6109(e)(3): discretion vs policy vs regulation

[MDJschool]

My license never had a picture and that's the way I liked it. I have no interest my image being punched into a database like the one PennDot uses (and other officials abuse?) There is a limited time to get a license without a picture before the picture becomes mandatory by law for new licenses.

<Text of subsec. (e)(3) effective upon publication of the notice under 18 Pa.C.S.A. § 6109(h)(2) or five years and 60 days [Jan. 10, 2011], whichever is first.>

18 Pa.C.S. 6109(e)(3) currently states that "The sheriff may also require a photograph of the licensee on the license." Does that mean the sheriff can pick and choose which applicant must have a picture and which applicant need not? This might introduce some equal protection and due process questions.

I think the only way for a picture to be required would be following a written guideline in place and with notice to the applicant. The question then becomes whether the sheriff may implement a 'policy', likely meaning something he just writes up and posts somewhere, or a 'regulation' which might be subject to any of the several regulatory review acts. So, is there a prerequisite to requiring the photo?

Right now, I don't know, so I'm perusing the Commonwealth Documents Law (45 P.S. § 1102 et seq.) and the Regulatory Review Act (71 P.S. § 745.1 et seq.) and cases related to it to try to find an answer to this question. I also just reached out to the Independent Regulatory Review Commission to see if they could help direct my research. That Commission also publishes guidebook to regulatory review.

The purpose of this thread is to generate with some certainty information to persuade sheriffs to follow the law or other parties to lean on sheriffs to do so before the law states that the picture is required. (There is probably not time to work a solution through the courts.) Please post anything that can direct my research.

[MDJschool]

Here's some annotations from my poking around the aforementioned 'Act' and 'Law' to help make what I'm asking clearer.

A properly adopted substantive rule by an administrative agency establishes a standard of conduct that has the force of law, and the underlying policy generally is not subject to challenge before the agency. Cash America Net of Nevada, LLC v. Com., 978 A.2d 1028 , Cmwlth.2009.

Liquor control board's statement of policy which banned video and audio recordings of its meetings, was a statement of policy within the meaning of the Commonwealth Documents Law ( 45 P.S. § 1102 et seq. ) and not a “regulation” within the definition contained in the Regulatory Review Act ( 71 P.S. § 745.1 et seq. ) or the Commonwealth Documents Law. 1983 Op.Atty.Gen. No. 7.

A statement of policy by an administrative agency does not establish a binding norm, and, thus, is not a “ regulation .” Cash America Net of Nevada, LLC v. Com., 978 A.2d 1028 , Cmwlth.2009.

It is always an agency's burden to convince a tribunal that its interpretation of a statute or regulation it seeks to enforce is correct, whether or not that interpretation has ever been promulgated in a statement of policy. Borough of Bedford v. Com., Dept. of Environmental Protection, 972 A.2d 53 , Cmwlth.2009.

To determine whether an administrative agency has attempted to establish a binding norm, such as would constitute a “regulation,” without required publication procedure, courts consider the plain language of the enactment, the manner in which the agency implemented the provision and whether its discretion is restricted by the provision. Cash America Net of Nevada, LLC v. Com., 978 A.2d 1028 , Cmwlth.2009.

Legislative rule-making is the product of an exercise of legislative power by an administrative agency, pursuant to a grant of legislative power by the legislative body. Department of Corrections and Dept. of Public Welfare v. Pennsylvania State Corrections Officers Ass'n, 932 A.2d 359 , Cmwlth.2007, appeal denied 972 A.2d 523, 601 Pa. 698 , on reconsideration 971 A.2d 1124, 601 Pa. 102.

The process for issuing administrative regulations set forth in the Commonwealth Documents Law (CDL) provides an important safeguard for potentially affected parties against the unwise and improper exercise of discretionary administrative power. Groce v. Department of Environmental Protection, 921 A.2d 567 , Cmwlth.2007, appeal denied 944 A.2d 759, 596 Pa. 720.

