IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Stanley Crawford, Tracey Anderson, :
Delia Chatterfield, Aishah George, :
Rita Gonsalves, Maria Gonsalves- :
Perkins, Wynona Harper, Tamika :
Morales, Cheryl Pedro, Rosalind :
Pichardo, Ceasefire Pennsylvania :
Education Fund, and The City of :
Philadelphia, :
Petitioners :
: No. 562 M.D. 2020
v. :
: Argued: June 9, 2021
The Commonwealth of Pennsylvania, :
The Pennsylvania General Assembly, :
Bryan Cutler, in his official capacity as :
Speaker of The Pennsylvania House of :
Representatives, and Jake Corman, in :
his official capacity as President :
Pro Tempore of the Pennsylvania :
Senate, :
Respondents :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge1
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE ELLEN CEISLER, Judge
1
This case was assigned to the opinion writer before January 7, 2022, when Judge Cohn
Jubelirer became President Judge.
OPINION ANNOUNCING THE JUDGMENT OF THE COURT2
BY JUDGE McCULLOUGH FILED: May 26, 2022
In our original jurisdiction, certain residents of the City of Philadelphia,
the City of Pittsburgh, and/or their adjacent communities (Petitioner Citizens),3
Ceasefire Pennsylvania Education Fund (Petitioner CeaseFire), and the City of
Philadelphia (Petitioner City) (collectively, Petitioners) filed a petition for review
(PFR) on October 7, 2020, in the nature of a complaint seeking declaratory and
injunctive relief. In the PFR, Petitioners named as respondents the Commonwealth of
Pennsylvania (Respondent Commonwealth), the Pennsylvania General Assembly
(Respondent General Assembly), Bryan Cutler, in his official capacity as Speaker of
the Pennsylvania House of Representatives (Respondent Speaker), and Jake Corman,
in his official capacity as President Pro Tempore of the Pennsylvania State Senate
(Respondent President Pro Tempore) (collectively, Respondents).
In the PFR, Petitioners lodge novel legal challenges to the validity of
Section 6120(a) of the Pennsylvania Uniform Firearms Act of 1995 (UFA), 18 Pa.C.S.
2
After circulation and consideration by the full Court, this case proceeded to judicial
conference in accordance with the Commonwealth Court’s Internal Operating Procedures, and is
being filed as a plurality opinion. 210 Pa.Code §69.256 (“If, pursuant to vote after judicial conference
consideration, a majority of all of the Judges, as well as a majority of the Judges who heard the case
or to whom it was submitted on briefs, favor the result reached in the circulated draft opinion, that
opinion, together with any concurring or dissenting opinions and notations of concurrences or
dissents, shall be filed.”).
3
Petitioner Citizens are Stanley Crawford, Tracey Anderson, Delia Chatterfield, Aishah
George, Rita Gonsalves, Maria Gonsalves-Perkins, Wynona Harper, Tamika Morales, Cheryl Pedro,
and Rosalind Pichardo.
2
§6120(a),4 and, to a much lesser extent, Section 2962(g) of the Home Rule Charter and
Optional Plans Law (Home Rule Law), 53 Pa.C.S. §2962(g)5 (together, Firearm
Preemption Statutes). As a general matter, these statutes vest the General Assembly
with the sole power to legislate in the field of firearm regulation and preempt and/or
prohibit all political subdivisions from enacting local laws that encroach into that area.6
More specifically, Petitioners assert that Respondents, in enacting the Firearm
Preemption Statutes and failing to revise those statutes to permit municipal regulation
of firearms at the local level, engaged in unlawful conduct. On this basis, Petitioners
enumerate three causes of action: the first is based on the state-created danger doctrine,
the second asserts a violation of substantive due process, and the third is dubbed
interference with statutory delegation of powers.
Respondents have filed various preliminary objections to the PFR.
Respondent Commonwealth asserts that Petitioners lack standing and failed to state a
4
Section 6120 of the UFA is titled, “Limitation on the regulation of firearms and
ammunition,” and subsection (a) pronounces a relatively straightforward command: “No county,
municipality or township may in any manner regulate the lawful ownership, possession, transfer or
transportation of firearms, ammunition or ammunition components when carried or transported for
purposes not prohibited by the laws of this Commonwealth.” 18 Pa.C.S. §6120(a) (emphasis added).
5
53 Pa.C.S. §§2901-2984. Section 2962(g) of the Home Rule Law states that “[a]
municipality shall not enact any ordinance or take any other action dealing with the regulation of the
transfer, ownership, transportation[,] or possession of firearms.” 53 Pa.C.S. §2962(g) (emphasis
added).
6
See, e.g., Commonwealth v. Ortiz, 681 A.2d 152, 156 (Pa. 1996); Firearm Owners Against
Crime v. Lower Merion Township, 151 A.3d 1172, 1179 (Pa. Cmwlth. 2016); Dillon v. City of Erie,
83 A.3d 467, 473 (Pa. Cmwlth. 2014); National Rifle Association v. City of Philadelphia, 977 A.2d
78, 82 (Pa. Cmwlth. 2009) (en banc), overruled on other grounds by Firearm Owners Against Crime
v. City of Harrisburg, Mayor Eric Papenfuse, 218 A.3d 497, 511-13 (Pa. Cmwlth. 2019) (en banc),
appeal granted in part and denied in part, 230 A.3d 1012 (Pa. 2020); Clarke v. House of
Representatives, 957 A.2d 361, 364 (Pa. Cmwlth. 2008); Schneck v. City of Philadelphia, 383 A.2d
227, 229-30 (Pa. Cmwlth. 1978).
3
claim upon which relief may be granted. Respondent General Assembly argues that
Petitioners failed to state a claim upon which relief may be granted and that their claims
are not ripe for review. Similarly, Respondent Speaker contends that Petitioners lack
standing, and that their claims are not ripe, are barred by collateral estoppel, and are
legally insufficient. For his part, Respondent President Pro Tempore maintains that
Petitioners lack standing to pursue their claims, and that their claims are not ripe for
review, are barred by res judicata, are non-justiciable, and are not otherwise legally
cognizable. Respondent President Pro Tempore further objects to the PFR on the
ground that certain allegations contain scandalous or impertinent matter and should be
stricken as such.
In turn, Petitioners filed separate answers to each of Respondents’
preliminary objections. Thereafter, the individual Respondents filed their own briefs
in support of their preliminary objections, and Petitioners filed a global brief in
opposition to all of Respondents’ preliminary objections. Petitioners and Respondents
then filed reply briefs. Meanwhile, numerous entities and/or individuals filed amicus
curiae briefs in support of both Petitioners and Respondents.7 On May 7, 2020, we
entered a per curiam order scheduling oral argument before the Court, sitting en banc,
on June 9, 2021. This Court held argument on that date, and Respondents’ preliminary
objections are now ripe for disposition.
Upon review, and for the foregoing reasons, we conclude that Petitioners
have failed to set forth a claim upon which relief may be granted. Accordingly, we
sustain Respondents’ preliminary objections that challenge the legal sufficiency of the
7
Namely, briefs were filed by Gun Owners of America, Inc., Gun Owners Foundation, the
Heller Foundation, and Conservative Legal Defense and Education Fund, Brady and Giffords Law
Center to Prevent Gun Violence, the City of Pittsburgh, the City of Harrisburg, the County and Local
Governments, and individual medical doctors and the Coalition of Trauma Centers for Firearm Injury
Prevention.
4
counts in the PFR and dismiss the PFR with prejudice.
I. The PFR
In the PFR, Petitioners aver where the individual Petitioner Citizens have
lived, i.e., most reside in the City of Philadelphia, a few in the City of Pittsburgh, and
one in a township adjacent to the City of Pittsburgh, and describe the events of gun
violence that has affected them. Petitioner Citizens generally allege that, as a result of
these events, they have suffered emotional distress, anxiety, grief, and/or have lived in
a state of fear of gun violence in their communities. Petitioner Citizens represent that
nearly all of them are Black, Hispanic, or a combination of both, and allege that the
incidents of gun violence that have impacted their lives took place in poverty-stricken
areas that have a high crime rate. (PFR ¶¶9-18.)
Petitioner CeaseFire “is a Pennsylvania nonprofit organization
headquartered in [Petitioner City],” and its “mission is to end the epidemic of gun
violence across the Commonwealth of Pennsylvania through education, coalition
building, and advocacy in support of sensible gun laws and public policies.” (PFR
¶¶19-20.)
Petitioner City “is a municipal corporation and political subdivision of the
Commonwealth of Pennsylvania.” (PFR ¶21.) Petitioner City “is a Home Rule
Municipality organized and existing under the [Home Rule Law],” “is a city of the first
class by statutory designation,” and “is coextensive with the County of Philadelphia, a
county of the first class.” (PFR ¶22.) According to the PFR, Petitioner City
is home to almost 1.6 million residents. [The City of]
Philadelphia’s residents include many communities of color
and low-income communities, groups that are especially
vulnerable to the harms caused by gun violence. [The City
of] Philadelphia has a poverty rate of 24.3%[,] 43.6% of
Philadelphians identify as Black or African American[,] and
15.2% of Philadelphians identify as Hispanic or Latino.
5
(PFR ¶23.)
In the PFR, Petitioners aver that they “have been directly affected by gun
violence and continue to be threatened and harmed by gun violence every day.” (PFR
Sec. II.) Petitioner Citizens “have lost loved ones to gun violence,” “grapple daily with
the trauma of those injuries,” and “live in fear of the next episode of gun violence that
will be visited on them and their families.” (PFR ¶40.) Petitioner CeaseFire alleges
that the Firearm Preemption Statutes “have impaired and continue to impair [its] ability
to . . . advance a broad range of effective, evidence-based local gun regulations”;
Petitioner CeaseFire “has been forced to divert time, funding, and resources to mitigate
the harmful consequences of the Firearm Preemption [Statutes]”; and the Firearm
Preemption Statutes “have frustrated [its] mission to obtain passage of sensible gun
laws by disrupting its efforts to work with the communities most affected by gun
violence and to advance local regulations that would prevent gun violence and save
lives.” (PFR ¶¶40, 45, 47-48.) Otherwise, Petitioner City alleges that it “bears a
significant economic burden associated with gun violence.” (PFR ¶51.) However,
Petitioner City then lists costs that apparently would be incurred by individuals and not
the City of Philadelphia itself, contending that “[a] firearm homicide is associated with
an estimated average cost of $1.42 million due to medical expenses, lost
earnings/productivity, property damage, and criminal justice costs,” and maintaining
that, “[o]n average, a non-fatal firearm-related injury costs $46,632 in medical
expenses and lost productivity.” (PFR ¶51.) Petitioner City further avers that the
Firearm Preemption Statutes “infringe upon [the City of] Philadelphia’s interests and
functions as a governing entity, including its responsibility to protect the health, safety,
and quality of life of its citizens.” (PFR ¶53.)
