Tag Archives: preemption

Firearm and Ammunition Preemption Needs YOUR Immediate Support!

Today, in an 8-3 vote, the Senate Local Government Committee passed an extremely important firearm and ammunition preemption bill – Senate Bill 5 – which in addition to reaffirming/strengthening preemption would also provide for attorney fees and costs, where a local government violates the preemption statute.  Senate Bill 5 will now go to the Senate floor for consideration.

We can pass preemption with a veto proof majority, but we need YOUR help! Please contact your state Senator and urge them to support Senate Bill 5!  Please take the time to email, fax or call your Senator and do not use form letters/requests, as they are generally ignored. Our Representatives know when an issue is so important to you that you take the time to personally and respectfully contact them.

Together, we can ensure that our rights under Article 1, Section 21 are not questioned!

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Lower Merion Township Petitions for Allowance to Appeal in Firearm Preemption Case

As our readers are aware, on December 16, 2016, the Commonwealth Court issued its decision in Firearm Owners Against Crime (FOAC), et al. v. Lower Merion Township, where it held that Lower Merion Township’s preclusion of firearms in township parks was unlawful.

On Friday, January 13, 2017, Lower Merion Township filed a Petition for Allowance of Appeal with the Pennsylvania Supreme Court, which was docketed at 36 MAL 2017. Thereafter, on Tuesday, January 17, 2017, the City of Philadelphia and City of Harrisburg filed amicus curiae briefs with the Court, asking it to grant Lower Merion Township’s request and overturn the Commonwealth Court’s decision. Later today, we will file our Answer in opposition to Lower Merion’s request.

Generally, once our Answer is filed, it will take the PA Supreme Court between 6 to 8 months, if not more, to decide whether to hear Lower Merion’s appeal and if it grants Lower Merion’s appeal, what legal issues it agrees to consider.

If your rights have been violated by an illegal firearm or ammunition ordinance or regulation promulgated by a state agency, county, municipality or township, contact us today to discuss YOUR rights and legal options.

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Commonwealth Court Finds Lower Merion Township’s Firearm Regulations UNLAWFUL

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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Allentown RTKL Response to Illegal Firearm Regulation Proposals

As many of our viewers are aware, I frequently submit Right to Know Law (RTKL) requests to municipalities in relation to firearms law matters. After the City of Allentown noticed its intent to propose and adopt new firearm ordinances, in violation of 18 Pa.C.S. § 6120, I filed a RTKL Request seeking information relative to the proposals, including communications related thereto.

Specifically, I requested:

Any letter, email, fax or written communication from any person in the Lehigh County District Attorney’s Office or any person from the Office for Solicitor for the City of Allentown relating to any existing or proposed ordinance or regulation relating to firearms or ammunition from January 1, 2008 through the present.  Reporter Emily Opilo recently published an article stating that letters received from District Attorney Martin and Solicitor Wild relating to a proposed ordinance regulating firearms and ammunition were discussed at a meeting on August 17, 2016 – http://www.mcall.com/news/breaking/mc-allentown-lost-gun-law-committee-20160817-story.html

Today, I received a response from the City approving in part and denying in part my request. In addition to the cover letter, they produced 52 pages of records. While many of the pages are copies of cases, pages 1-2, 45-50 and 51-52 are letters from Lehigh County District Attorney James Martin informing the City, the City Council members and Mayor Ed Pawlowski that any such regulation is unlawful and unconstitutional. While it is extremely refreshing to see a District Attorney actively involved in a firearm and ammunition preemption issue, its unfortunate that no mention was made of the criminality of violating Section 6120, as such would be a misdemeanor of the first degree, pursuant to 18 Pa.C.S. § 6119, as well as constituting official oppression. Maybe, District Attorney Martin was saving the best for last, in case they elected to move forward with an illegal and unconstitutional regulation.

I, personally, would like to thank and commend District Attorney Martin for immediately and preemptively addressing this issue. Come election time, please always remember that District Attorney Martin is a staunch defender of Article 1, Section 21 of the Pennsylvania Constitution.

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Another Amici Curiae Brief Filed Against the City of Harrisburg!

