Uniform Firearms Act; Preemption of Local Firearm Regulation

Crawford v. Commonwealth, 277 A.3d 649 (Pa. Cmwlth. 2022), direct appeal, appeal docket 19 EAP 2022

Citizens, nonprofit gun control organizations, and municipalities filed a petition for review in the Commonwealth Court’s original jurisdiction challenging the validity of Uniform Firearms Act (UFA) and Home Rule Charter and Optional Plans Law which vests the General Assembly with the sole power to legislate in the field of firearm regulation. The court summarized the claims as follows:

In count I, the PFR advances a claim under the state-created danger doctrine. In this vein, the PFR contends that “Respondents have affirmatively used their authority in a way that renders Petitioners more vulnerable to gun violence than had Respondents not acted at all” and “acted with a degree of culpability that shocks the conscience and with deliberate indifference and/or recklessness.” (PFR ¶¶133-34.) In addition, the PFR states that “Petitioners are foreseeable victims of Respondents’ acts and/or [are] members of a discrete class of persons subjected to the potential harm brought about by Respondents’ actions” and, further, “have suffered harm that is the foreseeable and a fairly direct result of Respondents’ actions.” (PFR ¶¶135-36.)

In count II, the PFR sets forth a substantive due process claim, asserting that “[t]he Firearm Preemption [Statutes] violate [a]rticle I, [s]ection 1 [of the Pennsylvania Constitution], as they do not bear a real and substantial relation to a legitimate government purpose.” (PFR ¶142.)

In count III, which is denoted as a claim for “interference with delegation,” the PFR states that “[t]he Commonwealth has the obligation to maintain order and to preserve the safety and welfare of all citizens” and “has delegated portions of that obligation to its political subdivisions,” and “[t]his delegation imposes on local health authorities, including [Petitioner City’s] health department, the responsibility for the ills of gun violence.” (PFR ¶¶145-46.) The PFR avers that “[i]t is the responsibility of the Commonwealth to provide [the City of] Philadelphia and other municipalities with reasonable powers with which to discharge their delegated responsibilities, including the delegated responsibility to address gun violence,” and “[t]he General Assembly’s enactment of the Firearm Preemption [Statutes] [has] deprive[d] [the City of] Philadelphia of the ability to fulfill its delegated duty to address gun violence.” (PFR ¶¶149-50.) Moreover, the PFR alleges that “the General Assembly’s enactment and continuation of the Firearm Preemption [Statutes], combined with the General Assembly’s failure to enact adequate statewide firearm regulations, violates the Commonwealth’s obligation to maintain order and to preserve the safety and welfare of all citizens,” reasoning that “[t]he General Assembly cannot enforce the Firearm Preemption [Statutes] against [the City of] Philadelphia while delegating [it] the responsibility to address gun violence.” (PFR ¶151.)

For relief, Petitioners seek “a declaration that Respondents’ actions violate [a]rticle I, [s]ection I of the Pennsylvania Constitution and a permanent injunction preventing further enforcement of the Firearm Preemption [Statutes].” (PFR ¶¶138, 144.) Petitioner City also asks for a declaration stating “that by depriving [it] of the ability to fulfill its delegated duties to address gun violence,” “Respondents have violated the Commonwealth’s obligation to maintain order and to preserve the safety and welfare of all citizens” and request “a permanent injunction preventing further enforcement of the Firearm Preemption [Statutes].” (PFR ¶152.) Finally, Petitioners apply for a declaration that “Respondents have violated [a]rticle I, [s]ection 1 of the Pennsylvania Constitution” by “prohibiting the City of Philadelphia from enacting firearm regulations[,] such as permit-to-purchase ordinances, one-gun-per-month limits, and extreme risk protection laws.” (PFR ¶153.)

Slip op. at 13-15 (footnote omitted). The Commonwealth respondents filed preliminary objections, arguing that the petitioners lacked standing and failed to state a claim upon which relief may be granted, and that claims were not ripe for review, were barred by res judicata and collateral estoppel, and were nonjusticiable.

State-created Danger Doctrine

The Majority summarized the parties’ arguments regarding applicability of the state-created danger doctrine to the Firearm Preemption Statutes as follows:

In their briefs, Respondents contend, among other things, that Petitioners failed to plead a viable claim under the state-created danger doctrine because the theory has never been used to nullify a state statute. Respondents further assert that, in failing to pass the legislation that Petitioners desire, Respondents did not engage in an affirmative act, which is required to invoke the protections of substantive due process under the state-created danger doctrine. Somewhat similarly, Respondents assert that Petitioners’ claim fails because a state may not be held liable for risks that generally affect the public at large, and none of the Petitioners belong to a discrete and identifiable class of individuals who face a peculiar risk that is distinguishable from a risk that is posed to the general public.