6
The PFR then delves into a general exposition on gun violence,
particularly in the Cities of Philadelphia and Pittsburgh, and alleges that gun violence
has a disparate impact on African-American and Hispanic ethnicities who live in low-
income areas and/or areas with a high crime rate. The PFR contains the following
averments:
28. Gun violence in Pennsylvania is a public health crisis
in which Respondents have actively played a key role….
....
39. The gun violence epidemic in Pittsburgh, like
Philadelphia, disproportionately affects Pittsburgh’s Black
residents. . . .
(PFR ¶¶28, 39) (footnotes and citations omitted).
Next, the PFR highlights and emphasizes floor debate and discussion
among representatives of the General Assembly with regard to the Firearm Preemption
Statutes, averring, overall, that “[i]n passing, amending, expanding, and enforcing the
Firearm Preemption [Statutes], Respondents have disregarded the evidence showing
that [the statutes] exacerbate the gun violence epidemic.” (PFR Sec. IV.)
The PFR also provides a chronological background of the legislative
history and developments of the Firearm Preemption Statutes. The most relevant
averments are as follows:
63. When the bill that would become Section 6120 [of the
UFA] was first introduced, it permitted [the City of]
Philadelphia to continue implementing its own gun safety
laws (except with regards to hunters in transit). . . .
Nevertheless, the final amended version preempted many
life-saving gun[-]safety law[s] that might be passed in the
City of Philadelphia as well.
7
....
67. Since the initial passage of Section 6120, the General
Assembly has continued to enact amendments, all of which
further restrict the ability of local governments to protect
their residents from gun violence, [and] all the while
continuing to disregard evidence before it, and available to
it, showing the harmful effects of preemption and/or the
benefits of certain gun ordinances.
68. In 1987, the General Assembly passed an amendment
to Section 6120 that further barred local regulation [by]
expanding Section 6120(a) to include preemption of
ordinances that would regulate ammunition and ammunition
components.
69. In 1993, the General Assembly passed yet another
amendment to Section 6120, this time providing for a more
expansive definition of the word “firearms,” and thus
effectively expanding the categories of weapons that local
governments were prohibited from regulating. . . .
....
78. In 1996, the General Assembly [enacted Section
2962(g) of Home Rule Law,] which applies to all
municipalities except Philadelphia, and states: “A
municipality shall not enact any ordinance or take any other
action dealing with the regulation of the transfer, ownership,
transportation or possession of firearms.” [53 Pa.C.S.
§2962(g).] Thus, whereas Section 6120’s scope is limited to
regulations of the “lawful” transfer, ownership,
transportation, or possession of firearms, and only when
firearms are “carried or transported for purposes not
prohibited by the laws of this Commonwealth,” Section
2962(g) is not so limited.[8]
79. In 1999, the General Assembly . . . amended Section
6120 to prohibit municipalities from “[b]ring[ing] or
maintain[ing] an action at law or in equity against any
firearms or ammunition manufacturer, trade association or
8
See supra notes 4 and 5.
8
dealer for damages, abatement, injunctive relief or any other
relief or remedy resulting from or relating to either the lawful
design or manufacture of firearms or ammunition or the
lawful marketing or sale of firearms or ammunition to the
public.” Members of the General Assembly warned of the
damaging results of the General Assembly’s actions; the
General Assembly ignored these warnings.
....
83. In 2013, [House Bill (HB)] 80 was introduced to
address theft of “secondary metal.” By the time of final
passage, the General Assembly had revised the bill
dramatically, such that it also provided a right of action in
court by any individual “adversely affected” by an ordinance
prohibited under Section 6120 or Section 2962(g) to bring
suit in court.[9]
84. When the provision related to Section 6120 was
discussed, members of the House expounded on the gun
violence epidemic in Pennsylvania. The General Assembly
once again disregarded this information.
....
88. In addition to passing amendments to Section 6120,
the General Assembly has on several occasions refused to
narrow or repeal Section 6120, despite its own awareness that
Petitioners are suffering extensive and tangible harm as a
result of the Firearm Preemption [Statutes]. For example, the
following bills narrowing or repealing the Firearm
Preemption [Statutes] have been proposed to the General
Assembly, and none have received so much as a floor vote:
HB 739 of 2001, HB 1036 of 2001, HB 1841 of 2001, HB
1842 of 2001, HB 874 of 2005, HB 2483 of 2006, HB 2955
of 2006, HB 18 of 2007, HB 23 of 2007, HB 25 of 2007, HB
485 of 2007, HB 1044 of 2009, and SB 176 of 2011, SB 192
9
However, as recognized by Petitioners, after HB 80 was passed, the provision amending
Section 6120 and providing for a private right of action was invalidated as unconstitutional on single-
subject rule grounds by the Pennsylvania Supreme Court in Leach v. Commonwealth, 141 A.3d 426
(Pa. 2016).
9
of 2013, HB 2611 of 2018, SB 625 of 2019, HB 2291 of
2020.
89. [Respondent] Commonwealth has prevented, and
continues to prevent, [the City of] Philadelphia and other
municipalities from passing and enforcing ordinances via the
Firearm Preemption [Statutes]. Meanwhile, municipalities,
organizations, and individual constituents continue to suffer.
(PFR ¶¶63, 67-69, 78-79, 83-84, 88-89) (footnotes and citations omitted).
From these averments, the PFR alleges that “[s]ince its passage, Section
6120 has operated to restrict local municipalities in their ability to protect their citizens
and address the particularized safety concerns of these municipalities and
neighborhoods within these municipalities,” and that the “statute endangers the lives
of [] Petitioners and others in their communities by effectively preventing local
municipalities from fulfilling their core duties to protect the health and safety of their
residents.” (PFR ¶¶54-55.) In addition, the PFR avers that “the General Assembly has
continued to amend Section 6120, and with each amendment, the General Assembly
has further restricted the ability of municipalities like Philadelphia to address gun
violence”; the General Assembly “has repeatedly blocked any attempt to loosen
preemption restrictions, while steadfastly refusing to act to curb gun violence at the
state level”; “and by its actions, the General Assembly has exposed [Petitioner
Citizens] to [a] direct risk of gun violence.” (PFR ¶55.) According to the PFR, the
Firearm Preemption Statutes have “prevented [the City of] Philadelphia and other
Pennsylvania municipalities from enforcing the ordinances they have passed to make
their residents safer,” and these statutes, “coupled with [the General Assembly’s]
refusal to pass evidence-based gun safety legislation on the state level, operate to
actively prevent an effective gun safety approach that would save the lives, property,
and bodily integrity of Pennsylvania residents, particularly in low-income
neighborhoods in the largest cities.” (PFR ¶¶56-57.) Additionally, the PFR, citing
10
case law from the appellate courts of this Commonwealth, correctly notes that Section
6120 has been “held to preempt enforcement of [the City of] Philadelphia’s ordinance
requiring a license to acquire a firearm within the city or bring a firearm into
Philadelphia,” as well as “several other firearm-related ordinances enacted by the City
of Philadelphia, including ordinances that prohibited straw purchasing of guns, limited
handgun purchases to one per month, required annual renewal of the firearm license,
prohibited persons subject to protection from abuse orders from acquiring firearms, and
prohibited the possession or transfer of assault weapons.”10 (PFR ¶60) (citations
omitted).
Proceeding along these lines, the PFR posits that “[b]ut for the Firearm
Preemption [Statutes], the City of Philadelphia and other municipalities would pass
their own safety ordinances that would prevent or mitigate the harm suffered by their
residents, including [Petitioner Citizens].” (PFR ¶91) (emphasis added). Providing
examples, the PFR asserts that Petitioner City would pass three certain types of
ordinances, including one that would impose “permit-to-purchase requirements.” In
this regard, the PFR contends:
94. Pennsylvania currently requires only that a potential
firearm purchaser pass a background check in order to
purchase a firearm. It does not require a permit to purchase a
firearm. Permit-to-purchase systems involve an application
to a state or local law enforcement agency and a background
check that is often facilitated by fingerprints. Law
enforcement has, on average, 30 days to complete the check.
Sellers, both licensed and private, can only sell to a potential
firearm purchaser with a valid license.
(PFR ¶94) (footnotes and citations omitted).
10
See supra note 5.
11
The PFR also states that Petitioner City would enact an ordinance
imposing “one-gun-per-month limits.” The PFR claims that
106. Pennsylvania does not currently limit the number of
firearms an individual may purchase within a certain time
period.
107. States that implement a waiting period between
purchases of handguns have experienced dramatic reductions
of gun violence, the prevalence of straw purchases, and gun
trafficking.
....
112. Allowing Philadelphia and other municipalities to pass
one-gun-per-month laws within their boundaries would save
lives . . . .
113. If not for [] Respondents’ actions in passing and
perpetually voting to keep the Firearm Preemption [Statutes]
in place, Philadelphia and other municipalities would have
the ability to pass local one-gun-per-month ordinances.
(PFR ¶¶106-07, 112-13) (emphasis added).
Finally, the PFR maintains that Petitioner City would enact an ordinance
that would permit “extreme risk protection orders” (ERPO), contending that
“Pennsylvania does not have any procedures for disarming firearm owners who pose
an extreme risk of physical harm to themselves or others.” (PFR ¶116.) The PFR
further avers that
117. Implementing procedures for an [ERPO] would allow
law enforcement to proactively prevent gun[-]related
tragedies before they occur. An ERPO allows families,
household members, or law enforcement officers to petition
a court directly for an ERPO which temporarily restricts a
person’s access to guns.
(PFR ¶117.)
12
Ultimately, the PFR maintains that “[b]y preventing the passage of
regulations like permit-to-purchase requirements, one-gun-per-month limits, and
ERPO ordinances, Respondents have increased the risks of gun violence in Petitioners’
communities.” (PFR ¶126.) The PFR states that “[c]rime-gun-trace data collected by
the Pennsylvania Attorney General’s office demonstrate[s] that these kinds of
regulations would reduce the risk of gun violence if enacted at the local level,” because
“[t]he majority of guns used in crimes in [the City of] Philadelphia (and in Pennsylvania
more broadly) are from dealers in Pennsylvania, with a plurality of guns used in crimes
in [the City of] Philadelphia coming from dealers within [the] City limits”; thus, the
PFR asserts that the Firearm Preemption Statutes “prevent [the City of] Philadelphia
from addressing significant sources of guns used in crimes.” (PFR ¶127.) Further, the
PFR contends that, due to the Firearm Preemption Statutes, Petitioner Citizens “and
their loved ones are more likely to suffer death or serious bodily injury from gun
violence,” and “[the City of] Philadelphia’s residents in vulnerable Black and Hispanic
communities are more likely to suffer death or serious bodily injury from gun
violence.” (PFR ¶¶128-29.) The PFR reiterates that “[t]he greatest increases in the
risks of gun violence as a result of the Firearm Preemption [Statutes] are in Black and
Hispanic low-income urban communities like those in areas of [the City of]
Philadelphia.” (PFR ¶130.)
