Today, in a case that I handled, the Commonwealth Court issued a decision in Firearm Owners Against Crime (FOAC), et al. v. Lower Merion Township, 1693 C.D. 2015, reversing the trial court and finding that FOAC was entitled to a preliminary injunction against Lower Merion Township’s unlawful firearm regulations.
The background to the case is that in 2011, Lower Merion Township passed an ordinance amending section 109-16 of its Code (Ordinance) to prohibit persons from “carry[ing] or discharg[ing] firearms of any kind in a park without a special permit, unless exempted.” Lower Merion Township, Pa., Code §109-16. The Ordinance imposes a maximum fine of $600.00 per violation and authorizes the police to remove violators from Township parks or recreation areas.
In 2014, FOAC contacted the Township and alleged that the Ordinance violated section 6120 of the Pennsylvania Uniform Firearms Act (UFA) because it improperly restricted firearm possession in Township parks. Upon review, the Township determined that the Ordinance was consistent with the UFA because it only prohibited the unlawful possession of firearms in parks and, therefore, chose not to repeal or revise it. Shortly thereafter, FOAC and a resident of the Township filed suit in the Montgomery County Court of Common Pleas and sought a preliminary injunction that the court denied. The underlying appeal ensued.
Reaffirming the PA Supreme Court’s decision in Ortiz v. Commonwealth, 681 A.2d 152 (Pa. 1996), the Commonwealth Court found that FOAC’s right to relief was clear. Specifically, the Commonwealth Court declared
Rather, the critical upshot is our recognition that Ortiz’s “crystal clear holding” prohibits this Court from endorsing the argument that a cognizable distinction exists between regulating lawful activity and unlawful activity.
Moreover, based on Commonwealth Court Judge Pelligrini’s prior footnote (known as fn. 9) in Dillon v. City of Erie, 3 A.3d 467 (Pa. Cmwlth. 2014) (en banc), the Township attempted to argue that it could regulate as a private property owner. In explicitly rejecting the Township’s argument, the Court held that
the UFA explicitly prohibits a township from regulating “in any manner” and contains no express exemptions authorizing a township to enact ordinances permitting firearm regulation on its property, i.e., parks, comparable to that contained in the Game Law…Therefore, the Township’s argument that Firearm Owners’ right to relief is not clear based on its authority to regulate its parks as a property owner pursuant to Wolfe is unpersuasive.
Furthermore, the Court found the Township’s arguments that immediate and irreparable harm would not result as absurd, given the statutory proscription on regulating firearms and ammunition. Likewise, the Court found that “refusing an injunction would sanction the Township’s continued statutory violations of the UFA and, therefore, be injurious to Firearm Owners and the public” and that “the last nonconstested status existed prior to the Township’s enactment of the Ordinance. Therefore, an injunction enjoining the Ordinance would restore the parties to their last uncontested status and preserve the status quo.”
For those interested, you can download copies of our Brief and Reply Brief, by clicking on the applicable prior text.
Please join me in thanking FOAC for remaining steadfast in its dedication to defending Article 1, Section 21 and 18 Pa.C.S. 6120. I would highly encourage anyone in a financial position to do so, to donate to FOAC so it can continue to support important litigation defending our Rights.
#BestHanukahPresentFromTheCommonwealthCourtEVER! #MerryChristmasSenatorLeach #SenatorLeachITookMyBestShotAndWON! (This is in relation to your comment that I should take my “best shot” at 1:27 mark – http://www.nbcphiladelphia.com/news/local/Gun-Rights-Supporters-Rally-in-Suburban-Philadelphia-296381701.html)
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