Commonwealth Court Rules Philadelphia’s Lost/Stolen Firearm Ordinance Unlawful and It’s Prosecution Under It, “bad faith and Harassment”

Today, Chief Counsel Joshua Prince in another, in a series, of firearm and ammunition preemption challenges, secured a monumental decision from the Commonwealth Court in Armstrong v. City of Philadelphia, 1204 C.D. 2020, involving the City of Philadelphia’s lost and stolen firearm ordinance, where the Court overturned the trial court’s denial of a permanent injunction and directed the trial court “to enter an order granting a permanent injunction in favor of Rashad T. Armstrong.”

As the decision, spanning 22 pages, declares,

we conclude that Appellant’s right to relief is well established because a straightforward application of our case law interpreting Section 6120(a) leads to the inescapable conclusion that Section 10-838a [the City’s Lost and Stolen Ordinance] is preempted and therefore invalid and unenforceable.

In continuing on to address the the balance of harms inquiry, the Court declares, citing to two other preemption victories of Chief Counsel Prince,

our decision in Dillon adequately explained why the balance of harms will always favor the individual in the situation where a municipal entity seeks to enforce an ordinance and/or law that is preempted by Section 6120(a) of the UFA:

The argument that a violation of law can be a benefit to the public is without merit. When the Legislature declares certain conduct to be unlawful it is tantamount in law to calling it injurious to the public. . . .
[T]he [c]ity’s unlawful regulation of the lawful possession of firearms shows that a greater injury will occur by refusing to grant the injunction because . . . the [c]ity’s [o]rdinance is unenforceable; the injunction is reasonably suited to abate the offending activity by enjoining the enforcement of this unlawful and unenforceable ordinance; and the injunction will not adversely affect the public interest because the [c]ity was prohibited from enacting [the ordinance] and the ordinance is, again, unlawful and unenforceable. Dillon, 83 A.3d at 474.

Moreover, in Lower Merion Township, this Court followed and relied upon Dillon in concluding that, per se, the balance of harms will always weigh in favor of the individual when the individual seeks to enjoin a municipal ordinance and/or law that is preempted by Section 6120(a):
The [t]ownship next argues that it would suffer substantial harm if the [o]rdinance was enjoined because it is essential to the safety of [t]ownship residents and to the public’s use and enjoyment of [t]ownship parks. However, contrary to the [t]ownship’s assertion, we have stated that “[w]hen the Legislature declares certain conduct to be unlawful it is tantamount in law to calling it injurious to the public.” Dillon, 83 A.3d at 474.
Thus, we conclude that greater injury would result from refusing an injunction than granting it because refusing an injunction would sanction the [t]ownship’s continued statutory violations of the UFA and, therefore, be injurious to [plaintiffs/petitioners] and the public.

In turning to the third and final prong of a permanent injunction – that an injunction is necessary to avoid an injury that cannot be compensated by damages, or, in other words, the inadequacy of a remedy at law requirement – the Court declares

As a basic proposition, an injunction may issue to enjoin a prosecution when the statute is flagrantly and patently unconstitutional, there has been bad faith or harassment in the enforcement of the statute, and it is possible that the governmental entity will continue with multiple prosecutions for the same offense. [citations omitted]. Here, the facts, procedural history, and legal background of this case establish that the City is attempting to enforce a law that it knew, or reasonably should have known, was unenforceable due to our 2008 decision in Clarke, as well as the preceding and succeeding case law from this Court. Nonetheless, the City pursued this prosecutorial action against Appellant, without making any kind of notable linguistic change to the law it seeks to enforce and was struck down as preempted in Clarke. Also, the City does not make any meaningful argument for a change in the current state of the case law, opting instead to essentially ignore the precedential authority of this Court as if it does not exist. Ultimately, the City’s decision to proceed with prosecution under Section 10-838a, a lost and stolen reporting law, and then incredibly claim that the law is actually a “straw purchaser” law, which, in any event, has also been held to be preempted by this Court, see supra notes 7-8, evidences a form of bad faith and harassment on the part of the City. (emphasis added)

And finally, in conclusion, the Court declares

Therefore, for all these reasons, we conclude that Appellant is entitled to a permanent injunction and that the trial court erred in determining to the contrary.

Unfortunately, in what can only be defined as a call for judicial activism, Judge Leadbetter issued a concurring opinion declaring that while she is in agreement with the majority’s resolution of the matter given the controlling precedent, she “urges” the PA Supreme Court to reconsider its Ortiz decision.

Specifically, Judge Leadbetter declares

It seems to me that the overwhelming blight of gun violence occurring in the City of Philadelphia, of which I believe we can take judicial notice, and the policy issues argued by the City in the case before us, call for a recognition that local conditions may well justify more severe restrictions than are necessary statewide. It is neither just to impose unnecessarily harsh limits in communities where they are not required nor consistent with simple humanity to deny basic safety regulations to citizens who desperately need them. When a child cannot leave his home to walk to the corner of his street without risking the prospect of being caught in a crossfire, we are denying him the most fundamental right, that of life and liberty, and so I would urge our Supreme Court to reconsider the breadth of the Ortiz doctrine1 and allow for local restrictions narrowly tailored to local necessities.

What appears lost on Judge Leadbetter is that more firearm regulation – especially such that re-victimizes a victim of crime, such as a lost and stolen firearm ordinance – will have no impact on crime, when misdemeanor and felony state law provisions no longer dissuade criminals from committing criminal acts, due to liberal district attorneys refusing to prosecute those violators.

More disconcertingly, as the PA Supreme Court’s decision in Ortiz (and later re-affirmed in Hicks) was based on Article 1, Section 21 of the Pennsylvania Constitution and Section 6120 of the Crimes Code, this “urg[ing]” upon the PA Supreme Court is nothing more than a call for judicial activism, as the PA Supreme Court lacks the power to amend the Constitution or rewrite the statutory law. Those are the powers that rest solely with We The People and the General Assembly and one might argue, given Article 1, Section 25, since the rights enumerated in Article 1 – including Section 21 – are “excepted out of the general powers of government and shall forever remain inviolate” that no branch of government can regulate, limit, or extinguish those inviolate rights.

If you or someone you know has been the victim of an unlawful municipal firearm or ammunition regulation or ordinance, contact FICG today to discuss your options.

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