Based on these allegations, the PFR asserts three causes of action. In
count I, the PFR advances a claim under the state-created danger doctrine. In this vein,
the PFR contends that “Respondents have affirmatively used their authority in a way
that renders Petitioners more vulnerable to gun violence than had Respondents not
acted at all” and “acted with a degree of culpability that shocks the conscience and with
deliberate indifference and/or recklessness.” (PFR ¶¶133-34.) In addition, the PFR
13
states that “Petitioners are foreseeable victims of Respondents’ acts and/or [are]
members of a discrete class of persons subjected to the potential harm brought about
by Respondents’ actions” and, further, “have suffered harm that is the foreseeable and
a fairly direct result of Respondents’ actions.” (PFR ¶¶135-36.)
In count II, the PFR sets forth a substantive due process claim, asserting
that “[t]he Firearm Preemption [Statutes] violate [a]rticle I, [s]ection 1 [of the
Pennsylvania Constitution11], as they do not bear a real and substantial relation to a
legitimate government purpose.” (PFR ¶142.)
In count III, which is denoted as a claim for “interference with
delegation,” the PFR states that “[t]he Commonwealth has the obligation to maintain
order and to preserve the safety and welfare of all citizens” and “has delegated portions
of that obligation to its political subdivisions,” and “[t]his delegation imposes on local
health authorities, including [Petitioner City’s] health department, the responsibility for
the ills of gun violence.” (PFR ¶¶145-46.) The PFR avers that “[i]t is the responsibility
of the Commonwealth to provide [the City of] Philadelphia and other municipalities
with reasonable powers with which to discharge their delegated responsibilities,
including the delegated responsibility to address gun violence,” and “[t]he General
Assembly’s enactment of the Firearm Preemption [Statutes] [has] deprive[d] [the City
of] Philadelphia of the ability to fulfill its delegated duty to address gun violence.”
(PFR ¶¶149-50.) Moreover, the PFR alleges that “the General Assembly’s enactment
and continuation of the Firearm Preemption [Statutes], combined with the General
Assembly’s failure to enact adequate statewide firearm regulations, violates the
Commonwealth’s obligation to maintain order and to preserve the safety and welfare
of all citizens,” reasoning that “[t]he General Assembly cannot enforce the Firearm
11
Pa. Const. art. I, §1.
14
Preemption [Statutes] against [the City of] Philadelphia while delegating [it] the
responsibility to address gun violence.” (PFR ¶151.)
For relief, Petitioners seek “a declaration that Respondents’ actions
violate [a]rticle I, [s]ection I of the Pennsylvania Constitution and a permanent
injunction preventing further enforcement of the Firearm Preemption [Statutes].” (PFR
¶¶138, 144.) Petitioner City also asks for a declaration stating “that by depriving [it]
of the ability to fulfill its delegated duties to address gun violence,” “Respondents have
violated the Commonwealth’s obligation to maintain order and to preserve the safety
and welfare of all citizens” and request “a permanent injunction preventing further
enforcement of the Firearm Preemption [Statutes].” (PFR ¶152.) Finally, Petitioners
apply for a declaration that “Respondents have violated [a]rticle I, [s]ection 1 of the
Pennsylvania Constitution” by “prohibiting the City of Philadelphia from enacting
firearm regulations[,] such as permit-to-purchase ordinances, one-gun-per-month
limits, and extreme risk protection laws.” (PFR ¶153.)
II. Discussion
As noted above, Respondents have filed preliminary objections to the
PFR, one of which is that all three counts in the PFR have failed to state a valid cause
of action as a matter of law, which is known in Pennsylvania as a “demurrer.” At this
point in time, it is well settled that, “[i]n ruling on preliminary objections in the nature
of a demurrer, the Court must accept as true all well-pleaded material facts and all
inferences reasonably deducible therefrom. However, the Court is not required to
accept as true legal conclusions, unwarranted factual inferences, argumentative
allegations, or expressions of opinion.” Shore v. Pennsylvania Department of
Corrections, 168 A.3d 374, 378-79 (Pa. Cmwlth. 2017) (internal citations omitted).
For preliminary objections in the nature of a demurrer to be sustained, “it must appear
15
with certainty that the law will permit no recovery, and any doubt must be resolved in
favor of the non-moving party.” Gregory v. Pennsylvania State Police, 160 A.3d 274,
276 (Pa. Cmwlth. 2017) (internal citations omitted).
A. State-Created Danger Doctrine
In their briefs, Respondents contend, among other things, that Petitioners
failed to plead a viable claim under the state-created danger doctrine because the theory
has never been used to nullify a state statute. Respondents further assert that, in failing
to pass the legislation that Petitioners desire, Respondents did not engage in an
affirmative act, which is required to invoke the protections of substantive due process
under the state-created danger doctrine. Somewhat similarly, Respondents assert that
Petitioners’ claim fails because a state may not be held liable for risks that generally
affect the public at large, and none of the Petitioners belong to a discrete and
identifiable class of individuals who face a peculiar risk that is distinguishable from a
risk that is posed to the general public.
In response, Petitioners contend that the state-created danger doctrine
imposes a duty on Respondents to protect Pennsylvania citizens if Respondents’ own
actions create or enhance a danger toward the citizens, and this includes taking
legislative action that increases the risk or opportunity for gun violence. Petitioners
argue that the General Assembly was consciously aware that the Firearm Preemption
Statutes would result (and have resulted) in an increase in gun deaths in the Cities of
Philadelphia and Pittsburgh, namely in the low-income and/or high crime areas, and
assert that Respondents acted affirmatively, in that they repeatedly amended Section
6120 of the UFA to make it more expansive in its preemptive reach. In Petitioners’
view, the Petitioner Citizens constitute a defined class of individuals, for purposes of
the state-created danger doctrine, because they are members of communities and
16
ethnicities “that bear a tragically disproportionate share of the scourge of gun
violence.” (Pet’rs’ Br. at 54-55.) Further, Petitioners contend that a statute cannot be
immunized from the state-created danger doctrine because the doctrine originates from
the due process clauses of the United States (U.S.) and Pennsylvania Constitutions.
Petitioners maintain that all official legislative activity, like executive action, is bound
by constitutional restraints and, thus, the Firearm Preemption Statutes are subject to
review under the state-created danger doctrine.
In terms of the substantive component of the due process clause, whether
it be per the Fourteenth Amendment of the U.S. Constitution, U.S. Const. amend. XIV,
or article I, section 1 of the Pennsylvania Constitution, Pa. Const. art. I, §1, and its
corollary sections, a legal theory has developed that is commonly known as the state-
created danger doctrine. See Johnston v. Township of Plumcreek, 859 A.2d 7, 12-13
& n.16 (Pa. Cmwlth. 2004). In Johnston, a panel of this Court entertained an appeal
by landowners who challenged the constitutionality of a township’s ordinances that
required them to connect to the public water system. The landowners “asserted that as
a result of the terrorist attacks on September 11, 2001, and the nation’s war on
terrorism, there [was] a real and present danger of terrorist attacks on public water
systems” and “alleged that the [township’s] [w]ater [a]uthority [was] not in a position
to protect its customers . . . from having their water poisoned by chemical or biological
contaminants.” Id. at 9. The court of common pleas dismissed the claim on preliminary
objections, and, on appeal, the landowners contended, among other arguments, that the
court below “erred in failing to recognize the right of every individual to provide for
his protection from life threatening incidents.” Id. at 10 (internal quotation marks
omitted). Construing the landowners’ claim to be “one that fell under the ‘state-
created’ danger theory,” this Court concluded that the landowners’ cause of action was
17
meritless. Id. at 13. In so deciding, we researched the area of law governing the state-
created danger doctrine and, upon our review, stated: “[A]s far as can be determined,
the ‘state-created danger’ body of jurisprudence has never been used to nullify a statute
or ordinance.” Id. Although this Court eventually addressed the landowners’ claim in
the alternative, based on the assumption that the state-created danger doctrine could
render a statute unconstitutional, we inevitably upheld the decision of the court of
common pleas with the following clear statement: “Most importantly, the state-created
danger theory is a construct by which damages are awarded for constitutional torts. It
is not used to nullify statutory law, and we will not do so here.” Id. at 14.
Notably, in their brief, Petitioners have failed to cite a case in a jurisdiction
within the United States that refutes the proposition of law and holding enunciated in
our decision in Johnston. Based upon our own independent research, we have been
unable to unearth such a case. Following Johnston as binding precedent, this Court,
therefore, could summarily dispose of Petitioners’ state-created danger claim on the
valid and independent ground that the legal theory cannot be utilized as the means by
which to declare the Firearm Preemption Statutes unconstitutional.12 While we
preserve this reasoning as a legal basis for our conclusion in the event of a further
appeal, this Court will nonetheless proceed to address Petitioners’ claim on alternative
grounds.
The United States Supreme Court has emphasized that the Due Process
Clause does not guarantee minimum levels of safety or security, see Collins v. City of
Harker Heights, 503 U.S. 115, 126-27 (1992), and it is generally settled that there is
no constitutional duty on the part of the state to protect members of the public at large
12
See Commonwealth v. Markman, 916 A.2d 586, 606 (Pa. 2007) (“Where a decision rests on
two or more grounds equally valid, none may be relegated to the inferior status of obiter dictum.”)
(internal citation omitted).
18
from crime, see Martinez v. California, 444 U.S. 277, 284-85 (1980). Indeed, “[t]he
Constitution is a charter of negative liberties; it tells the state to let people alone; it does
not require the federal government or the state to provide services, even so elementary
a service as maintaining law and order.” Bowers v. DeVito, 686 F.2d 616, 618 (7th Cir.
1982).
In DeShaney v. Winnebago County Department of Social Services, 489
U.S. 189 (1989), the United States Supreme Court held that the Due Process Clause of
the Fourteenth Amendment does not impose on the state an affirmative duty to protect
individuals against private acts of violence. Id. at 197. “The [D]ue [P]rocess [C]lause
generally confers no affirmative right to governmental aid, even where such aid may
be necessary to secure life, liberty, or property interests . . . . Mere indifference or
inaction in the face of private violence cannot support a substantive due process claim.”
