source or the identity of a suspect who has not been charged with an offense to whom confidentiality has been promised.

(iv) A record that includes information made confidential by law or court order.

(v) Victim information, including any information that would jeopardize the safety of the victim.

(vi) A record that, if disclosed, would do any of the following:

(A) Reveal the institution, progress or result of a criminal investigation, except the filing of criminal charges.

(B) Deprive a person of the right to a fair trial or an impartial adjudication.

(C) Impair the ability to locate a defendant or codefendant.

(D) Hinder an agency’s ability to secure an arrest, prosecution or conviction.

(E) Endanger the life or physical safety of an individual.

This paragraph shall not apply to information contained in a police blotter as defined in 18 Pa.C.S. § 9102 (relating to definitions) and utilized or maintained by the Pennsylvania State Police, local, campus, transit or port authority police department or other law enforcement agency or in a traffic report except as provided under 75 Pa.C.S. § 3754(b)(relating to accident prevention investigations).

The PSP argued that the recordings are “criminal investigative records because the accident to which they relate resulted in traffic citations, which are summary criminal offenses, and because one of the troopers investigated the accident before issuing the citations.” Id. at 8. The Court disagreed, finding that the PSP’s evidence demonstrated the recordings were “created to document troopers’ performance of their duties in responding to emergencies and in their interactions with members of the public, not merely or primarily to document, assemble or report on evidence of a crime or possible crime.” Id. at 9. Furthermore, the PSP uses the recordings to “document the entire interaction and actions of the trooper, including actions which have no investigative content, such as directions to motorists in a traffic stop or at an accident scene, police pursuits, and prisoner transports.” Id. The Court concluded that therefore the recordings were not investigative material or videos, investigative information or records relating or resulting in a criminal investigation exempt under Section 708(b)(16).

The Court did agree that some of the information contained on the recordings in this instance, such as witness interviews, are investigative information exempt from disclosure by Section 708(b)(16). However, that doesn’t prevent PSP from having to produce the record, they must do so with the information redacted. Id. at 10.

As such, even the video and audio recordings that the PSP make in the performance of their duties may be available under a RTKL request.

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Roses are Red, Violets are Blue, You’re a Trustee, So No Background Check For You!

In late March, I wrote an article questioning whether ATF directed FFLs to abuse the NICS system in “requiring” a background check on a trustee to be performed on the transfer of a silencer to a trust. Furthermore, I contended that a Pennsylvania FFL who utilized the PICS system to perform such a check was committing a felony of the third degree under state law.

nics

To my knowledge there is a legal service, who will remain unnamed, that advised Pennsylvania based FFLs to stop transferring silencers to trusts relying on the Dakota Silencer letter that had been published. Relying on the faulty logic that ATF utilized, the legal service concluded that because a trust is not defined as a person under the Gun Control Act of 1968, a trustee must undergo a background check in order to have the silencer transferred from the Pennsylvania FFL to the trustee. I am aware of several Pennsylvania FFLs who have either stopped transferring silencers to trustees or have required that individuals undergo background checks.

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Prior to the writing of the article I had submitted a Right to Know Law Request to the Pennsylvania State Police asking for:

…all records, including but not limited to, any and all communications (either internal or external), determinations, notes, documents, records, etc. regarding gun/firearms trusts and the Uniform Firearms Act 18 Pa.C.S. 6101, et seq. and whether a background check being performed on a trustee purchasing or receiving a transfer on behalf of the trust is necessary.

I received a response today granting my request in part and denying it in part. The denial was merely based on personal identifying information (phone numbers and email addresses which were redacted). You can find the documents here.

The response includes a chain of emails between Christopher Clark of the Pennsylvania State Police and Susan B. Whitman of ATF. Mr. Clark inquires of Mrs. Whitman whether “ATF requires a NICS check on a trustee picking up a silencer on behalf of a trust”.

Mrs. Whitman replies:

No, ATF does not require a PICS/NICS check or a silencer/suppressor or a NFA firearm. PSP requires a PICS check on all firearms including NFA firearms. Silencer/Suppressors do not meet the PA state definition of firearm.

(Emphasis added, misspellings original).

Mr. Clark then asks if it makes a difference if it is being transferred to a trust or corporation and that he received a call from an attorney who indicated to him that ATF told him there has to be a background check when it involves a trust.

Mrs. Whitman responds:

An ATF Form 4473 is required, but the NICS is not required if the firearm/silencer is subject to the provisions of the National Firearms Act (NFA) and has been approved for transfer. The licensee must keep an ATF Form 4473 on file for all NFA transfers.

Under PA State law, all firearm transfers/sales between licensees require a PICS, therefore the ATF Form 4473 for the NFA firearms would include completing the NICS section and conducting a PICS background check.

(Emphasis added).

atf reference

A look at the FAQs in the newest edition of the ATF’s Federal Firearms Regulations Reference Guide (Revised September 2014) has an entry P18: “Are there transfers that are exempt from the NICS background check requirement?” The answer in the guide is rather telling.

Firearm transfers are exempt from the requirement for a NICS background check in three situations. These include transfers: (1) to transferees having a State permit that has been recognized by ATF as an alternative to a NICS check; (2) of National Firearms Act weapons to persons approved by ATF; and (3) certi­fied by ATF as exempt because compli­ance with the NICS background check requirement is impracticable.

[18 U.S.C. 922(t); 27 CFR 478.102(d)]

(Emphasis added). ATF states in its Federal Firearms Regulations Reference Guide, which was updated after the letter sent to Dakota Silencer, that no NICS check is required for a NFA firearm to a person approved by ATF. Since all NFA firearm transfers have to be approved by ATF, there is only one conclusion to draw. No NICS check is required. Period.

Furthermore, the citation to the Brady Bill language in 18 U.S.C. 922 at the bottom of the FAQ references the same provision I cited in my previous article on the subject. The regulation that is referenced states:

(d) Exceptions to NICS check. The provisions of paragraph (a) of this section shall not apply if—…

(2) The firearm is subject to the provisions of the National Firearms Act and has been approved for transfer under 27 CFR part 479…

 

UPDATE:

As there have been some emails and comments on this post, it is appropriate to update it so there is no confusion. In PA and from what I understand, several other states, the definition of a firearm does not include a silencer. However, in PA SBRs, SBSs, Machine Guns and AOWs would require a FFL to conduct a PICS check as the definition of firearm would include those items. I apologize if anyone was misled. This was strictly in the context of a silencer. As always, consult with your legal counsel before making any decisions.

 

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