Thought on Preemption Lawsuits

[Delkal]

To make things perfectly clear I am in full agreement that ALL local ordinances in Pa should be abolished. They are clearly in violation of a 40 year old state law.

Groups have tried to get these laws off the books for years. Unfortunately all previous attempts were struck down by the courts because they were not filed by a plaintiff who could show he was actually "hurt" by the ordinance. The new laws make it so a third party can sue without showing anyone was "harmed" by the ordinances.

But here's a random thought.....For years no one could find anyone that was "hurt". Arrested or prosecuted should count so does that mean no one was ever charged under these ordinances?

Are these just unenforced feel good laws and the importance of this is this being over-hyped by BOTH sides?

[Remington788]

I'm not sure that no one was ever hurt by these ordinances, or Just that no one that had been hurt ever sued.

I would say SheFearsNothing was harmed by local statues ( if I understand events correctly), but did not have the chance to sue.

[LBaker]

To make things perfectly clear I am in full agreement that ALL local ordinances in Pa should be abolished. They are clearly in violation of a 40 year old state law.

Groups have tried to get these laws off the books for years. Unfortunately all previous attempts were struck down by the courts because they were not filed by a plaintiff who could show he was actually "hurt" by the ordinance. The new laws make it so a third party can sue without showing anyone was "harmed" by the ordinances.

But here's a random thought.....For years no one could find anyone that was "hurt". Arrested or prosecuted should count so does that mean no one was ever charged under these ordinances?

Are these just unenforced feel good laws and the importance of this is this being over-hyped by BOTH sides?

I guess it depends on your definition of "hurt". If someone is left defenseless in a city park, who would normally have the means to protect themselves, are they "hurt"? I think so, courts don't... I think the definition of standing really needs to be addressed. If you are compelled by force of law to act in a manner that you would normally not do, IMHO you've been damaged.

If we can't rely on our public officials to obey law we are lost. It's just a matter of time until the experiment fails at that point. That's what the fight is about.

[Delkal]

I'm not sure that no one was ever hurt by these ordinances, or Just that no one that had been hurt ever sued.

I am starting to doubt anyone was ever charged. If thats the only thing they did then all they had to due was challenge the unconstitutional law and charges would be dropped. I am sure the cities know this.

Today a law abiding gun owner might WANT to be charged. Sure it will be a pain but you won't be fined or go to jail. You would challenge the law, win because it is against State law, become a hero to the 2A folks and even end up with a nice damages check when its over.

Whatever happens with the lawsuits, these laws are meaningless now............

[PAMedic=F|A=]

To make things perfectly clear I am in full agreement that ALL local ordinances in Pa should be abolished. They are clearly in violation of a 40 year old state law.

Groups have tried to get these laws off the books for years. Unfortunately all previous attempts were struck down by the courts because they were not filed by a plaintiff who could show he was actually "hurt" by the ordinance. The new laws make it so a third party can sue without showing anyone was "harmed" by the ordinances.

But here's a random thought.....For years no one could find anyone that was "hurt". Arrested or prosecuted should count so does that mean no one was ever charged under these ordinances?

Are these just unenforced feel good laws and the importance of this is this being over-hyped by BOTH sides?

People were hurt. The city of Erie filed criminal charges on 12 or 13 people last year, which is part of what awoke the Commonwealth up to the fact that Pre-exemption needed an enforcement mechanism. The charges were thrown out, but they still ended up with a pretty notable legal bill, a large chunk of which was paid for by the NRA. In fact, the local court did not do their job & basically said State Law & the State Constitution did not matter.


http://blog.princelaw.com/tag/justin...ion-city-park/

PRESS RELEASE: Attorney Joshua Prince Secures Major Victory Against City of Erie
Today, the Commonwealth Court issued its decision in Justin Dillon v. City of Erie, 1038 CD 2013, which dealt with, in part, whether the City’s ordinance prohibiting the possession of firearms in City parks, Ordinance 955.06(b), was invalid due to 18 Pa.C.S. Section 6120 – a municipal firearm regulation preemption statute. A copy of the decision can be found here.

In the 13 page decision by President Judge Pelligrini, the Court found that the trial court erred in finding that Mr. Dillon did not have a clear right to relief, because Section 6120 “preempt Section 955.06(b) by its own terms and by the case law and precludes the City from regulating the lawful possession of firearms.” Furthermore, the Court found that the trial court erred in finding that Mr. Dillon did not demonstrate that he would suffer an immediate and irreparable injury. Citing to City of Erie v. Northwestern Pennsylvania Food Council, 322 A.2d 407, 412 (Pa. Cmwlth. 1974), the Court held that

Pennsylvania law does not require a person to be prosecuted to find that he has suffered irreparable harm, and a litigant is relieved of demonstrating this prerequisite where, as here, the only remedy available was prosecution under Section 955.99 of the City’s Ordinances based on his violation of Section 955.06(b).