Wilson-Trattner v. Campbell, 863 F.3d 589, 593 & 596 (7th Cir. 2017) (internal
citations and quotation marks omitted). Similarly, a “passive failure to stop private
violence” will not suffice to establish a state-created danger, Pena v. DePrisco, 432
F.3d 98, 110 (2d Cir. 2005), and “[i]t is not enough to allege that a government actor
failed to protect an individual from a known danger of bodily harm,” Lombardi v.
Whitman, 485 F.3d 73, 79 (2d Cir. 2007).
Nonetheless, our Supreme Court and the United States Court of Appeals
for the Third Circuit, as well as other federal circuit courts of appeals, recognize a
caveat called the “state-created danger” doctrine. See R.W. v. Manzek, 888 A.2d 740,
743 (Pa. 2005); Kneipp v. Tedder, 95 F.3d 1199, 1211 (3d Cir. 1996). That exception
provides that “the Due Process Clause can impose an affirmative duty to protect if the
state’s own actions create the very danger that causes the plaintiff’s injury.” Morrow
v. Balaski, 719 F.3d 160, 167 (3d Cir. 2013).
19
To prevail on a substantive due process claim under the state-created
danger doctrine, a petitioner must prove each of the following elements: (1) the harm
ultimately caused was foreseeable and fairly direct; (2) a state actor acted with a degree
of culpability that shocks the conscience; (3) a relationship between the state and the
petitioner existed such that the petitioner was a foreseeable victim of the respondents’
acts, or a member of a discrete class of persons subjected to the potential harm brought
about by the state’s actions, as opposed to a member of the public in general; and (4) a
state actor affirmatively used his or her authority in a way that created a danger to the
citizen or that had rendered the citizen more vulnerable to danger than had the state not
acted at all. Henry v. City of Erie, 728 F.3d 275, 281-82 (3d Cir. 2013) (citing Morrow,
719 F.3d at 177).
Undoubtedly, “many state activities have the potential to increase an
individual’s risk of harm” by private actors, Kallstrom v. City of Columbus, 136 F.3d
1055, 1066 (6th Cir. 1998), and, in one way or another, “[a]ll government activities
involve some risk; for example, motorists are killed each year on state highways.”
Johnston, 859 A.2d at 13. Consequently, “[i]t cannot be that the state . . . ‘creates a
danger’ every time it does anything that makes injury at the hands of a third party more
likely. If so, the state would be liable for every crime committed by the prisoners it
released.” Doe v. Rosa, 795 F.3d 429, 439 (4th Cir. 2015). As the Third Circuit put it:
“If a municipality, state[,] or other public body is to be liable under the Constitution
for harm caused by private parties to persons not in [state] custody, the liability would
be unlimited. There is no legal doctrine that supports imposition of such liability.”
Bennett ex rel. Irvine v. City of Philadelphia, 499 F.3d 281, 289-90 (3d Cir. 2007); see
also Rivera v. Rhode Island, 402 F.3d 27, 37 (1st Cir. 2005) (“[M]erely rendering a
person more vulnerable to risk does not create a constitutional duty to protect.”).
20
By its very nature, the legal concept of foreseeability is designed to curtail
the state-created danger doctrine from an unfathomable reach. The third element of
the state-created danger doctrine—the “foreseeable victim” element—is closely related
to the first element, which requires that the alleged danger, here, gun violence, be
foreseeable in terms of legal causation. In particular, the third element asks whether
there is a sufficiently close relationship between the state and the petitioner to make
the petitioner a “foreseeable victim of the [respondents’] acts in a tort sense,” either
“individually or as a member of a distinct class.” Hopkins v. Yesser, 412 F. Supp. 3d
517, 523 (E.D. Pa. 2019). The relationship may exist when the respondents have
knowledge that either “(1) a specific individual has been placed in harm’s way” or (2)
the petitioner “[is] part of an identifiable and discrete class of persons subject to the
harm the state allegedly has created.” Morse v. Lower Merion School District, 132
F.3d 902, 914 (3d Cir. 1997).
Summarizing the law of the Third Circuit, a federal district court for the
Eastern District of Pennsylvania ably stated:
The “primary focus” of the third element is foreseeability.
But in the “discrete class” analysis, foreseeability by itself is
not enough. In addition, the group must be limited enough
to remain separate from the general public. This requirement
prevents the state-created danger exception from swallowing
the general rule that the state is not obligated to protect its
citizens from random, violent acts of private parties.
....
A class cannot be “discrete” and “limited” unless it is
“identifiable.” To be “identifiable,” the class must have
clearly defined outer boundaries or membership criteria.
This requirement makes logical sense: foreseeability is the
“primary focus” of the third element, but a class cannot be
foreseeable if it is not clearly defined. And a class without
21
clearly discernible limits raises an intolerable risk of bleeding
into the “public at large.”
....
A “discrete class” must [also] face a “particular threat”
separate from that shared by the general public.
Hopkins, 412 F. Supp. 3d at 523-28 (internal citations and some internal quotation
marks omitted).
Importantly, “[w]here the state actor has allegedly created a danger
towards the public generally, rather than an individual or group of individuals, holding
a state actor liable for the injuries of foreseeable [petitioners] would expand the scope
of the state-created danger theory beyond its useful and intended limits.” Morse, 132
F.3d at 913 n.12. In the words of the United States Court of Appeals for the Sixth
Circuit: “In the only cases where we have recognized a ‘state[-]created danger,’ the
government could have specified whom it was putting at risk, nearly to the point of
naming the possible victim or victims.” Jones v. Reynolds, 438 F.3d 685, 696 (6th Cir.
2006). Further, the United States Court of Appeals for the Fifth Circuit has said: “We
have consistently cautioned against finding liability under the state-created danger
theory based upon an ineffective policy or practice in cases where the [petitioner’s]
injury is inflicted by a private actor.” Doe ex rel. Magee v. Covington County School
District, 675 F.3d 849, 866 (5th Cir. 2012) (en banc).
In Mark v. Borough of Hatboro, 51 F.3d 1137 (3d Cir. 1995), a member
of a volunteer fire department, while acting as a private citizen, set fire to the plaintiff’s
auto repair business. The plaintiff alleged that the state actors’ “failure to follow
adequate policies to ensure that applicants to the fire department were screened
sufficiently for tendencies towards arson caused the damage to his property.” Id. at
22
1140. On appeal, the Third Circuit affirmed the grant of summary judgment in favor of
the defendants. In so determining, the court observed:
In Wood v. Ostrander, 879 F.2d 583 (9th Cir.1989), cert.
denied, 498 U.S. 938 (1990), . . . a state trooper, after
arresting the driver of a car and impounding the car, left the
driver’s female passenger stranded alone in a neighborhood
with the highest aggravated crime rate in the county at 2:30
A.M. The plaintiff was raped. The court held that the
plaintiff “has raised a genuine issue of fact tending to show
that [the trooper] acted with deliberate indifference to
[plaintiff’s] interest in personal security under the
[F]ourteenth [A]mendment.” Id. at 588. In Cornelius v.
Town of Highland Lake, 880 F.2d 348 (11th Cir. 1989), cert.
denied, 494 U.S. 1066 (1990), . . . the state allowed a prisoner
with a history of committing violent crimes to participate in
a work release program where he had access to “axes, picks,
machetes, knives and saws,” and was supervised only by an
unarmed civilian member of the community. The inmate
abducted the town clerk at knife point and held her hostage
for three days, during which time he threatened to abuse her
sexually and physically and to kill her. Id. at 350. . . .
[I]n Cornelius, the plaintiff introduced evidence that the
defendants who employed her exercised a control over her
work environment that arguably was sufficient to create a
special, quasi-custodial relationship between them.
....
The cases where the state-created danger theory was applied
were based on discrete, grossly reckless acts committed by
the state or state actors using their peculiar positions as state
actors, leaving a discrete plaintiff vulnerable to foreseeable
injury. In Wood, for example, the woman eventually was
raped, and the court held that a jury could find that the
officer, using his power as an officer, placed the plaintiff in
a situation entailing a foreseeable risk of danger. Indeed,
assuming the facts are true, it would be unfair to say that the
state actor was not responsible for the rape.
23
But this case is not like those cases at all. When the alleged
unlawful act is a policy directed at the public at large—
namely a failure to protect the public by failing adequately to
screen applicants for membership in a volunteer fire
company—the rationale behind the rule disappears—there
can be no specific knowledge by the defendant of the
particular plaintiff’s condition, and there is no relationship
between the defendant and the plaintiff. Therefore, we
cannot say that an oppressive act of the defendants, made
possible by virtue of the fact that they were acting in a public
capacity, caused [the plaintiff’s] injury.
Mark, 51 F.3d at 1152-53 (some internal citations omitted).
In Rivera v. Houston Independent School District, 349 F.3d 244 (5th Cir.
2003), the Fifth Circuit rejected a state-created danger claim against a school district
after a student died as a result of gang-related violence. The court explained:
[T]o hold [the school district] responsible for the ultimate
ineffectiveness of [its policies designed to combat gang
violence] would turn the Due Process Clause’s limited duty
of care and protection into a guarantee of shelter from private
violence. This result would be inimical to the Supreme
Court’s conclusion [in DeShaney] that the Due Process
Clause does not require the State to protect individuals from
private violence.
349 F.3d at 250.
In Ruiz v. McDonnell, 299 F.3d 1173 (10th Cir. 2002), a mother enrolled
her child in a state-licensed home daycare. The operator of the daycare literally abused
the child to death. The mother brought suit against the state’s human services
department and its director, alleging that their act of licensing the provider, which failed
to meet state requirements for licensure, violated her deceased son’s right to substantive
due process pursuant to the state-created danger doctrine. The United States Court of
Appeals for the Tenth Circuit disagreed:
24
[W]e do not view the mere licensure of [the daycare] as
constituting the requisite affirmative conduct necessary to
state a viable [] claim. Specifically, the improper licensure
did not impose an immediate threat of harm. Rather, it
presented a threat of an indefinite range and duration.
Moreover, the licensure affected the public at large; it was
not aimed at [the child] or [his mother] directly . . . . [T]he
mere licensure of [the daycare] was not an act directed at [the
child] which, in and of itself, placed [the child] in danger.
Id. at 1183. Stated succinctly, in Ruiz, the court held that “negligence in licensing was
not a sufficiently affirmative act under the standard set by DeShaney because it did not
pose an immediate threat of harm and was directed at the public in general.” Gray v.
University of Colorado Hospital Authority, 672 F.3d 909, 922 (10th Cir. 2012) (internal
citation omitted).
