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Firearm Owners Against Crime v. City of Harrisburg

Commonwealth Court of Pennsylvania

September 12, 2019

Firearm Owners Against Crime; Kim Stolfer; Joshua First; and Howard Bullock, Appellants
v.
City of Harrisburg, Mayor Eric Papenfuse; and Police Chief Thomas Carter

          Argued: April 10, 2019

          BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge [1] HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE CHRISTINE FIZZANO CANNON, Judge HONORABLE ELLEN CEISLER, Judge.

          OPINION

          P. KEVIN BROBSON, Judge.

         In this appeal from two orders of the Court of Common Pleas of Dauphin County (trial court), we consider two issues. First, we must determine whether any one or more of the named Appellants, plaintiffs below, have standing to challenge the legality of five local ordinances of the City of Harrisburg (City) through a declaratory judgment action. If so, we next must address whether the named individual defendants, Mayor Eric Papenfuse (Mayor Papenfuse) and Police Chief Thomas Carter (Chief Carter), could, by way of preliminary objection, raise the affirmative defense of official immunity.

         I. BACKGROUND

         Appellants are Firearm Owners Against Crime (FOAC), Kim Stolfer (Stolfer), Joshua First (First), and Howard Bullock (Bullock) (collectively, Appellants). Appellants filed a complaint on January 16, 2015 (Complaint), seeking declaratory and injunctive relief with respect to the legality of five sections within the Codified Ordinances of Harrisburg (Code). Through 29 separate counts, 473 paragraphs, and 87 pages, Appellants claim that the challenged ordinances unconstitutionally infringe on rights conferred by the Second Amendment to the United States Constitution[2] and Article I, Section 21 of the Pennsylvania Constitution[3] and are preempted by the Pennsylvania Uniform Firearms Act of 1995.[4]

         Each of the challenged ordinance sections, or parts thereof, regulate in some fashion the use, possession, ownership, and/or transfer of firearms within the City. Code Section 3-345.1 generally makes it unlawful for unaccompanied minors to possess firearms in the City (Minors Ordinance).[5] Code Section 3-345.2 restricts the discharge of firearms within the City to educational facilities accredited by the Pennsylvania Department of Education and approved by either the Mayor or the Chief of Police or a firing range operation by the Harrisburg Bureau of Police (Discharge Ordinance).[6] Code Section 3.345.4 requires firearms owners to report lost or stolen firearms to law enforcement within 48 hours after discovery of the loss or theft (Lost/Stolen Ordinance).[7] Code Section 3-355.2 prohibits the sale or transfer of firearms and ammunition during the period of emergency declaration by the Mayor and further authorizes the Mayor to prohibit the public possession of firearms during such a state of emergency (State of Emergency Ordinance).[8] Finally, Code Section 10-301.13, inter alia, prohibits the possession, use, and discharge of firearms within City parks (Park Ordinance).[9]

         The violation of any of these ordinances could lead to the issuance of a citation and summary criminal proceedings. If cited and convicted, the violator faces a fine of not less than $50 nor more than $1000 per violation, the forfeiture of personal property, and/or imprisonment for not more than 90 days for each violation. Code §§ 1-301.99, 3-345.99, 3-355.99, 3-399, 10-301.99. Because the Code provides for imprisonment upon violation of any of these ordinances, any proceeding to enforce these ordinances will be a criminal proceeding subject to the Pennsylvania Rules of Criminal Procedure. See Town of McCandless v. Bellisario, 709 A.2d 379, 380-81 (Pa. 1998).

         The named defendants, Mayor Papenfuse, Chief Carter, and the City (collectively, the City Defendants), initially removed the action from the trial court to the United States District Court for the Middle District of Pennsylvania (district court). Thereafter, the City Defendants filed a motion to dismiss the Complaint for, inter alia, lack of standing under Federal Rule of Civil Procedure 12(b)(6). The district court, by the Honorable Yvette Kane, granted the motion and dismissed the Complaint, concluding that the district court lacked subject matter jurisdiction over the suit because Appellants lacked standing under federal law[10] to challenge the ordinances. Firearms Owners Against Crime v. City of Harrisburg, (M.D. Pa., No. 1:15-cv-0322, filed March 24, 2016, 2016 WL 1162283). Before remanding the matter to the trial court, the district court afforded Appellants an opportunity to amend their Complaint as to certain counts, but Appellants did not avail themselves of that opportunity. Thereafter, the district court remanded the case to the trial court in accordance with 28 U.S.C. § 1447(c) (requiring remand where district court determines it lacks subject matter jurisdiction over removed action).

