Big win in Pennsylvania over permitting and background check delays

AP Photo/Ted S. Warren

Back in April I reported on a case out of Pennsylvania. The case, Firearm Owners Against Crime – Institute for Legal, Legislative and Educational Action, et al. v. PSP Commissioner Evanchick, involved the substantial delays that residents of the Keystone State had to suffer through concerning firearms related background checks. As reported previously, Pennsylvania is one of the few “point of contact” states concerning the FBI NICS check, and the Pennsylvania State Police acts as an intermediary between the FFL/Issuing Authorities and FBI NICS System. I’ve argued for years that since the NICS system is completely computerized now, such “point of contact” systems are redundant and useless. Further, it’s my belief they’re unconstitutional. A decision came down in the case, and some of it’s consistent with my thoughts exactly.

Attorney Josuha Prince from Prince Law Offices recently reported on the injunction that was handed down on September 2nd.

Today, Chief Counsel Joshua Prince, assisted by Attorney Dillon Harris, secured a monumental victory for the residents of Pennsylvania, when the Commonwealth Court Judge Patricia McCullough issued a preliminary injunction against the Pennsylvania State Police in Firearm Owners Against Crime – Institute for Legal, Legislative and Educational Action, et al. v. PSP Commissioner Evanchick, in relation to its non-compliance with 18 Pa.C.S. 6111.1, by failing to provide instantaneous or otherwise immediate responses to firearm background checks.

From the Analysis, we can glean some important details about judge Patricia McCullough’s view on the merits of this case, and the shaky ground that Pennsylvania State Police (PSP) continues to stand on. 

Although the number of positions in the PICS Operations Section has increased slightly since 2019, the evidence presented nevertheless shows that there are significant delays in the processing of a sizeable portion of the background checks transferred to PICS operators for manual investigation. Lt. Keeler confirmed that wait times routinely exceed 9-10 hours during peak times. In fact, the background check of Benjamin Brown, the owner of Petitioner Landmark Firearms, LLC, took over 20 hours, which is especially surprising because he is the holder of a federal firearms license which authorizes him to sell firearms and, as such, he is clearly not a person prohibited by law from obtaining a firearm. The testimony further revealed numerous instances where prospective purchasers of firearms canceled their purchases because of excessive wait times, thus causing Petitioners to lose the profits that they would have received from those sales. These delays, especially during gun shows (of which PSP has prior notice) have been going on now for years, and PSP does not appear to have a clear plan in place to abate these wait times.

PSP along with the Attorney General’s Office has been in the crosshairs over numerous scandals in recent years. The events not only involve permitting and background check delays, but also the Attorney General allegedly participated in a questionable media hit piece on so-called “ghost guns”. The alleged “ghost-gun” scandal that may have involved Attorney General Shapiro even piqued the interest of Pennsylvania’s House Speaker, who launched an investigation.

Given the factual basis of petition’s claims, Judge McCullough found the following in her analysis:

The Court therefore concludes that Petitioners have made a preliminary showing that PSP has a statutory duty under sections 6111.1(b) and 6111.1(c) of the Firearms Act to conduct immediate background checks and provide the results immediately or, at least, without delay. It further has a duty to employ a sufficient number of operators in the PICS Operations Section to ensure that all of its duties under section 6111.1 are administered expeditiously. PSP is in violation of section 6111.1 in that the results from a significant portion of PICS background checks are delayed significantly, which delays are causing financial harm to sellers. The delays are caused at least in part by PSP’s failure to adequately staff its PICS Operations Section to meet increased demand.

Petitioners have established all of the prerequisites for the Court to grant preliminary relief. The Court accordingly will grant Petitioners’ Application in part and enjoin PSP from further noncompliance with section 6111.1 of the Firearms Act. The Court will defer awarding additional relief until after the final disposition of the preliminary objections set for expedited argument on September 12, 2022.11

These delays in both the issuance of permits and in returning background checks caused multiple injuries, as indicated in the beginning of the Analysis of this case. Not only are delays a usurpation of a constitutional right, but also there’s financial injury that comes in the form of canceled sales over PSP’s inability to expeditiously execute what’s supposed to be an instant check. Instant is what we were all promised.

The order delivered has a panache to it that does not require a large nose to smell the freedom emanating from it:

…it is ordered that Petitioners’ Application is GRANTED, in part. PSP hereby is enjoined from further noncompliance with the Firearms Act as that noncompliance has been set forth in the accompanying Memorandum Opinion.

I reached out to Joshua Prince, the Chief Counsel on this case to talk about this win. He expressed to me his joy over the opinion and said to me:

The issuance of another preliminary injunction against PSP Commissioner Evanchick, for violating the statutory and constitutional rights of the residents of this Commonwealth, is reflective of the the politicization of administrative agencies, especially the PSP, under the Wolf/Shapiro Administration and which should cause fear in all Pennsylvanians with the upcoming election. Only a little more than a year ago, the Commonwealth Court found, in issuing another injunction against PSP Commissioner Evanchick, that the PSP, at the direction of Attorney General Shapiro, violated the due process rights of all Pennsylvanians by attempting to redefine what constituted a firearm under the law in the absence of going through the General Assembly. I have no doubt that if elected Governor, he will, no differently, attempt to rule as a monarch through executive fiat. Our Founding Fathers would roll over in their graves if they knew of the evisceration of our tripartite form of government that we have permitted with the empowering of administrative agencies and executive action.

Granted, Prince et.al. have to wait until after the September 12th final disposition of the objections in order to get a final opinion, this is still a big victory. The judge would not have necessarily stepped in to deliver the injunction if the case did not have merit.

While this victory is through the Commonwealth Court, the case will have an effect on similar ones in other states, such as New Jersey (another state ripe with excessive delays). The same argumentation can be cited in other jurisdictions where Permits to Purchase Pistols, Firearm ID Cards, and the state acts as the point of contact for background checks are all required to exercise a fundamental right. If anything, once a permit of any kind is issued, said permit should be considered an “ATF-qualified alternate permit”, and no background check should be required at all.

We’ll be closely watching the outcome of this case and be sure to get back with more news when it arises.