Individual Standing to Challenge Gun Ordinance Absent Violation and/or Prosecution
Firearm Owners Against Crime, et al. v. City of Harrisburg, 218 A.3d 497 (Pa. Cmwlth. 2019), allocatur granted April 28, 2020, appeal docket 29 MAP 2020
The Pennsylvania Supreme Court granted allocatur in this matter to address whether individuals have standing to challenge the legality of five local gun control ordinances of the City of Harrisburg (City) through a declaratory judgment action.
In January 2015, Firearm Owners Against Crime (FOAC), and individuals Kim Stolfer, Joshua First, and Howard Bullock (collectively, the Individuals; FOAC and the Individuals, collectively, the Plaintiffs) filed a complaint challenging the legality of the City’s gun ordinances and seeking declaratory and injunctive relief against the City, Mayor Eric Papenfuse , and Police Chief Thomas Carter (collectively, the City Defendants). Specifically, Plaintiffs challenged the following provisions of the Code Ordinances of Harrisburg (Code): Section 3-345.2 or the “Discharge Ordinance,” prohibiting the discharge of a firearm within the City unless at a firing range or an accredited educational facility approved by the Mayor or Chief of Police; Section 3-345.4 or the “Lost/Stolen Ordinance,” requiring a lawful gun owner to report any lost or stolen firearm within 48 hours; and, Section 10-301.13 or the “Park Ordinance,” prohibiting the possession, use, and discharge of firearms within City parks. Plaintiff FOAC additionally challenged Section 3-345.1 or the “Minors Ordinance,” prohibiting an unaccompanied minor from possessing a firearm within the City. Under the Code, violation of these provisions is subject to a minimum fine of $50 or a maximum fine of $1,000 per violation, and the violator could also forfeit their personal property and/or be imprisoned for each violation. Through their complaint, Plaintiffs alleged that the City’s gun ordinances unconstitutionally infringe on rights conferred by the Second Amendment to the United States Constitution and Article I, Section 21 of the Pennsylvania Constitution and are preempted by the Pennsylvania Uniform Firearms Act of 1995, and sought declaratory relief.
The City filed preliminary objections claiming FOAC and the Individuals lacked standing under the Pennsylvania Rules of Civil Procedure. The Dauphin County Court of Common Pleas sustained the City’s preliminary objection based on lack of standing and dismissed the complaint. Plaintiffs appealed to the Commonwealth Court, arguing the trial court erred in dismissing their complaint for lack of standing under both a “relaxed” and “traditional” standing analysis, and that, under the Pennsylvania Supreme Court’s decision in Arsenal Coal Co. v. Department of Environmental Resources, 477 A.2d 1333 (Pa. 1984), plaintiffs are entitled to seek pre-enforcement review under the Declaratory Judgments Act. Relying on National Rifle Association v. City of Philadelphia, 977 A.2d 78 (Pa. Cmwlth. 2009) (en banc), appeal denied, 996 A.2d 1069 (Pa. 2010) (NRA/Philadelphia) and National Rifle Association v. City of Pittsburgh, 999 A.2d 1256 (Pa. Cmwlth. 2010), appeal denied, 23 A.3d 543 (Pa. 2011) (NRA/Pittsburgh), the City Defendants maintained that individual plaintiffs must have violated the ordinances or been prosecuted for violating the ordinances to have standing, and that plaintiffs failed to plead any such violation in their complaint.