In response, Petitioners contend that the state-created danger doctrine imposes a duty on Respondents to protect Pennsylvania citizens if Respondents’ own actions create or enhance a danger toward the citizens, and this includes taking legislative action that increases the risk or opportunity for gun violence. Petitioners argue that the General Assembly was consciously aware that the Firearm Preemption Statutes would result (and have resulted) in an increase in gun deaths in the Cities of Philadelphia and Pittsburgh, namely in the low-income and/or high crime areas, and assert that Respondents acted affirmatively, in that they repeatedly amended Section 6120 of the UFA to make it more expansive in its preemptive reach. In Petitioners’ view, the Petitioner Citizens constitute a defined class of individuals, for purposes of the state-created danger doctrine, because they are members of communities and ethnicities “that bear a tragically disproportionate share of the scourge of gun violence.” (Pet’rs’ Br. at 54-55.) Further, Petitioners contend that a statute cannot be immunized from the state-created danger doctrine because the doctrine originates from the due process clauses of the United States (U.S.) and Pennsylvania Constitutions. Petitioners maintain that all official legislative activity, like executive action, is bound by constitutional restraints and, thus, the Firearm Preemption Statutes are subject to review under the state-created danger doctrine.

Slip op. at 16-17.

Initially, the Majority noted that it “could summarily dispose of Petitioners’ state-created danger claim on the valid and independent ground that the legal theory cannot be utilized as the means by which to declare the Firearm Preemption Statutes unconstitutional” based on its prior decision in Johnston v. Township of Plumcreek, 859 A.2d 7 (Pa. Cmwlth. 2004) wherein the court recognized that the state-created danger doctrine “is a construct by which damages are awarded for constitutional torts” and “is not used to nullify statutory law.” Slip op. at 18. Addressing the merits of petitioners’ state-created danger claim, Commonwealth Court further found that the Firearm Preemption Statutes were applicable to the public at large and were not directed toward citizens, nonprofit gun control groups, or cities in particular to support a state-created danger claim, concluding that:

In an apparent attempt to escape all this, Petitioner Citizens argue that they belong to an identifiable and discreet class, particularly in terms of race and/or ethnicity and/or the fact that they reside in either the City of Philadelphia or the City of Pittsburgh, the both of which, Petitioners allege, are high crime areas. However, as courts have held, “[a] plaintiff cannot merely … name a more particular sub-class of the public as the group to which the government owed a duty, such as one’s ‘neighbors.’ Neighbors are still the public.” Jones v. Reynolds, 438 F.3d 685, 697 (6th Cir. 2006) (citation and internal quotation marks omitted). The same proposition holds true here and applies with equal and compelling force: regardless of the racial and/or ethnic background of each of the Petitioner Citizens, all the Petitioner Citizens are still members of the public, and the UFA does not single them out specially for disparate treatment. Moreover, Petitioners’ designation of the cities as high crime areas is insufficient to create a distinct class. As one court explained, “levels of the quality of life in a neighborhood are transient …. Private action could easily result in changes in the neighborhood that would create opportunities for private violence that are alleged to exist here; for example, people … could move into the neighborhood without the support of the state.” Township of West Orange v. Whitman, 8 F. Supp. 2d 408, 422-23 (D.N.J. 1998) (internal citation omitted). Significantly, “[t]he ‘public in general’ rule already internalizes and rejects as insufficient the argument that those living closer to an alleged state-created danger”—i.e., gun violence, “face a higher probability of harm than those living elsewhere.” Hopkins, 412 F. Supp. 3d at 528. Consequently, an alleged heightened danger posed to residents of cities is still a danger to the public at large—one that is not visited uniquely on the homes, or particular people living, within the cities. See Township of West Orange, 8 F. Supp. 2d at 422.

To reiterate, simply “rendering a person more vulnerable to risk does not create a constitutional duty to protect,” Rivera, 402 F.3d at 37; “[m]ere indifference or inaction in the face of private violence cannot support a substantive due process claim,” Wilson-Trattner, 863 F.3d at 596; a “passive failure to stop private violence” will not suffice to establish a state-created danger, Pena, 432 F.3d at 110; and “[i]t is not enough to allege that a government actor failed to protect an individual from a known danger of bodily harm,” Lombardi, 485 F.3d at 79.

Slip op. at 32.