Therefore, the Court declared, “Because Section 6120(a) prohibits the City from regulating the lawful possession of firearms, an irreparable injury is present in this case.” Lastly, in turning to the remaining contested issues for an injunction, the Court held

[T]he City’s unlawful regulation of the lawful possession of firearms shows that a greater injury will occur by refusing to grant the injunction because Section 955.06(b) of the City’s Ordinances is unenforceable; the injunction is reasonably suited to abate the offending activity by enjoining the enforcement of this unlawful and unenforceable ordinance; and the injunction will not adversely affect the public interest because the City was prohibited from enacting Section 955.06(b) and the ordinance is, again, unlawful and unenforceable.

As a result, the Court ordered that

[The] portion of the order denying preliminary injunctive relief with respect to the enforcement of Section 955.06(b) of the City’s Ordinances is reversed; and the case is remanded to the Court of Common Pleas of Erie County with the direction to enter an order granting Justin Dillon’s request for a preliminary injunction and to dispose of his request for a permanent injunction enjoining the enforcement of Section 955.06(b) in accordance with the foregoing opinion.

However, in relation to the lost and stolen handgun ordinance, Ordinance 739.01, the Court was split in the decision, 4 – 3. The majority held “the trial court properly denied preliminary injunctive relief with respect to Section 739.01 because Dillon does not have standing to obtain the requested relief” because “there is no allegation that Dillon has lost his firearm or will lose his firearm in the future, and there is no indication that Section 739.01 or the penalties outlined in Section 739.99 will ever be applicable to him.”

In dissent to this portion of the Decision, Judge Brobson issued a dissenting Opinion, joined by Judge Leavitt and Judge McCullough, declaring that while the decision is consistent with prior case law of the Commonwealth Court, “I, however, continue to believe that our precedent in this regard is in error and should be revisited.”

We all at Prince Law Offices, P.C. and Firearms Industry Consulting Group would like to congratulate Attorney Joshua Prince, your PA Gun Attorney, on this victory. We also want to acknowledge all the assistance Attorney Allen Thompson provided in the litigation of this matter. Lastly, this litigation would not have been possible without the continued support of the NRA Civil Rights Defense Fund (CRDF). We thank all of those involved who contributed to this litigation.

[Delkal]

With the new law. Can these people now sue for damages plus further legal costs? They should make these cities pay!

As far as I know the cities main issue with the new law is that they can be sued by third parties. Seems like the actual victims can easily screw them.......

[TMOwen5257]

I’m out in Oregon at present, which is my state of legal residence. Today, I received a denial letter from the Solicitor representing the Sheriff of Montgomery County (PA), in response to my non-resident LTCF application. The Solicitor signing the denial letter is Sean Cullen of Cullen & Conwell of Norristown.

The letter states:

The Sheriff Department of Montgomery County is in receipt of your application for a Pennsylvania License to Carry Firearms. Your application is denied. The Sheriff and his predecessors have a policy of issuing licenses only to Montgomery County residents. In addition you have also claimed privilege as to your references and therefore under 6109(d)(3) the Sheriff is not able to investigate whether you as the applicant's character and reputation are such that the applicant will not be likely to act in a manner dangerous to public safety.

(syntax error is the attorney's, not mine)

***

Well, not a surprise, I fully anticipated this position and denial. I do find it interesting that I've maintained dual residency in Montgomery County and Oregon for over seven years, without so much as a traffic violation, but that I might be a “danger to public safety”. A quick records check would quickly determine for the good Sheriff of MontCo that’s not the case. Oh, and my Oregon LTCF, a copy of which was attached to the MontCo LTCF application, was renewed in November 2014, after the Sheriff of Jackson County (OR) had completed just such a records check.

I'll be in contact with the law offices of Joshua Prince tomorrow to start the legal challenge process under the PA preemption provision.

Cheers.

[jerkin]

Not sure how preemption is going to help you but I do hope you decide to sue. Sheriff's not issuing non-resident license needs to be addressed and corrected.

[Bang]

Something needs to be done for dual residents all the way around. Pa resident with a property at the shore, pays taxes like a Jersey resident but has no representation (vote), for one thing.

[normanvin]

So breaking the law only counts if someone gets hurt?

By enacting these laws that they have no power to enact each and every tax payer has been hurt.The time and money to pass the laws cost each taxpayer.Each sign posted cost each taxpayer. repealing of these laws cost the taxpayers. Removal of the signs cost the taxpayers.

Did our taxes go up by them passing laws they had no power to pass?