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Are There Grounds to Sue the Attorney General?

After doing a bit of research with the Wayback Machine, and reading over the letter Kane’s office sent to her counterpart in Utah, it looks like Kane actually revoked statutory recognition, rather than altering a reciprocity agreement. There are two ways to grant reciprocity under Pennsylvania law, the first is by formal agreement with the reciprocal state, and the second is by any state that both recognizes our LTC, and that “[t]he Attorney General has determined that the firearm laws of the state are similar to the firearm laws of this Commonwealth.”

Tom Corbett, who is now Governor, determined that both Idaho and Utah’s laws were substantially similar, and granted both Utah and Idaho statutory recognition. Along comes Bloomberg’s bought-and-paid-for Attorney General, Kathleen Kane, and without any change in either states law, she decided that because they issued to non-residents, they were not similar. It should be noted that Pennsylvania issues to non-residents as well, so this should not be a reason to deny statutory recognition under 18 Pa.C.S. 6106(b)(15). I would argue that the statute in question does not offer the Attorney General the power to deny or rescind recognition merely because she disagrees with policy, but requires her to articulate where the incompatibility lies.

The question then is, would this be actionable in court? I’d argue that she simply does not have any power, absent a change in the reciprocal state’s law, to rescind statutory reciprocity with another state merely over a political beef with the existing recognition? If this is not actionable in Court, then 18 Pa.C.S. 6106(b)(15) is essentially meaningless. In that case, we should remove the Attorney General’s discretion, and offer blanket recognition to any state that recognizes us, or even better, just recognize permits from any other state by statute.

36 Responses to “Are There Grounds to Sue the Attorney General?”

  1. Dave says:

    So, will the NRA ila challenge this?

    • Sebastian says:

      I don’t know. I’m a bit worried they are hoping for federal reciprocity to sort all this stuff out. I haven’t noticed much activity on the reciprocity front these days.

      • Matthew Carberry says:

        Is that really something ILA should take the *lead* on, as opposed to supporting the local NRA office, or other state group’s, action?

        Optics wise, for the “big, bad, NRA ‘outsiders’” to come in and “dictate with their gun industry lobbying dollars” seems like starting at a disadvantage as opposed to filing amici and adding firepower to a local action.

      • RP says:

        I think national reciprocity is the ultimate answer. I’d rather see the NRA focus their resources on pushing national reciprocity in Congress rather than get bogged down with something like this. This should be on us Pennsylvanians to fight.

        I believe SNBQ gets some lawyer visitors sometimes. Hopefully one will chime in.

        There’s no reason we couldn’t create a kickstarter (or whatever) and post it on the PAFOA forums and the like. The Colorado recalls got started on freakin’ Arfcom GD.

        • Sebastian says:

          I think federal reciprocity is important, but it’s at least three years off, and that’s assuming we don’t have Hillary in 2016, and the GOP keeps its shit together. There’s a lot of ifs there.

        • terraformer says:

          As someone who handles these types of cases quasi professionally, the idea that a random kickstarter could lead to a successful resolution is anathema (and scary). It’s more likely going to find a greedy attorney looking to fleece people and make a name for themselves. I have to imagine PA has a professional NPO org for gun rights. Org’s like the one I am affiliated with (Comm2A in MA) are always willing to lend a hand in strategic planning for sister orgs that don’t specialize in litigation (Litigation is all we do).

          • RP says:

            I probably shouldn’t have said it like that. The point of my post was that there are alternatives to just hoping NRA decides to take it up. I’d like to see it handled in-state.

          • Christine says:

            FOAC is the largest pac in PA for gun rights. Kim Stolfer and his group are already working on this and we should back them with the funds to fight this.

        • Dano says:

          PAFOA is a ghost town these days. The only ones left are the ones who have an anti NRA history and like to screw things up.

  2. Alien says:

    I’ve heard of the Polo Grounds, I’ve inspected electrical grounds, I have coffee grounds, but what is “Their” grounds?

  3. If the argument for not recognizing Idaho permits is that we issue to non-residents, then Kane should recognize Idaho resident permits… and it does not look like they do. How hard is it for an officer to look at the address on the license and see if it is in the same state?

    • Patrick H says:

      Right, and there is no statutory basis for saying our laws aren’t substantially similar.

      Plus, as far as I know- Utah DOES require home state permits. So not sure what is up with that.

  4. Dave says:

    I don’t understand why you don’t write your legislators. That’s what was good enough for the rifle open carriers in Texas.

    Reciprocity games like this are played all the time and it’s almost certain they can make a technical issue out of the other state’s enabling statute. Years ago, South Carolina was a thorn in the side of anyone traveling south and their reciprocity was governed by the tyrants in SLED. They had up to 4 states- UT, TN and 2 more I don’t remember, but at one point UT was found to be issuing non-resident permits and I think their reciprocity was first clarified to only apply to residents. I don’t recall if it was ever revoked in this regime, but TN was in interesting candidate for reciprocity. at the time, SC had both a drivers license and correctable to 20/40 vision requirement. That meant that in order to meet SC’s “equal to or greater than” requirements, SLED was requiring the other state to have a statutory requirement that you have at least 20/40 vision and a drivers license. I’m not aware of any other state which had this in their statutes.