In dissent, Judge Ceisler opined that Petitioners stated a sufficient state-created danger claim, and that “Johnston is factually distinguishable from this case in a critical respect,” explaining that:

The alleged harm in Johnston was purely conjectural. The residents in Johnston “asserted that as a result of the terrorist attacks on September 11, 2001, and the nation’s war on terrorism, there is now a real and present danger of terrorist attacks on public water systems.” Id. at 9. However, as this Court noted, “[t]here [were] no allegations, for example, that the [w]ater [a]uthority, the [t]ownships or Armstrong County ha[d] been identified as special targets for terrorists.” Id. at 13 n.15 (emphasis added). Here, however, the individual Petitioners have articulated precisely how the Firearm Preemption Statutes have placed them at “special risk” compared to the general public due to their ethnicities, the cities in which they live, and the recent shooting deaths of their loved ones. These allegations are not based on conjecture, but on very real facts. See Pet. for Rev. ¶¶ 9(a)-18(f). Contrary to the Majority, I do not believe our Court’s pronouncement in Johnston – that “as far as can be determined,” the state-created-danger doctrine “has never been used to nullify a statute or ordinance” – should be read as blanketly prohibiting all state-created-danger challenges to state laws, because our ruling in that case was clearly limited to its facts. See Johnston, 859 A.2d at 13-14.

Slip op. at EC-21.

Substantive Due Process

The Majority held that petitioners’ substantive due process claim fails because the General Assembly has a legitimate government and public interest in maintaining uniformity in the area of gun control legislation when it passed the Firearm Statutes, reasoning:

… our own Supreme Court has determined that firearm regulation entails “substantive matters of statewide concern,” concluding that “the General Assembly … is the proper forum for the imposition of such regulation.” Ortiz [v. Commonwealth, 681 A.2d 152, 156 (Pa. 1996)]. In enacting the Firearm Preemption Statutes, our General Assembly made a policy-based decision to prohibit municipalities from intruding into the arena of firearm regulation and, in so doing, created a uniform system of laws throughout the Commonwealth. As the averments in the PFR illustrate, the General Assembly debated the issue of preemption, and Petitioners’ arguments bear more on the wisdom of the legislation rather than on its validity. This Court, as the judicial branch of government, does not act as a super-legislature. In a case decided in 2008, this Court concluded that Section 6120 preempted Petitioner City’s ordinances relating to firearm regulation, and we stated: “While we understand the terrible problems gun violence poses for [Petitioner City] and sympathize with its efforts to use its police powers to create a safe environment for its citizens, these practical considerations do not alter the clear preemption imposed by the legislature, nor our Supreme Court’s validation of the legislature’s power to so act.” Clarke, 957 A.2d at 365. Although the streams of time have run since then, we reaffirm that statement and sentiment here. There are numerous factors and considerations which must be taken into account by the legislature in establishing the policy it determines provides the most protection for the public, and the courts are not the place to enter into such public debate.

It is beyond cavil that, “[w]hen faced with any constitutional challenge to legislation, we proceed to our task by presuming constitutionality in part because there exists a judicial presumption that our sister branches take seriously their constitutional oaths.” Stilp v. Commonwealth, 588 Pa. 539, 905 A.2d 918, 938 (2006). Honoring the presumption of constitutionality which attends the Firearm Preemption Statutes, we conclude that the statutes pass muster under the rational basis test and, as such, Petitioners’ substantive due process claim lacks merit and is legally insufficient.

Slip op. at 38-39.

In a concurring opinion, Judge Cohn Jubelirer addressed the application of the Supreme Court’s decision in Ortiz, stating that:

Petitioners’ allegations regarding the prevalence and severity of gun violence in certain areas of the Commonwealth of Pennsylvania, and the tragic toll such violence has on the lives of those who reside in those areas, are not lost on me. However, I believe that the Court is controlled by precedent, and that our Supreme Court left little air in its conclusion in Ortiz v. Commonwealth, 545 Pa. 279, 681 A.2d 152, 156 (1996), that the regulation of firearms is to be done at the state, not local, level.

I write separately, as did Senior Judge Leadbetter recently, recognizing “that local conditions may well justify more severe restrictions than are necessary statewide.” City of Philadelphia v. Armstrong, 271 A.3d 555, 569 (Pa. Cmwlth. 2022) (Leadbetter, S.J., concurring). As she eloquently stated, “[i]t is neither just to impose unnecessarily harsh limits in communities where they are not required nor consistent with simple humanity to deny basic safety regulations to citizens who desperately need them.” Id. The novel constitutional arguments raised by Petitioners may provide a basis for “our Supreme Court to reconsider the breadth of the Ortiz doctrine[ ] and allow for local restrictions narrowly tailored to local necessities.” Id. (footnote omitted).