         Upon remand to the trial court, the City Defendants filed preliminary objections, accompanied by a notice to plead (Preliminary Objections). In their first preliminary objection, the City Defendants sought dismissal of the Complaint for lack of standing under Pennsylvania Rule of Civil Procedure No. 1028(a)(4) (legal insufficiency, or demurrer) or (a)(5) (lack of capacity to sue). In their second preliminary objection, the City Defendants sought dismissal of Appellants' constitutional challenges for failure to state a claim (demurrer), contending that the ordinances do not unconstitutionally infringe on the right to bear arms under the United States or Pennsylvania Constitutions. In their third preliminary objection, the City Defendants sought dismissal of Appellants' preemption challenges for failure to state a claim (demurrer). In their final preliminary objection, the City Defendants sought dismissal of all claims against Mayor Papenfuse and Chief Carter as individuals, arguing, inter alia, that both are immune from suit as high public officials.

         In response, Appellants filed a single preliminary objection, contending that the City Defendants improperly raised the affirmative defense of official immunity by preliminary objection rather than through an answer to the Complaint under the heading "New Matter," as required by Pennsylvania Rule of Civil Procedure No. 1030. As relief, Appellants asked the trial court to strike paragraph 48 from the City Defendants' Preliminary Objections. By Order dated January 4, 2018, the trial court overruled Appellants' preliminary objection. In doing so, the trial court held that because the City Defendants argued that the immunity defense was clearly applicable on the face of the Complaint, the City Defendants could raise the defense by preliminary objection. The trial court ordered Appellants to answer the City Defendants' Preliminary Objections, which Appellants did on January 23, 2018.

         By subsequent Order dated October 9, 2018, the trial court sustained the City Defendants' preliminary objection in the nature of a demurrer and dismissed the Complaint, finding that Appellants failed to plead sufficient facts to establish standing to sue. In an accompanying Memorandum Opinion, the trial court reasoned:

Plaintiffs have not pled any facts to show that they were harmed by any of the subject Ordinances. Plaintiffs do not allege that they have ever been cited or personally threatened with citation under any of the Ordinances. Rather, Plaintiffs assert potential harm that is entirely speculative, as it is based on events that may never occur. This is an improper use of the Declaratory Judgments [Act].[11] As such, Plaintiffs have failed to allege facts sufficient to establish standing, and this Complaint should be dismissed.

(Trial Court Mem. Op. at 4 (citation omitted).)

         II. DISCUSSION

         On appeal to this Court, Appellants argue that the trial court erred in both its January 4, 2018 Order, overruling Appellants' preliminary objection to the City Defendants' Preliminary Objections, and its October 9, 2018 Order, dismissing the Complaint for lack of standing. We review a common pleas court's decision sustaining preliminary objections and dismissing a complaint for an abuse of discretion or error of law. Brown v. Wetzel, 179 A.3d 1161, 1164 n.2 (Pa. Cmwlth. 2018). Preliminary objections in the nature of a demurrer should only be sustained if the law says with certainty that no recovery is possible. Foster v. Peat Marwick Main & Co., 587 A.2d 382, 384 (Pa. Cmwlth. 1991), aff'd sub nom. Foster v. Mut. Fire, Marine & Inland Ins. Co., 676 A.2d 652 (Pa. 1996). Where a preliminary objection presents a question of law, our standard of review is de novo and our scope of review is plenary. Russo v. Allegheny Cty., 125 A.3d 113, 116 n.5 (Pa. Cmwlth. 2015), aff'd, 150 a.3d 16 (Pa. 2016); see Office of Governor v. Donahue, 98 A.3d 1223, 1228 (Pa. 2014) ("The issue of standing is a question of law; thus, our standard of review is de novo and our scope of review is plenary.").