    If there is the slightest difference, the court will let the AG off the hook, assuming you even get that far because they would probably get summary judgment for sovereign immunity.

    It’s situations like this why national reciprocity is needed.

  5. Sebastian, it appears that you are right about this. Kane has to make a legal determination that Idaho’s law is not substantially similar. That Idaho theoretically issues to non-residents is not substantially different from Pennsylvania law. It sounds like Kane’s office is setting her up to lose a suit.

    • rd says:

      They may lose the suit. But it is not Ms. Kane’s money being spent on the suit. It is not Ms. Kane being disarmed.

      It is our money and our rights she is squandering.

    • terraformer says:

      But a suit in state court based on state law grounds. This is not a per se 2A case. The distinction is monumentally important, and while I suspect you understand this, it’s important everyone else reading this knows too. Too many 2A hero wannabes running off into courts these days.

    • Glen says:

      But the text of the Pennsylvania statute appears to vest considerable discretion in the Attorney General:

      18 Pa.C.S. 6106(b)(15)(ii): The Attorney General has determined that the firearm laws of the state are similar to the firearm laws of this Commonwealth.

      Without researching Pennsylvania caselaw on statutory discretion, it seems premature to suggest that someone other than the AG (e.g., a court) has the authority to determine what’s “substantially similar” – and override the AG.

  6. The Jack says:

    And yet Indiana is (so far) statutory similar… even though we don’t require a training class.

    Man, they really *hate* non resident permits.

    • If Kane only hated non-resident permits, she would recognized resident Idaho permits, and resident Utah permits. This is fundamentally about hating self-defense.

      • The Jack says:

        Then we’re just quibbling over priorities.

        As Indiana would have to be next on the chopping block for her.

        I mean a state with no training class and lifetime permits? That’s gotta get the pearl-clutchers scared right?

  7. AuricTech says:

    The biggest problem I can see, as a layman, is finding someone with standing to sue.

    • Sebastian says:

      I would think any Utah or Idaho resident would do. Preferably someone who also owns property here and spends a fair amount of time here.

      • terraformer says:

        Exactly. They need a connection to the state that is similar to a resident’s, but not a resident. A constitutional challenge would fail because IIRC PA has a non res permit. But a state law challenge won’t turn on something like mootness like a constitutional challenge would.

  8. David Lawson says:

    Not sure about Idaho, but Utah no longer requires even the trainers go to Utah. PA recently made it a requirement that out-of-state applicants visit the state at least once, either to file or to pick up the permit. This is one reason I did not renew. Perhaps this is the difference she can hang her argument on.

    • Archer says:

      The question then becomes whether the courts will find that difference is “substantial” enough to allow the current AG to rescind an existing reciprocity agreement at all, and if so, can he/she rescind one made by a previous AG when there have been no changes in the respective laws.

      IOW, in the first case, is the “visit” requirement a substantial enough difference, and in the second, barring any change in either state’s laws, is a difference of opinion between AGs enough to terminate an existing agreement?

      IANAL, but I think she might get a pass on the first (or the courts would decline to take a stance), and lose the second.

  9. John Fletcher Kilgour says:

    The courts will not help you. This is a legislative issue. If the Pa Legislature wants to “fix” this, the legislature can do so anytime it wants to. No reason for the Courts to step in here, and they will not make it an easy-going process for anyone trying to push this into court.

    Anyway, I think it is time for all Pennsylvanians, particularly those in Philly, to stop trying to use out-of-state issued non-resident permits to carry guns in PA by people who actually live in PA. If you live here, get a PA permit, and if you are so hopped up to take a case to court, go to court over the supposedly unfair license practices in Philly instead of continuing to try to make the loser argument that a PA resident who can not get a PA permit should be allowed to carry a gun in PA just because they convince some other state to issue them a non-resident license that supposedly PA recognizes. It is a bad public policy and a bad tactic that you’ve chosen to champion as a work around to the problems with Philly issue of PA LTCF. If you want to go to court, do it, but do it against Phila County (City of Phila) for it’s license issues. Stop trying to force feed this out-of-state license crap down the throats of the other 66 counties. This is a LOSER argument that is widely opposed by the vast majority of PA voters.

    Get real. If you go to the mat on this issue, Kane will win the match. And if you doubt me, just try talking about this issue to some of the solidly pro-gun people in the PA legislature. They will tell you right away to shut up and go home because the vast majority of voters do not support PA residents carrying guns if they can not get a PA license, period. The voters (and the pro-gun reps and Senators) are just not on your side with this.

