Prosecuting Government Officials

[PhillyVet]

Here’s a question, and idea, for the group.
When a Police Officer, code inspector, or any government official for that matter, commits a crime, or causes a crime to be committed, in the course of his employment he can be criminally prosecuted personally. In addition to prosecution, he, and the municipality he works for, can be sued by the injured party.
We all know:

Title 18, § 6120 Limitation on the regulation of firearms and ammunition
“(a) General rule.--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.”

However, there’s another, little known, section of the UFA,

Title 18, § 6119. Violation penalty
“Except as otherwise specifically provided, an offense under this subchapter constitutes a misdemeanor of the first degree.”

When a city, town, borough councilman votes for a gun control ordinance, he is knowingly causing the municipality to commit a violation of the UFA. Since § 6120 doesn’t specify a penalty, than I would argue § 6119 applies. The penalty for an M1 is up to a $10,000 fine and up to five years in prison.
Can anyone think of any legal reason why a County DA, or the State AG (if the DA refuses to do it), couldn’t bring a criminal action against a councilman who votes to violate the UFA (§ 6120)?
I doubt any councilman would go to jail under this, but the fine for an M1 would be a good incentive not to continue violating preemption.

[RandomTask]

I would also troll for a charge of "Official Oppression," with whatever penalty that carries.

[Brick]

When a city, town, borough councilman votes for a gun control ordinance, he is knowingly causing the municipality to commit a violation of the UFA. Since § 6120 doesn’t specify a penalty, than I would argue § 6119 applies. The penalty for an M1 is up to a $10,000 fine and up to five years in prison.
Can anyone think of any legal reason why a County DA, or the State AG (if the DA refuses to do it), couldn’t bring a criminal action against a councilman who votes to violate the UFA (§ 6120)?
I doubt any councilman would go to jail under this, but the fine for an M1 would be a good incentive not to continue violating preemption.

I'm with you on this one and in fact I think some jail time (4 years and 11 mos.) would be appropriate in many cases.

It is possible that somewhere in the various codes that apply to counties and other municipalities there might be a section that gives immunity.

But, I believe the real problem is the District Attorneys and the Atty Gen'ls office refusing to uphold the law and prosecute these cases. Just imagine how fast the "Lost and Stolen" bs would have ended if the AG and squad of PSP walked in and arrested the first City Council that passed the law.

[kadar]

I'm with you on this one and in fact I think some jail time (4 years and 11 mos.) would be appropriate in many cases.

I disagree.
Any public servant that has taken the "oath", and violates the law should face double the penalty that a citizen would face.

[knight0334]

I would also troll for a charge of "Official Oppression," with whatever penalty that carries.

Possibly Conspiracy as well if they knew ahead of time that what they are planning is against the law.

Title 18 Pa.C.S.A. Crimes and Offenses (Refs & Annos)
Part I. Preliminary Provisions
Chapter 9. Inchoate Crimes (Refs & Annos)
Current Section§ 903. Criminal conspiracy

(a) Definition of conspiracy.--A person is guilty of conspiracy with another person or persons to commit a crime if with the intent of promoting or facilitating its commission he:

(1) agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; or
(2) agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime.

(b) Scope of conspiratorial relationship.--If a person guilty of conspiracy, as defined by subsection (a) of this section, knows that a person with whom he conspires to commit a crime has conspired with another person or persons to commit the same crime, he is guilty of conspiring with such other person or persons, to commit such crime whether or not he knows their identity.


(c) Conspiracy with multiple criminal objectives.--If a person conspires to commit a number of crimes, he is guilty of only one conspiracy so long as such multiple crimes are the object of the same agreement or continuous conspiratorial relationship.