In Gray, the Tenth Circuit drew upon Ruiz and other decisions and
formulated the following proposition of law:
[A] State’s adoption of generally[]applicable policies and
customs does not foist upon anyone an immediate threat of
harm having a limited range and duration. The act of
establishing such policies and customs itself does not put any
particular individual at substantial risk of serious, immediate,
and proximate harm. And because the act of establishing
such policies and customs does not pose a direct threat to any
one particular individual but affects a broader populace, we
deem such act too remote to establish the necessary causal
link between the danger to the victim and the resulting harm.
In other words, the affirmative conduct required to support a
danger creation claim should be directed at a discrete
plaintiff.
Gray, 672 F.3d at 926 (internal citations and quotation marks omitted).
At bottom, the above recitation of the case law clearly establishes that a
state cannot be found to have violated the state-created danger doctrine by enacting a
statute and/or policy that is generally applicable, even if the statute and/or policy is
arguably ineffective and fails to adequately protect the public from private acts of
25
violence. This is because such laws are inherently directed at the public in general and
not at any specific individual or discrete class of individuals. Regardless of Petitioners’
averments in the PFR, the UFA is a relatively comprehensive regulatory regime,
containing protective measures designed to combat gun violence. Further, Section
6120(a) is equally applicable across and throughout this Commonwealth, applying to
each and every county or municipality; thus, it is directed at the public at large and not
toward any of the Petitioners in particular.
By way of background, the UFA lists numerous offenses, mostly
felonious, drug-related, or violent in nature, and prohibits individuals who have been
convicted of any one of these offenses from possessing a firearm. See 18 Pa.C.S.
§6105. Generally, the UFA requires an individual to obtain a license to carry a firearm
in a vehicle or concealed on or about his person or in public, and imposes restrictions
on the sale or transfer of firearms, including a 48-hour waiting period and a criminal
history and mental health background check. See 18 Pa.C.S. §§6106, 6109, and 6111.
The UFA also contains licensing requirements for retailers and dealers of firearms, and
outlaws the sale, transfer, or possession of certain bullets, including armor-piercing
ammunition. See 18 Pa.C.S. §§6112-13. While carrying a “firearm” is presumptively
lawful under the UFA, Section 908 of the Crimes Code makes it a criminal offense to
use, possess, or sell an “offensive weapon”; pursuant to this statutory provision, most
items that are required to be registered under the National Firearms Act (NFA),13 such
as machine guns, suppressors, short barreled rifles, and shotguns, are prohibited as
“offensive weapons” unless they are registered under the NFA. See generally 18
Pa.C.S. §908.
13
26 U.S.C. §§5801-5872.
26
It is in this overall light that the preemption provision of Section 6120
must be viewed, read, and understood. The UFA creates uniform procedures and
requirements for the selling and licensing of firearms, and designates which firearms,
ammunition, and ammunition components will be or will not be lawful at the state
level. In its command that “[n]o county, municipality or township may in any manner
regulate the lawful ownership, possession, transfer or transportation of firearms,
ammunition or ammunition components when carried or transported for purposes not
prohibited by the laws of this Commonwealth,” 18 Pa.C.S. §6120(a), Section 6120(a)
is designed to guarantee consistency in firearm regulation from county to county, city
to township, county to city, etc. In other words, in crafting Section 6120(a), it is readily
apparent that it was the intention of our General Assembly to ensure that the citizens
of the Commonwealth would not be subjected to varying and differing firearm
regulations as they travel from town to town. Indeed, it would be difficult for a citizen
to learn, memorize, or otherwise keep track of the firearm laws of every municipality
in the Commonwealth. It would also be somewhat anomalous for a citizen to lawfully
carry a concealed firearm on his/her side of the street, but to have that same firearm be
deemed unlawful and/or improperly licensed when the citizen travels across the road
and into another municipality to obtain groceries.
That said, Petitioners’ claim under the state-created danger doctrine is a
slippery one that is difficult to fully grasp and appreciate in the legal sense. To the
extent Petitioners assert that the operational and functional structure of the UFA results
in gun violence and that such violence constitutes a state-created danger, this assertion
necessarily fails. Being a state statute that applies evenly to all of the municipalities in
the Commonwealth, the UFA is targeted at the public in general. And, “[w]hen the
alleged unlawful act is a policy directed at the public at large . . . the rationale behind
27
the [state-created danger] rule disappears—there can be no specific knowledge by
[Respondents] of the particular [Petitioners’] condition, and there is no relationship
between [Respondents] and [Petitioners].” Mark, 51 F.3d at 1152-53. In somewhat
different language, “[a] State’s adoption of generally[]applicable policies [] does not
foist upon anyone an immediate threat of harm having a limited range and duration,”
and “[t]he act of establishing such policies [by] itself does not put any particular
individual at substantial risk of serious, immediate, and proximate harm.” Gray, 672
F.3d at 926.
Here, although Petitioner Citizens allege that their loved ones are victims
of gun violence, the UFA does not actively promote, much less mandate, citizens to
inflict harm upon each other with firearms, and “the Due Process Clause does not
require the State to protect individuals from private violence.” Rivera, 349 F.3d at 250.
Insofar as Petitioners contend that the UFA does not adequately protect the public
because it has a tendency to allow individuals with dangerous propensities to obtain a
firearm and/or a firearm license, “improper licensure [does] not impose an immediate
threat of harm” and, instead, “present[s] a threat of an indefinite range and duration.”
Ruiz, 299 F.3d at 1183. Indeed, by its nature, “negligence in licensing [is] directed at
the public in general,” Gray, 672 F.3d at 922, and it is “not aimed at [Petitioners]
directly.” Ruiz, 299 F.3d at 1183.
Moreover, inasmuch as Petitioners’ averments could be construed as
basing their claim on the proposition that Petitioner City, and other municipalities,
would be able to enact better, more effective laws in the area of gun regulation, this
claim also lacks merit. In the PFR, Petitioners specifically allege that, “[b]ut for the
Firearm Preemption [Statutes], the City of Philadelphia and other municipalities would
pass their own safety ordinances that would prevent or mitigate the harm suffered by
28
their residents, including [Petitioner Citizens],” (PFR ¶91) (emphasis added), namely
laws providing for “permit-to-purchase requirements,” “one-gun-per-month limits,”
and “ERPOs.” In so averring, Petitioners cite statistical data to support the
implementation of their proposed ordinances, assuming that, in contrast to the UFA,
these ordinances “would . . . protect the lives of their residents.” (PFR ¶¶101, 112, 122.)
Notably, to support the alleged inadequacy of the UFA, Petitioners depend heavily on
remarks made by members of the General Assembly during floor debate—statements
that opposed the preemptive reach of Section 6120(a).
But, on an individual and collective scale, all of Petitioners’ averments
amount to challenges to the democratic nature of the legislative process itself. Notably,
Petitioners ignore the fact that Section 6120(a), despite its opposition from certain
House and Senate members, is nonetheless a duly enacted law expressing the will,
wisdom, and judgment of the General Assembly. Petitioners further fail to realize that,
in its status as a valid statute and exercise of legislative authority, Section 6120(a) is
generally applicable throughout the Commonwealth; in fact, it dictates, without
exception, that it is the sole prerogative of our General Assembly to enact laws in the
field of firearm regulation on a statewide basis. Ultimately, “because the act of
establishing such policies [] does not pose a direct threat to any one particular
individual[,] but affects a broader populace,” a generally applicable statute like Section
6120(a), or the UFA in general, is “too remote to establish the necessary causal link
between the danger to the victim and the resulting harm.” Gray, 672 F.3d at 926.
Tellingly, the incidents of gun violence listed and described in the PFR were all
situations where a private actor committed a private act of violence. As such, the role
that the UFA played in overall scenarios is entirely imaginative and speculative,
because there are multiple, indeed countless, variables that account for—or contributed
29
toward—the actual incidents of violence in the unique circumstances of each case,
including the identity and background of the perpetrator and things such as motive or
intent.
Equally important, the United States Court of Appeals for the Sixth
Circuit, albeit in an unpublished decision, has persuasively discussed the significance
of legislative judgment and choice in policymaking when analyzing a claim predicated
on the state-created danger doctrine:
When the state makes complex governance decisions, even
if a plaintiff can show that the state had a “subjective
awareness of substantial risk of serious injury,” a court must
“make some assessment that [the state] did not act in
furtherance of a countervailing governmental purpose that
justified taking that risk.” Hunt v. Sycamore Community
School District Board of Education, 542 F.3d 529, 541 (6th
Cir. 2008). As we have noted, “[i]t is in the very nature of
deliberative bodies to choose between and among competing
policy options, and yet a substantive due process violation
does not arise whenever the government’s choice prompts a
known risk to come to pass. . . . Many, if not most,
governmental policy choices come with risks attached . . .
and yet ‘it is not a tort for government to govern’ by picking
one option over another.” Schroder v. City of Fort Thomas,
412 F.3d 724, 729 (6th Cir. 2005) (quoting Scheuer v.
Rhodes, 416 U.S. 232, 241 (1974)). As a result, even if a
state actor is aware of a substantial risk of harm when it takes
action, this court is “unlikely to find deliberate indifference
if [the] action was motivated by a countervailing, legitimate
governmental purpose.” Hunt, 542 F.3d at 542.
Walker v. Detroit Public School District (6th Cir., No. 12-1367, filed August 26, 2013)
(unreported), slip op. at 7.
Importantly, a legislative body’s expressed public need for uniformity in
an area of legislation, and its decision to invoke and employ the doctrine of preemption
to accomplish such uniformity, is one that directly furthers a legitimate governmental
30
interest. See Ortiz, 681 A.2d at 154-56; see also Beneficial National Bank v. Anderson,
539 U.S. 1, 10-11 (2003); City and County of Denver v. Qwest Corporation, 18 P.3d
748, 754-56 (Colo. 2001); Browne v. United States, 176 F.3d 25, 26 (2d Cir. 1999);
Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 142-45 (1990); Albany Area Builders
Association v Town of Guilderland, 546 N.E.2d 920, 922-23 (N.Y. Ct. App. 1989);
United States v. Lee, 455 U.S. 252, 258-61 (1982); Dome Realty, Inc. v. City of
Paterson, 416 A.2d 334, 341-42 (N.J. 1980); cf. CTS Corporation v. Dynamics
Corporation of America, 481 U.S. 69, 88-89 (1987); Pinney v. Nokia, Inc., 402 F.3d
430, 46-61 (4th Cir. 2005); Norfolk Southern Corp. v. Oberly, 822 F.2d 388, 399-400
(3d Cir. 1987); United States v. Merkt, 794 F.2d 950, 956 (5th Cir. 1986). In essence,
and at its core, the desire for “[u]niformity of law encompasses the idea that one person
should not suffer a greater burden under the law than another, simply because that
person lives in a different [area in a] state.” Donald L. Bell, Comment: The Adequate
and Independent State Grounds Doctrine: Federalism, Uniformity, Equality and
Individual Liberty, 16 Florida State University Law Review 365, 383-84 (1988)
(footnotes omitted). Therefore, even if the General Assembly was aware that certain
geographical areas and/or members of society could potentially be exposed to gun
violence on a greater scale, the General Assembly had a legitimate, countervailing
government interest in passing Section 6120(a).