Today, another Amici Curiae brief was submitted in the matter of City of Harrisburg, et al., v. U.S. Law Shield of Pennsylvania, LLC, et al., 449 C.D. 2015 by the Allegheny County Sportsmen’s League, American Gun Owners Alliance, Firearm Owners Against Crime, Gun Owners of America/Gun Owners Foundation, Lehigh Valley Tea Party, Pennsylvania Federation of Sportsmen’s Clubs, Pennsylvanians For Self Protection, Pennsylvania State Fish & Game Protective Association, and Unified Sportsmen of Pennsylvania.

Attorney Jim Smith of the Smith Law Group, LLC filed the brief on behalf of the Amici. You can obtain a copy here.

The Amici, in addition to incorporating the arguments of the Amici Curiae Members of the General Assembly, also raise arguments relating to 1. field preemption for discharge; 2. a violation of 18 Pa.C.S. 6120 being a criminal act, which constitutes official oppression; and 3. that the City should be barred under the Unclean Hands doctrine.

I would like to thank those organizations and Attorney James Smith for standing strong and in steadfast devotion to the protection of Article 1, Section 21 of the Pennsylvania Constitution and the Second Amendment to the U.S. Constitution with the Amici Curiae Members of the General Assembly. Together, we will ensure that the Right to Keep and Bear Arms will not be infringed and that the City of Harrisburg will be held accountable for its unlawful and illegal actions.

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Lower Merion Township’s Preliminary Objections in Relation to its Unlawful Firearm Ordinance are DENIED

Today, the Honorable Steven Tolliver of the Montgomery County Court of Common Pleas issued a decision and order denying Lower Merion Township’s Preliminary Objections requesting that the complaint filed by Firearm Owners Against Crime (FOAC) and other plaintiffs be dismissed.

In so ruling, Judge Tolliver not only found that the individual plaintiffs sufficiently averred standing to challenge Lower Merion Township’s Ordinance 109-16 (regulating firearms in township parks) but also found that FOAC had established standing on behalf of its members. Judge Tolliver also found that Plaintiffs had sufficiently averred a right to relief.

Lower Merion Township now has 20 days to file an Answer to the Complaint and the action will proceed thereafter. Also, a hearing on Plaintiffs’ Motion for a Preliminary Injunction is scheduled for August 24th.

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City of Lancaster’s RTKL Disclosures Regarding It’s Unlawful Defense Fund, Including the Mayor’s Chief of Staff “Need[s] Dope”

As most of our viewers are aware, on February 25, 2015, I submitted a Right to Know Law (RTKL) Request on the City of Lancaster in relation to the litigation of NRA v. City of Lancaster and the defense fund it instituted to pay for that litigation. Specifically, I requested the following:

This is a request for all records, including, but not limited to, financial records pursuant to Section 102, since January of 2015, relating to the National Rifle Association (NRA) v. City of Lancaster, including, but not limited to, the following:

(1) All records, including, but not limited to, City of Lancaster’s Legal Defense Fund, information of which can be found at http://www.commonsenselancaster.com and http://www.cityoflancasterpa.com/blog/message-mayor-gray-nra-lawsuit. As provided for by Section 102, this specifically includes, but is not limited to, the names, addresses, and amounts of any donations to/receipts by the City of Lancaster;

(2) All records, including, but not limited to, all financial accounts and financial institutions utilized by the City of Lancaster, in relation to request (1);

(3) all records, including, but not limited to, contracts, communications, and billings, from or to Dechert, LLP or any other law firm or attorney hired to review the legal issues relating to request (1); and

(4) Any other record in any way relating to the current litigation in NRA v. City of Lancaster.

On March 4, 2015, the City requested 30 days to respond, which it is permitted under the RTKL. On April 1, 2015, I received a response from the City stating that “Your request is granted” and that the records would be disclosed upon my payment of $104.50. It is notable that no exemptions were claimed in the response; rather, as reflected on the face of the March 4, 2015 letter, my request was granted.

