MONTCO process, explain the illegality of this process

[joseywales]

If you can't answer intelligently, then please do not respond. I'm looking for legal facts and case law (if any), not assumptions.

I've read that MONTCO's requirement for the LTCF applicant to use a check card with their local police department is against PA state law. I've read the Sections and subsection.

There is a sentence the says that the Sheriff must use the process perscribed by the state and the state police form.

I do not see where it says that the county can not use other means to approve/decline the applicant. It does say that the sherrif must conduct the investigation, so "can" the county interprit that to mean they can use local PD as a tool of their investigation?

- What is "our" argument? Are we assuming that because state law does not require the sheriff to use local PD, then they are legally prohibited from doing so?

- Are we arguing that using local PD violates our right to privacy, relevant to the application process?

- Does this come down to an interpritation of the law?

- If it's not a matter of intepritation, then why has no MONTCO resident challenged this in court?

I just want to gather facts...and argue intelligently with my relative...a deputy in MONTCO!

[smithwessn]

From the UFA- Red is mine-

6109. Licenses.
(a) Purpose of license.--A license to carry a firearm shall
be for the purpose of carrying a firearm concealed on or about
one's person or in a vehicle throughout this Commonwealth.
(b) Place of application.--An individual who is 21 years of
age or older may apply to a sheriff for a license to carry a
firearm concealed on or about his person or in a vehicle within
this Commonwealth. If the applicant is a resident of this
Commonwealth, he shall make application with the sheriff of the
county in which he resides or, if a resident of a city of the
first class, with the chief of police of that city.
(c) Form of application and content.--The application for a
license to carry a firearm shall be uniform throughout this
Commonwealth and shall be on a form prescribed by the
Pennsylvania State Police. The local police card is not uniform throughout the Commonwealth, nor did PSP prescribe a local police card.
The form may contain provisions, not
exceeding one page, to assure compliance with this section.
Issuing authorities shall use only the application form
prescribed by the Pennsylvania State Police. < Pretty self explanatory, right there. "Only" the application form prescribed by PSP. The local PD card would be "in addition to" the application, now wouldn't it?
One of the
following reasons for obtaining a firearm license shall be set
forth in the application: self-defense, employment, hunting and
fishing, target shooting, gun collecting or another proper
reason. The application form shall be dated and signed by the
applicant and shall contain the following statement:
I have never been convicted of a crime that prohibits me
from possessing or acquiring a firearm under Federal or
State law. I am of sound mind and have never been
committed to a mental institution. I hereby certify that
the statements contained herein are true and correct to
the best of my knowledge and belief. I understand that,
if I knowingly make any false statements herein, I am
subject to penalties prescribed by law. I authorize the
sheriff, or his designee, or, in the case of first class
cities, the chief or head of the police department, or
his designee, to inspect only those records or documents
relevant to information required for this application. If
I am issued a license and knowingly become ineligible to
legally possess or acquire firearms, I will promptly
notify the sheriff of the county in which I reside or, if
I reside in a city of the first class, the chief of
police of that city.
(d) Sheriff to conduct investigation.--The sheriff to whom
the application is made shall: It says the Sheriff shall conduct the investigation, not local PD.
(1) investigate the applicant's record of criminal
conviction;
(2) investigate whether or not the applicant is under
indictment for or has ever been convicted of a crime
punishable by imprisonment exceeding one year;
(3) investigate whether the applicant's character and
reputation are such that the applicant will not be likely to
act in a manner dangerous to public safety;
(4) investigate whether the applicant would be precluded
from receiving a license under subsection (e)(1) or section
6105(h) (relating to persons not to possess, use,
manufacture, control, sell or transfer firearms); and
(5)(The Sheriff to whom the application is made shall) conduct a criminal background, juvenile delinquency
and mental health check following the procedures set forth in
section 6111 (relating to sale or transfer of firearms),
receive a unique approval number for that inquiry and record
the date and number on the application. again, it says the Sheriff, not a word is said about local PD. Anywhere.

If it's not a matter of intepritation, then why has no MONTCO resident challenged this in court?

That's a rather expensive proposition for the average Joe. The state AG has proven to be uninterested in pressing charges against local governments. Philly is a prime example. Clearly in violation of State law, yet nothing has been done about it.

