Bill Passes Allowing NRA to Sue PA Municipalities Like Cheltenham on Gun Laws – with Strong Financial Penalties
A bill passed in the PA House Monday has municipalities like Cheltenham scrambling for cover if they have gun regulation ordinances on the books that go beyond state laws. The bill, which is expected to gain Governor Corbett’s signature, would allow membership organizations like the NRA to sue those municipalities and recover legal fees, court costs and potential damages, if they win.
Cheltenham Township, along with some 30 other municipalities across the state, including Philadelphia, Pittsburgh, Reading, Harrisburg, Allentown, Hatfield Township, Norristown, Plymouth Township, Whitemarsh Township and Jenkintown, has an ordinance requiring any owner of a lost or stolen firearm to report the incident to the police within a certain period. For Cheltenham it is 72 hours from the time of discovery. The ordinance, Section 143-3 of the Municipal Code, was adopted in June 2010.
But a 1972 state law preempts local gun laws on the legal use, possession and transportation of firearms and ammunition. In 2008 there was an effort in the PA House to pass a statewide reporting requirement for lost and stolen guns to combat the growing problem of easy and often untraceable access to guns by criminals. When the bill was defeated, municipalities began enacting their own lost and stolen gun ordinances. This set the stage for an ongoing battle between the NRA and other gun rights groups in conjunction with their allies in the legislature and urban and suburban communities, gun regulation advocates and their legislators working to limit the role of guns in violent crimes, especially in urban areas. The passage of HB 80 yesterday, after earlier passage by the Senate, was an important win for gun rights advocates who see a uniform statewide gun regulatory environment as a key goal.
Cheltenham’s Ward 2 Comr. Art Haywood called passage of the bill “a terrible mistake.” Haywood, who has been an advocate of tougher gun laws and is now the favorite in his race as a Democrat for the PA-4 state Senate seat, said of Cheltenham’s and other municipalities’ gun reporting ordinances, “This is all to track guns so they are less likely to fall into the hands of criminals. The legislation from Harrisburg will reduce the chances of our community and law enforcement to keep guns out of the hands of criminals.” He said the state legislation “further highlights the need for a change in Harrisburg” and emphasized that local ordinances like Cheltenham’s have no connection to the right to use guns for hunting and other recreational activities.
Haywood said it was likely that Cheltenham will repeal its lost and stolen gun reporting requirements at next month’s board of commissioners meeting. “Because if we don’t, the legislation says NRA can sue us and (if they win) recover attorneys’ fees and other damages if we don’t repeal it. So I’m anticipating that local governments across the commonwealth will repeal these protections . . . What the state legislature has done is turned part of our government, particularly public safety aspects of our government, over to the NRA. ”
Cheltenham Police Chief John Norris also weighed in. “It doesn’t make sense. People report things stolen and lost. It only makes sense to report things. So I don’t get what the legislation is trying to do. It doesn’t hurt anybody, it doesn’t hurt the NRA, it doesn’t restrict anybody from having a gun, except straw purchasers, and that was what it was meant for.”
Asked about the impact of the township’s lost and stolen gun reporting law so far, Norris said, “We haven’t really used it, we haven’t needed to. And our citizens are pretty good about reporting things. There have been no instances that I’m aware of where a gun was lost or stolen and hasn’t been reported to police. Maybe that’s because there is a law, I don’t know.”
Robin Gilchrist, Haywood’s Republican opponent for the PA-4 Senate seat, contended in an email, “It’s a violation of state law for a municipality to create laws that are stricter than the state’s. Any amendments to state law must be made through the General Assembly. Laws must be uniform throughout the state that’s why they refer to legislators as law makers. The bill simply gives teeth to plaintiffs in order to keep local leaders in check of their intentions. ”
One aspect of the state bill that takes an obvious toll on municipalities is that if they lose in court, they are subject to substantial additional legal-related costs, but if they win, they can not shift any of their legal costs to the losing side.
Shira Goodman, Executive Director of CeaseFirePA, a statewide anti-gun violence advocacy organization, said she was not surprised at Haywood’s reaction. “I think they (the NRA and its allies) wanted to punish towns that have it or bully them into rescinding them (lost or stolen gun reporting requirements), and we can’t really blame towns that have to do that because they have a fiscal responsibility to their tax payers . . . I think some cities might try and fight it,” possibly using a test case, she said. “But some may feel that it might not be worth the risk.”
The vote in the House on Monday was 138-56. Republicans voted almost exclusively along party lines, with only five crossing over to vote against the bill, one of whom was Rep. Kate Harper (R-61). But Democrats were split, with 37 of the 92 in the House voting for the Republican bill. State Rep. Steve McCarter (D-154) said that Democrats in the five county Philadelphia area were solidly against it.
The CeasefirePA executive director painted a complicated and fluid picture of various legal and political scenarios in the next phase of the action, factoring in the new state legislation. She said that CeaseFirePA’s municipal allies will be discussing strategies to minimize risks to any individual municipality choosing not to rescind their ordinance. They also will be discussing the issue with associations of municipalities like the PA Municipal League
Municipalities could wait to see which are targeted by the NRA and others for a court suit or possibly take the offensive in a suit aimed at the way the legislation was passed – by a “last minute” amendment to what some consider an unrelated bill. “We feel pretty strongly that it violates the ‘single subject’ rule of the state constitution, so we think that procedurally there are problems” and she anticipates a constitutional challenge from that direction.
Whether the NRA and its partners choose to target a major city for a law suit or prefer to make an example of a more financially vulnerable smaller municipality is another question, said Goodman.
The law also could be contested in court on the basis of an overly broad and unworkable definition of legal standing, she said, in which any gun owner in the state could file suit against a municipality, regardless of whether s/he lived in or had ever set foot in the municipality being sued. “Typically, to get into court, you have to show you have some injury or are in some imminent harm of being injured,” but this standard seems far narrower than what the legislation allows, she said. Even the question of whether the legislature has the right to involve itself in judicial issues of legal standing might be fertile ground to bring suit, said Goodman.
CeaseFirePA just issued its endorsements for the 2014 races for the PA General Assembly, which included Haywood for Senate and McCarter for the House.