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National Rifle Association v. City of Philadelphia

June 18, 2009

NATIONAL RIFLE ASSOCIATION, NATIONAL SHOOTING SPORTS FOUNDATION, PENNSYLVANIA ASSOCIATION OF FIREARMS RETAILERS
v.
CITY OF PHILADELPHIA, MAYOR MICHAEL NUTTER AND PHILADELPHIA CITY COUNCIL, APPELLANTS
NATIONAL RIFLE ASSOCIATION, NATIONAL SHOOTING SPORTS FOUNDATION, PENNSYLVANIA ASSOCIATION OF FIREARMS RETAILERS, COLOSIMO'S, INC., FIRING LINE, INC., JON MIROWITZ, EUGENE WALWORTH, JOHN OLEXA AND CHARLES H. COX, III, APPELLANTS
v.
CITY OF PHILADELPHIA, MAYOR MICHAEL NUTTER AND PHILADELPHIA CITY COUNCIL



The opinion of the court was delivered by: President Judge Leadbetter

Argued: November 12, 2008

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge*fn1, HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE DORIS A. SMITH-RIBNER, Judge, HONORABLE DAN PELLEGRINI, Judge, HONORABLE ROCHELLE S. FRIEDMAN, Judge*fn2, HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE JOHNNY J. BUTLER, Judge.

OPINION

The City of Philadelphia, Mayor Michael Nutter and the Philadelphia City Council (collectively, the City) appeal from the order of the Court of Common Pleas of Philadelphia County (trial court), which permanently enjoined the City from enforcing two ordinances regulating the transfer and possession of firearms. The National Rifle Association (NRA), NRA members Jon Mirowitz, Eugene Walworth, John Olexa and Charles H. Cox, III, the National Shooting Sports Foundation, the Pennsylvania Association of Firearms Retailers and two local firearm retailers, Firing Line, Inc. and Colosimo's Inc., (collectively, Plaintiffs) cross-appeal from the trial court's determination that they lack standing to challenge three additional gun control ordinances. We affirm.

The five ordinances at issue herein were adopted by the City on April 10, 2008, in an effort to regulate the ownership and transfer of firearms within the City limits. The Ordinances can be summarized as follows: Bill No. 080017, "Imminent Danger Ordinance," authorizes the temporary removal of firearms from persons found by the court, upon affidavit of two police officers or a district attorney, to pose a risk of imminent harm to themselves or others; Bill No. 080018-A, "Protection From Abuse Ordinance," prohibits persons subject to an active protection from abuse order from acquiring or possessing firearms when such order provides for confiscation of the firearms; Bill No. 080032-A, "Lost or Stolen Gun Ordinance," requires gun owners to report their lost or stolen firearms to law enforcement officials within twenty-four hours after discovery of the loss or theft; Bill No. 080033, "Assault Weapons Ordinance," prohibits the possession, sale and transfer of certain offensive weapons, including assault weapons, as well as certain contraband accessories or ammunition; and finally, Bill No. 080035-A, "Straw Purchaser Ordinance," prohibits any person when purchasing a handgun from acting as a straw purchaser and prohibits the purchase of more than one handgun within any thirty-day period, except for any person who is not a straw purchaser.

Plaintiffs filed a complaint seeking declaratory and injunctive relief, asserting that the Ordinances are unconstitutional*fn3 and preempted by Section 6120(a) of the Pennsylvania Uniform Firearms Act (Firearms Act), 18 Pa. C.S. § 6120(a).*fn4 On April 17, 2008, the trial court entered a preliminary injunction temporarily restraining the City from enforcing the Ordinances. Following a hearing, by order dated June 3, 2008,*fn5 the trial court permanently enjoined the City from enforcing the Assault Weapons Ordinance and the Straw Purchaser Ordinance, concluding that they were preempted by state law. The trial court also determined that the Plaintiffs failed to establish standing to challenge the remaining three Ordinances, thus barring Plaintiffs' challenge to these three Ordinances on procedural grounds. Thereafter, the parties filed post-trial motions, which the trial court denied.

On appeal to this court,*fn6 we are faced once again with a challenge to the City's latest attempt to regulate certain activity with respect to firearms in its ongoing efforts to address the unfortunate and tragic proliferation of gun crimes in the City.*fn7 In this most recent attempt, the City first argues that it is not preempted from regulating all conduct in the area of firearms by Section 6120 of the Firearms Act and that case law supports its adoption of both the Assault Weapons Ordinance and the Straw Purchaser Ordinance as long as they do not intrude "within the zone that has been expressly preempted by the Commonwealth," i.e., the regulation of lawful activity. City's Brief, at 5. The City contends that by enacting the Assault Weapons Ordinance, it is merely regulating in more detail that which the state has already made unlawful under the prohibited offensive weapons statute, Section 908(c) of the Crimes Code, which bans any "implement for the infliction of serious bodily injury which serves no common lawful purpose." 18 Pa. C.S. § 908(c). This, the City further asserts, is a permissible exercise of its legislative power enacted "‛in aid and furtherance of the purpose of the general law,'" which it deems appropriate to protect the citizens of the City of Philadelphia and the members of the Philadelphia Police Department. City's Brief, at 31 [quoting Western Pennsylvania Restaurant Assoc. v. Pittsburgh, 366 Pa. 374, 381, 77 A.2d 616, 620 (1951) (quotation and citation omitted)]. Finally, the City argues that because the Straw Purchaser Ordinance also regulates only unlawful activity, i.e., prohibiting persons from acting as "straw purchasers," which is defined in the Ordinance as "[a]ny person who conducts or attempts to conduct a gun purchase on behalf of another person," Bill No. 080035-A, § 10-831(1)(c), the City is legislating in an area not preempted by the language of Section 6120 of the Firearms Act.

