Background
Nathaniel Fick, employed as a security guard since 2012, was offered a position requiring him to carry a firearm, which necessitated certification under the Lethal Weapons Training Act (Act 235). Act 235 requires privately employed agents to obtain certification from the Pennsylvania State Police (PSP) Commissioner before carrying lethal weapons on duty. Under Section 6 of Act 235, the Commissioner must issue a certificate of qualification to any applicant age 18 or older who has not been convicted of a “crime of violence.” The statute does not define that term. PSP’s regulations define “crime of violence” to include an enumerated list of offenses—murder, rape, aggravated assault, robbery, burglary, kidnapping, voluntary manslaughter, arson, recklessly endangering another person, and terroristic threats—but also created a broader category of “disqualifying criminal offense” that includes a conviction for “any other crime.”
PSP denied Fick’s 2021 application based on a 2014 misdemeanor conviction for simple assault. Fick challenged the denial, and in May 2022, the Commonwealth Court granted a preliminary injunction barring PSP from treating simple assault as a crime of violence or disqualifying criminal offense. Fick obtained his certification and has been employed as an armed security guard since. PSP subsequently retracted its position as to Fick specifically but did not formally abandon its broader interpretation that simple assault could disqualify other applicants.
Fick then sought summary relief, asking the Court to issue permanent declaratory relief on behalf of himself and others similarly situated. PSP argued the case was moot because it had agreed not to deny Fick’s future renewals based on the simple assault conviction.
The Court’s Holding
Judge Covey, writing for the panel, granted Fick’s application in part. The Court first rejected PSP’s mootness argument, finding the matter fell within the “capable of repetition yet likely to evade review” exception. PSP had not formally retracted its interpretation as to all applicants, meaning it could still deny Act 235 certification to others with simple assault convictions and then individually acquiesce if challenged, as it did with Fick.
On the merits, the Court held that PSP’s interpretation violated article II, section 1 of the Pennsylvania Constitution—the Non-Delegation Doctrine, which provides that legislative power is vested exclusively in the General Assembly. The General Assembly specifically limited the criminal conviction standard to “crimes of violence” and did not authorize PSP to expand that standard to encompass “any other crime.” The Court declared that PSP’s regulatory catch-all in Section 21.1(ii), which allowed denial based on “any other crime,” exceeded the statutory delegation and was invalid. The only disqualifying criminal offense under the regulations is a “crime of violence” as PSP itself defined that term—and simple assault is not on that list.
The Court declined, however, to issue a permanent injunction, holding that declaratory relief was sufficient because PSP is bound by the Court’s declarations. The Court also declined to reach Fick’s due process arguments, finding that Fick had not established whether an Act 235 qualification certification constitutes a liberty or property interest to which due process attaches, and that no record evidence supported his claim that PSP impermissibly commingled prosecutorial and adjudicative functions.
Key Takeaways
- Simple assault is not a “crime of violence” under Act 235 or PSP’s regulations, and PSP cannot deny lethal-weapons certification on the basis of a simple assault conviction.
- The “any other crime” catch-all in PSP’s definition of “disqualifying criminal offense” (37 Pa. Code Section 21.1(ii)) is invalid because it exceeds the General Assembly’s statutory delegation, which was limited to “crimes of violence.”
- When an agency retracts its position as to an individual litigant but does not formally abandon its broader interpretation, the dispute is not moot under the “capable of repetition yet likely to evade review” exception.
- The Court’s declarations apply to all Act 235 applicants, not just Fick, limiting PSP’s discretion to deny certification for offenses outside the enumerated definition of “crime of violence.”
Why It Matters
This published opinion resolves a longstanding uncertainty for Pennsylvania’s private security industry. Thousands of armed security guards, executive protection agents, and other privately employed agents require Act 235 certification, and PSP’s expansive interpretation of “disqualifying criminal offense” exposed anyone with a misdemeanor conviction—however minor—to potential denial. The decision draws a clear line: only convictions for the specifically enumerated crimes of violence in 37 Pa. Code Section 21.1 can disqualify an applicant.
More broadly, the opinion is a significant application of the Non-Delegation Doctrine to agency rulemaking. It reinforces the principle that when the General Assembly makes a specific policy choice—here, limiting disqualification to crimes of violence—an agency cannot expand that standard through regulation. Practitioners challenging agency overreach in other regulatory contexts will find the Court’s analytical framework instructive, particularly its holding that a regulation “at variance with a statute” must “fall by the wayside.”