Sunday, February 22, 2015

City of Harrisburg asks judge to dump Second Amendment claims from gun lawsuit


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Attorneys defending gun ordinances in the city of Harrisburg filed a motion Friday asking a federal judge to dismiss federal claims in a lawsuit. The lawsuit is one of two filed recently against the city under Pennsylvania's new law known as Act 192. (File)
Attorneys for the city of Harrisburg asked a federal judge Friday to dismiss claims by a Pennsylvania gun owners group that city ordinances violate their Second Amendment rights.

The motion filed late Friday by the city's attorneys concluded the Second Amendment claims are "baseless" because the state and federal constitutions allow cities to adopt reasonable regulations to protect the public.

Harrisburg's five gun ordinances do not infringe upon gun owners' rights to bear arms, according to the motion written by Frank Lavery and Joshua Autry, of the Lavery Faherty law firm.

The lawsuit by Firearms Owners Against Crime represents the second one filed against Harrisburg under a new state law known as Act 192. The law allows any legal gun owner to sue any municipality in Pennsylvania to challenge its gun ordinances and seek reimbursement for all legal costs.

A state judge is weighing arguments in the first lawsuit, filed on behalf of a gun rights group called U.S. Law Shield. Attorneys for U.S. Law Shield asked for a preliminary injunction against Harrisburg's ordinances, but city attorneys argued for the court to wait until the Commonwealth Court rules on the constitutionality of Act 192.
Both lawsuits contend Harrisburg's gun ordinances are illegal under the state's preeminence in regulating guns.

The Firearms Owners lawsuit goes a step further by seeking financial damages and alleging the ordinances violate gun owners' Second Amendment rights. The gun owners said they fear prosecution and can't defend themselves under the ordinances, which they say make no distinction for lawful gun use.

The motion Friday dismantled the lawsuit's allegations about the ordinances violating their constitutional rights, one by one:
  • Required reporting of lost or stolen guns- "There is no possible way this reporting requirement restricts the right to defend oneself."

  • Unsupervised children carrying guns- "Children have no right to carry guns without supervision outside the house. The suggestion by Firearm Owners otherwise has no basis in law."

  • Discharge of guns in the city- "Cities have adopted similar ordinances since our nation's founding. Justice Scalia, writing for the Supreme Court in Heller v. D.C., defended similar discharge ordinances as abundantly reasonable. Firearm Owners' challenge to this ordinance is frivolous."

  • Carrying guns in parks- "Harrisburg has complete authority to ban firearms on its property. The U.S. Supreme Court in Heller recognized that no person has a right to step onto school grounds or into a government building with a gun. So too with public parks and playgrounds."

  • Sale, display or public possession of a gun during a declared emergency- "Harrisburg has a substantial interest in protecting the public from looting during an emergency."
The motion also asked the judge to hold off rulings on the rest of the lawsuit until the Commonwealth Court rules on the constitutionality of Act 192.

Still, the motion laid out the city's defense against the lawsuit's assertion that the city cannot enact any gun ordinances because that right uniquely belongs to the state.

"They read Pennsylvania's Uniform Firearm Act too broadly," the motion said. "That statute only prohibits cities from regulating the "lawful" possession or carrying of firearms."

Under state law, it is already illegal to carry guns during a declared emergency, in parks or by unsupervised children, the motion said.

The city's ordinance that requires people to report lost or stolen guns does not regulate lawful possession and the state's third class city code allows Harrisburg to regulate gun discharges, the motion said.

The motion also attacked Act 192's expansion of legal standing. The new law allows gun owners to sue without having to prove harm.

"While the General Assembly can expand the scope of rights," the motion said. "It cannot re-define injury as 'not injured.'"

Joshua Prince, the attorney representing the Firearm Owners group, could not be reached late Friday. On Saturday morning, he said he could not provide a detailed response, because he was teaching a class, but he provided this comment:

"The defendants' Motion to Dismiss is baseless and we anticipate that Judge Yvette Kane will deny the motion in total and remand the entire action, including the Second Amendment claims, to the Dauphin County Court of Common Pleas," he said. "We will be filing a Motion to Remand on Monday."

Harrisburg Mayor Eric Papenfuse last week announced the city had started a legal defense fund to help fight lawsuits by gun groups.

UPDATEThis article was updated to include a comment from plaintiffs attorney Joshua Prince.


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