The Commonwealth Court found that the Individuals and FOAC met the traditional analysis of standing for the Discharge Ordinance, Lost/Stolen Ordinance, and the Park Ordinance, FOAC met the association requirements of standing for the Minors Ordinance. For the Discharge Ordinance and the Park Ordinance, the Commonwealth Court reasoned that the Individuals met the standing analysis because (1) each have a substantial interest in the legality of the ordinances in that the lawful gun owners live, work or regularly visit the City and the ordinances restrict some lawful use or possession of their firearm within the City; (2) each have a direct interest because “there is a causal connection between the Individual Plaintiffs’ possession and use of firearms and the City’s decision to restrict that activity through the passage and enforcement of these ordinances”; and, each have an immediate interest because the City is actively enforcing the ordinances and the Individuals “cannot now discharge a firearm within much of the City without violating the Discharge Ordinance, nor can they now carry or discharge a firearm within a City park without violating the Park Ordinance.” Slip Op. 13-14. The Commonwealth Court also concluded the Individuals had standing to challenge the Lost/Stolen Ordinance because the Individuals “fall within the class of individuals on whom the ordinance imposes a duty to report” and that “FOAC, concomitantly, has standing to challenge these ordinances.” Slip Op. at 14-15. Only FOAC challenged the Minors Ordinanace. The Commonwealth Court reasoned FOAC had standing because “FOAC currently has members under the age of 18, one of whom lives in the City and is subject to the ordinance” and the ordinance prohibits the unaccompanied member from possessing a firearm within the City, which is a direct and immediate effect on the member. Slip Op. at 17-18.
The Commonwealth Court acknowledged this holding conflicts with its prior decisions in NRA/Pittsburgh and NRA/Philadelphia; however, the Commonwealth Court called for overruling current precedent based on the Supreme Court’s decision in Robinson Township v. Pa. Pub. Util. Comm’n, 83 A.3d 901 (Pa. 2013), which was decided after NRA/Pittsburgh and NRA/Philadelphia. In Robinson Twp., the Supreme Court held that Commonwealth Court erred in dismissing the challenges of a physician to a state statute that restricted the physician’s ability to obtain and share with other physicians information about chemicals used in unconventional drilling operations, reasoning:
[The physician] describes the untenable and objectionable position in which [the statute commonly known as] Act 13 places him: choosing between violating a Section 3222.1(b) [of Act 13] confidentiality agreement and violating his legal and ethical obligations to treat a patient by accepted standards, or not taking a case and refusing a patient medical care. The Commonwealth’s attempt to redefine [the physician’s] interests and minimize the actual harm asserted is unpersuasive. Our existing jurisprudence permits pre-enforcement review of statutory provisions in cases in which petitioners must choose between equally unappealing options and where the third option, here refusing to provide medical services to a patient, is equally undesirable.
In light of [the physician’s] unpalatable professional choices in the wake of Act 13, the interest he asserts is substantial and direct. Moreover, [the physician’s] interest is not remote. A decision in this matter may well affect whether [the physician], and other medical professionals similarly situated, will accept patients and may affect subsequent medical decisions in treating patients—events which may occur well before the doctor is in a position to request information regarding the chemical composition of fracking fluid from a particular Marcellus Shale industrial operation. Additional factual development that would result from awaiting an actual request for information on behalf of a patient is not likely to shed more light upon the constitutional question of law presented by what is essentially a facial challenge to Section 3222.1(b).
Slip op. at 21, quoting Robinson Twp., 83 A.3d at 924-25 (citations omitted). Thus, the court concluded:
Our precedent in NRA/Pittsburgh and NRA/Philadelphia is untenable and must be overruled because it affords greater access to the courts to challenge the facial constitutionality of ordinances to scofflaws than to law-abiding citizens. It makes little sense to wait for Appellants to break the law, which we presume they do not want to do, before they can challenge it. It also makes little sense to force law-abiding citizens to rely on law breakers to advocate their interests. “Additional factual development that would result from awaiting an actual” criminal proceeding enforcing these ordinances “is not likely to shed more light upon the . . . question of law presented by what is essentially a facial challenge” to the ordinances. Robinson Twp., 83 A.3d at 925.
Slip Op. at 23.
The Supreme Court granted allocatur to examine:
Whether the Commonwealth Court’s decision to grant Plaintiffs, who have not been cited under the City of Harrisburg ‘s gun control ordinances and for whom any harm is remote and hypothetical, individual and associational standing to challenge the City of Harrisburg’s gun control ordinances, directly conflicts with this Court’s jurisprudence?