PHILADELPHIA – An Arizona weapons advocacy group and two Pennsylvania men have settled civil rights litigation brought under the Second and Fourteenth Amendments to the U.S. Constitution against The City of Philadelphia and its police commissioner for $10,000, and secured an injunction which declared the City’s disputed cutting weapons possession policy as unenforceable.
Knife Rights, Inc., Keith Fetsurka and Scott Mele initially filed suit in the U.S. District Court for the Eastern District of Pennsylvania on May 8 versus Philadelphia Police Commissioner Danielle Outlaw and the City of Philadelphia.
“Plaintiffs Fetsurka and Mele and all typical, law-abiding citizens have a fundamental, constitutionally guaranteed right to carry knives on their person, outside their homes, while in public and in motor vehicles, for lawful purposes including immediate self-defense. But defendants City of Philadelphia and Philadelphia Police Commissioner Danielle Outlaw have banned the constitutionally-protected conduct of possessing and carrying knives for all lawful purposes, including self-defense,” the suit said.
“Defendants’ laws, regulations, policies, and enforcement practices thus violate the right to keep and bear arms expressly protected under the Second and Fourteenth Amendments to the United States Constitution.”
The suit added that defendant Philadelphia’s Code provides: “No person shall use or possess any cutting weapon upon the public streets or upon any public property at any time.”
The Code defines a “cutting weapon” as “any knife or other cutting instrument which can be used as a weapon that has a cutting edge similar to that of a knife.”
And while “No tool or instrument commonly or ordinarily used in a trade, profession or calling shall be considered a cutting weapon while actually being used in the active exercise of that trade, profession or calling, [the policy] does not exempt typical, law-abiding individuals from carrying cutting weapons for lawful purposes, including self-defense.”
The penalty for violation of [the policy] shall be a fine of not less than $300 and imprisonment of not less than 90 days – while an accompanying policy states that no one shall carry or possess such a cutting weapon within 100 feet of a school building.
The suit continued that Fetsurka is a 32-year-old resident of Philadelphia whose Second Amendment rights have not been disqualified for any reason, while also having stated that Mele is a 64-year-old resident of Langhorne whose Second Amendment rights have likewise also not been disqualified for any reason.
Both men carry knives for the purposes of self-defense, according to the suit.
On June 5, counsel for the City offered to “allow judgment to be taken against it and in favor of the plaintiffs for the claim of injunctive relief regarding the ordinance currently codified at Philadelphia Code 10-820, brought by way of the instant litigation, inclusive of costs, attorneys’ fees, and interest accrued to date, in the amount of $10,000.”
The City cautioned that the offer was “not to be construed either as an admission that any defendant is liable in this action, or that plaintiff has suffered any damages”, that “said judgment is to have no effect whatsoever except in settlement of this case”, that it was “not admissible as evidence in any proceeding, except, if rejected, in a proceeding to determine costs” – and finally, that the offer was only valid for 14 days and if accepted, was to be done so in writing.
14 days later, in a response furnished by plaintiff counsel to the City, their clients were “waiting to hear back regarding the remaining claims not addressed in defendants’ original offer”, as a part of ongoing settlement discussions.
On June 29, plaintiff counsel further filed a notice of acceptance of the offer and reiterated that same point.
“Under Federal Rule of Civil Procedure 68(a), this notice of acceptance memorializes plaintiffs’ acceptance of the City’s June 5, 2023 offer of judgment to one of plaintiffs’ claims in the above-captioned case. Plaintiffs’ counsel accepted defendants’ offer in writing on June 19, 2023. Further, counsel for plaintiffs advised defendants’ counsel that their Rule 68 offer of judgment did not address all the claims presented in plaintiffs’ complaint. Plaintiffs await a response from defendants as to whether defendants plan to defend the remaining claims in plaintiffs’ complaint,” the notice stated.
Though the City and Outlaw were given an extension to respond to the complaint by July 27, no such response has yet been filed.
Finally, on July 31, U.S. District Court for the Eastern District of Pennsylvania Judge Gerald A. McHugh issued an order confirming the judgment and rendering the disputed section of Philadelphia Code as unenforceable.
“Upon consideration of the joint submission by the parties and the acceptance of judgment filed previously in this matter, and for good cause shown, it is hereby ordered: Judgment is entered in favor of plaintiffs Knife Rights, Inc., Keith Fetsurka and Scott Mele, and against defendant City of Philadelphia in the amount of $10,000. The ordinance currently codified at Section 10-820 of the Philadelphia Code is unenforceable,” McHugh said.
“Defendant City of Philadelphia is enjoined from enforcing the ordinance currently codified at Section 10-820 of the Philadelphia Code. Plaintiffs’ claims arising out of Philadelphia Code Section 10-833 are withdrawn by agreement and therefore dismissed without prejudice, as Section 10-833(2) of the Philadelphia Code shall become effective only upon the enactment of authorizing legislation by the Pennsylvania Assembly. No such legislation has been passed as of the ratification of this agreement.”
In response to an inquiry from the Pennsylvania Record, City of Philadelphia Law Department Director of Communications Ava Schwemler issued a brief statement.
“Knife Rights, Inc. has accepted an offer of judgment from the City of Philadelphia. Therefore, the City has agreed not to enforce the ordinance banning the carry and use of knives in public,” Schwemler said.
The plaintiffs were represented by John W. Dillon of Dillon Law Group in Carlsbad, Calif. and William A. Sack of the Second Amendment Foundation, in Bellevue, Wash.
The defendants were represented by Anne B. Taylor of the City of Philadelphia’s Law Department.
U.S. District Court for the Eastern District of Pennsylvania case 2:23-cv-01758
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com