Jon Campisi Oct. 5, 2011, 8:20am

As president of the central Pennsylvania chapter of Firearms Owners Against Crime, Timothy Havener has the time to fight illegal gun ordinances throughout the commonwealth.

But many people don’t, and those are the folks, Havener says, who could find themselves having to shuck out legal fees to defend themselves against local laws that he maintains shouldn’t be there in the first place.

Municipal firearms ordinances – everything from bans on possessing guns in local and county parks to prohibitions on carrying weapons in municipal buildings – are null and void, Havener claims, all because of a state law that gives the Pennsylvania legislature the final say over firearm regulations.

But while all gun laws are preempted by state statute, local ordinances seem to be on the books throughout the commonwealth, something that can cause trouble for those who find themselves in violation of said laws.

It’s for this reason that a western Pennsylvania lawmaker has introduced a bill that would provide attorney’s fees to those who end up having to fight the disputed ordinances in court.

Republican state Rep. Daryl Metcalfe is the sponsor behind H.B. 1523, which is aimed at deterring municipalities from enacting their own gun ordinances despite the state prohibition.

The bill, which was introduced last spring, has a number of cosponsors, and currently sits in committee, entitles anyone who brings a case against a municipality that has engaged in a preemption violation to actual damages and attorney’s fees, prejudgment liquidated damages if the municipality subsequently repeals the ordinance, and post judgment liquidated damages upon a final determination by a court in favor of the party who brings or maintains the action.

Pennsylvania’s law prohibiting municipalities from enacting gun laws has no built-in penalties dealing with potential violations. In other words, nobody expected local elected officials to purposely circumvent the state law, and therefore no penalties were put in place.

But a look at various ordinances around the commonwealth that were crafted after the state law went into effect tells a different story.

In the early 1990s, Philadelphia’s mayor signed into law a city council measure that banned certain types of firearms within city limits. Pittsburg followed suit with a similar measure. Both weapons bans were overturned by the Pennsylvania Supreme Court, which noted only the state legislature can make gun laws.

In February of this year, Philadelphia city Councilman Darrell Clarke sponsored a bill that would ban citizens from carrying firearms using out-of-state carry licenses, despite the fact that Pennsylvania has what is known as “reciprocity” with many other states. Reciprocity allows both Pennsylvania residents and non-residents to carry their firearms with licenses that are recognized by Pennsylvania and vice versa.

City Council and Mayor Michael Nutter, who signed the bill into law, said they were trying to close the so-called “Florida Loophole,” which they maintain takes away the city’s ability to better control who is issued a carry license. Florida’s permits are available through the mail, although that state’s requirements for a license are actually stricter than Pennsylvania’s, contrary to what’s been portrayed in local media. (Florida requires some type of firearms training before it issues a carry license unlike Pennsylvania, which requires no training, for example).

Despite lingering questions over its legality, the “Florida Loophole” ordinance was passed, and Lt. Francis Healy, a Philadelphia Police Department lawyer, said officers have been instructed to arrest those Philadelphians found to be carrying concealed weapons with an out-of-state license. The district attorney has also said he will prosecute those violating the law, according to Healy.

Asked the legal justification behind advising city council that the “Florida Loophole” law was indeed OK under state law, a city Law Department representative simply said his office did not see the ordinance as being conflicting with state law.

“We believe that it is fully consistent with state law and is not preempted by state law,” said Richie Feder, chief deputy for appeals and legislation in the city’s Solicitor’s Office.

Feder said the Law Department “informally reviews” each bill that comes out of city council, and in this case “we did not see a problem because Pennsylvania law does not allow Pennsylvania residents to carry a gun without a Pennsylvania gun permit.”

Feder stood firm that the city’s ordinance is valid, although he admitted that there would be those who will likely challenge its legality in court.

“I recognize that there are people who read the statutes differently,” he said.

‘Thumbing their noses at the law’

State Rep. Metcalfe’s bill is aimed at what he terms rogue local governments that are passing firearms legislation even though they know it is illegal for them to do so.

“This legislation is being advanced to protect the rights of the individual law-abiding citizen,” Metcalfe said of his bill during a phone interview with the Pennsylvania Record.

It’s not right for a citizen to have to go to court, and inevitably spend money to fight law that may have gotten them into trouble, but one that shouldn’t have been on the books in the first place, Metcalfe says.

