PA House Bill 2275 was recently introduced and is today and tomorrow being considered for a second and third time by the House for passage. While it initially seems laudable with a title of “Cracking Down on Illegal Gun Use in Philadelphia,” what is lost on many is several important aspects and why it should be voted down.
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As way of background, un-amended HB 2275 seeks to provide concurrent jurisdiction to the Attorney General to prosecute firearm offenses. So why would I be opposed?
First, while there is no doubt that Philadelphia District Attorney Krasner, a liberal Democrat, has been extremely lenient on crime in general, based on all the information I’ve seen and my Firm’s actual experience, he has continued to prosecute gun-related offenses at the same rate as his predecessor in office, DA Seth Williams. Thus, one wonders why such a bill would be offered solely in relation to firearms and NOT in relation to providing the Attorney General the ability to prosecute ALL criminal law violations in Philadelphia, unless there is an underlying, political motivation.
Second, concurrent jurisdiction was previously provided to the Attorney General on September 3, 2019, with a two year sunset. During the time of the Attorney General’s concurrent jurisdiction, I am unaware of any cases where the Philadelphia District Attorney’s Office refused to prosecute a gun-related offense, which resulted in the Attorney General’s Office prosecuting the person. So why is it that we need to re-authorize this provision?
Third, NUMEROUS amendments (over 13 at first count and of which, I’ve only seen one, but understand that most are VERY anti-2A) have been offered to HB 2275, including one by Craig Williams – A04107 – which, beyond authorizing the Attorney General to prosecute gun-related crimes, would allow a “Gun Task Force” to prosecute violations. And what exactly is a violation? I’ll remind you that Attorney General Josh Shapiro recently contended that hunks of metal and plastic were firearms and thus, it was unlawful to purchase or procure one without going through a Federal Firearms Licensee (FFL). Shortly thereafter, I was successful in obtaining an injunction against his policy, where the Commonwealth Court found that he violated the constitutional rights of the residents of Pennsylvania. So, before you assume that Attorney General Josh Shapiro and this “Gun Task Force” would be upholding the law, it may be that they start prosecuting people who haven’t broken a law. It wasn’t that long ago that the PSP, at his direction, started threatening the prosecution of people over hunks of plastic and metal…
And, what about Attorney General Josh Shapiro’s failure to prosecute his own people for violating state and federal criminal laws? I wrote an extensive article on the NBC reporting where NBC Reporter Hillyard met “with special agents from the AG’s Office, who agreed to use the kit we purchased from the show and build it into a ghost gun.” This has caused a number of questions, including whether Attorney General Josh Shapiro complicit in this act. Is this who we want to empower to prosecute violations of our gun laws?!?! Someone who doesn’t prosecute his own agents’ violations of law?
For these reason, I suggest you contact you State Representative and ask them to vote AGAINST HB 2275.
Lastly, in Pennsylvania, we have a serious problem. There is NO mechanism by which an individual can inquire of the Pennsylvania State Police (“PSP”) to determine whether the PSP contends the person is prohibited from purchasing and possessing a firearm. And it isn’t as simple as seeking a criminal history check, as a criminal history check will not state whether the person is prohibited nor provide all information in the PSP’s possession as to non-criminal criteria that may prohibit someone. As a result, one needs not only to understand the complex maze of state and federal laws that apply but also be able to access all the requisite information in the possession of the PSP. (For example, the PSP will not disclose, even to the individual him/herself whether it believes the individual was involuntarily committed, even though, it has that information at its disposal). Our Office has handled SO many instances where attorneys incorrectly advise their clients as to whether or not they are prohibited – always to the client’s detriment. We’ve also handled a matter where a very long standing judge in Lehigh County incorrectly advised an individual that once he completed probation, he’d no longer be prohibited. And then there are the hundreds – yes hundreds – of clients that we have spoken to, who were hospitalized as teenagers – not knowing what was going on – who as adults attempt to purchase a firearm and are denied due to an involuntary commitment.
