MONUMENTAL Decision by the PA Supreme Court on Pennsylvania’s Firearm Preemption Statute – Prince Law Offices Blog

Today, Chief Counsel Joshua Prince, assisted by Attorney Dillon Harris, secured a monumental decision by the Pennsylvania Supreme Court, affirming the decision of Judge Kevin Brobson of the Commonwealth Court (and candidate for Justice of the Pennsylvania Supreme Court), in the matter of Firearm Owners Against Crime, et al. v. City of Harrisburg, et al, where the Court held that FOAC and the other plaintiffs had sufficiently averred standing under Pennsylvania’s Declaratory Judgment Act to challenge Harrisburg’s illegal and unlawful firearm ordinances.

The 38 page Majority Opinion begins its analysis with the enactment and purpose of the Declaratory Judgment Act, stating:

In the Declaratory Judgments Act, 42 Pa.C.S. §§ 7531-7541, the General Assembly vested in courts the “power to declare rights, status, and other legal relations whether or not further relief is or could be claimed.” 42 Pa.C.S. § 7532. Significantly, the legislature provided that the Declaratory Judgments Act is “remedial,” and “its purpose is to settle and to afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations, and is to be liberally construed and administered.” 42 Pa.C.S. § 7541(a).

And thereafter went on to acknowledge, as we argued, that “[a]pplying the traditional substantial-direct-immediate test for standing, this Court has afforded standing to plaintiffs in pre-enforcement declaratory judgment actions challenging the legality or constitutionality of statutes.”

In turning to FOAC, et al.’s standing, the Court declared

we conclude the averments in Appellees’ complaint are sufficient to establish their standing to bring a declaratory judgment action challenging the constitutionality and statutory preemption of the City’s Discharge, Parks, Lost/Stolen, and Minors Ordinances. The complaint alleges that First, Bullock, and Stolfer lawfully possess firearms, are licensed to carry a concealed firearm, and fear criminal prosecution under the ordinances as they live, commute, and travel to the City. Complaint, 1/16/15, at ¶¶ 66, 68, 69, 71, 72, 74, 77, 79, 80, 85. Additionally, one of FOAC’s members is under the age of 18, resides in the City, and lawfully possesses firearms. Id. at ¶ 60. Further, the City is actively enforcing the ordinances, citing violators of the Discharge and Minors Ordinances, and the City’s mayor indicated his intent to continue to enforce the ordinances. Id. at Ex. B; Ex. C.

In acknowledging the choices faced by FOAC, et al., the Court stated

Given these allegations, which we take as true, Appellees currently must make a choice to either comply with the ordinances, thereby forfeiting what they view as their constitutionally and statutorily protected firearms rights; or violate the ordinances by exercising their rights, thereby risking criminal prosecution. Appellees also have a third option, which is to stop living in, commuting to, or travelling to the City to avoid being subject to its ordinances, which would of course entail relocating from the City, changing employers, or foregoing legislative advocacy. That Appellees are confronted with these options shows that their interest in the outcome of the constitutionality and preemption of the challenged ordinances is substantial, immediate, and direct.

In finding that FOAC et al.’s interest in the challenged ordinances is substantial, immediate and direct, the Court held

The individual Appellees’ interest is substantial because they, as lawful possessors of firearms and concealed carry licenses, seek a determination of the validity of the City’s Discharge, Parks, and Lost/Stolen Ordinances, which criminalize aspects of their ability to carry and use firearms within the City and impose reporting obligations for lost or stolen firearms. This exceeds the “abstract interest of all citizens in having others comply with the law.”William Penn Parking Garage, Inc. v. City of Pittsburgh, 346 A.2d 269, 282 (Pa. 1975) (defining substantial interest). Their interest is direct because the challenged ordinances allegedly infringe on their constitutional and statutory rights to possess, carry, and use firearms within the City. See id. (stating a direct interest “simply means that the person claiming to be aggrieved must show causation of the harm to his [or her] interest by the matter of which he [or she] complains.”). Their interest is immediate because they are currently subject to the challenged ordinances, which the City is actively enforcing, and must presently decide whether to violate the ordinances, forfeit their rights to comply with the ordinances, or avoid the City altogether. This alleged harm to their interest is not remote or speculative. See Donahue, 98 A.3d at 1229. Because the individual Appellees, who are all members of FOAC, have standing to challenge the Discharge, Parks, and Lost/Stolen Ordinances, FOAC has standing as an associational representative of these members to challenge the ordinances. See Robinson Twp., 83 A.3d at 922. For the same reasons, FOAC’s member who is a minor and resides in the City has a substantial, direct, and immediate interest in the outcome of this matter, and FOAC also has standing as this minor’s associational representative to challenge the Minor’s Ordinance. See id. Accordingly, Appellees have a substantial, direct, and immediate interest in the outcome of their challenge to the ordinances and have standing to pursue a declaratory judgment action to ascertain their rights and obligations.

The Court, in dismissing a number of the City’s arguments, went on to declare that “[i]t is not necessary for the mayor or police chief to specifically threaten any individual with enforcement as Appellees’ interests are immediate without that factual development, and it would not assist the legal inquiry into the validity of the ordinances.” (emphasis added).