In an apparent attempt to escape all this, Petitioner Citizens argue that they
belong to an identifiable and discreet class, particularly in terms of race and/or ethnicity
and/or the fact that they reside in either the City of Philadelphia or the City of
Pittsburgh, the both of which, Petitioners allege, are high crime areas. However, as
courts have held, “[a] plaintiff cannot merely . . . name a more particular sub-class of
the public as the group to which the government owed a duty, such as one’s
31
‘neighbors.’ Neighbors are still the public.” Jones v. Reynolds, 438 F.3d 685, 697 (6th
Cir. 2006) (citation and internal quotation marks omitted). The same proposition holds
true here and applies with equal and compelling force: regardless of the racial and/or
ethnic background of each of the Petitioner Citizens, all the Petitioner Citizens are still
members of the public, and the UFA does not single them out specially for disparate
treatment. Moreover, Petitioners’ designation of the cities as high crime areas is
insufficient to create a distinct class. As one court explained, “levels of the quality of
life in a neighborhood are transient . . . . Private action could easily result in changes
in the neighborhood that would create opportunities for private violence that are alleged
to exist here; for example, people . . . could move into the neighborhood without the
support of the state.” Township of West Orange v. Whitman, 8 F. Supp. 2d 408, 422-
23 (D.N.J. 1998) (internal citation omitted). Significantly, “[t]he ‘public in general’
rule already internalizes and rejects as insufficient the argument that those living closer
to an alleged state-created danger”—i.e., gun violence, “face a higher probability of
harm than those living elsewhere.” Hopkins, 412 F. Supp. 3d at 528. Consequently,
an alleged heightened danger posed to residents of cities is still a danger to the public
at large—one that is not visited uniquely on the homes, or particular people living,
within the cities. See Township of West Orange, 8 F. Supp. 2d at 422.
To reiterate, simply “rendering a person more vulnerable to risk does not
create a constitutional duty to protect,” Rivera, 402 F.3d at 37; “[m]ere indifference or
inaction in the face of private violence cannot support a substantive due process claim,”
Wilson-Trattner, 863 F.3d at 596; a “passive failure to stop private violence” will not
suffice to establish a state-created danger, Pena, 432 F.3d at 110; and “[i]t is not enough
to allege that a government actor failed to protect an individual from a known danger
of bodily harm,” Lombardi, 485 F.3d at 79. Therefore, for these reasons and those
32
discussed above, we conclude that Petitioners have failed to state a valid claim under
the state-created danger doctrine as a matter of law.
B. Substantive Due Process
Respondents argue that Petitioners’ substantive due process claim is not
one upon which relief can be granted. Respondents contend that Petitioners do not
allege the deprivation of a fundamental right and that the Firearm Preemption Statutes
pass rational basis review because they bear a real, substantial relation to a legitimate
state interest, namely the regulation of firearms on a statewide basis.
In response, Petitioners maintain that, pursuant to article I, section 1 of the
Pennsylvania Constitution, they possess a fundamental right “to enjoy and defend life
and property,” and the Firearm Preemption Statutes “block [them] from protecting
themselves from gun violence with local regulations.” (Pet’rs’ Br. at 62-63.)
Petitioners assert that the Firearm Preemption Statutes are thus subject to heightened
scrutiny and, even if they are not, the statutes are not substantially related to an
important government interest. According to Petitioners, the Firearm Preemption
Statutes do not “improve public safety or reduce gun violence,” id. at 69, and the
Commonwealth does not have a legitimate need for uniformity in the area of gun
regulation.
Article I, section 1 of the Pennsylvania Constitution provides: “All men
are born equally free and independent, and have certain inherent and indefeasible
rights, among which are those of enjoying and defending life and liberty, of acquiring,
possessing and protecting property and reputation, and of pursuing their own
happiness.” Pa. Const. art. I, §1. “This section, like the [D]ue [P]rocess [C]lause in
the Fourteenth Amendment of the United States Constitution, guarantees persons in
this Commonwealth certain inalienable rights.” Nixon v. Commonwealth, 839 A.2d
33
277, 286 (Pa. 2003). “While the General Assembly may, under its police power, limit
those rights by enacting laws to protect the public health, safety, and welfare, any such
laws are subject to judicial review and a constitutional analysis.” Id. (internal citations
omitted).
As an embedded principle of constitutional law, “[i]f [a] statute restricts a
fundamental right, it is reviewed under strict scrutiny. If the statute impacts a protected
but not fundamental right, then it is subject to rational basis review.” Haveman v.
Bureau of Professional and Occupational Affairs, State Board of Cosmetology, 238
A.3d 567, 573 (Pa. Cmwlth. 2020) (en banc) (internal citation omitted). Notably, “[a]s
a general matter, economic and social legislation . . . receives rational basis review.”
Doe v. Miller, 886 A.2d 310, 315 (Pa. Cmwlth. 2005).
In conducting rational basis review, this Court “must assess whether the
challenged law has ‘a real and substantial relation’ to the public interests it seeks to
advance, and is neither patently oppressive nor unnecessary to these ends.” Shoul v.
Department of Transportation, Bureau of Driver Licensing, 173 A.3d 669, 678 (Pa.
2017). Although the issue of “whether a law is rationally related to a legitimate public
policy is a question for the courts, the wisdom of a public policy is one for the
legislature.” Id. Significantly, “in determining the constitutionality of a law, this Court
may not question the propriety of the public policies adopted by the General Assembly
for the law, but rather is limited to examining the connection between those policies
and the law.” Nixon, 839 A.2d at 286.
Pursuant to the rational basis standard, if there is any reasonably
conceivable state of facts or reason that could provide a rational basis for a statute, the
challenged statute will be upheld. See Corteal v. Department of Transportation, 821
A.2d 173, 177 (Pa. Cmwlth. 2003). Importantly, a legislative body need not articulate
34
its reasoning at the moment a particular decision is made, and a legislative choice may
be based on rational speculation unsupported by evidence or empirical data. See Adams
Outdoor Advertising, LP v. Zoning Hearing Board of Smithfield Township, 909 A.2d
469, 478 (Pa. Cmwlth. 2006); Corteal, 821 A.2d at 177. Indeed, “[a]pplication of [the
rational basis] standard does not require an express statement of purpose by the General
Assembly concerning the statute at issue. . . . [I]f some legitimate reason exists, the
provision cannot be struck down, even if its soundness or wisdom might be deemed
questionable.” Sadler v. Workers’ Compensation Appeal Board (Philadelphia Coca-
Cola Company), 244 A.3d 1208, 1216 (Pa. 2021) (internal citation and quotation marks
omitted).
“During the founding era, [] Americans were no strangers to firearm
regulation. Laws regulated the discharge, storage, and aggressive use of firearms, and
disarmed people who were considered untrustworthy in some capacity.” Bonidy v.
United States Postal Service, 90 F.3d 1121, 1131 (10th Cir. 2015) (internal citations
and quotation marks omitted). “In the context of firearm regulation, the legislature is
far better equipped than the judiciary to make sensitive policy judgments (within
constitutional limits) concerning the dangers in carrying firearms and the manner to
combat those risks.” Kachalsky v. County of Westchester, 701 F.3d 81, 97 (2d Cir.
2012). At the same time, the U.S. and Pennsylvania Constitutions guarantee an
individual a right to keep and bear arms, especially for purposes of self-defense, and
this right exists outside the home. See Caba v. Weaknecht, 64 A.3d 39, 50-52 (Pa.
Cmwlth. 2013); see also Wrenn v. District of Columbia, 864 F.3d 650, 665 (D.C. Cir.
2017); Moore v. Madigan, 702 F.3d 933, 935-40 (7th Cir. 2012).14 In Ortiz, the Cities
14
The Second Amendment of the U.S. Constitution provides: “A well regulated Militia, being
necessary to the security of a free State, the right of the people to keep and bear arms, shall not be
(Footnote continued on next page…)
35
of Philadelphia and Pittsburgh challenged the propriety of the General Assembly’s
enactment of Section 6120(a) and whether it could legally preempt their local firearm
ordinances. In upholding the validity and authority of the statewide preemption
provision in Section 6120(a), our Supreme Court, as noted above, explained that
“[b]ecause the ownership of firearms is constitutionally protected, its regulation is a
matter of statewide concern . . . . Thus, regulation of firearms is a matter of concern in
all of Pennsylvania, not merely in Philadelphia and Pittsburgh, and the General
Assembly, not city councils, is the proper forum for the imposition of such regulation.”
Ortiz, 681 A.2d at 156.
In Johnston, this Court rejected the landowners’ broad, sweeping claim
that the “right to protect one’s own life” is a fundamental right subject to strict scrutiny
and, instead, applied the rational basis test when the landowners claimed that the
fundamental right subsumed a right to refuse to connect to a public water supply. 859
A.2d at 10-11. Similarly, here, Petitioners assert a fundamental right to “defend life
and property,” but they couch this purported right as a right to be free from gun violence
and a right to have Petitioner City and other municipalities enact local gun control
ordinances. However, our discussion above pertaining to the state-created danger
doctrine demonstrates that Petitioners do not possess a general constitutional right to
have the government protect them from private acts of violence. Further, it is well
settled that Section 6120(a) is a valid exercise of legislative authority, and our General
Assembly acted within the confines of the Pennsylvania Constitution, particularly
infringed.” U.S. Const. amend. II. Additionally, article 1, section 21 of the Pennsylvania Constitution
states: “The right of the citizens to bear arms in defence of themselves and the State shall not be
questioned.” Pa. Const. art. I, §21.
36
article 9, section 2,15 when it decided to preempt local laws in the area of firearm
regulation. See Ortiz, 681 A.2d at 154-56. Therefore, we conclude that Petitioners
have failed to articulate the deprivation of a fundamental right, and that the Firearm
Preemption Statutes must be analyzed under the rubric of the rational basis test.
