SiteLock
Citizens Call logo

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.

 

About the Author
  1. David L. Cohen

    Sorry, but my understanding is that any citizen that has standing can sue if they believe that a PA law or a law from a municipality (local government) violates the PA Constitution. The passage of this law is clearly a power grab by the NRA and its supporters to gain standing in the courts and to intimidate local governments. The movement to allow organizations and companies to have the rights of people is disquieting at best. Also, I could not care less about NRA rankings.

  2. novadust

    […1972 state law preempts local gun laws on the legal use, possession and transportation of firearms and ammunition.]

    please give more info on that 1972 law. what exactly does it say that prohibits local theft-reporting ordinances?

    • Steve

      This is the law at issue. Whether it truly prohibits laws on reporting lost and stolen guns is for the courts to decide.
      § 6120. Limitation on the regulation of firearms and ammunition.

      (a) General rule. No county, municipality or township may in any manner regulate the lawful ownership, possession, transfer or transportation of firearms, ammunition or ammunition components when carried or transported for purposes not prohibited by the laws of this Commonwealth.

      • novadust

        thanx, steve. right, that’s the one i thought u meant. i see nothing there that can be interpreted to forbid mandatory reporting of theft or loss. let NRA sue us. our counsel will get the suit dismissed as frivolous n get costs paid by plaintiff.

        PA’s fee-shifting statute is in the Pennsylvania Judicial Code at 42 Pa.C.S.A. §2503(9). an additional rule that may apply is in the Pennsylvania Rules of Civil Procedure, Rule 1023.1. our counsel can base motions for fee recovery on those provisions.

        if NRA files enough actions, they’ll find they’ve not only wasted 4 years of lobbying but lost money paying counsel fees n court costs too.

        i hope art, the other commissioners, n CeasefirePA consider this suggestion. premature repeal of the ordinance amounts to asking how high when the NRA says jump.

  3. Bill Smith

    I find it ironic/comical that the “Republican” Commissioner (RINO is more like it) Mr. Sharkey brought for and sponsored the legislation here in Cheltenham. I wonder how he feels about subverting state law?

  4. Dave Posmontier

    The first step is to retire One Term Tom!

  5. Beth

    U.S. has most guns per capita – compared to Canada at number 13 on the list —
    Why is NRA commandeering our legislature? Can’t believe we should go back to NJ to feel safer.
    http://en.wikipedia.org/wiki/Number_of_guns_per_capita_by_country

  6. Bill England

    This is an example of a special interest forcing its will upon the people, infringing upon our rights. Local ordinances requiring the owner of a stolen or lost gun to report the crime or loss to law enforcement has nothing to do with rights to ownership. This is about safety. The candidates in their comments make it clear who supports community and safety and who has other priorities.

    • Robin Gilchrist

      The only one guilty of enforcing its will on the people are people like you Mr. Bill England school board member who just increased our taxes people like you waive the Constitution around when it suits your needs and subvert it when it doesn’t. My argument for supporting this bill is a constitutional one and nothing more the constitution also guarantees that we have a right to clean air and clean water what would happen if Cheltenham commissioners passed an ordinance in all its wisdom that said we can pollute our air and water at will. Well sir they would be violating the Constitution the Constitution is what keeps our leaders from violating our citizens most basic rights. Pennsylvania State law explicitly says that municipalities cannot create laws that are more strict than the state law and according to gun law municipalities townships etc. Are forbidden to regulate the sale, ownership or transportation or transfer of firearms. This pill paves the way for individuals not just the NRA to be able to sue for violating their constitutional rights and further protect them from prosecution. Another question to be raised if this bill didn’t pass and people were convicted of violating these ordinances on what level would you prosecutor on the county level on the state level where these laws aren’t even on the books.

      • Robin Gilchrist

        Oh and by the way just so there’s no confusion about where I stand on gun safety the NRA yesterday gave me a D rating.

        • Tom McHugh

          Mr. Gilchrist, The D rating must have been for your grammar. And speaking as a sharpshooter, former rifle instructor and former member of the NRA, there are many citizens that understand that the Second Amendment was clearly and specifically written in the context of a well regulated militia armed with single shot muzzle loaded flintlock rifles or muskets to maintain the security of the State. We also know that the gun nuts have twisted the Second Amendment to sooth their paranoia of government and all types of imagined enemies.

          • Chuck Johnson

            Tom, your knowledge of the purpose of the bill of rights is laughable. PA state constitution article 1 section 21: The right of the citizens to bear arms in defense of themselves and the State shall not be questioned. This dates back to when Benjamin Franklin was the first president of Pennsylvania. The U.S bill of rights preamble states: The Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution. If you understand the text it means that the federal government powers (constitution) are restrained to prevent misconstruction or abuse of the constitution among the sovereign states. The bill of rights are stating the rights people have from birth not from a piece of paper. Simply, the bill of rights are the chains around government that prevent them from infringing on your rights. Why do democrats seem to want to protect Article section 14 (The General Assembly shall provide for the maintenance and support of a thorough and efficient system of public education to serve the needs of the Commonwealth) but do not want our state government to follow article 1 section 21? A little hypocritical don’t you think?

          • Tom McHugh

            PA Article 1 Section 21 has not been taken literally for good reason. The words, “…shall not be questioned” are un-American. Article 1 Section 21 has been questioned, discussed, interpreted and reinterpreted many times by citizens, lawmakers and judges since the end of the 18th century. Taken literally, it violates the First Amendment. The U.S. 2nd Amendment does not read anything like PA Article 1 Section 21. PA Article 1 Section 21 badly needs to be rewritten.

            This new PA legislation puts the unjustified fear of individuals above common sense and public safety. Some regulations and responsibility on the part of gun owners that do not infringe on rights to bear arms are required, rational and very American. Local governments and citizens know this, but must now roll back simple legislation designed for public wellbeing, or risk paying out large legal fees and paying “damages” to gun lobby groups. It is shameful.

            Chuck Johnson (Could this be the real gun rights advocate, Chuck Johnson – I doubt it.) seems to have another axe to grind. He thinks that any person in favor of the PA Constitutional requirement that our State General Assembly “shall provide for the maintenance and support of a thorough and efficient system of public education to serve the needs of the Commonwealth” but who also questions his interpretation of PA Article 1 Section 21 is a hypocrite. I disagree. Strong public education built our Nation, while a literal interpretation of PA Article 1 Section 21 only serves to comfort those who fear that government wants to take away their most lethal weapons.

      • novadust

        i sure wouldn’t want to get represented by a state senator who doesn’t proofread b4 he posts.

      • novadust

        my cheltenham school tax went up 2.6%. i can live with that. if the GOP thinks it’s too high, they can tax gas drillers to fund schools.

  7. Andy

    How much longer are we going to tolerate the NRA running this country??