MONUMENTAL Decision – Pennsylvania STate Police ENJOINED From Enforcing Aspects of Act 235 – PA’s Lethal Weapons Act By: Joshua Prince, Esq.

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Today, Chief Counsel Joshua Prince, assisted by Attorney Dillon Harris, secured a monumental decision by the Pennsylvania Commonwealth Court, wherein the Court enjoined Pennsylvania State Police Commissioner Evanchick and the Pennsylvania State Police from enforcing their unlawful policy contending that a conviction for simple assault was prohibiting for Act 235 certification.

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First, in dismissing PSP Commisioner Evanchick’s application to stay the matter based on the exhaustion of administrative remedies, the Court found that Mr. Fick met two exceptions to the exhaustion doctrine. Specifically, as he challenged the constitutionality of Act 235 and the PSP’s implementation of it, as well as the fact that the administrative hearing process cannot provide Mr. Fick with the relief he seeks, the exhaustion doctrine does not apply.

Second, in turning to the Application for a Preliminary Injunction, in relation to the right to relief being clear prong, the Court declared that since “Act 235 does not define ‘crime of violence’ and does not expressly delegate authority to PSP to create a definition,” the PSP’s “broad regulatory definition is unlawful, because it appears plainly inconsistent with the unambiguous intent of the General Assembly: that not merely a ‘crime,’ but a ‘crime of violence,’ is disqualifying for Act 235.”

The Court went on to declare that even if, arguendo, the PSP’s broad regulatory definition was generally lawful, Mr. Fick would likely be successful in his contention that “Act 235 is an unconstitutional delegation of legislative authority to PSP,” especially in light of the fact that that there is no “‘adequate standard’ to guide PSP’s discretion in determining whom to disqualify.”

In turning the the immediate and irreparable harm prong, the Court acknowledged that statutory and constitutional violations are per se immediate and irreparable harm.

Thereafter, turning to the balancing of harms and public interest prongs, the Court declared “‘the argument that a violation of law can be a benefit to the public is without merit,’ and once the General Assembly has prohibited conduct, ‘it is tantamount in law to calling it injurious to the public.'” Then, in turning to the “status quo” prong, the Court declared that such was “prior to PSP’s arguably unlawful application of the ‘any other crimes’ clause to Petitioner’s simple assault conviction.”

Thereafter, the Court went on to grant the following Order:

NOW, May 3, 2022, upon consideration of Respondent’s Application to Stay Proceeding Due to Exhaustion of Administrative Remedies Doctrine (Application to Stay) and Petitioner’s Answer thereto, the Application to Stay is DENIED.

Further, upon consideration of Petitioner’s Application for Relief in the Nature of a Preliminary Injunction (Application for Preliminary Injunction) and Respondent’s Answer thereto, The Application for Preliminary Injunction is GRANTED IN PART as follows:

1. Respondent is hereby ENJOINED from taking any of the following actions:

a. Applying the definition of the term “crime of violence” in 37 Pa. Code ? 21.1 to include the crime of simple assault or an attempt, solicitation, or conspiracy with respect to simple assault;

b. Applying subparagraph (ii) of the definition of “disqualifying criminal offense” in 37 Pa. Code ? 21.1 to include a conviction for simple assault or an attempt, solicitation, or conspiracy with respect to simple assault;

c. Applying the terms “crime of violence” or “disqualifying criminal offense” under any part of Chapter 21 of Title 37 of the Pennsylvania Code, if such application is inconsistent with subparagraphs 1(a) or 1(b) of this order.

2. Pursuant to Pa. R.C.P. No. 1531(b), this injunction shall become effective upon Petitioner’s filing of a bond or legal tender of the United States with the Court in the amount of fifty dollars ($50.00).

If you or someone you know has been the victim of an unlawful policy or position of the Pennsylvania State Police or another administrative agency, contact FICG today to discuss your options.


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