Slip op. at RCJ-1 – RCJ-2.

In dissent, Judge Ceisler questioned the Majority’s application of Ortiz and whether Ortiz should be revisited, reasoning that:

Citing Ortiz, the Majority concludes that the Firearm Preemption Statutes further the Commonwealth’s legitimate interest in regulating citizens’ possession and ownership of firearms on a statewide basis. In Ortiz, the Supreme Court was faced with a constitutional challenge involving the right to bear arms under Article I, Section 21 of the Pennsylvania Constitution. The Ortiz Court concluded:

Because the ownership of firearms is constitutionally protected, its regulation is a matter of statewide concern. The [Pennsylvania C]onstitution does not provide that the right to bear arms shall not be questioned in any part of the [C]ommonwealth except Philadelphia and Pittsburgh, where it may be abridged at will, but that it shall not be questioned in any part of the [C]ommonwealth. Thus, regulation of firearms is a matter of concern in all of Pennsylvania, not merely in Philadelphia and Pittsburgh, and the General Assembly, not city councils, is the proper forum for the imposition of such regulation.

681 A.2d at 156 (emphasis added); accord Clarke, 957 A.2d at 364 (invalidating local ordinances that “regulate[d] firearms – an area that both Section 6120[(a)] and [Ortiz] have made clear is an area of statewide concern over which the General Assembly has assumed sole regulatory power”).

Critically, however, Ortiz did not involve a substantive due process challenge under Article I, Section 1 of the Pennsylvania Constitution, as is alleged in this case. In light of Ortiz’s holding that the “regulation of firearms is a matter of concern in all of Pennsylvania,” this Court is being asked to balance the constitutional right of Petitioners to defend their lives and liberty under Article I, Section 1 and the constitutional right of all Pennsylvania citizens to bear arms under Article I, Section 21. That question was not before the Supreme Court in Ortiz. Therefore, I do not believe Ortiz bars the present substantive due process challenge to the Firearm Preemption Statutes.

Furthermore, 26 years have passed since Ortiz was decided. The United States of 1996 is very different from the United States of 2022. As painstakingly described in the Petition for Review, gun violence in our country and in our Commonwealth has reached epidemic levels and is wreaking havoc on the lives of the individual Petitioners and their families. Perhaps it is time for our Supreme Court to revisit Ortiz in light of these circumstances.

At this stage of the proceedings, this Court need only consider whether the Petition for Review adequately alleges a substantive due process claim under Article I, Section 1 of the Pennsylvania Constitution. I believe that it does. Therefore, I would overrule this objection.

Slip op. at EC-23 – EC-24.

Interference with Delegation

The Commonwealth argued that the petitioners’ delegation claim fails because the City is prohibited by Section 6120(a) of the Uniform Firearms Act of 1995, which provides that: “No county, municipality or township may in any manner regulate the lawful ownership, possession, transfer or transportation of firearms, ammunition or ammunition components when carried or transported for purposes not prohibited by the laws of this Commonwealth.”  Petitioners countered that:

the General Assembly is obligated to protect its citizens and delegated to Petitioner City “a portion of its responsibility … under the Local Health Administration Law” and “the Disease Prevention and Control Law [of 1955],” particularly the authority to eradicate local “menace[s] to public health.” (Pet’rs’ Br. at 74-75.) Petitioners assert that Petitioner City “does not have the resources it needs to carry out its duty to address the gun violence epidemic” and, as a result of the Firearm Preemption Statutes, has been “deprive[d] … of the ability to fulfill its delegated duty to address gun violence.” Id. at 75-76.

Slip op. at 39.

Commonwealth Court held that the Firearm Preemption Statutes did not interfere with statutory delegation powers since gun regulation did not directly affect the health of people in a medical sense, and the Uniform Firarms Act preempted the area of firearm regulation, reasoning that:

