Results 1 to 10 of 12
Hybrid View
-
June 8th, 2010, 03:52 PM #1
High Court Refuses to Hear Phila. Gun Ordinance Case
Not a big surprise, but welcome news nonetheless on the so-called "assault weapons" ban and one gun a month Philly ordinances. From today's Legal Intelligencer:
High Court Refuses to Hear Phila. Gun Ordinance Case
Zack Needles
06-08-2010
The state Supreme Court has denied allocatur in a case in which the 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 -- but upheld three other city gun ordinances.
Last June, a seven-judge en banc Commonwealth Court panel unanimously ruled that a group of gun advocates lacked standing to challenge 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.
But the panel was split 6-1 in its decision to enjoin the city from enforcing the two others.
On Tuesday, the Supreme Court issued separate per curiam orders denying appeals from both the city and the gun advocates, which comprised 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.
The advocates' attorney, C. Scott Shields of Shields & Hoppe in Media, Pa., said Tuesday that the allocatur denials represent a "huge victory" for the NRA and gun owners because the city remains barred from enforcing the two ordinances "that had the most teeth."
As for the three other ordinances the Commonwealth Court upheld last year, Shields said the city has yet to begin enforcing them. "But when they do, we’ll be back in court because then there will be no question as to standing," he said.
-
June 8th, 2010, 10:13 PM #2Active Member
- Join Date
- Oct 2008
- Location
-
Philadelphia,
Pennsylvania
(Philadelphia County) - Posts
- 207
- Rep Power
- 54
Re: High Court Refuses to Hear Phila. Gun Ordinance Case
I may be mistaken, but isn't there a huge difference between deciding not to hear something due to lack of standing and actually upholding a law?
It seems to me that the distinction should have been made more clear.
-
June 8th, 2010, 10:26 PM #3
Re: High Court Refuses to Hear Phila. Gun Ordinance Case
High Court Refuses to Hear Phila. Gun Ordinance Case
Zack Needles
06-08-2010
-
June 9th, 2010, 08:47 AM #4
Re: High Court Refuses to Hear Phila. Gun Ordinance Case
It would have been better if the Supreme Court had granted the NRA's appeal and ruled it did have standing to challenge all the ordinances, but that was unlikely to happen, even though it never made sense why the NRA had standing to sue over two ordinances, but not the other three passed as part of the same package. So, the Commonwealth Court's ruling remains in effect -- Philly is preempted from enforcing the one-gun-a-month ordinance and the "assault weapons" ordinance. If the city starts ever tries to enforce the "lost and stolen" gun ordinance and the others that the Commonwealth Court did not strike down, then the NRA will sue again.
Zack has added some more background in a version of the story posted today: http://www.law.com/jsp/pa/PubArticle...=1202461674619
High Court Refuses to Hear Philadelphia Gun Ordinance Case
Zack Needles
06-09-2010
The state Supreme Court has denied allocatur in a case in which the 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 — but upheld three other city gun ordinances.
Last June, a seven-judge en banc Commonwealth Court panel unanimously ruled that a group of gun advocates lacked standing to challenge three 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.
But the panel was split 6-1 in its decision to enjoin the city from enforcing the two others.
On Tuesday, the Supreme Court issued separate per curiam orders denying appeals from both the city and the gun advocates, which comprised 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.
The advocates' attorney, C. Scott Shields of Shields & Hoppe in Media, Pa., said Tuesday that the allocatur denials represent a "huge victory" for the NRA and gun owners because the city remains barred from enforcing the two ordinances "that had the most teeth."
As for the three other ordinances the Commonwealth Court upheld last year, Shields said the city has yet to begin enforcing them.
"But when they do, we'll be back in court because then there will be no question as to standing," he said.
Richard G. Feder of the Philadelphia Law Department said the city was "disappointed" the Supreme Court denied its appeal. Writing for the majority in National Rifle Association v. City of Philadelphia last June, President 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.