Pennsylvania follows the “binding norm test” to assess whether an agency's pronouncement is a regulation or a statement of policy; “ binding norm ” means that the agency is bound by the statement until the agency repeals it, and if the statement is binding on the agency, it is a regulation. Eastwood Nursing and Rehabilitation Center v. Dept. of Public Welfare, 910 A.2d 134 , Cmwlth.2006, appeal denied 927 A.2d 626, 592 Pa. 791.

" Regulation " is governmental agency's exercise of delegated legislative power to create mandatory standard of behavior. Chimenti v. Pennsylvania Dept. of Corrections, 720 A.2d 205 , Cmwlth.1998.

The value of a statement of policy is that it communicates, in advance of a discrete agency action, how the agency interprets a law and intends to give it effect. Borough of Bedford v. Com., Dept. of Environmental Protection, 972 A.2d 53 , Cmwlth.2009.

Interpretive rule, or “ statement of policy ,” is one that tracks a statute and does not expand upon its plain meaning; such a rule need not be issued in accord with Commonwealth Documents Law (CDL). Eastwood Nursing and Rehabilitation Center v. Dept. of Public Welfare, 910 A.2d 134 , Cmwlth.2006, appeal denied 927 A.2d 626, 592 Pa. 791.

[bionicskip]

If I may say so, it's much ado about nothing. I have a DL with photo, a CHL with photo, A PA LTCF with photo. A VA medical ID with photo. Unless you become a hermit in a cave in a remote section of the world, you are going to have a photo ID, lots of them. I suggest you get used to it.

[YosemiteSam]

18 Pa.C.S. § 6109: Licenses

(e) Issuance of license.--
(1) 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 and shall be issued if, after an investigation not to exceed 45 days, it appears that the applicant is an individual concerning whom no good cause exists to deny the license. A license shall not be issued to any of the following:
(i) An individual whose character and reputation is such that the individual would be likely to act in a manner dangerous to public safety.
(ii) An individual who has been convicted of an offense under the act of April 14, 1972 (P.L. 233, No. 64), known as The Controlled Substance, Drug, Device and Cosmetic Act. [FN1]
(iii) An individual convicted of a crime enumerated in section 6105.
(iv) An individual who, within the past ten years, has been adjudicated delinquent for a crime enumerated in section 6105 or for an offense under The Controlled Substance, Drug, Device and Cosmetic Act.
(v) An individual who is not of sound mind or who has ever been committed to a mental institution.
(vi) An individual who is addicted to or is an unlawful user of marijuana or a stimulant, depressant or narcotic drug.
(vii) An individual who is a habitual drunkard.
(viii) An individual who is charged with or has been convicted of a crime punishable by imprisonment for a term exceeding one year except as provided for in section 6123 (relating to waiver of disability or pardons).
(ix) A resident of another state who does not possess a current license or permit or similar document to carry a firearm issued by that state if a license is provided for by the laws of that state, as published annually in the Federal Register by the Bureau of Alcohol, Tobacco and Firearms of the Department of the Treasury under 18 U.S.C. § 921(a)(19) (relating to definitions).
(x) An alien who is illegally in the United States.
(xi) An individual who has been discharged from the armed forces of the United States under dishonorable conditions.
(xii) An individual who is a fugitive from justice. This subparagraph does not apply to an individual whose fugitive status is based upon nonmoving or moving summary offense under Title 75 (relating to vehicles).
(xiii) An individual who is otherwise prohibited from possessing, using, manufacturing, controlling, purchasing, selling or transferring a firearm as provided by section 6105.
(xiv) An individual who is prohibited from possessing or acquiring a firearm under the statutes of the United States.
(2) Deleted by 1995, June 13, No. 17 (Spec. Sess. No. 1), § 2, effective in 120 days.
<Text of subsec. (e)(3) effective until publication of the notice under 18 Pa.C.S.A. § 6109(h)(2) or five years and 60 days [Jan. 10, 2011], whichever is first.>
(3) The license to carry a firearm shall be designed to be uniform throughout this Commonwealth and shall be in a form prescribed by the Pennsylvania State Police. The license shall bear the following:
(i) The name, address, date of birth, race, sex, citizenship, height, weight, color of hair, color of eyes and signature of the licensee.
(ii) The signature of the sheriff issuing the license.
(iii) [Reserved]
(iv) [Reserved]
(v) The reason for issuance.
(vi) The period of validation.
The sheriff may also require a photograph of the licensee on the license.
<Text of subsec. (e)(3) effective upon publication of the notice under 18 Pa.C.S.A. § 6109(h)(2) or five years and 60 days [Jan. 10, 2011], whichever is first.>
(3) The license to carry a firearm shall be designed to be uniform throughout this Commonwealth and shall be in a form prescribed by the Pennsylvania State Police. The license shall bear the following:
(i) The name, address, date of birth, race, sex, citizenship, height, weight, color of hair, color of eyes and signature of the licensee.
(ii) The signature of the sheriff issuing the license.
(iii) A license number of which the first two numbers shall be a county location code followed by numbers issued in numerical sequence.
(iv) The point-of-contact telephone number designated by the Pennsylvania State Police under subsection (l).
(v) The reason for issuance.
(vi) The period of validation.
<Text of subsec. (e)(4) effective upon publication of the notice under 18 Pa.C.S.A. § 6109(h)(2) or five years and 60 days [Jan. 10, 2011], whichever is first.>
(4) The sheriff shall require a photograph of the licensee on the license. The photograph shall be in a form compatible with the Commonwealth Photo Imaging Network.
(5) The original license shall be issued to the applicant. The first copy of the license shall be forwarded to the Pennsylvania State Police within seven days of the date of issue. The second copy shall be retained by the issuing authority for a period of seven years. Except pursuant to court order, both copies and the application shall, at the end of the seven-year period, be destroyed unless the license has been renewed within the seven-year period.