         A. Standing

         We begin by addressing the question of standing. The general rule is that a party seeking redress from the courts must establish standing to bring and maintain the action. Pittsburgh Palisades Park, LLC v. Cmwlth., 888 A.2d 655, 659 (Pa. 2005). In Pennsylvania, this standing doctrine "is a prudential, judicially[ ]created tool meant to winnow out those matters in which the litigants have no direct interest." In re Hickson, 821 A.2d at 1243. "The purpose of . . . standing is to protect against improper plaintiffs." In re Application of Biester, 409 A.2d 848, 851 (Pa. 1979).

         As part of our standing analysis in this case, we also recognize the remedial nature of the Declaratory Judgments Act, as it provides: "This subchapter is declared to be remedial. 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) (emphasis added). We further note that the General Assembly expressly abolished the principle that declaratory judgment actions must give way to other existing avenues of relief:

The General Assembly finds and determines that the principle rendering declaratory relief unavailable in circumstances where an action at law or in equity or a special statutory remedy is available has unreasonably limited the availability of declaratory relief and such principle is hereby abolished. The availability of declaratory relief shall not be limited by the provisions of 1 Pa. C.S. § 1504 (relating to statutory remedy preferred over common law) and the remedy provided by this subchapter shall be additional and cumulative to all other available remedies except as provided in subsection (c). Where another remedy is available the election of the declaratory judgment remedy rather than another available remedy shall not affect the substantive rights of the parties, and the court may pursuant to general rules change venue, require additional pleadings, fix the order of discovery and proof, and take such other action as may be required in the interest of justice.

Id. § 7541(b).

         Here, Appellants assert standing to challenge the ordinances under a traditional standing analysis and as taxpayers. In their brief on appeal, the City Defendants also contend that FOAC lacks the legal capacity to bring this action, based on its status as a political action committee, or PAC.

         1. Traditional Standing

         Under a traditional standing analysis, the individual initiating the legal action must show that he is aggrieved by the matter that he seeks to challenge. Pittsburgh Palisades, 888 A.2d at 659-60. To be aggrieved, the party must have a substantial, direct, and immediate interest in the outcome of the litigation:

A substantial interest in the outcome of litigation is one that surpasses the common interest of all citizens in procuring obedience to the law. A direct interest requires a causal connection between the asserted violation and the harm complained of. An interest is immediate when the causal connection is not remote or speculative.

Phantom Fireworks Showrooms, LLC v. Wolf, 198 A.3d 1205, 1215 (Pa. Cmwlth. 2018) (en banc) (citations omitted).

         We will analyze first the standing of First, Bullock, and Stolfer (collectively, Individual Plaintiffs).[12] The Individual Plaintiffs are named plaintiffs only with respect to the legal challenges to the Discharge, Lost/Stolen, State of Emergency, and Park Ordinances. First is an adult resident of the City. He lawfully possesses firearms under state and federal law. He is a member of FOAC. As a gun owner and City resident, First fears prosecution under the ordinances, particularly because the City has indicated that it has enforced and will continue to enforce the ordinances. Bullock is not a resident of the City. He does, however, commute daily to Harrisburg for work. Like First, he lawfully possesses firearms under state and federal law and is a member of FOAC. He, too, fears prosecution under the ordinances. Stolfer is a member and the President of FOAC. He lawfully possesses firearms under state and federal law. Although he does not reside in the City, he regularly travels "on an average bi-weekly basis" to the City for political activities, both as the President of FOAC and in his individual capacity. Like First and Bullock, Stolfer fears prosecution under the ordinances. In addition to the foregoing, the Individual Plaintiffs each own, possess, use, and bear firearms for purposes of self-defense, hunting, firearms training and education, and target shooting. They are licensed to carry concealed firearms throughout the Commonwealth.

         The City enacted, enforced, and continues to enforce the challenged ordinances. Indeed, both Mayor Papenfuse and Chief Carter have, through the media, publicly expressed their support for the ordinances and ongoing enforcement thereof. Appellants observe that any violation of the challenged ordinances could lead to the filing of criminal charges, prosecution, and penalties. The current, actual, and threatened enforcement of the challenged ordinances has a chilling effect on the Individual Plaintiffs' rights to engage in constitutionally protected activities with respect to firearms. Indeed, the Individual Plaintiffs fear criminal prosecution under the challenged ordinances if they choose to engage in what they view as their constitutionally protected right to bear arms, concealed or open.[13]