The legislator said that even with the state’s preemption statute in effect, some local governments have been “thumbing their noses at the laws.” He claims his bill is designed to protect Pennsylvanians “who have had their liberties infringed upon by local tyrants.”

Havener, of Firearms Owners Against Crime, supports the Metcalfe measure. If it were signed into law, he said, municipalities would be less likely to craft local laws that they know would be challenged in court. And if the municipalities would have to pay the legal fees of an affected party who brings a challenge, they should be even less likely to tread these dangerous waters, he said.

“I definitely support a change in the law,” said Havener, who, last spring, successfully got the borough of State College, Pa. to rescind an ordinance banning guns in local parks.

“These [Pennsylvania] communities that are in violation of the law have no incentive to change their laws … because there’s no penalties,” Havener said. “It takes a lot of prodding, and sometimes a lot of work, to get these communities to change their laws.”

Metcalfe’s bill is modeled after a similar law that was recently passed in Florida, another state with a firearms preemption statute. The Florida law makes it a third degree felony for a local elected official to knowingly pass an ordinance that violates state law. It also provides for fines in an event such an ordinance is passed. And, like the Pennsylvania bill, it provides for attorney’s fees if such an ordinance has to be challenged in court.

The Metcalfe bill only contains the latter; it does not propose fines or jail time for local officials who pass gun laws.

The lawmaker said he thought the bill would have a better chance of getting passed into law at this point if it only contained the legal fees provision.

“I think this measure that we’ve introduced is balanced and very reasonable as for actually putting some teeth into the law,” he said.

Is it a crime?

While Metcalfe’s bill deals primarily with providing compensation to those who citizens forced to bring about a civil court challenge, others are taking it a step further, contending that Pennsylvania municipalities who pass gun ordinances are actually committing a criminal violation.

Havener said he believes local elected officials who pass illegal firearms laws are actually committing “official oppression,” a charge typically reserved for the likes of rogue police officers.

“The real problem you have here is you have government breaking the law,” Havener said.

Havener maintains that passing ordinances knowing they violate state law is not only insulting to the citizenry, it’s a criminal act.

But whether or not authorities would ever consider bringing charges against a local lawmaker for a violation such as this remains to be seen.

“I just don’t think that anyone here would ever do that, in all honesty,” Tasha Jamerson, a spokeswoman for the Philadelphia District Attorney’s Office, said of the idea of prosecuting city officials for enacting something like a disputed gun ordinance.

Jamerson admitted knowing that the city has tried its hand at passing gun laws on numerous occasions, but she wouldn’t get into whether or not she considers them criminal acts.

“City council, it seems like, every single year tries to pass stricter gun laws in the city but they just don’t have the authority,” Jamerson admitted.

Even if an obvious crime were being committed in the passing of these laws, she said, the state Attorney General’s Office would most likely handle the case because of the potential conflict of interest that would exist since the Philadelphia district attorney often works closely with the city’s administration.

Similarly, Nils Frederiksen, the acting director of communications for the Pennsylvania Office of Attorney General, didn’t want to address the possibility of charging local officials who enact gun laws.

“That’s a decision that would be made by a prosecutor,” Frederiksen said in a phone interview. “As a policy, we can’t address hypothetical situations.”

Frederiksen said discussing a hypothetical situation is a “slippery slope,” since an actual case involving this issue might one day come before his office.

“The reality is, we don’t even decide whether or not a crime has been committed,” he said. “That’s for the courts to decide.”

Moving forward

For now, Havener, of Firearms Owners Against Crime, will continue to monitor the situation in municipalities far and wide. If he and other members of his group come across perceived preemption violations, they will fight.

Havener and others will also continue to throw their support behind H.B. 1523. After all, the similar law recently passed in Florida has already had a profound effect on the legislative process in Sunshine State localities; many municipalities down there are already beginning to voluntarily repeal gun ordinances in conflict with state law, he said.

Havener hopes that someday, the same will be done in Pennsylvania. For now, though, it’s up to people like him to make a grassroots attempt at getting localities to comply.

“You see the difficulty that can arise in challenging these ordinances,” Havener said. “It’s never an easy endeavor.”

“We are all expected to obey the law as citizens, and you have government breaking the law and violating the rights of citizens with no punishment and no penalties at all,” he continued. “Until you have a reason for these communities to not violate the law, you’re going to have these types of violations occurring.”

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