Initially, we conclude that, based on the plain language of the pertinent statutes, any authority delegated to Petitioner City to “prevent or remove conditions which constitute a menace to public health,” Section 10 of the Local Health  Administration Law, 16 P.S. § 12010, or to “prevent[ ] and control [ ] communicable and non-communicable disease,” Sections 2 and 3(a) of the Disease Prevention and Control Law, 35 P.S. §§ 521.2, 521.3(a), does not appear to include (or otherwise correlate into) an authority to enact gun control laws. Generally speaking, “public health” has been defined as “the science and art of preventing disease, prolonging life[,] and promoting health through the organized efforts and informed choices of society, organizations, public and private, communities[,] and individuals.”18 According to a renowned legal dictionary, “public health” is “[t]he healthful or sanitary condition of the general body of people or the community en masse,” especially “the methods of maintaining the health of the community, as by preventive medicine and organized care for the sick.” Black’s Law Dictionary 787 (9th ed. 2009). As “this Court may draw upon common sense and basic human experience to construe terms,” Kohl v. New Sewickley Township Zoning Hearing Board, 108 A.3d 961, 969 (Pa. Cmwlth. 2015), it is difficult to discern how Petitioners’ alleged incidents of gun violence equates into a “public health” matter that gives rise to an express “delegated duty” to implement gun regulation at the local level. This is because gun regulation does not directly affect the health of the people in the medical sense, such as when a communicable disease is introduced into the public, or unsanitary conditions exists in the streets or other infrastructure, or food products contaminated with harmful bacteria enter the marketplace.

Moreover, and more importantly, Petitioner City, like all other home rule municipalities, is prohibited from “exercis[ing] powers contrary to, or in limitation or enlargement of, powers granted by acts of the General Assembly which are … [a]pplicable in every part of the Commonwealth.” Section 18(b) of the Act of April 21, 1949, P.L. 665, as amended, 53 P.S. § 13133(b); see 53 Pa.C.S. § 2962. In Ortiz, our Supreme Court held that Section 6120(a)’s directive that the General Assembly exclusively govern matters concerning the ownership, possession, transfer, or transportation of firearms evidenced an issue of statewide concern, and, the statute, being equally applicable throughout the Commonwealth, deprived municipalities of authority to regulate these subjects, including Petitioner City. See 681 A.2d at 156; see also Commonwealth v. Hicks, 652 Pa. 353, 208 A.3d 916, 926 n.6 (2019) (reaffirming and reiterating that Section 6120(a) verifies “the General Assembly’s reservation of the exclusive prerogative to regulate firearms in this Commonwealth”) (emphasis added). In so deciding, the Supreme Court considered and rejected arguments that are substantially similar to those advanced by Petitioner City here. Specifically, in Ortiz, the Cities of Philadelphia and Pittsburgh argued that, despite Section 6120(a) of the UFA, the General Assembly could not limit their “ability to perform the basic administrative functions of a municipal government and the ability to fulfill a fundamental purpose for which [a] [c]ity government exists.” Ortiz, 681 A.2d at 155. The cities further asserted that “the right of a city to maintain the peace on its streets through the regulation of weapons is intrinsic to the existence of the government of that city and, accordingly, an irreducible ingredient of constitutionally protected Home Rule.” Id. at 155-56. Our Supreme Court disagreed and concluded that, notwithstanding any authority that the General Assembly has bestowed upon the cities to pass legislation, Section 6120(a) preempted the area of firearm regulation and barred the cities from enacting local firearm laws. Naturally, the same result must obtain here, and, following Ortiz as binding precedent, we conclude that Petitioners have not pleaded a valid claim for interference with delegation.

Slip op. at 39-41.

In dissent, Judge Ceisler explained that she would find that Philadelphia alleged a valid claim that the Firearm Preemption Statutes impermissibly interfere with Philadelphia’s statutorily delegated duties under the LHAL and the DPCL, reasoning that:

Respondents contend that neither the LHAL nor the DPCL grants Philadelphia the authority to enact legislation in areas expressly preempted by the General Assembly. Philadelphia, however, does not argue that the statutes grant such authority; rather, Philadelphia argues that it has been given the responsibility, but not the authority, to pass local regulations to address the public health crisis caused by gun violence. Philadelphia avers that, in this way, Respondents have interfered with its statutorily delegated duties.

Slip op. at EC-26 – EC-27.


Commonwealth Court granted the Commonwealth’s preliminary objections and dismissed petitioners’ complaint, concluding its opinion with the following observation:

As a final matter, as we stated in Firearm Owners Against Crime v. City of Pittsburgh, 27 A.3d 878 (Pa. Cmwlth., No. 1754 C.D. 2019, filed May 27, 2022):

[T]he precious lives lost to senseless violence in our nation is beyond tragic. The systemic issues and divisiveness in this once united nation are painfully apparent. The pressing need for peaceful public discourse with respect for our “inalienable rights to Life, Liberty and the pursuit of Happiness” is imperative, The United States Declaration of Independence (1776), for “[a] house divided against itself cannot stand.” Abraham Lincoln’s House Divided Speech (June 17, 1858).

Slip op. at 42-43 (quoting Firearm Owners Against Crime, 276 A.3d at 897–98).