Harrisburg moves to dismiss firearms suit

By Jim Boyle | Feb 23, 2015

HARRISBURG - While officials in most municipalities have repealed local gun ordinances

HARRISBURG - While officials in most municipalities have repealed local gun ordinances

in the past two months to avoid potentially expensive lawsuits from Second Amendment advocacy groups, Harrisburg has joined a small handful of Pennsylvania cities that have chosen to take their chances in court.

Attorneys representing the city filed a motion Friday to dismiss one of two suits that have been lodged against Harrisburg since the passage of Act 192 in the General Assembly.

The motion asks federal Judge Yvette Kane in the U.S. District Court for the Middle District of Pennsylvania to dismiss the Second Amendment claims filed by the organization called Firearm Owners Against Crime (FOAC) on behalf of three members living in Dauphin County, Kim Stolfer - FOAC's president, Joshua First and Howard Bullock.

The motion also argues for the stay or remand of the state law claims in the suit until a challenge to Act 192's constitutionality has been resolved.

Pro-gun lobbying groups such as FOAC and the NRA have taken advantage of the December passage of Act 192, which gives national organizations legal standing to file suits on behalf of members residing in Pennsylvania.

Suits filed against Harrisburg, Lancaster, Pittsburgh and Philadelphia claim that municipalities’ gun ordinances violate a section of the Uniform Firearms Act enacted 40 years ago that prohibits municipalities from regulating the lawful ownership, possession, transfer or transportation of firearms and ammunition.

FOAC's suit was originally filed in the Dauphin County Court of Common Pleas before moving to federal court. The complaint charges the City of Harrisburg, Mayor Eric Papenfuse and Police Chief Thomas Carter with 29 counts seeking declaratory and injunctive relief from 10 of the city's ordinances restricting gun use.

The ordinances in dispute include the possession of firearms by minors outside the home without adult supervision, the discharge of firearms except at accredited firing ranges, the reporting of lost or stolen firearms within 48 hours of the discovery that the weapons are missing, firearm restrictions in public parks and the sale, display and public possession of a firearm during states of emergency.

Harrisburg's motion argues that the plaintiffs have read Pennsylvania’s Uniform Firearm Act too broadly and that the local ordinances are in accordance with existing state law.

"That statute only prohibits cities from regulating the 'lawful' possession or carrying of firearms," the motion says. "Under Pennsylvania law, it is illegal to carry guns during a declared emergency, to carry guns in parks, and for unsupervised children to carry guns."

Despite the state restriction, many municipalities have created their own laws regarding the use of firearms within the communities, resulting in what the NRA has called a patchwork of inconsistent laws. Before the passage of Act 192, local citizens had difficulty earning legal standing to challenge the ordinances.

The new legislation also requires municipalities to pay for all legal fees if they lose the civil case. The threats of lawsuits and the prospect of spending taxpayer dollars to cover court costs has prompted more than 20 local government entities to preemptively repeal their gun ordinances.

However, Philadelphia, Pittsburgh and Lancaster have filed their own suit in the Commonwealth Court challenging the legality of the new bill, saying it was tacked on as an amendment to unrelated legislation and did not go through an effective vetting process before the vote.

Harrisburg is represented by Frank Lavery and Joshua Autry of Lavery Faherty in Harrisburg. The FOAC is represented by Joshua Prince in Bechtelsville.

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