Understanding that the City had granted my request in full (per the City’s April 1, 2015 letter stating such), I paid the $104.50 (418 pages at .25 cents per page). On April 6, 2015, I received the City’s disclosures, now denying in part my request and claiming exemptions not previously asserted. (Nice how that works; AFTER someone has paid pursuant to an understanding that the request was granted in full, they then deny in part the request…but, I digress. This will be an issue for the Office of Open Records (OOR) in my future appeal). The City categorized the disclosures into 12 sub-parts (A – L). The categories and links to download the applicable documents are as follows:

Production A. Legal Defense Fund Account Screen Print

Production B. Online Contributions to 3/27/2015

Production C. Cash and Check Contributions to 3/27/2015

Production D. City of Lancaster Cash Account Fulton Bank

Production E. January 2015 Solicitor’s Invoice

Production F. February 2015 Solicitor’s Invoice

Production G. Insurance Claim Documentation

Production H. City emails Regarding NRA Lawsuit

Production I. Emails with Travelers Regarding Coverage of Defense of Lawsuit

Production J. Emails regarding Media Communication NRA lawsuit, establishment of legal defense fund, and process to set up communications website, use of funds

Production K. Emails regarding Prince Right to Know Request

Production L. Emails from Mayor

In Production A., it reflects that the City has taken in over $18,000 in donations. Of course, contrary to their original grant of my request, they redacted the donor names and contact information. Again, this issue will be addressed in my future appeal to OOR.

In Production G., Travelers’ January 30, 2015 letter, (pdf pg 6) is enlightening. Specifically, on pdf pg 8, Travelers reviews its exemptions for “wrongful acts.” Travelers’ letter goes on to state:

To the extent that Plaintiff seeks damages in connection with a “wrongful act” committed by or on behalf of the City in the conduct of the City’s duties, the following exclusions may apply;…

Well that doesn’t sound good…So, let’s see what the Carrier goes on to disclaim on the next page:

Plaintiff requests a declaration that the Ordinance is pre-empted by state statute. Plaintiff also seeks to enjoin the City from enforcing the Ordinance. To the extent that any loss, cost or expense for complying with any injunctive or other non-monetary relief is assessed against the City, there would be no coverage for those damages. In addition, the claims for injunctive and declaratory relief do not qualify as damages under the Policy. Therefore, the injunctive, declaratory and non-monetary relief claims are disclaimed.

Uh oh…last I checked, Section 6120 applied to declaratory and injunctive relief, unless the party had actual damages. Maybe, I’m in error, as it has been at least 2 hours since I’ve thought about Section 6120. Nope, Section 6120 (a.2) provides that an aggrieved individual “may seek declaratory or injunctive relief and actual damages.” Since actual damages are not in play in NRA v. City of Lancaster, the City is liable for ALL costs and fees awarded by the court, contrary to Mayor Gray’s statement that the City only has a $25,000 deductible. I think the residents of Lancaster might be interested to learn that per Travelers’ disclaimer, they’re on the hook for ALL the fees and costs associated with this litigation.

Butl, Travelers isn’t done yet.

The Complaint seeks punitive damages if available. Directly assessed punitive damages are uninsurable in Pennsylvania and any award for such punitive damages would not be covered by the City’s policy with Travelers.

Wow…that’s too bad because those multi-million dollar verdicts tend to result from punitive damages. I guess the taxpayers will have to cough up that money, as well, all because the Mayor and City Council believe they are above the law.

But things only get worse in the disclosures.

In Production J., (pdf pg 42) Patricia Brogan, Mayor Gray’s Chief of Staff declares:

Actually, I NEED dope…

This stuff is too good to make up. I wonder if the good Mayor will oppose the drug laws and defend his Chief of Staff in her need for illicit drugs. Inquiring minds want to know Mayor Gray…

More interesting tidbits from the disclosures include the City’s relationship with Everytown for Gun Safety (formerly Mayors Against Illegal Guns – boy, they sure do change names frequently, especially when a lot of their members are convicted of deplorable crimes) (Production J. at pdf pg 65). Production J. also reflects the City’s desire, from the start, to utilize any donations for purposes beyond the litigation in NRA v. City of Lancaster. See, Production J. at pdf pg 143.

There are some more beneficial tidbits in the disclosures that I’ll save for later…like during the appeal or when the time is right. Someone in the City might want to take a second look at the IRS exemptions…especially, when the case law already establishes that a lost and stolen ordinance violates pre-amendment Section 6120.

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