    • Sebastian says:

      I’ve always been willing to deal with that issue as long as it’s addressed along with the Philadelphia abuses of the “good character and reputation” clause. But the fact remains that Kane is abusing her power. She certainly could have withdrawn statutory recognition, then approached Utah and Idaho to sign formal reciprocity agreements that would recognize their permits, except for PA residents. But she didn’t. She’s just exiting reciprocity agreements wholesale on flimsy grounds.

      I agree that the courts are unlikely to want to get involved, and they will defer to the Attorney General’s determination even if they do. This is a case of elections have consequences, pretty thoroughly.

      • HappyWarrior6 says:

        Ultimately, though, as we’ve seen, even plainly stated language ends up in court. I think even if we win in the legislature you will always have someone in a position of power trying to make an end run around a democratically agreed upon piece of legislation.

        To be fair, this seems to be where things are headed on most any contentious issue. Something passes to “stop it”, gets challenged in court, loser is not happy, appeals, wins or loses appeal, then gets re-interpreted again by someone else in power. We’ve certainly seen it on guns. With guns, you also have the angle of how a police officer or DA interprets most anything, and how they feel they can deal with the consequences of enforcement. I don’t know what the ultimate answer is, but staying vigilant would be at the top of my list. Not going along willingly would be another.

      • mike w. says:

        If this was really about PA residents getting out of state non-resident permits to carry in Philly (as she claimed during her campaign) she could have fixed that easily. All she’d have to do is say “if you live in PA you must have a PA permit to carry here” which is the case here in DE.

        Sebastian – Is there anything that the PA legislature can do to put a stop to Kane’s antics regarding reciprocity agreements? If so, am I correct in thinking the odds of them doing anything to help the situation are not good.

    • Patrick H says:

      It is also a judicial issue and lots of reasons for the Courts to step in- like having a public official follow the law.

      Why should I care where people get their permits from? If they can’t get it in PA because of a “good character and reputation” issue, then they should be able to get it out of state. I think its time people stop being so judgmental about why people get permits, and understand they are entitled to them because they need the means for self defense just like anybody else. That’s not a loser argument, that’s a winning argument.

      And there is no “supposedly unfair” license practices in Philly- they are real and they deny innocent people the means to protect themselves and others. Saying that means you don’t care about innocent people, and I doubt everything else you say. We are trying to force feed the entire state the idea that permit is a permit is a permit- and everybody should be able to carry. There is no reason not to allow people to carry if they aren’t felons. That’s a winning argument widely supported by the vast majority of PA votes (see I can’t say things without any evidence too!)

      The votes and the law is on our side. If you don’t like it, tough.

  10. Patrick says:

    Mandamus is about all you have and that ain’t much. State law might provide more, but generally citizens have more standing than organizations and citizens don’t get that far.

    Swatting this at the federal level might take time, but it’ll be less time than chasing the 40 odd states that play these games. Witness that even thoroughly “pro gun” states will use reciprocity and permits for political and revenue purposes.

    There might come a time soon when we can extract our rights as part of payback for electoral support. As sad as it is to write that, it is true. Election have consequences and it’s time to stop playing defense with these critters.

  11. Barry Hirsh says:

    Too bad such a nice looking gal is such a poopstinker.

  12. Andy B. says:

    The timing for this might be open to discussion (i.e., is this the year?) but a challenge suit might be a useful campaign tool for an election year — even if it had no legal merit, it would be sure to get publicity and point up in high profile, who is on whose side, involving a very pragmatic issue.

    Perhaps someone would initiate and/or fund it on that basis.

  13. Jamie G says:

    I still do not understand how she can say that PA residents are getting UT non resident permits without having a PA permit. Any non resident from a shall issue state has to show proof of a permit on their permit application for UT. If you do not have a permit, it is rejected.
    I live in MD and my Brother lives in Littlestown, PA just over the boarder. I visit him often and spend quite a bit of money shopping in PA and eating in PA. Why? Because I like to spend my money in a place where I am legally allowed to defend myself and my family. Well not anymore. I called this morning and talked to the Sheriffs office who informed me that I would still have to get my MD ccw permit before they could issue a PA non resident permit. Boo. MD is a May Issue state that completely sucks. I have to prove a good and substantial reason for wanting a permit or be a business owner showing large cash deposits in order to get a permit. Self defense is not a good and substantial reason in MD. Total BS.
    This attorney general Kane is a joke and every legislator should be upset that she is establishing a precedent for an attorney general to break laws that they establish for the people and by the people and their elected officials. She can’t write her own law and the law is pretty clear. Every one of you PA residents should be calling your legislators and telling them to make this a huge issue and fix it or they will lose your vote. It is that simple. Make your voices heard. You guys are losing ground in what used to be a free state. You are being sucked into the liberalism of MD, NJ, and NY and it is not going to go good for you. Heck even VA is losing ground as well. People are complete dolts and vote for morons.

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