Pa. Game Commission seeks dismissal of suit challenging Sunday hunting ban

By Jon Campisi | Aug 28, 2013

Lawyers for the commonwealth have filed a motion to dismiss a lawsuit by a sportsmen’s organization against the Pennsylvania Game Commission that challenges the state’s ban on Sunday hunting.

In an Aug. 23 filing, Gregory R. Neuhauser, chief deputy attorney general in the Civil Litigation Section of the Attorney General’s Office, wrote that the federal court in Harrisburg, where the suit was filed earlier this summer, lacks jurisdiction over the matter.

The motion also argues that the complaint fails to state a claim upon which relief may be granted.

The case was initiated back on July 16 by Kathy Davis and her Lancaster-based nonprofit organization, Hunters United for Sunday Hunting.

The meat of the complaint centers around assertions that Pennsylvania’s ban on Sunday hunting constitutes a constitutional violation.

Specifically, Davis and her advocacy group contend that the ban violates the First, Second and Fourteenth Amendments to the U.S. Constitution.

The complaint says that the Sunday hunting ban is discriminatory because it unfairly affects certain segments of the population.

Most people work Monday through Friday, the suit states, and children over 18 can be in school during that time, meaning Sunday could comprise 50 percent of the available hunting time in the state.

The suit, which was previously reported on by the Pennsylvania Record, seeks to have a judge enjoin the commonwealth from continuing to enforce the Sunday hunting ban.

In his filing last week, Neuhauser wrote that the Game Commission is immune from suit by virtue of the Eleventh Amendment to the U.S. Constitution, which offers immunity from civil litigation to governmental agencies.

The deputy attorney general also contends that the plaintiffs lack standing to assert their claims in the case, meaning that even if the federal judge presiding over the matter were to determine that the Game Commission is not immune from suit in this instance, “the complaint should nonetheless be dismissed.

“Plaintiffs’ complaint does not present allegations devoted to their alleged standing in this case,” Neuhauser wrote in the motion to dismiss. “Instead, they appear simply to suggest that, because Ms. Davis and unnamed members of HUSH would like to hunt on public and/or private lands within the Commonwealth of Pennsylvania during established periods and such periods do not include Sundays, their constitutional and statutory rights are violated.”

The attorney stressed that there are several problems with the plaintiffs’ “broad assertion” that their “right to hunt” is violated, including the lack of a “legally protected interest” and an “assertion that seems to be an ‘abstract question of wide public significance which amounts to a generalized grievance.’”

What Neuhauser calls the most significant flaw in the complaint, however, is that the only claimed source of such right to hunt is alleged to be either the Second Amendment to the U.S. Constitution or Article I, Section 21 of the Pennsylvania Constitution, both of which have to do with keeping and bearing firearms, but neither of which provide a legally protected right to hunt.

In making their argument, the plaintiffs had relied on the landmark U.S. Supreme Court case of District of Columbia v. Heller, which overturned a handgun ownership ban in the nation’s capitol, and the similar case of McDonald v. City of Chicago, which both overturned that city’s handgun ban and effectively incorporated the Second Amendment to the individual states.

Neuhauser argued that neither of those cases provide the support the plaintiffs seek to “place upon the decisions for the claimed right” they reference in their suit.

“Plaintiffs can point to no federal or state constitutional right to hunt,” Neuhauser wrote. “Absent such a protected right, they have no ‘legally protected interest’ which is concrete and particularized and thus sufficient to confer standing upon them to challenge a section of the Game and Wildlife Code regulating times of permissible hunting in Pennsylvania.

“Instead,” Neuhauser continued, “their complaint presents an abstract question which amounts to a generalized grievance most appropriately addressed by the state legislature, not a federal court.”

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