Berks County, Mohnton Borough, Preemption Issue

[Camoclad5.56]

Here is the letter I intend to send to the Mohnton Borough Council. Any suggestions are appreciated.

Members of the Mohnton Borough Council:

I am writing to bring to your attention an ordinance of the Borough relating to Mohnton Memorial Park that I believe is currently not in compliance with state law. The Mohnton Borough Code, §103. Rules and Regulations (Ord. 547, 11/9/1994, §3), subsection (L) states the following:

“It shall be unlawful for any person entering or using a park to do any of the following while in the park: [L] Possess or use any firearm, pistol, gun, slingshot, bow, arrow, explosive or firecracker.”

It is my belief that this ordinance is not in compliance of Title 18, section 6120, subsection (a) of the Pennsylvania Consolidated Statutes, which states:

“No county, municipality or township may in any manner regulate the lawful ownership, possession, transfer or transportation of firearms…when carried or transported for purposes not prohibited by the laws of this commonwealth.”

The preemption statute in 18 PA C.S. §6120 (a) was passed in 1995 under the Uniform Firearms Act. I am unsure when Ordnance 547 of the Mohnton Borough Code was adopted, and I understand that it may have already been in place, explaining why it was overlooked. However, there was no grandfathering of existing limitations under 18 PA C.S. §6120, so in any event, Mohnton Borough Code Ord. 547, §103 (10) (a) as it stands today is improper and unenforceable under the laws of the Commonwealth of Pennsylvania.

I have attached a picture of the sign in Mohnton Memorial Park, as well as the text of § 6120 for your review.

I respectfully request that that the Mohnton Borough Council please look into this matter and advise when it has been resolved.

Sincerely,

xxx

This letter is a mix of several letters I have found written by members of PAFOA here on the forums, as well as my own writing.

Here is the link to the park rules on the borough website. http://www.co.berks.pa.us/Muni/Mohnt...ParkRules.aspx

What does everybody think? As I said before, all feed back is welcome. Also, please feel free to write your own letter or use / edit this one. The more letters they receive the less likely they will be to ignore the issue, I hope.

[GunLawyer001]

The citation to the Borough Code would be more accurate by also citing the chapter (Chapter 16) as well as the section (107).

You could also note that their regulations are penal ordinances, not just the type of "rules" that a private property owner might be permitted to have on his own property.

Ch 16, §107. Penalties for Violation.
Any person or persons, firms or corporations who shall fail to comply with any of the provisions of this Part or subsequent resolutions adopted in pursuance thereof, shall be liable, for a first offense, to a fine of not less than $10 nor in excess of $100 for each and every day he, they or it shall engage in said violation; for a second offense in a like manner there shall be a fine of not less than $20 nor in excess of $300 for each and every day he, they or it shall engage in said violation; for a third offense to a like fine as
provided for a second offense or to imprisonment in the Borough lockup or Berks County Prison for a period not exceeding 30 days or both, together with the costs of prosecution in each case. (Ord. 547, 11/9/1994, §7)

[Camoclad5.56]

Thank you for the reply GunLawyer.

I did run across "Ch 16, §107. Penalties for Violation." in my research. However, because of the good experiences I have had in the past with the borough council, I chose to not include all the legal ramifications in my letter, but rather to bring the issue to their attention while still keeping the letter as polite and friendly as possible. If they don't update the borough code within a reasonable time frame, or choose to ignore my letter altogether, I plan to write a second letter including Ch 16, §107. Penalties for Violation, as well as 18 PA.C.S. § 505(a) "The use of force upon or toward another person is justifiable when the actor believes that such force is immediately necessary for the purpose of protecting himself against the
use of unlawful force by such other person . . ."

I would make the case that they have not considered or made privations for lawful self defense within the park.

My end goal was to preserve the good working relationship I've had with the borough council in the past, but to respectfully press the issue if need be. Maybe I should just write one letter with everything in it though. Thoughts?

[Camoclad5.56]

Just for reference, here is a picture of the sign in the local park. Sorry for the bad cell phone picture. [IMG][/IMG]

[GunLawyer001]

Thank you for the reply GunLawyer.

I did run across "Ch 16, §107. Penalties for Violation." in my research. However, because of the good experiences I have had in the past with the borough council, I chose to not include all the legal ramifications in my letter, but rather to bring the issue to their attention while still keeping the letter as polite and friendly as possible. If they don't update the borough code within a reasonable time frame, or choose to ignore my letter altogether, I plan to write a second letter including Ch 16, §107. Penalties for Violation, as well as 18 PA.C.S. § 505(a) "The use of force upon or toward another person is justifiable when the actor believes that such force is immediately necessary for the purpose of protecting himself against the
use of unlawful force by such other person . . ."

I would make the case that they have not considered or made privations for lawful self defense within the park.

My end goal was to preserve the good working relationship I've had with the borough council in the past, but to respectfully press the issue if need be. Maybe I should just write one letter with everything in it though. Thoughts?

I would include Section 107 just to show that it's not just a "rule" (which is now arguably allowed after the Erie decision), but is instead a penal ordinance, which has always very clearly been preempted. It's perfectly civil and polite to lay out the logic by which you arrive at your conclusions, and the enforcement of their park rules is a key factor as to whether their rules are preempted.

The sign is less important than the ordinance. Anybody can put up a sign on their property; I could put one on my door that bans baseball caps and fruit on my property. The key thing is that I'm not "regulating" hats or food, because I lack any governmental power. I'm just controlling how my property is used via policies that I can only enforce informally. By contrast, the Borough is using its delegated power to enact their ordinance, and there's never been any question that state preemption bars such misuse of governmental authority.