A portion of Pennsylvania code leaves licensed firearm dealers in the Commonwealth vulnerable to warrantless searches. The code forces dealers to sign a Pennsylvania State Police’s promulgation, which forces the licensees to agree to the surrender of Fourth Amendment rights. The problem, aside from the policy being patently unconstitutional, is that it’s being abused, as well as the code had never received statutory powers to do such things by the legislature. On June 19, 2023 a suit was filed by the Second Amendment Foundation on behalf of two named plaintiffs, Grant Schmidt and Shot Tec, LLC, by Chief Counsel Joshua Prince and attorney Dillon Harris of the Firearms Industry Consulting Group.
[The suit] against Pennsylvania State Police Commissioner Christopher Paris and Montgomery County Sheriff Sean Kilkenny relating to the PSP’s promulgation of an unconstitutional regulation purporting to authorize warrantless searches of PA License to Sell Firearm licensees and Sheriff Kilkenny’s policy, beyond the scope of the unconstitutional regulation, to not only seize licensees in the absence of probable cause and a warrant, but to also force them to respond to questions and provide any requested documents.
The relevant section of code that causes all these issues, promulgation 37 Pa.Code 33.116(c), reads in part:
By signing the application, the applicant is acknowledging that if a license be granted, the applicant gives permission to the Pennsylvania State Police, or their designee, and the issuing authority to come to the licensee’s business location and inspect the premises, records, and documents without a warrant, to ensure compliance with this chapter, and the act.
The constitutional issues with being forced to agree to such a demand only begins with a Fourth Amendment Violation. There’s also the Second Amendment elements at work, and for the Commonwealth to prove that there was a law analogous to this at the time of the founding, is going to be a difficult boon. The other inconvenient thing is that the code was never implemented via statute, and it was never the legislature’s intent to strip Pennsylvanians of these civil liberties. The policy also violates Article 1, Sections 8, 25, and 26 of the Pennsylvania Constitution.
Not to be outdone, Sheriff Kilkenny recently announced a policy, based upon Section 33.116, whereby he contends that not only can his deputies come in to inspect the records in the absence of probable cause and warrant, but that his deputies can seize the licensee or his/her/its representatives for 1-2 hours and force them to respond to questions and provide any requested documents; all in violation of Article 1, Sections 8, 9, 25, and 26 of the Pennsylvania Constitution. His policy also seeks to violate licensees for not having what he deems “safe storage,” even though the PSP has never defined such. Perhaps most disconcerting, especially given that he is an PA licensed attorney, is that his policy provides for the revocation of a licensee’s License to Sell Firearms if they refuse to comply by asserting their constitutional rights…
Second Amendment Foundation’s Executive Director Adam Kraut explained, “The State Assembly has never enacted a law allowing for warrantless searches of licensees, but the state police promulgated a regulation requiring licensees to submit to such searches, which are now planned by the sheriff’s department.” Kraut, a longtime attorney licensed to practice law in the Commonwealth, well versed in Pennsylvania law, continued, “We believe there are grave constitutional issues involved in this scheme, particularly when an administrative agency simply waives an individual’s constitutional rights by implementing a regulation without any framework from the legislature. Equally troubling is the Sheriff’s assertion that he would revoke a license from an individual asserting their right to be free from unlawful searches and seizures. We have filed this petition to ensure constitutional rights are respected.”
The litigation is spot on in pointing out the severe constitutional injury claims for the plaintiff and people of Pennsylvania. Even if it were the legislative intent to force people to agree to a de facto surrender of privacy, it would still not hold muster in any sound court of law.
SAF founder and Executive Vice President Alan M. Gottlieb observed, “No statute should allow carte blanche regulations to be imposed by any law enforcement agency because of the inherent danger of overstepping legal authority and constitutional protections which must be protected in a free society. We’re seeking a remedy from the court to stop this, especially when warrantless searches are involved.”
The policies instituted by Sheriff Sean Kilkenny would be at home in a dystopian novel. Before Soylent Green was people, that society must have dealt with a power hungry set of officials, such as Kikenny. These acts are acts of an anti-civil liberty tyrant abusing his power for an agenda.
The case is in very capable hands. Thankfully there’s a good team that’s been assembled between the SAF, and Chief Counsel Joshua Prince and attorney Dillon Harris of the Firearms Industry Consulting Group. The team will be filing for a preliminary injunction soon and we’ll be watching the progress of this case as it moves along.