Plaintiffs countervailing argument is that the City is barred from enacting any gun control ordinance pursuant to statewide preemption under Section 6120 of the Firearms Act and by prior decisions of this Commonwealth. See, Ortiz v. Commonwealth, 545 Pa. 279, 681 A.2d 152 (1996); Clarke v. House of Representatives, 957 A.2d 361 (Pa. Cmwlth. 2008), notice of appeal filed (74 M.A.P. 2008, October 6, 2008); and Schneck v. City of Philadelphia, 383 A.2d 227 (Pa. Cmwlth. 1978). The Plaintiffs assert that there is no "zone" within which the City may reasonably or in any manner regulate firearms and that neither the language of Section 6120 itself nor any case law supports or suggests such an exception. In their cross-appeal, Plaintiffs assert that as gun owners and/or firearms retailers, they are aggrieved by the three remaining Ordinances, which substantially impact their right to sell, transfer, purchase, and possess firearms within the City of Philadelphia, and that these Ordinances have created a substantial, direct and immediate harm to them. Therefore, Plaintiffs argue, the trial court erred in determining that they did not have standing to challenge these Ordinances. We will address Plaintiffs' cross-appeal first.

Under the Declaratory Judgments Act, 42 Pa. C.S. §§ 7531-7541, individuals are granted the right to request a declaratory judgment if their rights are affected by a statute or municipal ordinance. 42 Pa. C.S. § 7533. "Although the Declaratory Judgments Act is to be liberally construed, one limitation on a court's ability to issue a declaratory judgment is that the issues involved must be ripe for judicial determination, meaning that there must be the presence of an actual case or controversy." Pennsylvania State Lodge v. Dep't of Labor & Indus., 692 A.2d 609, 613 (Pa. Cmwlth. 1997) (citation omitted). In order for Plaintiffs to sustain an action with respect to the three remaining Ordinances, they must:

allege a particularized, concrete injury to [themselves] which is causally traceable to the complained-of action by the defendant and which may be redressed by the judicial relief requested . . . Additionally, the line of causation between the alleged illegal conduct and injury cannot be too attenuated.

Trial Court Opinion, at 4 (citations omitted). The three Ordinances that the trial court held that Plaintiffs lacked standing to challenge are: Bill No. 080017, "Imminent Danger Ordinance;" Bill No. 080018-A, "Protection From Abuse Ordinance;" and Bill No. 080032-A, "Lost or Stolen Gun Ordinance." Because we agree with the trial court's determination that the Plaintiffs failed to establish any injury sufficient to confer standing with respect to these three Ordinances, we affirm and adopt that portion of the opinion of then Judge Jane Cutler Greenspan,*fn8 entered in National Rifle Association v. City of Philadelphia, (April Term, 2008, No. 1472, filed June 30, 2008).

We turn now to the City's appeal and its argument that the Assault Weapons Ordinance and the Straw Purchaser Ordinance are not preempted by Section 6120 because the very language of that section indicates that the General Assembly intended only to preclude local regulation of lawful activity. Section 6120 states, in pertinent part, that "[n]o 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." 18 Pa. C.S. § 6120(a) (emphasis added). Because the underlying activity the City seeks to regulate is unlawful, it contends that it is not precluded from enacting these Ordinances.

In Clarke v. House of Representatives, 957 A.2d 361 (Pa. Cmwlth. 2008), notice of appeal filed (74 M.A.P. 2008, October 6, 2008), Philadelphia City Councilpersons, Darrell L. Clarke and Donna Reed Miller, filed an action seeking to have the court declare that seven gun ordinances passed by City Council and signed by then-Mayor John Street could take immediate effect and that Section 6120 was unconstitutional and did not apply to those ordinances because the ordinances did not regulate the "carrying or transporting" of firearms. The City argued that the General Assembly's inclusion of the qualifying phrase "when carried or transported," in Section 6120 indicated their intention to limit preemption of local firearms regulation accordingly, and would allow local regulation of any uses of firearms which does not involve carrying or transporting them. The City further argued that because our Supreme Court in Ortiz v. Commonwealth, 545 Pa. 279, 681 A.2d 152 (1996), did not address the qualifying phrase "when carried or transported," it was not controlling. However, in rejecting the City's arguments, we concluded that:

Given Schneck and Ortiz, we cannot agree with this construction of the Firearms Act. The ordinances struck down in those cases were not qualitatively different in that respect from those at issue here. While Petitioners point out that the qualifying phrase 'when carried or transported' was not specifically discussed in Ortiz, in ...


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