If we *really* want to enact “common sense gun reform” then we need to enact a provision requiring the PSP to notify individuals when they become prohibited from purchasing and possessing firearms and ammunition and provide a challenge process, as our Office has handled hundreds of erroneous denials by the PSP in relation to attempted purchase/transfers of a firearm or licenses to carry firearms. In this vein, I drafted proposed language to address this exact situation, which I believe our General Assembly should swiftly enact:
Amendment to 18 Pa.C.S. 6105 to the Uniform Firearms Act, 18 Pa.C.S. ? 6101, et seq.
Section 6105:
(k) Notification of Prohibition by the State Police: The Pennsylvania State Police shall notify an individual of his firearm disability upon the individual becoming prohibited from purchasing or possessing firearms or ammunition under the Uniform Firearms Act, 18 Pa.C.S. ? 6101, et seq., or the Gun Control Act, 18 U.S.C. ? 921, et seq. The notification shall be in writing and sent through verifiable means to ensure that the prohibited individual receives the notification.
(1) If, after receiving the notice, the individual disputes that he is prohibited under the Uniform Firearms Act or Gun Control Act, he may file, within 180 days, a challenge, pursuant to 18 Pa.C.S. ? 6111.1(e), where the burden of proof shall be on the Commonwealth, including in any appeal to the Attorney General. Where a challenger is successful in challenging the Pennsylvania State Police’s contention that he is prohibited, the challenger shall be entitled to actual damages of not less than $500 for each violation and reasonable expenses, including, but not limited to, attorney fees, expert witness fees, and costs. Exemplary and punitive damages of not less than $10,000 nor more than $50,000 shall be imposed against the Pennsylvania State Police where it is determined that it acted willfully in contending, contrary to the law, that the individual was prohibited under the Uniform Firearms Act or Gun Control Act.
(2) If an individual contends that he did not receive notification of his firearms disability by the Pennsylvania State Police, unless the Commonwealth can prove, beyond a reasonable doubt, that the individual was informed of his firearm disability, the individual shall be immune from prosecution in relation to the making of false statements on any state or federal form to purchase or transfer a firearm or otherwise obtain a license to carry firearms.
(3) In relation to Section 6105(k)(1), the Pennsylvania State Police shall report to the General Assembly, on an annual basis, the following:
i. the number of challenges received for that year;
ii. the number of challenges that were successful for that year;
iii. the amount paid out by the Pennsylvania State Police to challengers for actual damages and reasonable expenses for that year; and,
iv. an itemization of each instance where the Pennsylvania State Police paid exemplary or punitive damages.
(l) Request for Determination by the State Police: Any individual may request that the Pennsylvania State Police inform him of whether it contends that he is prohibited from purchasing or possessing firearms or ammunition under the Uniform Firearms Act, 18 Pa.C.S. ? 6101, et seq., or the Gun Control Act, 18 U.S.C. ? 921, et seq. and if so, the specific statutory and factual basis for its contention. If the Pennsylvania State Police contends that he is prohibited and the individual disputes the determination, he may file, within 60 days, a challenge, pursuant to 18 Pa.C.S. ? 6111.1(e), where the burden of proof shall be on the Commonwealth, including in any appeal to the Attorney General. Where a challenger is successful in challenging the Pennsylvania State Police’s contention that he is prohibited, the challenger shall be entitled to actual damages of not less than $500 for each violation and reasonable expenses, including, but not limited to, attorney fees, expert witness fees, and costs. Exemplary and punitive damages of not less than $10,000 nor more than $50,000 shall be imposed against the Pennsylvania State Police where it is determined that it acted willfully in contending, contrary to the law, that the individual was prohibited under the Uniform Firearms Act or Gun Control Act.
If you or someone you know has had their right to keep and bear arms violated, contact FICG today to discuss your options.
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