In a Concurring Opinion, Justice Wecht declares

Appellees here face equally intolerable options that render their action consistent with the conferral of standing in our precedential opinions. The choice between engaging in arguably constitutional activity and facing potential prosecution, or forfeiting one’s rights and abstaining from potentially protected conduct altogether, presents precisely the kind of choice that confers standing….Without access to the courts to resolve their dispute, Appellees would be left with no path to challenge the constitutionality of the ordinances other than willfully violating the law….Being forced to choose between abdicating one’s rights or willfully violating the law and subjecting oneself to sanctions presents exactly the kind of dilemma that does confer standing.

Consistent therewith, Justice Wecht declares that

We do not require plaintiffs to violate laws or regulations and subject themselves to sanctions for engaging in protected conduct as the price of admission to the courthouse. The rights guaranteed to the citizens of this
Commonwealth do not depend upon an individual’s willingness to subject herself to the risk of jail or criminal penalties to assert her rights. Resolving uncertainty in accord with liberal construction of the Act means that the courthouse doors are open to resolve the constitutionality of statutes and ordinances without requiring that the individual put his or her life, liberty, or property on the line by first violating the statute or ordinance and being subject to enforcement. Nor does the individual have to face economic hardship or professional disaster. Having a substantial interest “simply means that the individual’s interest must have substance—there must be some discernible adverse effect to some interest other than the abstract interest of all citizens in having others comply with the law.”

Eloquently, Justice Wecht explains

The legislative branch, the executive branch, and local municipalities bear responsibility for enacting legislation or regulations that do not unduly infringe upon the rights of our citizens. When government conduct is challenged, the judiciary ensures that the rights of the individual are vindicated when infringed. If the government’s actions threaten individual rights, those individuals have access to the courts to challenge government conduct. Under the Act, they may do so without first subjecting themselves to arrest, threats of arrest, or warnings about potential enforcement action. As our Founder recognized, delaying justice until one is sanctioned by the full force of the law is no justice at all.

Unfortunately, Chief Justice Baer, and Justices Donohue and Todd issued two dissenting opinions (Dissenting Opinion of Chief Justice Baer and Dissenting Opinion of Justice Donohue) that basically hold that one needs to violate the law in order to obtain standing to challenge the lawfulness of the law. Remember this when these Justices come up for a retention vote.

If you are in a position to be able to support this matter, FOAC would greatly appreciate donations, which can be made online through the Firm’s escrow account here – Simply place “FOAC Harrisburg Preemption Litigation” in the reference box.

If you or someone you know has been the victim of an unlawful municipal firearm or ammunition regulation or ordinance, contact FICG today to discuss your options.

Firearms Industry Consulting Group® (FICG®) is a registered trademark and division of Civil Rights Defense Firm, P.C., with rights and permissions granted to Prince Law Offices, P.C. to use in this article.

Published by Joshua Prince, Esq.

With our 2nd Amendment rights being attacked at both the Federal and State level, and the ATF (Burea of Alcohol, Tobacco, Firearms, and Explosives) trying to close down FFLs (Federal Firearms Licensees) for minor infractions while making FFLs the scapegoat when the ATF’s records are inaccurate, I want to take this opportunity to introduce myself. I am one of only a handful of attorneys across the US that practices in the niche area of law known as firearms law. I decided to concentrate my legal practice on firearms law not only because I am a shooter and firearms enthusiast, but also to ensure that our inalienable Right to Keep and Bear Arms is never encroached upon.

I handle cases at the Federal and State level for both FFLs and individuals. At the federal and state levels for individuals, I actively defend the 2nd Amendment of the US Constitution and Section 21 of the PA Constitution, as well as, help individuals with:

– License to Carry Firearms Denials;
– Challenges to Erroneous PICS Denials;
– Relief from Firearms Disabilities;
– Estate Planning Advice;
– Gun/NFA Trusts; and
– 42 USC 1983 Actions for Deprivation of Civil Rights

At both the state and federal levels, I represent FFLs and SOTs throughout Pennsylvania and the US regarding:

– ATF Compliance Inspections;
– Warning Letters and Hearings;
– FFL Revocations;
– Corporate Structure Advice
– Indoor/Outdoor Range Implementation; and
– Forfeiture Proceedings

In following my love for firearms and firearms law, I have taught several Continuing Legal Education (CLE) seminars on Firearms in Estates and Trusts and Firearms Law 101 for several Bar Associations, including Berks, Cumberland, and Dauphin Counties. I also planned and taught several Firearms in Estates CLE classes for the Pennsylvania Bar Institute (PBI).

While at Widener Law School, I was a member of the Widener Law Journal. I wrote an article on the Inaccuracy of the National Firearms Registration and Transfer Record (NFRTR). I also had an article published on Fee Disputes in Workers Compensation cases in the Widener Law Journal, Volume 18, No. 2.

You can often find me posting on several internet forums, including Subguns, Uzitalk, AR15, and PAFOA. I also hold PA Firearms Law classes for local ranges to inform the public on the firearm laws of the Commonwealth.

Following in my father’s footsteps, I am also a Board member for the Pottstown Police Athletic League (PAL).

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