[MDJschool]

If I may say so, it's much ado about nothing. I have a DL with photo, a CHL with photo, A PA LTCF with photo. A VA medical ID with photo. Unless you become a hermit in a cave in a remote section of the world, you are going to have a photo ID, lots of them. I suggest you get used to it.

I don't think you understand the the effect that information has; the value of the whole is more than the sum of the parts.

It is one thing for one person to have one piece of information. It is another for someone to have two pieces of disparate information for which they have been unable to relate. It is then another thing for those two pieces to be related.

The aggregation of information leads to selectivity and exclusivity. Selectivity and exclusivity can make the difference between detainment and probable cause to arrest...dismissal and a finding of guilty beyond a reasonable doubt. Stacking one piece of information on top of another can and so often does cause a party to give greater weight to the veracity of the information before them.

For example, if one person anonymously calls in a MWAG and beat police are notified and act on the report, there's going to be a question: can we trust the caller? Did dispatch ask the right questions - is this a guy with a holstered gun or is he pointing it at people? Is the caller trying to cause the police to harass someone simply by describing them when they've actually committed no crime? Did dispatch correctly relay the information received from the police? Did police hear it right? etc. It's a single chain of information passing between links for which any link or passage is not that verifiable.

What if, for one MWAG, there are 5 different callers who contact 5 different police stations (who do not intercommunicate well) That is just 5 single chains for which links or passage are not that verifable.

But what if those 5 callers all call the same police, one after another. The police then come to rely on each caller stacking upon one another, giving veracity to that group of callers for which no caller alone could ever receive. Whether or not it is due, they have increased their trust in the aggregation of information because of how it stacked before them.

It's the same thing with government databases. Sure, one agency has your name and address. Another one has your name and SSN. Another one has your name, height, weight, and birth. And one has your name and what guns you own. Those agencies don't cooperate very well on a regular basis but some times some initiative pushes them to do so, and they link up those disparate databased, making what they know about YOU apparently more conclusive.

