PENNSYLVANIA RECORD

In what looks to be a win for Pennsylvania gun owners, an en banc

Commonwealth Court panel sided with a gun rights activist in his case against the City of Erie, ruling a lower court was wrong to deny the man’s request for an injunction barring the city from enforcing a gun ban ordinance covering its park system.

The seven-member Commonwealth Court panel overturned a ruling by an Erie County Common Pleas Court judge that determined Justin Dillon had not met the grounds for a preliminary injunction seeking to nullify a city ordinance that banned legal gun owners from carrying their weapons in municipal parks.

The trial court ruled that Dillon had not established the likelihood of his prevailing on the merits, and that he likely wouldn’t suffer an irreparable injury if the ordinance were allowed to stand.

The appeals judges determined the lower court was wrong on both fronts.

Commonwealth Court ruled that state law and court precedence clearly preempt localities from enacting ordinances outright prohibiting legal gun owners from carrying their firearms in areas not outlawed under the state’s Uniform Firearms Act, and that includes public parks.

Dillon’s case is rooted in a June pro-gun rally he organized in Erie, for which he applied for a permit back in the spring.

The city’s solicitor, Gregory Karle, ultimately informed Dillon that while the event could proceed, no attendee would be allowed to carry firearms during the rally because of a city ordinance prohibiting hunting and firearms possession in city parks.

Dillon, who was represented by Berks County lawyer Joshua Prince, a leading Pennsylvania firearms attorney, filed for a preliminary and permanent injunction, arguing that the city’s ordinance violated Section 6120 of the Pennsylvania Uniform Firearms Act, which states that municipalities cannot regulate the ownership, possession, transfer or transportation of guns “for purposes not prohibited by the laws of this Commonwealth.”

The trial judge, in ruling in the city’s favor, determined that it was not clear that Section 6120, “nor any other state statute, was intended to prohibit a municipality from regulating possession of firearms in a public park as a reasonable exercise of its police powers …”

On appeal, Dillon argued that Section 6120 of the UFA does, indeed, preempt local gun laws such as Erie’s ban on park carry.

The Commonwealth Court judges agreed, writing that both the UFA and case law “precludes the City from regulating the lawful possession of firearms.

“As a result, the trial court erred in determining that Dillon failed to show that he has a clear right to relief because Section 6120(a) preempts all firearms regulation …,” the panel wrote in its Jan. 7 precedential opinion.

The appeals court also determined that despite the lower court’s ruling, Dillon did, in fact, demonstrate that he would suffer an immediate and irreparable harm if an injunction was not granted.

“Pennsylvania law does not require a person to be prosecuted to find that he has suffered irreparable harm …,” the ruling states.

The court determined that “an irreparable injury is present in this case,” since state law preempts municipalities from enacting their own gun ordinances.

The judges went on to write that while the requested injunctive relief cannot be granted with respect to the June 2013 rally, “this appeal is not moot because the motion requested that enforcement of [Erie’s ordinance] be enjoined generally and Dillon was cited at the rally and continues to be subject to prosecution for violating its provisions.”

Gregory Karle, the solicitor for the City of Erie, did not return a message seeking comment.

In an email to the Pennsylvania Record, Prince, Dillon’s counsel, said that he believes the court “correctly interpreted the intent of the Legislature in enacting Section 6120 and its prior case law in concluding that all municipalities are prohibited from regulating the possession of firearms.”

While the ruling was generally favorable to the plaintiff, Commonwealth Court President Judge Dan Pellegrini, who penned the decision, did point out that city lawyers could have argued that the municipality may be empowered to regulate firearms possession in parks pursuant to its “proprietary power to control conduct that takes place on its property rather than through an ordinance of general application enacted pursuant to its general police powers,” as per the state’s Third Class City Code.

In his email, Prince said he was prepared to argue the issue raised by Pellegrini if it had come up during the litigation, “as the Statutory Construction Act and case law are in our favor; however, it was never raised.”

Prince pointed out the reference in Pellegrini’s footnote to 17 Pa. Code Section 11.215, in which the commonwealth’s Department of Conservation and Natural Resources generally prohibits possessing a firearm in state parks, subject to a number of enumerated exceptions.

Prince, however, explained that the General Assembly has already prohibited that section of the code pursuant to Section 6109 of the Uniform Firearms Act.

“Since PA’s Uniform Firearms Act permits the carrying of loaded firearms, the [DCNR] regulation is in violation of the law, just as [Erie’s ordinance] is in violation of Section 6120,” Prince wrote.