Gun Shop Owner Sues Pennsylvania Sheriff, Calls New Inspection Policy Unconstitutional

A woman fills out the buyer part of legal forms to buy a handgun as a shop worker (L) fills out the vendor’s portion at Dukes Sport Shop in New Castle, Pa., on March 25, 2020. Keith Srakocic/AP Photo

To operate a firearms sales business in Pennsylvania, gun shop owners must get both a Federal Firearms License (FFL) and a Pennsylvania license to sell firearms.

The Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) inspects FFL holders to ensure they are in compliance with the laws surrounding firearms sales. But now, the 92 gun shops in Montgomery County near Philadelphia must submit to local inspections from the office of Montgomery County Sheriff Sean Kilkenny, a Democrat who is currently campaigning for reelection.

Kilkenny recently sent letters to gun store owners and managers informing them that in the coming weeks, the sheriff’s office would be conducting store inspections.

“On average, these inspections will take between one hour and two hours and will be conducted by deputies trained in firearm sales inspections,” the letters said. “You or an authorized representative of your store will need to be available during the inspection to answer any questions posed and to provide any requested documentation.”

The letter included a blank copy of the eight-page inspection form which includes the question, “Was the inspector allowed full access to the premises by the licensed dealer on arrival? Yes/no. If no, dealer will receive an automatic F grade.

Suspicionless Search

The policy requires gun shop owners to submit to an inspection from the sheriff’s department and to discuss the inspection and provide documents without a warrant and when there is no suspicion of wrongdoing.

Grant Schmidt, owner of Shot Tec LLC, and members of the Second Amendment Foundation filed a lawsuit on June 19 on the grounds that the county policy is unconstitutional. The suit challenges Kilkenny’s new policy and a Pennsylvania State Police regulation written in 2001 that seems to allow it.

“Pennsylvania State Police on its own, without any authority we contend, to do such, issued regulations, and the one regulation provides that anyone who is applying for this license must agree to waive their constitutional rights, whereby they, or their designee, or the issuing authority, which is generally the county sheriff, can come in to conduct an inspection,” Pennsylvania civil rights attorney Joshua Prince, who is representing Schmidt and the Second Amendment Foundation in the lawsuit, told The Epoch Times. “It’s not voluntary. Anyone applying for the [Pennsylvania] license is forced to decide whether to violate the law and not procure the license, or to give up their constitutional rights.”

When signing the Pennsylvania license to sell firearms, the signer must “give permission to the Pennsylvania state police, or their designee, and the issuing authority to come to the business location and inspect the premises, records, and documents without warrant.”

No one has really enforced that until now, Prince said. Kilkenny is the first state official to put that regulation into action.

“All of a sudden, within the past couple of weeks, [Kilkenny] decided that based on that regulation, he was going to start conducting his own inspections,” Prince said. “And beyond the alleged authority that one has per the regulation that [state police] has, he also wants to be able to seize those individuals who represent the business for one to two hours while he does his inspection. He expects them to respond to any questions that he asks, which violates our constitutional rights—you have a right to remain silent—and anyone who asserts their constitutional rights and refuses to allow the inspection to occur, he’s threatened to revoke their Pennsylvania license to sell firearms.”

Cease Inspections

Kilkenny held a press conference on May 22 on the county courthouse steps. With him were representatives from CeaseFirePA, a gun control advocacy group that hopes this policy will spread across the state.

“If food inspectors never stopped at your favorite restaurant, you’re more likely to get food poisoning. The same is true with licensed firearm dealers—inspections help ensure dealers are keeping up with the due diligence required under the laws designed to keep our communities safe,” said Adam Garber, CeaseFirePA Education Fund’s executive director, in a statement. “The few licensed firearms dealers who are fueling gun crime by supplying most of the firearms used to take lives—the sheriff will now be able to help stop them. We applaud Sheriff Kilkenny for his leadership.”

But the policy may not stick. The Montgomery County Sheriff’s office responded to The Epoch Times with a prepared statement from Kilkenny, announcing it will put its inspections on hold for now.

“The initiative to conduct inspections of firearms dealers was enacted in accordance with our mandate to provide public safety. It is our firm belief that ensuring all firearms transactions involving licensed gun dealers in Montgomery County are conducted legally plays a crucial role in safeguarding our community by preventing illicit gun transactions. By taking proactive measures to address this issue, our ultimate aim is to reduce gun violence and foster a safer environment for our residents,” the statement said.

“While we stand steadfast in our conviction that we are acting within our legal authority, we will be staying the inspections pending the resolution of this court challenge. We believe it is essential to allow the legal process to play out, ensuring a fair and impartial evaluation of our policy. This temporary suspension will provide an opportunity for the court to thoroughly review the merits of the case and address any concerns raised through due process.”