The auditor general is sick of waiting around for Harrisburg to make a move.

Getting the legislature to pass gun control measures has been a losing battle in Pennsylvania, but a new report out of Harrisburg includes several solutions for reducing gun violence that wouldn’t involve lawmakers at all. It comes from the Office of the Auditor General, the state’s top fiscal watchdog.

“As a society, we cannot afford to sit back and wait for our slow-moving legislature to take action,” Auditor General Eugene DePasquale wrote in the introduction to the heavily-footnoted 20-page document.

In total, the report includes 12 recommendations, including one that seems fairly straightforward: have law enforcement consistently check the references an applicant provides when seeking a license to carry.

The problem? Doing that could make law enforcement agencies vulnerable to lawsuits over privacy concerns.

Reference checks are definitely not standard practice in some Pennsylvania counties with high application loads — and in Philadelphia, they aren’t allowed at all.

Spotty practices

If you want to carry a firearm openly in Pennsylvania, no permit is required unless you’re in Philadelphia. If you want to carry it in a concealed fashion, however, or take it in a vehicle, you do have to submit an application to the county sheriff’s office (or in Philly, to the police department).

The same application is used in every jurisdiction. It was created by the state police and poses questions like “Is your character and reputation such that you would be likely to act in a manner dangerous to public safety?” It also asks for the names, addresses, and phone numbers of two references who aren’t family members.

Pennsylvania’s Uniform Firearms Act empowers law enforcement to investigate applicants, but reference checks are not specifically mandated.

“Law enforcement is not mandated to check references or prosecute individuals for providing false information on an application for a concealed weapon permit,” the auditor general’s report states. “As a result, short-staffed agencies do not always fully vet applicants’ backgrounds.”

That’s the case in Allegheny County, where the sheriff’s office checks references randomly. To date in 2018, Allegheny has received 21,730 new license and license renewal requests. The sheer volume of requests makes vetting each and every reference an impossibility, Sheriff Bill Mullen said. “We just don’t have the manpower to check that.”

Bucks County did not check references before the election of Sheriff Milt Warrell, who began serving in 2018 and is cited in the AG’s report. He requested more staff to do deeper investigations, the Bucks County Courier reported, and began pushing for charges against people who provide false information. Warrell did not respond to requests for comment.

The auditor general’s office did not survey all Pennsylvania sheriffs to see who does checks and who doesn’t. Some sheriffs, including ones in Berks and Perry counties, don’t require references at all.

“It is not required by Pennsylvania law,” Berks County Sheriff Eric J. Weaknecht said by email. “There [has] been litigation against sheriff offices for contacting references as it is illegal to disclose that a person has a license to carry permit.”

Are reference checks even legal?

Weaknecht has a point about the lawsuits.

Philadelphia was sued after it published a website in 2012 with information about people seeking licenses to carry firearms. The city settled the suit in 2014 for $1.4 million and, among many stipulations, agreed to no longer check references.

“The Philadelphia Police Department does not contact references, in accordance with the ‘confidentiality provision,'” a PPD spokesperson confirmed. “However, the state application form still contains fields for references. If those fields are not completed, the state may reject the application, because it’s technically ‘incomplete.'”

According to Joshua Prince, the Berks County attorney involved in the case, the Uniform Firearms Act makes it a crime to disclose information from a license to carry application (emphasis added):

All information provided by the potential purchaser, transferee or applicant, including, but not limited to, the potential purchaser, transferee or applicant’s name or identity, furnished by a potential purchaser or transferee under this section or any applicant for a license to carry a firearm as provided by section 6109 shall be confidential and not subject to public disclosure. In addition to any other sanction or penalty imposed by this chapter, any person, licensed dealer, State or local governmental agency or department that violates this subsection shall be liable in civil damages in the amount of $1,000 per occurrence or three times the actual damages incurred as a result of the violation, whichever is greater, as well as reasonable attorney fees.

When asked about the legality of reference checks, a representative from the auditor general’s office cited a section of the Uniform Firearms Act that enables sheriffs to “investigate whether the applicant’s character and reputation are such that the applicant will not be likely to act in a manner dangerous to public safety.” That’s also what a State Police spokesperson pointed to when asked about references.

A handful of state representatives think that “character and reputation” provision is too subjective and sought to have it removed from state law during the last legislative session. The bill didn’t move out of committee.

Prince and his Berks County firm represented gun owners who sued Franklin and Monroe counties after they were sent information about their licenses on postcards, as opposed to inside an envelope. Judges have ruled against that practice, but have found reference checks are an appropriate balance between confidentiality concerns and protecting the public.

Despite the lawsuit, Monroe County Sheriff Todd Martin said via email that he still checks references — in every case.