[joseywales]

Agreed across the board. My nephew, a deputy in MONTCO and I had agreed on all those points. He's in favor of Behr, because she seems to be doing away with a lot of BS regs, etc. within the dept.

I do not want to argue, but rather want input, so see my comments in blue.

From the UFA- Red is mine-

6109. Licenses.
(a) Purpose of license.--A license to carry a firearm shall
be for the purpose of carrying a firearm concealed on or about
one's person or in a vehicle throughout this Commonwealth.
(b) Place of application.--An individual who is 21 years of
age or older may apply to a sheriff for a license to carry a
firearm concealed on or about his person or in a vehicle within
this Commonwealth. If the applicant is a resident of this
Commonwealth, he shall make application with the sheriff of the
county in which he resides or, if a resident of a city of the
first class, with the chief of police of that city.
(c) Form of application and content.--The application for a
license to carry a firearm shall be uniform throughout this
Commonwealth and shall be on a form prescribed by the
Pennsylvania State Police. The local police card is not uniform throughout the Commonwealth, nor did PSP prescribe a local police card. The form may contain provisions, not
exceeding one page, to assure compliance with this section.
Issuing authorities shall use only the application form
prescribed by the Pennsylvania State Police. < Pretty self explanatory, right there. "Only" the application form prescribed by PSP. The local PD card would be "in addition to" the application, now wouldn't it?Yes, but their argument could be that the "check card" is part of the Sheriff's investigation, not part of the application.

One of the
following reasons for obtaining a firearm license shall be set
forth in the application: self-defense, employment, hunting and
fishing, target shooting, gun collecting or another proper
reason. The application form shall be dated and signed by the
applicant and shall contain the following statement:
I have never been convicted of a crime that prohibits me
from possessing or acquiring a firearm under Federal or
State law. I am of sound mind and have never been
committed to a mental institution. I hereby certify that
the statements contained herein are true and correct to
the best of my knowledge and belief. I understand that,
if I knowingly make any false statements herein, I am
subject to penalties prescribed by law. I authorize the
sheriff, or his designee, or, in the case of first class
cities, the chief or head of the police department, or
his designee, to inspect only those records or documents
relevant to information required for this application. If
I am issued a license and knowingly become ineligible to
legally possess or acquire firearms, I will promptly
notify the sheriff of the county in which I reside or, if
I reside in a city of the first class, the chief of
police of that city.
(d) Sheriff to conduct investigation.--The sheriff to whom
the application is made shall: It says the Sheriff shall conduct the investigation, not local PD. Agreed, but can the sheriff use the local PD as a "tool" of their investigation?
(1) investigate the applicant's record of criminal
conviction;
(2) investigate whether or not the applicant is under
indictment for or has ever been convicted of a crime
punishable by imprisonment exceeding one year;
(3) investigate whether the applicant's character and
reputation are such that the applicant will not be likely to
act in a manner dangerous to public safety;
(4) investigate whether the applicant would be precluded
from receiving a license under subsection (e)(1) or section
6105(h) (relating to persons not to possess, use,
manufacture, control, sell or transfer firearms); and
(5)(The Sheriff to whom the application is made shall) conduct a criminal background, juvenile delinquency
and mental health check following the procedures set forth in
section 6111 (relating to sale or transfer of firearms),
receive a unique approval number for that inquiry and record
the date and number on the application. again, it says the Sheriff, not a word is said about local PD. Anywhere.Agreed and I like that point.

Please understand, I am not challenging you, or anyone else. Rather, I am wanting to challenge the law, at least for our discussion. I don't have funds for the "fight". Both my nephew and I are wanting to at least resolve this in our minds. One point I made to him is that nowhere does it require the applicant to become part of the investigative process. If the Sheriff wants info from the local PD, let them take my information to them and get it. I am not required by law to assist them in investigating me!





That's a rather expensive proposition for the average Joe. The state AG has proven to be uninterested in pressing charges against local governments. Philly is a prime example. Clearly in violation of State law, yet nothing has been done about it.

[gnbrotz]

If the Sheriff wants a local "police check", then let them contact the appropriate agency themselves and request the desired information. The applicant should not be required to assist in conducting the investigation or be required to pay any additional fees.

