- Firearms Trust, Gun Trusts and NFA Weapons Trusts
- Avoiding Extortionate "Preferential Transfer" Claims following Commercial Bankruptcies
- Problems Passing an "Instant Check"
- Firearms Law and Inheritance
- Financing your Litigation
- Fairness in Marcellus Shale Dealings
Problems Passing An “Instant Check”
Many is the person who has gone into his local gun store to purchase a firearm, or the local Sheriff’s office to obtain or renew a license to carry a concealed weapon, and has unexpectedly been denied because he or she could not pass the Pennsylvania Instant Check System ("PICS"). This has happened to many law-abiding people, including people who had purchased firearms in the past or who had previously been issued a license to carry. How can this be?
Two Common Sources of Error in the "Instant Check" System.
1. Ignorance of the Law on the Part of Sheriffs and their Deputies.
People assume that because officials in Sheriffs’ departments wear badges and uniforms, they understand firearms law. Such is not the case. Sheriffs will sometimes issue interpretations which are simply wrong, and officiously tell those applying for a firearms license it is the law.
For example, in early 2008 the Sheriff of Allegheny County decided that out-of-state residents are not entitled to be issued Pennsylvania licenses to carry a firearm concealed. He is not the first Sheriff in Pennsylvania to so declare, but he was incorrect. The Pennsylvania Uniform Firearms Act clearly contemplates the issuance of a license to carry a firearm to out-of-state residents, and specifies that out-of-state residents should apply to the Sheriff of any county in Pennsylvania.
2. Errors in the Pennsylvannia Instant-Check System (“PICS”).
As for PICS, errors are distressingly common. These errors arise from a variety of sources. Two names can be identical, social security numbers can be transposed, very old court records can be wrong, or the sentence for a crime that was not punishable by more than a year in jail when it was committed can be later amended.
Further, if a court record or FBI report is incomplete or ambiguous, authorities in Pennsylvania will presume the worst, and leave it to the individual to prove otherwise.
For example, if a college football fan stole the other team’s mascot in California in 1978, and subsequently pled guilty to “theft,” that conviction might be recorded simply as a violation of a section of the crimes code governing “theft” without specifying the nature or degree of the crime. Although the “theft” in question may actually have been a summary offense punishable by a $50 fine, some forms of theft included under the same statue would be punishable by more than one year in prison. The Pennsylvania State Police bureau which administers PICS does not give the benefit of the doubt; they will disqualify such a person from possessing a firearm or ammunition until the applicant can prove the “theft” was not punishable by a year or more in prison.
A Program for Relief from a Legal Disability
Fortunately, in January, 2008 Congress passed the "NICS Improvement Amendments Act." It is a very long statute, designed to address a lot of problems that existed with the NICS system.
Among the important provisions of the amended statutes is a requirement that states establish a program for relief from a legal disability imposed under federal law. This means states are now required to give people a means of challenging a determination they are a “prohibited person,” or to recover their gun rights if their circumstances have changed. Previously, there was no such requirement. For its part, Congress never funded the federal program for relief from disability.
Today, those who challenge an agency action declaring them to be legally disqualified from possessing firearms can take the matter directly to court if the agency does not act within 365 days. Previously, there was NO deadline for agency action. In some cases, if the agency is proven wrong, the citizen can force the government to pay at least some of his court costs and attorneys’ fees
At Greystone Legal Associates, we have experience in straightening out errors which show up in PICS and NICS. We are also practiced at compelling officials to obey the law as it is written, rather than as they think it should be. If you have been wrongfully denied permission to purchase a firearm, or your license to carry has been denied for a reason you do not think is valid, give us a call. We may be able to help.