Leadbetter found that the state Supreme Court had set this precedent with its ruling in the 1995 case Ortiz v. Commonwealth .
Leadbetter was joined by Judges Bernard L. McGinley, Dan Pellegrini, Rochelle S. Friedman, Renée 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 Section 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 also 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 in Ortiz that the General Assembly intended to deny all municipalities the power to regulate firearms precluded the city from enacting the ordinances, Leadbetter said.
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 v. House of Representatives , 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.
Feder told The Legal Tuesday he thought the Supreme Court might have denied the city's appeal because of the current case's similarities to Ortiz .
"It wasn't that long ago that Ortiz was issued," he said. "We don't think Ortiz decided this case but we can understand why the court might have felt differently." As for the matter at the heart of the gun advocates' appeal to the Supreme Court, Leadbetter said last June that the group "failed to establish any injury sufficient" to challenge three other city 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.
Shields told The Legal Tuesday that he and his clients "were always a little befuddled as to how we could have standing to challenge part of a package of ordinances, but not the whole thing."
-
June 9th, 2010, 09:01 AM #5
Re: High Court Refuses to Hear Phila. Gun Ordinance Case
Anyone have the text of these ordinances available?
-
June 9th, 2010, 09:38 AM #6
Re: High Court Refuses to Hear Phila. Gun Ordinance Case
Here you go:
One Gun a Month: http://legislation.phila.gov/attachments/5326.pdf
Lost and Stolen: http://legislation.phila.gov/attachments/5100.pdf
Assault Weapons Ban: http://legislation.phila.gov/attachments/5102.pdf
Prohibiting Possession, Sale, Transfer by People Subject to Protection from Abuse Orders: http://legislation.phila.gov/attachments/5099.pdf
Temporary Removal of Firearms: http://legislation.phila.gov/attachments/5098.pdf
___
The Commonwealth Court's ruling from last June (the one the state Supremes just refused to hear the appeals on) is here: http://www.aopc.org/OpPosting/Cwealt...08_6-18-09.pdf
-
June 9th, 2010, 06:50 PM #7
Re: High Court Refuses to Hear Phila. Gun Ordinance Case
In a sense, it does make sense (according to the rules of "standing").
The "package" aspect is irrelevant; each statute stands alone.
The two that were allowed to continue (being challenged) were blanket prohibitions on the otherwise lawful actions of all persons, therefore everyone has standing.
The other three apply only to persons in specific circumstances, so they would have to be challenged by people impacted under those circumstances.Keep perspective, recognize the good in your enemies and the bad in your friends.
"--you can't conquer a free man; the most you can do is kill him." - Robert A. Heinlein, Revolt in 2100
-
June 10th, 2010, 08:28 AM #8
Re: High Court Refuses to Hear Phila. Gun Ordinance Case
I understand that's what the courts said. I just disagree with their determination that all the ordinances were not "ripe for judicial determination." All the ordinances violate the preemption clause in the Firearms Act, and the prior court rulings on preemption. The city had not yet taken steps to enforce any of them, but could at any time if the courts allowed them to stand. To me, that's sufficient to provide standing to any citizen potentially affected by any of the ordinances. But I recognize that the trial court, the Commonwealth Court and (by its silence) the PA Supreme Court say otherwise. One of many reasons why I'd never make it as a judge (another being that I'm not a lawyer).
Similar Threads
-
SCOTUS To Hear Case Of Strip Searched Student
By dc dalton in forum GeneralReplies: 20Last Post: January 23rd, 2009, 03:20 PM -
United States District Court-Phila.
By Siobhra in forum GeneralReplies: 22Last Post: August 30th, 2008, 09:30 AM -
Supreme Court Will Hear D.C. Guns Case
By phillyd2 in forum GeneralReplies: 247Last Post: June 12th, 2008, 11:34 AM -
DC Appeals Court will not re-hear case
By bluetick in forum GeneralReplies: 2Last Post: May 9th, 2007, 09:06 AM
Bookmarks