Some sheriffs also conduct in-person interviews. I think fighting that in court would be a difficult battle, however if the Sheriff were insisting on an interview and charging an "interview fee" to go along with it, I think there'd be a much better chance of successfully challenging it.

[HiredGoon]

... if the Sheriff were insisting on an interview and charging an "interview fee" to go along with it, ...

Don't give them any ideas, Greg!

[smithwessn]

Agreed across the board. My nephew, a deputy in MONTCO and I had agreed on all those points. He's in favor of Behr, because she seems to be doing away with a lot of BS regs, etc. within the dept.

I do not want to argue, but rather want input, so see my comments in blue.

I understand you aren't arguing. No worries there. As Greg pointed out, some local PD are starting to charge the applicant a fee to fill out the card required by Montco Sheriff.

From 18 Pa.C.S. § 6109: Licenses- Red is mine

h) Fee.--(1) In addition to fees described in paragraphs (2)(ii) and (3), the fee for a license to carry a firearm is $19. This includes all of the following:(i) A renewal notice processing fee of $1.50.(ii) An administrative fee of $5 under section 14(2) of the act of July 6, 1984 (P.L. 614, No. 127), [FN2] known as the Sheriff Fee Act.(2) (i) The Pennsylvania Commission on Crime and Delinquency shall implement, within five years of the effective date of this paragraph, a system in conjunction with the Pennsylvania State Police and the Pennsylvania Sheriffs' Association to standardize and modernize the process of issuing licenses to carry firearms. Upon implementation of the system under this paragraph, the Pennsylvania Commission on Crime and Delinquency shall publish notice thereof in the Pennsylvania Bulletin.(ii) An additional temporary fee of $5 shall be remitted by the sheriff to the Firearms License to Carry Modernization Account, which is hereby established as a special restricted receipt account within the General Fund of the State Treasury. Moneys and investment income in the account shall be awarded as grants to sheriffs to implement the system, including grants to reimburse sheriffs for expenses incurred prior to the effective date of this paragraph.(iii) Moneys credited to the account and any investment income accrued are hereby appropriated on a continuing basis to the Pennsylvania Commission on Crime and Delinquency. The commission shall establish procedures related to the application process for and distribution of funds to sheriffs under this paragraph. Notwithstanding the provisions of subparagraph (ii), the commission may withhold annually an amount not exceeding 5% of the funds credited to the account in that fiscal year for the cost to implement the system under subparagraph (i) and for administrative costs directly related to the responsibilities of the commission under this paragraph.(iv) This paragraph shall expire five years after its effective date. Any surplus funds remaining in the account established in subparagraph (ii) at such time shall lapse into the General Fund.(3) An additional fee of $1 shall be paid by the applicant for a license to carry a firearm and shall be remitted by the sheriff to the Firearms License Validation System Account, which is hereby established as a special restricted receipt account within the General Fund of the State Treasury. The account shall be used for purposes under subsection (l). Moneys credited to the account and any investment income accrued are hereby appropriated on a continuing basis to the Pennsylvania State Police.(4) No fee other than that provided by this subsection or the Sheriff Fee Act may be assessed by the sheriff for the performance of any background check made pursuant to this act. One could argue that since some local PD charge applicants a fee to fill out a card that is required by Montco Sheriff for a background check, that the above section would apply. Yes, the local PD is charging the fee, but the card is a requirement of the Sheriff. (5) The fee is payable to the sheriff to whom the application is submitted and is payable at the time of application for the license.(6) Except for the administrative fee of $5 under section 14(2) of the Sheriff Fee Act, all other fees shall be refunded if the application is denied but shall not be refunded if a license is issued and subsequently revoked.(7) A person who sells or attempts to sell a license to carry a firearm for a fee in excess of the amounts fixed under this subsection commits a summary offense.

[joseywales]

I'd say that qualifies as a more serious problem.

Behr seems to be more reasonable, and a guess is that if she wanted to make that significant of a change, she would wait until after November. Can't blame her for that, but we'll see. I'm told she's torn pages from the manual that the dept has used, saying some policies/procedures are illegals and others just make no sense. Time will tell I guess.