As explained above, the need for uniformity in certain fields of the law is
a legitimate governmental and public interest, and the Firearm Preemption Statutes,
coupled with the regulatory regime of the UFA, bears a substantial relation to that
interest. In this regard, Capital Area District Library v. Michigan Open Carry, Inc.,
826 N.W.2d 736 (Mich. Ct. App. 2012), is instructive. There, the Michigan Court of
Appeals reviewed the state’s firearm regulation statute, which is structured in a manner
that is remarkably comparable to the UFA and contains many similar regulatory
provisions in terms of topics and subject matter. In deciding whether the doctrine of
field preemption was applicable, the intermediate appeals court initially determined
“whether the nature of the regulated subject matter demands exclusive state regulation
to achieve the uniformity necessary to serve the state’s purpose or interest.” Id. The
court found that “[t]he regulation of firearm possession undoubtedly calls for such
exclusive state regulation,” noting that if there were a “Balkanized patchwork of
inconsistent local regulations,” the “citizens of th[e] state would be subject to varying
and possibly conflicting regulations regarding firearms and a great deal of uncertainty
and confusion would be created.” Id. (internal citations and quotation marks omitted).
The court further noted that, if localities could pass their own firearm laws, “[i]t would
be extremely difficult for firearm owners to know where and under what circumstances
they could possess a gun.” Id. Ultimately, the court concluded that “[a]n exclusive,
15
In pertinent part, this provision states that “[a] municipality which has a home rule charter
may exercise any power or perform any function not denied . . . by the General Assembly.” Pa. Const.
art. IX, §2.
37
uniform state regulatory scheme for firearm possession is far more efficient for
purposes of obedience and enforcement than a patchwork of local regulation.” Id. at
746-47.
Akin to the court in Capital Area District Library, our own Supreme Court
has determined that firearm regulation entails “substantive matters of statewide
concern,” concluding that “the General Assembly . . . is the proper forum for the
imposition of such regulation.” Ortiz, 681 A.2d at 156. In enacting the Firearm
Preemption Statutes, our General Assembly made a policy-based decision to prohibit
municipalities from intruding into the arena of firearm regulation and, in so doing,
created a uniform system of laws throughout the Commonwealth. As the averments in
the PFR illustrate, the General Assembly debated the issue of preemption, and
Petitioners’ arguments bear more on the wisdom of the legislation rather than on its
validity. This Court, as the judicial branch of government, does not act as a super-
legislature. In a case decided in 2008, this Court concluded that Section 6120
preempted Petitioner City’s ordinances relating to firearm regulation, and we stated:
“While we understand the terrible problems gun violence poses for [Petitioner City]
and sympathize with its efforts to use its police powers to create a safe environment for
its citizens, these practical considerations do not alter the clear preemption imposed by
the legislature, nor our Supreme Court’s validation of the legislature’s power to so act.”
Clarke, 957 A.2d at 365. Although the streams of time have run since then, we reaffirm
that statement and sentiment here. There are numerous factors and considerations
which must be taken into account by the legislature in establishing the policy it
determines provides the most protection for the public, and the courts are not the place
to enter into such public debate.
38
It is beyond cavil that, “[w]hen faced with any constitutional challenge to
legislation, we proceed to our task by presuming constitutionality in part because there
exists a judicial presumption that our sister branches take seriously their constitutional
oaths.” Stilp v. Commonwealth, 905 A.2d 918, 938 (Pa. 2006). Honoring the
presumption of constitutionality which attends the Firearm Preemption Statutes, we
conclude that the statutes pass muster under the rational basis test and, as such,
Petitioners’ substantive due process claim lacks merit and is legally insufficient.
C. Interference with Delegation
Respondents contend that Petitioners’ claim for “interference with
delegation” fails as a matter of law because Section 6120(a) has clearly deprived
Petitioner City from enacting laws in the area of firearm regulation regardless of what
other statutory authority it may have to pass legislation for the health and welfare of its
citizens and communities in general.
In response, Petitioners argue that the General Assembly is obligated to
protect its citizens and delegated to Petitioner City “a portion of its responsibility . . .
under the Local Health Administration Law”16 and “the Disease Prevention and
Control Law [of 1955],”17 particularly the authority to eradicate local “menace[s] to
public health.” (Pet’rs’ Br. at 74-75.) Petitioners assert that Petitioner City “does not
have the resources it needs to carry out its duty to address the gun violence epidemic”
and, as a result of the Firearm Preemption Statutes, has been “deprive[d] . . . of the
ability to fulfill its delegated duty to address gun violence.” Id. at 75-76.
Initially, we conclude that, based on the plain language of the pertinent
statutes, any authority delegated to Petitioner City to “prevent or remove conditions
16
Act of August 24, 1951, P.L. 1304, as amended, 16 P.S. §§12001-28.
17
Act of April 23, 1956, P.L. (1955) 1510, as amended, 35 P.S. §§521.1-521.21.
39
which constitute a menace to public health,” Section 10 of the Local Health
Administration Law, 16 P.S. §12010, or to “prevent[] and control [] communicable and
non-communicable disease,” Sections 2 and 3(a) of the Disease Prevention and Control
Law, 35 P.S. §§521.2, 521.3(a), does not appear to include (or otherwise correlate into)
an authority to enact gun control laws. Generally speaking, “public health” has been
defined as “the science and art of preventing disease, prolonging life[,] and promoting
health through the organized efforts and informed choices of society, organizations,
public and private, communities[,] and individuals.”18 According to a renowned legal
dictionary, “public health” is “[t]he healthful or sanitary condition of the general body
of people or the community en masse,” especially “the methods of maintaining the
health of the community, as by preventive medicine and organized care for the sick.”
Black’s Law Dictionary 787 (9th ed. 2009). As “this Court may draw upon common
sense and basic human experience to construe terms,” Kohl v. New Sewickley Township
Zoning Hearing Board, 108 A.3d 961, 969 (Pa. Cmwlth. 2015), it is difficult to discern
how Petitioners’ alleged incidents of gun violence equates into a “public health” matter
that gives rise to an express “delegated duty” to implement gun regulation at the local
level. This is because gun regulation does not directly affect the health of the people
in the medical sense, such as when a communicable disease is introduced into the
public, or unsanitary conditions exists in the streets or other infrastructure, or food
products contaminated with harmful bacteria enter the marketplace.
Moreover, and more importantly, Petitioner City, like all other home rule
municipalities, is prohibited from “exercis[ing] powers contrary to, or in limitation or
enlargement of, powers granted by acts of the General Assembly which are . . .
18
Penka D. Gatseva, Public health: the Science of Promoting Health, JOURNAL OF PUBLIC
HEALTH 19, 205–206 (2011), available at: https://link.springer.com/article/10.1007/s10389-011-
0412-8 (last visited May 24, 2022).
40
[a]pplicable in every part of the Commonwealth.” Section 18(b) of the Act of April 21,
1949, P.L. 665, as amended, 53 P.S. §13133(b); see 53 Pa.C.S. §2962. In Ortiz, our
Supreme Court held that Section 6120(a)’s directive that the General Assembly
exclusively govern matters concerning the ownership, possession, transfer, or
transportation of firearms evidenced an issue of statewide concern, and, the statute,
being equally applicable throughout the Commonwealth, deprived municipalities of
authority to regulate these subjects, including Petitioner City. See 681 A.2d at 156; see
also Hicks, 208 A.3d at 926 n.6 (reaffirming and reiterating that Section 6120(a)
verifies “the General Assembly’s reservation of the exclusive prerogative to regulate
firearms in this Commonwealth”) (emphasis added). In so deciding, the Supreme
Court considered and rejected arguments that are substantially similar to those
advanced by Petitioner City here. Specifically, in Ortiz, the Cities of Philadelphia and
Pittsburgh argued that, despite Section 6120(a) of the UFA, the General Assembly
could not limit their “ability to perform the basic administrative functions of a
municipal government and the ability to fulfill a fundamental purpose for which [a]
[c]ity government exists.” Ortiz, 681 A.2d at 155. The cities further asserted that “the
right of a city to maintain the peace on its streets through the regulation of weapons is
intrinsic to the existence of the government of that city and, accordingly, an irreducible
ingredient of constitutionally protected Home Rule.” Id. at 155-56. Our Supreme
Court disagreed and concluded that, notwithstanding any authority that the General
Assembly has bestowed upon the cities to pass legislation, Section 6120(a) preempted
the area of firearm regulation and barred the cities from enacting local firearm laws.
Naturally, the same result must obtain here, and, following Ortiz as binding precedent,
we conclude that Petitioners have not pleaded a valid claim for interference with
delegation.
41
Accordingly, viewing the averments in the PFR in the light most favorable
to Petitioners, and giving Petitioners the benefit of any doubt, this Court must conclude
that counts I, II, and III in the PFR are legally deficient and fail to state claims upon
which relief can be granted. As such, we sustain Respondents’ preliminary objection
in this regard.
III. Conclusion
For the above-stated reasons, we sustain Respondents’ preliminary
objections in the nature of a demurrer. To the extent Petitioners claim that
municipalities could enact local laws more effective than the Firearm Preemption
Statutes, these matters are reserved to the social policy-making branch of our
government, the General Assembly. See, e.g, Chester Water Authority v. Pennsylvania
Department of Community and Economic Development, 249 A.3d 1106, 1113-14 (Pa.
2021); Seebold v. Prison Health Services, Inc., 57 A.3d 123, 1245 & n.19 (Pa. 2012).19
That said, and for the above-stated reasons, we dismiss the PFR with prejudice.
________________________________
PATRICIA A. McCULLOUGH, Judge
Judge Fizzano Cannon concurs in the result only.
Judges Covey and Wallace did not participate in the decision of this case.
19
The Dissent, in advocating for social reform of gun laws, has not cited any legal authority
to support the proposition that Petitioners have pleaded a viable state-created danger claim, a
cognizable claim under the substantive component of the Due Process Clause, or a valid claim for
“interference with delegation.” While there are varying views concerning gun laws, we note that it
is the legislature that is charged with enacting laws and social policy, not the courts.
42
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Stanley Crawford, Tracey Anderson, :
Delia Chatterfield, Aishah George, :
Rita Gonsalves, Maria Gonsalves- :
Perkins, Wynona Harper, Tamika :
Morales, Cheryl Pedro, Rosalind :
Pichardo, Ceasefire Pennsylvania :
Education Fund, and The City of :
Philadelphia, :
Petitioners :
: No. 562 M.D. 2020
v. :
:
The Commonwealth of Pennsylvania, :
The Pennsylvania General Assembly, :
Bryan Cutler, in his official capacity as :
Speaker of The Pennsylvania House of :
Representatives, and Jake Corman, in :
his official capacity as President :
Pro Tempore of the Pennsylvania :
Senate, :
Respondents :
ORDER
AND NOW, this 26th day of May, 2022, the preliminary objections
filed by the Commonwealth of Pennsylvania, the Pennsylvania General Assembly,
Bryan Cutler, in his official capacity as Speaker of the Pennsylvania House of
Representatives, and Jake Corman, in his official capacity as President Pro Tempore
of the Pennsylvania State Senate, are hereby SUSTAINED. The Petition for Review
filed by Stanley Crawford, Tracey Anderson, Delia Chatterfield, Aishah George,
Rita Gonsalves, Maria Gonsalves-Perkins, Wynona Harper, Tamika Morales,
Cheryl Pedro, Rosalind Pichardo, Ceasefire Pennsylvania Education Fund, and the
City of Philadelphia is hereby DISMISSED with PREJUDICE.