         Relying on the above factual averments, Appellants contend that the Individual Plaintiffs satisfy the traditional standing test. Appellants also argue that because they are challenging the validity of an ordinance, the law does not require them to trigger enforcement before bringing the challenge. In response, the City Defendants largely focus on the third test for traditional standing-i.e., that the asserted interest be "immediate," not "remote or speculative." The City Defendants note first that the challenged ordinances are not new. According to the City Defendants, [14] the Discharge Ordinance dates back to 1821. The City passed the Park Ordinance in 1905, the Minors Ordinance in 1951, the State of Emergency Ordinance in 1969, [15] and the Lost/Stolen Ordinance in 2009. Given the age of these ordinances and the fact that not one of the Individual Plaintiffs has been cited or threatened with citation under any of them, the City Defendants contend that the Individual Plaintiffs' fear of prosecution is pure speculation.

         Further, citing this Court's decisions in 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 argue that in order to have standing to challenge the ordinances, the Individual Plaintiffs must allege that they have actually violated the ordinances and/or have been prosecuted for doing so. Because the Individual Plaintiffs do not include such allegations in their Complaint, the City Defendants contend that they lack standing to challenge the ordinances. With respect to the Minors Ordinance, the City Defendants note that not a single named plaintiff is a minor, nor do Appellants plead that any minor has been cited under the ordinance or will violate the ordinance and be cited. With respect to the State of Emergency Ordinance, the City Defendants argue that Appellants needed to plead that the ordinance is going to actually be triggered in the near future-i.e., the Appellants needed to plead a prediction of "widespread civil unrest." (City Defendants' Br. at 10.) Moreover, Appellants do not plead that there ever has been an emergency that triggered the gun restrictions set forth in the State of Emergency Ordinance.[16]

         In reply, Appellants advocate a relaxed traditional standing inquiry, given that they are pursuing relief under the Declaratory Judgments Act. Whether under this relaxed inquiry or a traditional standing inquiry, however, Appellants argue that they have averred sufficient facts to proceed with their challenges. Moreover, citing, inter alia, the Pennsylvania Supreme Court's decision in Arsenal Coal Co. v. Department of Environmental Resources, 477 A.2d 1333 (Pa. 1984), Appellants argue that their avenues to challenge the validity of the ordinances should not be limited to summary criminal enforcement proceedings. Rather, Appellants seek pre-enforcement review under the Declaratory Judgments Act.

         As noted above, standing is a tool to protect against improper plaintiffs. An improper plaintiff is one "who is not adversely affected in any way by the matter he seeks to challenge." Wm. Penn Parking Garage, Inc. v. City of Pittsburgh, 346 A.2d 269, 280 (Pa. 1975) (emphasis added). With respect to the Discharge Ordinance and Park Ordinance, based on the allegations set forth in the Complaint, we find that the Individual Plaintiffs each have a substantial interest in the legality of these ordinances. Each is a lawful gun owner who lives in, works in, or regularly visits the City. Accordingly, these challenged ordinances restrict, to varying degrees, the Individual Plaintiffs' lawful use/possession of their firearms while in the City. The Individual Plaintiffs, therefore, have an interest in the legality of these ordinances that surpasses the common interest of all citizens.

         The Individual Plaintiffs' interest is direct, 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. Finally, the interest is immediate because the Individual Plaintiffs 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. Moreover, according to the allegations in the Complaint, the City is actively enforcing these ordinances and has so advised the public through the media. The Individual Plaintiffs are proper plaintiffs to challenge the legality of those ordinances because they are currently adversely affected by the existence and enforcement of the Discharge Ordinance and Park Ordinance. FOAC, concomitantly, has standing to challenge these ordinances. See Robinson Twp., Washington Cty. v. Cmwlth., 83 A.3d 901, 922 (Pa. 2013) ("Under Pennsylvania law, an association has standing as representative of its members to bring a cause of action even in the absence of injury to itself, if the association alleges that at least one of its members is suffering immediate or threatened injury as a result of the action challenged."); Americans for Fair Treatment, Inc. v. Phila. Fed'n of Teachers, 150 A.3d 528, 533 (Pa. Cmwlth. 2016).