That can be the difference between whether, for example, a court orders your guns taken away in the course of some criminal proceeding before you that was initiated on the basis of an unconstitutional law. Sure, you would expect other legal protections to protect you in such a situation, but when they fail to, do you want your complicity in linking information to be the reason why the government steals from you or otherwise performs some act to infringe on your right to life, liberty, or property that they would not otherwise undertaken without the level of conclusion they had reached by aggregating data about you?

Information is power because people give information power, and it is necessary to recognize that consequence.

[Deadpan]

It looks like the PCCD is behind schedule, but getting it moving along:

deputy_sheriff_training_bulletin_098_april_2010_pd f
deputy_sheriff_training_bulletin_099_may_2010_pdf

[bionicskip]

I'm a 1 finger typist, so Ill keep this short. I have done many things in my lifetime.( Regular Army, Police Officer, Fire fighter, are just a few of them) . Does the Government have files on me? You betcha!!!! Does it concern me? Hell, no!!! I could worry myself to death, but for what purpose? I refuse to worry about scenarios that may, or may not happen. Life is too short for that type of thinking.

[ungawa]

My license never had a picture and that's the way I liked it. I have no interest my image being punched into a database like the one PennDot uses (and other officials abuse?) There is a limited time to get a license without a picture before the picture becomes mandatory by law for new licenses.

Information is subject to theft and abuse the moment it is given. No laws or privacy policies will ever protect you in any way.

First, the stuff will be stolen. After all, there must be a database and it must be on the internet to ensure greater security than paper records.

Finally, regardless of the laws of today, somebody will file a lawsuit and the protections for LTCF information will be found unconstitutional. Or, more simply, the legislature will change the law. Or, some Sheriff will decide to ignore it. All three will happen eventually.

When any of those happen, they will probably put up a searchable database to show LTCF owners on a map within a given distance of a selected location. Photographs of you, your address, your biometrics, your vehicle registration, etc. will all pop up on the screen when the anonymous web-surfer selects you.

The website will contract with vendors of ChoicePoint or various agencies to provide advertisements on the website to get your financial history, employment history, copies of your applications, family tree, internet search history, etc. There's no reason to give away those extra details for free. It might close some kind of budget deficit.

[MDJschool]

I'm a 1 finger typist, so Ill keep this short. I have done many things in my lifetime.( Regular Army, Police Officer, Fire fighter, are just a few of them) . Does the Government have files on me? You betcha!!!! Does it concern me? Hell, no!!! I could worry myself to death, but for what purpose? I refuse to worry about scenarios that may, or may not happen. Life is too short for that type of thinking.

Maybe the picture question is too insignificant for you. Maybe you've never been a victim of government-perpetrated crime that made you every think about any possibility of contingency (because of course anything you prepare for needs to first be thought of, then thought out, then implemented). Should you some day find yourself under some sort of criminal investigation or prosecution, or some denial of some benefit, you'll wish you had your court documents thought out and written up ahead of time, and you'll learn later that the only way certain things were 'proven' were because of aggregation that you enabled to be put together yet had discretion as to whether you provided it when you did. All that leads to is multi-year struggles in court and denials of rights.

It's just the same as 'not thinking about getting health insurance' where the difference is a 5000 bill with insurance and 50000 without. Maybe you just got given the single health insurance plan provided by your employer so you didn't really have to think about it. But what if you were given 3 choices, and because you didn't want to do research and worry about scenarios that may or may not happen, you randomly picked one. And then you're hit by a reckless driver that causes you hospital bills of 50k under your current randomly selected plan that would only cost you 5k on one of the others?

People don't seem to like to think proactively because it seems like too much of a pain in the ass until they are hurt more by having to act in reaction to a foreseeable incident. Here, providing that information foreseeably leads to the government using it against you. "Registration is the first step to confiscation", anyone? not just for your firearms but your rights entire.

[HiredGoon]

Wonder why the current statute reads that the sheriff MAY require a photo on the license?

Why wasn't it made clear one way or the other in the statute...all LTCFs require a photo or they all don't?

Why give the sheriff that option?

I know...no easy answers ;(