(d) Joinder and venue in conspiracy prosecutions.--

(1) Subject to the provisions of paragraph (2) of this subsection, two or more persons charged with criminal conspiracy may be prosecuted jointly if:
(i) they are charged with conspiring with one another; or
(ii) the conspiracies alleged, whether they have the same or different parties, are so related that they constitute different aspects of a scheme of organized criminal conduct.
(2) In any joint prosecution under paragraph (1) of this subsection:
(i) no defendant shall be charged with a conspiracy in any county other than one in which he entered into such conspiracy or in which an overt act pursuant to such conspiracy was done by him or by a person with whom he conspired;
(ii) neither the liability of any defendant nor the admissibility against him of evidence of acts or declarations of another shall be enlarged by such joinder; and
(iii) the court shall order a severance or take a special verdict as to any defendant who so requests, if it deems it necessary or appropriate to promote the fair determination of his guilt or innocence, and shall take any other proper measures to protect the fairness of the trial.

(e) Overt act.--No person may be convicted of conspiracy to commit a crime unless an overt act in pursuant of such conspiracy is alleged and proved to have been done by him or by a person with whom he conspired.


(f) Renunciation.--It is a defense that the actor, after conspiring to commit a crime, thwarted the success of the conspiracy, under circumstances manifesting a complete and voluntary renunciation of his criminal intent.


(g) Duration of conspiracy.--For purposes of 42 Pa.C.S. § 5552(d) (relating to commission of offense):

(1) conspiracy is a continuing course of conduct which terminates when the crime or crimes which are its object are committed or the agreement that they be committed is abandoned by the defendant and by those with whom he conspired;
(2) such abandonment is presumed if neither the defendant nor any one with whom he conspired does any overt act in pursuance of the conspiracy during the applicable period of limitation; and
(3) if an individual abandons the agreement, the conspiracy is terminated as to him only if and when he advises those with whom he conspired of his abandonment or he informs the law enforcement authorities of the existence of the conspiracy and of his participation therein.

[BenGlock]

An option is to file a private criminal complaint. Go to http://www.aopc.org/NR/rdonlyres/5D8.../AOPC41110.pdf

The form is then submitted to the DA's office. If the DA's office disapproves the complaint, they have to tell you why in writing. You may then file a petition in the court of common pleas for review of the DA's decision not to prosecute, where it will be reviewed by the court.

To show that a district attorney abused his discretion in disapproving a private criminal complaint on wholly policy considerations or on a hybrid of legal and policy considerations, the complainant must demonstrate that the district attorney's decision amounted to bad faith, fraud, or unconstitutionality; in the absence of such evidence, a trial court cannot presume to supervise the district attorney's exercise of prosecutorial discretion and should leave the district attorney's decision undisturbed. Com. v. Michaliga, 947 A.2d 786, Super.2008.

However, where a district attorney's denial of a private criminal complaint is based on a legal evaluation of the evidence, the trial court undertakes a de novo review of the matter. In re Private Complaint of Owens Against Coker, 810 A.2d 172, Super.2002

[MDJschool]

It's interesting that executive officers and judges can be prosecuted criminally for their official acts but it's more often believed that legislators even at the local level cannot be. The PA constitution grants no speech to local officers and debate protection and the US constitution's 11th amendment does not cover municipalities. Are we sure they have any protection for their crimes?

There's a thread that hashed out this type of question that you should read, so no words are wasted, but I haven't found it yet. I'll have to follow up. But see the following:

According to Galena's complaint, the gun policy violates Section 6120 of the Pennsylvania Crimes Code. That section prohibits any county, municipality or township from regulating the lawful ownership, possession, transfer or transportation of firearms or ammunition when carried for lawful purposes.
Galena also claims Albion officials committed official oppression under the Pennsylvania Crimes Code by adopting the illegal policy at a special meeting on Jan. 28.
Galena, a frequent critic of Erie County Council who in 2009 won a civil judgment against County Councilman Fiore Leone over a First Amendment issue, said Tuesday that he is extremely concerned about the "constitutional encroachment of government into our freedoms."
"They thumb their noses at state law and chose to usurp the authority of state law and the state constitution and created a policy in direct violation of the Crimes Code," Galena said.

So it's been done, but I've never heard of Galena being a member here.
http://forum.pafoa.org/pennsylvania-...ml#post1122583

As a followup to BenGlock, here is http://forum.pafoa.org/general-2/798...submitted.html