PHILADELPHIA – The City of Philadelphia has countered litigation from a Virginia organization claiming that a local ordinance prohibiting anyone to use 3D printers to create firearms violates both state and federal laws, by arguing that the claims are moot and lack standing.
Gun Owners of America, Inc. and Gun Owners Foundation of Springfield, Va., David Cotugno, Ross Gilson, Vern Lei and Michael Strollo of Philadelphia first filed suit in the Philadelphia County Court of Common Pleas on May 10 versus the City of Philadelphia.
“On Jan. 27, 2021, Philadelphia Mayor Jim Kenney signed Bill No. 200593 into law. Prior to the challenged Ordinance, Chapter 10-2000 of the Philadelphia Code prohibited any person but a Type 072 federal firearms licensee from ‘using a three-dimensional printer to create any firearm, or any piece or part thereof….’ Prior to the ordinance, such a violation was a Class III offense,” the suit said.
“The sponsor of the ordinance, Councilmember Kenyatta Johnson, claimed that, ‘My ghost gun law…does not prohibit the manufacturing of guns, it just requires that it be done by licensed manufacturers in accordance with state and federal law.’ In reality, as of January 2021, there was a grand total one Type 07 FFL located within the City of Philadelphia, and zero Type 10 FFLs. The rest of the City’s 1.6 million residents are prohibited from manufacturing firearms under the ordinance.”
The suit added that “greatly expands the City’s prohibitions on manufacturing and finishing partially constructed homemade firearms, outlaws the transfer of ‘firearm finishing devices’ which can include common household tools, and imposes severe penalties for violation of its prohibitions.”
“Philadelphia’s ordinance violates 18 Pa.C.S. Section 6120 as it regulates lawful conduct that the General Assembly has explicitly prohibited Philadelphia from regulating. The ordinance also violates Article I, Section 21 because it prohibits a person from making a firearm to use for lawful purposes including self-defense. Finally, the ordinance violates the principles of due process and void for vagueness,” per the suit.
“Article I, Section 21 of the Pennsylvania Constitution states plainly that ‘the right of the citizens to bear arms in defense of themselves and the State shall not be questioned.’ Because before one can ‘bear’ an arm, it must be acquired, it is beyond serious debate that Article I, Section 21 protects a corresponding right to acquire a firearm, just as the freedoms of speech and press protects the right to acquire books, paper and ink.”
The case was later removed to the U.S. District Court for the Eastern District of Pennsylvania on June 10.
UPDATE
On June 17, the City filed an answer to the case, which refuted the allegations of the plaintiffs in their entirety and further asserted a number of affirmative defenses to the litigation.
“Plaintiffs have failed to state a claim upon which the Court may grant relief, failed to state a claim for violation of the Pennsylvania Uniform Firearms Act, 18 Pa.C.S. Section 6120, failed to state a claim for violation of Article 1, Section 21 of the Pennsylvania Constitution and failed to state a claim for due process vagueness. Plaintiffs’ claims are moot, not ripe and lack standing, according to the City’s defenses.
The City seeks the dismissal of the plaintiffs’ claims with prejudice and with no relief to plaintiffs and an award the City such relief as the Court deems just and equitable.
Furthermore, the parties are currently locked in a venue battle for the action, with the City seeking to keep the action in federal court, and the plaintiffs seeking to remand it to its state court of origin.
For counts of firearms pre-emption, violation of the Pennsylvania Constitution and due process vagueness, the plaintiffs are seeking an order preliminarily and permanently enjoining the defendants, their officers, agents, servants, employees and all persons in active concert or participation with them who receive actual notice of the injunction, from enforcing the ordinance in any way; a declaration that the ordinance violates Section 6120 of state law and is pre-empted as a matter of law, violates Article 1 Section 21 of the Pennsylvania Constitution, violates due process and is void for vagueness; along with attorney’s fees, costs and any or all such other relief this Court may find is just and proper.
The plaintiffs are represented by Andrew B. Austin in Philadelphia, plus James N. Clymer and Christopher A. Sarno of Clymer Musser & Sarno, in Lancaster.
The defendant is represented by Danielle E. Walsh and Michael Wu-Kung Pfautz of the City of Philadelphia’s Law Department.
U.S. District Court for the Eastern District of Pennsylvania case 2:21-cv-02630
Philadelphia County Court of Common Pleas case 210500884
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com