In a monumental decision issued this morning and secured by Chief Counsel Joshua Prince of Firearms Industry Consulting Group, the Commonwealth Court, en banc, overruled its prior precedent and held that it was “untenable” to require a plaintiff to declare in a complaint that he/she has violated or been prosecuted for an enacted ordinance and “must be overruled.” The decision in Firearm Owners Against Crime (FOAC), et al. v. City of Harrisburg, et al., 1438 C.D. 2019 (September 12, 2019), specifically overrules the harmful case law established in NRA v. City of Pittsburgh, 999 A.2d 1256 (Pa. Cmwlth. 2010), appeal denied, 23 A.3d 543 (Pa. 2011), where the Commonwealth Court required plaintiffs bringing a challenge to an illegal ordinance prohibited by Article 1 Section 21 of the Pennsylvania Constitution and 18 Pa.C.S. § 6120 to “allege in their verified pleadings that they have actually violated the challenged ordinances, that they intend to violate the challenged ordinances, or that they have been prosecuted for violating the challenged ordinances.”

In so holding, the Court declared

Our precedent in NRA/Pittsburgh and NRA/Philadelphia is untenable and must be overruled because it affords greater access to the courts to challenge the facial constitutionality of ordinances to scofflaws than to law-abiding citizens. It makes little sense to wait for Appellants to break the law, which we presume they do not want to do, before they can challenge it. It also makes little sense to force law-abiding citizens to rely on law breakers to advocate their interests.

Thereafter, the Court concluded that FOAC, et al.,

have standing to challenge the legality of the Discharge Ordinance, the Lost/Stolen Ordinance, and the Park Ordinance. We also conclude that FOAC has associational standing to challenge the legality of the Minors Ordinance.

Unfortunately, and somewhat perplexing, the Court held that FOAC, et al., did not “have standing, under traditional standing principles or as taxpayers, to challenge the legality of the State of Emergency Ordinance;” however, learned Judge Patricia McCullough, issued a concurring/dissenting opinion, in which she concurred with the Court’s conclusion that FOAC, et al. had standing to challenge the discharge, parks, lost and stolen and minors ordinances, but dissenting in relation to the Court’s finding that FOAC, et al., lacked standing to challenge the state of emergency ordinance.

Specifically, in relation to the state of emergency ordinance, Judge McCullough declares

Appellants are presented with an equally untenable choice with regards to this Ordinance as the Majority acknowledges Appellants are faced with in regards to the other Ordinances: “They can curb their conduct to conform to the [O]rdinance[‘s] mandates or they can willfully violate the law and face criminal prosecution.” Majority Op. at 22. I disagree that Appellants should be forced to wait until another state of emergency is declared until they are deemed to have standing to challenge the State of Emergency Ordinance, particularly where they allege that they have been subject to its parameters during the pendency of this very suit.

Perhaps most refreshing is Judge McCulough statement on the impact of the state of emergency provision on the inherent, inalienable right to self-defense:

Finally, but not insignificantly, as the Supreme Court of the United States observed in District of Columbia v. Heller, 554 U.S. 570 (2008), that whatever the Second Amendment might protect more broadly, “it surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” Id. at 635 (emphasis added).3 “Self-defense is a basic right, recognized by many legal systems from ancient times to the present day, and . . . individual self-defense is ‘the central component’ of the Second Amendment right.” McDonald v. City of Chicago, 561 U.S. 742, 767-68 (2010) (quoting Heller, 554 U.S. at 599). In McDonald, the Court cautioned against treating the Second Amendment as a “second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.” 561 U.S. at 780. “[T]he text of the Amendment, as interpreted by Heller and McDonald, points toward the conclusion that ‘bear’ implies a right to carry firearms publicly for self-defense.” Young v. Hawaii, 896 F .3d 1044, 105. (9th Cir. 2018). “Once identified as an individual right focused on self-defense, the right to bear arms must guarantee some right to self-defense in public” and the courts “are satisfied that the Second Amendment. encompasses a right to carry a firearm openly in public for self-defense.” Id. at 1068; Wrenn v. District of Columbia, 864 F.3d 650, 661 (D.C. Cir. 2017); Moore v. Madigan, 702 F.3d 933, 936-37 (7th Cir. 2012). As alleged in the Petition for Review, self-defense is most certainly implicated in the event of a declaration of a state of emergency by the Mayor of Harrisburg. Id. at 599 (emphasis added). According to City Defendants, in order for the Mayor to declare a state of emergency, there must be “‘violence or a flagrant and substantial defiance of or resistance to a lawful exercise of public authority’ which] creates ‘clear and present danger of a riot, civil disorder or other general public disorder, widespread disobedience of the law and substantial injury to persons or property …. “‘ (City Defendants’ Br. at 11) (quoting Code, §3-355). As Heller made clear, it is precisely during such times that the protections afforded by the Second Amendment are the most critical. To require Appellants to wait until another state of emergency occurs to grant standing, where they allege to have already been impacted by the Ordinance, is untenable. For these reasons, I would grant standing to Appellants to also challenge section 3-335.2 of the Code.

If you are in a position to be able to support this matter, FOAC would greatly appreciate donations, which can be made online through the Firm’s escrow account here – https://secure.lawpay.com/pages/princelaw/trust. Simply place “FOAC Harrisburg Preemption Litigation” in the reference box.

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.

Firearms Industry Consulting Group® (FICG®) is a registered trademark and division of Civil Rights Defense Firm, P.C., with rights and permissions granted to Prince Law Offices, P.C. to use in this article.