Panel Rejects Philadelphia Assault Weapons Ban, Gun Purchase Limit

Zack Needles

The Legal Intelligencer

The Pennsylvania Commonwealth Court struck down two Philadelphia ordinances -- one dealing with a ban on assault weapons and the other requiring that only one handgun be purchased per 30-day period -- in an en banc decision handed down Thursday.

In the same opinion, however, the court also upheld three other city ordinances dealing with seizure of firearms from persons who pose a risk of imminent harm to themselves or others, prohibiting the acquisition and possession of firearms by persons subject to a protection from abuse order and requiring that gun owners report lost or stolen firearms to law enforcement within 24 hours of realizing they're missing.

A seven-judge en banc panel voted unanimously to allow those three ordinances to stand but was split 6-1 in its decision to enjoin the city from enforcing the two others.

Writing for the majority in National Rifle Association v. City of Philadelphia, Judge Bonnie Brigance Leadbetter said that the "Assault Weapons Ordinance," which would prohibit ownership, possession or transfer of any contraband weapon, accessory or ammunition, and the "Straw Purchaser Ordinance," which would prohibit both straw purchasing of handguns and ban the purchase of more than one handgun in any 30-day period for anyone engaged in straw purchasing, are precluded by the state constitution. In addition, the state Supreme Court set this precedent with its ruling in the 1995 case Ortiz v. Commonwealth, Leadbetter found.

Leadbetter was joined by Judges Bernard L. McGinley, Dan Pellegrini, Rochelle S. Friedman, Renee Cohn Jubelirer and Johnny J. Butler.

Judge Doris A. Smith-Ribner said in her dissenting opinion that she did not believe state law or the Ortiz decision stood in the way of the city's enactment of the ordinances.

Section 6120(a) of the Pennsylvania Uniform Firearms Act precludes local regulation of "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."

The city argued that because the ordinances in question sought to regulate unlawful activity and did not regulate the "carrying or transporting" of firearms, it should not be prohibited by state law from enacting them.

Leadbetter agreed with the city that §6120(a) appears to only apply to ordinances aimed at regulating lawful acts but said that "the crystal clear holding" in Ortiz nevertheless precluded the city from enacting its ordinances.

The city argued that since the decision in Ortiz did not address the qualifying phrase "when carried or transported," it should not apply here.

But Leadbetter said "the fact that the Court in Ortiz did not discuss the statutory language relied upon by the City does not provide a legitimate basis for us to ignore its holding."

The Supreme Court's holding that the General Assembly intended to deny "all municipalities the power to regulate the ownership, possession, transfer or [transportation] of firearms" precluded the city from enacting the ordinances.

Smith-Ribner said she didn't believe the holding in Ortiz was quite so clear.

"The majority agrees with the City that preemption 'appears to be limited to the lawful use of firearms by its very terms,' ... but notwithstanding this concession the majority proceeds to rely on Ortiz, which did not resolve this issue either expressly or impliedly," she said. "Total preemption in this area of the law is not as clear as the majority presumes, and its view remains rebutted by the dissent in Clarke v. House of Representatives, until the Supreme Court issues a definitive, clear and precise decision in the matter."

Smith-Ribner said that in her dissent in Clarke, a 2008 Commonwealth Court case, she "emphasized the senseless deaths that occur from gun violence suffered in the City by innocent citizens and by police officers acting in the line of duty."

"I take judicial notice again of the fact that more innocent citizens have been killed in Philadelphia from gun violence and that additional Philadelphia police officers were killed from gun violence in 2008 and in 2009 while acting in the line of duty: Sergeant Patrick McDonald and Police Officer John Pawlowski," she said.

Leadbetter said that a group composed of the National Rifle Association, 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., "failed to establish any injury sufficient" to challenge the three other ordinances.

Those ordinances were the "Imminent Danger Ordinance," allowing temporary confiscation of firearms from persons found by the court to pose a risk of imminent personal harm to themselves or to others, the "Domestic Abuse Ordinance," banning persons subject to an active protection from abuse order from acquiring or possessing firearms when the order calls for confiscation of the firearms, and the "Lost or Stolen Gun Ordinance," requiring firearm owners to report their lost or stolen firearms to law enforcement officials within 24 hours of realizing they're missing.

Attorneys on opposing sides of the case seemed to have very different views about what the Commonwealth Court's ruling here means for them.

The NRA's attorney, Carter Scott Shields of Shields & Hoppe in Media, Pa., said he considered the decision a "win" because even though the Commonwealth Court here ruled that the group of organizations, retailers and individuals lacked standing to challenge three of the ordinances, the court had already ruled in the second Clarke v. House of Representatives case that all five ordinances at issue here were pre-empted.

Nevertheless, he did say the NRA would appeal the standing issue.

The city's attorney, Richard G. Feder of the Philadelphia Law Department, said that because the city was not a party in Clarke II, it is not bound by the decision in that case.