         We reach the same conclusion with respect to the Lost/Stolen Ordinance. The Lost/Stolen Ordinance imposes an obligation on the Individual Plaintiffs, as lawful gun owners who live in, work in, or regularly visit the City, to report a lost/stolen firearm to local law enforcement within 48 hours of the loss or theft. The Individual Plaintiffs have an interest in the legality of the Lost/Stolen Ordinance that surpasses the common interest of all citizens, because the Individual Plaintiffs fall within the class of individuals on whom the ordinance imposes a duty to report.[17]

         The Individual Plaintiffs' interest is direct, because there is a causal connection between the Individual Plaintiffs' possession and use of firearms and the City's decision to impose an affirmative reporting obligation on those who chose to do so should they lose their firearm or have their firearm stolen. Finally, the interest is immediate. Although the reporting obligation is triggered only in the event a firearm is lost or stolen, the reporting obligation nonetheless exists now. The relatively recent passage of the ordinance itself in 2009 serves, at some level, as an acknowledgment by Harrisburg City Council that the loss or theft of firearms is an existing threat to public safety, justifying local legislative action. In the event of a lost or stolen firearm, the Individual Plaintiffs will have only 48 hours to comply. The harm that the Individual Plaintiffs wish to abate is the affirmative obligation to report lost/stolen firearms to local government officials as a result of their decision to own and carry firearms in the City. It is not speculative. It is not remote. Because the Individual Plaintiffs are presently adversely affected by the existence and enforcement of the Lost/Stolen Ordinance, they, and by extension FOAC, are proper plaintiffs to challenge the legality of that ordinance.

         Finally, we must determine whether the Individual Plaintiffs have standing, under traditional standing principles, to challenge the State of Emergency Ordinance. Our analysis of the challenge to this ordinance yields a different result. Unlike the other three ordinances discussed above, the State of Emergency Ordinance does not currently impose any duty on the Individual Plaintiffs or any restriction on their ability to use or possess firearms within the City. Its operative provisions only become effective if/when the Mayor declares a state of emergency, which the ordinance limits to the following extreme circumstance:

Whenever the Mayor determines there has been an act of violence or a flagrant and substantial defiance of or resistance to a lawful exercise of public authority and that, therefore, there is reason to believe that there exists a clear and present danger of a riot, civil disorder or other general public disorder, widespread disobedience of the law and substantial injury to persons or property, all of which constitute a threat to public peace or order and to the general welfare of the City or a part or parts thereof, he or she may declare that a state of emergency exists within the City or any part or parts thereof.

Code § 3-355.1 (emphasis added).[18] While, for reasons set forth above, the Individual Plaintiffs' status as current lawful gun owners evidences an interest in the legality of the State of Emergency Ordinance, at least as it affects firearm ownership, that surpasses that of the general public, Appellants fail to allege any facts in their Complaint under which we can conclude that this particular ordinance directly and immediately affects, regulates, or impairs the Individual Plaintiffs' possession, use, or enjoyment of their firearms. See Gulnac by Gulnac v. S. Butler Cty. Sch. Dist., 587 A.2d 699, 701 (Pa. 1991) ("A declaratory judgment must not be employed to determine rights in anticipation of events which may never occur or for consideration of moot cases or as a medium for the rendition of an advisory opinion which may prove to be purely academic."). For that reason, we agree with the trial court that the Individual Plaintiffs and FOAC lack standing to challenge the legality of the State of Emergency Ordinance.

         The only named plaintiff with respect to the challenges to the Minor Ordinance is FOAC. According to the Complaint, FOAC is a statewide, nonpartisan political action committee and membership organization. It boasts 1, 649 members. FOAC's mission is to defend, preserve, and protect constitutional and statutory rights to firearm ownership. FOAC was formed in 1993 but became a statewide political action committee in 1994. FOAC's membership includes those who lawfully possess firearms throughout the Commonwealth, including Dauphin County. With respect to the Minors Ordinance specifically, FOAC currently has members under the age of 18, one of whom lives in the City and is subject to the ordinance.

         In their brief, the City Defendants acknowledge the allegation in the Complaint that FOAC has a current member under the age of 18 who resides in the City. The City Defendants suggest, however, that the member may no longer be 18 and that FOAC should be required to show the current age of the member. In addition, the City Defendants argue that there is no allegation in the Complaint that the minor member of FOAC has been cited under the ordinance or will violate the ...


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