________________________________
PATRICIA A. McCULLOUGH, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Stanley Crawford, Tracey Anderson, :
Delia Chatterfield, Aishah George, :
Rita Gonsalves, Maria Gonsalves- :
Perkins, Wynona Harper, Tamika :
Morales, Cheryl Pedro, Rosalind :
Pichardo, Ceasefire Pennsylvania :
Education Fund, and The City of :
Philadelphia, :
Petitioners :
:
v. : No. 562 M.D. 2020
: Argued: June 9, 2021
The Commonwealth of Pennsylvania, :
The Pennsylvania General Assembly, :
Bryan Cutler, in his official capacity :
as Speaker of The Pennsylvania :
House of Representatives, and Jake :
Corman, in his official capacity as :
President Pro Tempore of the :
Pennsylvania Senate, :
Respondents :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE ELLEN CEISLER, Judge
CONCURRING OPINION BY
JUDGE COHN JUBELIRER FILED: May 26, 2022
Petitioners’ allegations regarding the prevalence and severity of gun violence
in certain areas of the Commonwealth of Pennsylvania, and the tragic toll such
violence has on the lives of those who reside in those areas, are not lost on me.
However, I believe that the Court is controlled by precedent, and that our Supreme
Court left little air in its conclusion in Ortiz v. Commonwealth, 681 A.2d 152, 156
(Pa. 1996), that the regulation of firearms is to be done at the state, not local, level.
I write separately, as did Senior Judge Leadbetter recently, recognizing “that
local conditions may well justify more severe restrictions than are necessary
statewide.” City of Philadelphia v. Armstrong, 271 A.3d 555, 569 (Pa. Cmwlth.
2022) (Leadbetter, S.J., concurring). As she eloquently stated, “[i]t 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.” Id. The novel constitutional arguments raised by
Petitioners may provide a basis for “our Supreme Court to reconsider the breadth of
the Ortiz doctrine[] and allow for local restrictions narrowly tailored to local
necessities.” Id. (footnote omitted).
__________________________________________
RENÉE COHN JUBELIRER, Judge
RCJ-2
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Stanley Crawford, Tracey Anderson, :
Delia Chatterfield, Aishah George, :
Rita Gonsalves, Maria Gonsalves- :
Perkins, Wynona Harper, Tamika :
Morales, Cheryl Pedro, Rosalind :
Pichardo, Ceasefire Pennsylvania :
Education Fund, and The City of :
Philadelphia, :
Petitioners :
:
v. : No. 562 M.D. 2020
: Argued: June 9, 2021
The Commonwealth of Pennsylvania, :
The Pennsylvania General Assembly, :
Bryan Cutler, in his official capacity :
as Speaker of The Pennsylvania :
House of Representatives, and :
Jake Corman, in his official capacity :
as President Pro Tempore of the :
Pennsylvania Senate, :
Respondents :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE ELLEN CEISLER, Judge
DISSENTING OPINION BY
JUDGE CEISLER FILED: May 26, 2022
Because I would overrule each of Respondents’ Preliminary Objections to the
Petition for Review, except for the objection challenging CeaseFire Pennsylvania
Education Fund’s (CeaseFire PA) standing, I respectfully dissent.
I. Introduction
It is no secret that gun violence is on the rise and reaching epidemic levels in
urban areas throughout this country, including two major cities in this
Commonwealth: the City of Philadelphia (Philadelphia) and the City of Pittsburgh
(Pittsburgh). In their Petition for Review, Petitioners allege myriad facts
demonstrating both the prevalence and the severity of gun violence in their
communities and the grave toll it has taken on the lives of the individual Petitioners,
who are Black and Hispanic residents of high-crime, low-income neighborhoods in
Philadelphia and Pittsburgh. Petitioners allege that Philadelphia and Pittsburgh, like
many other municipalities in Pennsylvania, have attempted to combat this crisis by
adopting local legislation aimed at protecting their residents from gun violence.
However, those attempts have been stymied by Respondents’ enactment and
enforcement of two statutes: Section 6120(a) of the Uniform Firearms Act of 1995,
18 Pa. C.S. § 6120(a) (Section 6120(a)),1 and Section 2962(g) of the Home Rule
Charter and Optional Plans Law, 53 Pa. C.S. § 2962(g) (Section 2962(g))2 (together,
Firearm Preemption Statutes), which preclude Pennsylvania municipalities from
enacting virtually all forms of local firearm regulation.3
Petitioners aver that Philadelphia, Pittsburgh, and other municipalities
throughout Pennsylvania would be better equipped to thwart gun violence in their
1
Section 6120(a) provides: “No county, municipality or township may in any manner
regulate the lawful ownership, possession, transfer or transportation of firearms, ammunition or
ammunition components when carried or transported for purposes not prohibited by the laws of
this Commonwealth.” 18 Pa. C.S. § 6120(a) (emphasis added).
2
Section 2962(g) provides: “A municipality shall not enact any ordinance or take any
other action dealing with the regulation of the transfer, ownership, transportation or possession of
firearms.” 53 Pa. C.S. § 2962(g) (emphasis added).
3
Notably, while both Firearm Preemption Statutes preempt local regulation of firearms,
they contain key differences. For example, Section 6120(a) applies only to the regulation of
“lawful ownership, possession, transfer or transportation” of firearms, while Section 2962(g) is
not limited to lawful ownership. Also, Section 2962(g) applies only to “firearms,” while Section
6120(a) preempts regulation of “firearms, ammunition or ammunition components.”
EC - 2
communities through stricter regulation, were they not prohibited from doing so by
the Firearm Preemption Statutes. Petitioners further aver that enforcement of the
Firearm Preemption Statutes actually increases the likelihood of gun violence,
particularly in communities that are poor and populated by racial minorities.
In Ortiz v. Commonwealth, 681 A.2d 152, 156 (Pa. 1996), the Pennsylvania
Supreme Court held that the “regulation of firearms is a matter of statewide concern”
because the ownership of firearms is constitutionally protected under Article I,
Section 21 of the Pennsylvania Constitution.4 While I agree that the regulation of
firearms is a matter of statewide concern, it cannot be disputed that the impacts of
gun violence are inevitably local. As Petitioners and the various Amici Curiae assert,
the Firearm Preemption Statutes more negatively impact urban, populous
municipalities than their rural, less populous counterparts.5 The significant
difference in gun violence rates between urban and rural communities in
Pennsylvania, as alleged in the Petition for Review, demonstrates precisely why
there is a need for local regulation in this area.
Pennsylvania’s municipalities have an important duty to protect the health,
welfare, and safety of their citizens. In my view, protecting citizens against the threat
of gun violence lies at the heart of this duty.
4
“The right of the citizens to bear arms in defence of themselves and the State shall not be
questioned.” Pa. Const. art. I, § 21.
5
As the City of Harrisburg (Harrisburg) argues in its Amicus Curiae brief: “It is no
accident[] . . . that most cases litigated under [Section] 6120[(a)]’s preemption clause arise out of
Philadelphia, Pittsburgh, and Harrisburg; plainly, these are municipalities which, year after year,
experience the greatest measure of gun violence.” Harrisburg’s Amicus Curiae Br. at 8 (citing
cases).
EC - 3
As discussed more fully below, at this stage of the proceedings, I believe
Petitioners have pled more than sufficient facts to overcome Respondents’
Preliminary Objections, except for the challenge to CeaseFire PA’s standing.6
II. Standing
A. Individual Petitioners
Respondents assert that the individual Petitioners lack standing because their
rights to defend themselves and to be free from harm do not surpass the common
interests of all citizens. Respondents posit that many other citizens of this
Commonwealth are similarly affected by gun violence or have a family member or
friend that was a victim of gun violence. Thus, Respondents contend that the
individual Petitioners have nothing more than an abstract interest in ensuring that
the Firearm Preemption Statutes do not violate the Pennsylvania Constitution. I
cannot agree.
Our Supreme Court has articulated the requirements for standing as follows:
[T]he core concept of standing is that a person who is not adversely
affected in any way by the matter he seeks to challenge is not aggrieved
thereby and has no standing to obtain a judicial resolution of his
challenge.
An individual can demonstrate that he has been aggrieved if he can
establish that he has a substantial, direct and immediate interest in the
outcome of the litigation. A party has a substantial interest in the
outcome of litigation if his interest surpasses that “of all citizens in
procuring obedience to the law.” “The interest is direct if there is a
causal connection between the asserted violation and the harm
6
In its Opinion, the Majority addresses only Respondents’ demurrer objections, concluding
that they are dispositive of the case. However, because I disagree with that conclusion and with
the Majority’s dismissal of the Petition for Review, I will address all of Respondents’ objections
in this Dissenting Opinion. Moreover, because the four Respondents raise a multitude of
objections, many of which overlap, I will address their objections collectively by category.
EC - 4
complained of; it is immediate if that causal connection is not remote
or speculative.”
Fumo v. City of Phila., 972 A.2d 487, 496 (Pa. 2009) (emphasis added) (internal
citations omitted); see also Firearm Owners Against Crime v. Papenfuse, 261 A.3d
467, 481 (Pa. 2021) (explaining that, to establish standing in a declaratory judgment
action, the plaintiff must allege an interest that is direct, substantial, and immediate
and must show the existence of an actual controversy).
I believe the individual Petitioners have articulated a substantial interest in the
outcome of this matter that surpasses the common interest of all citizens in the
Commonwealth. The individual Petitioners are Black and Hispanic residents of
Philadelphia and Pittsburgh who have lost loved ones to gun violence and who are
themselves at a high risk of death or serious injury due to gun violence in their
communities. In the Petition for Review, each individual Petitioner alleges how he
or she has been specifically impacted by gun violence in his or her community. See
Pet. for Rev. ¶¶ 9(a)-18(f). In my view, these Petitioners have clearly alleged “some
discernible adverse effect” beyond an “abstract interest” in ensuring that the Firearm
Preemption Statutes do not violate the Pennsylvania Constitution. William Penn
Parking Garage, Inc. v. City of Pittsburgh, 346 A.2d 269, 282 (Pa. 1975).
The individual Petitioners have also alleged a “direct and immediate” causal
connection between the Firearm Preemption Statutes and their claimed injuries. The
individual Petitioners allege that, by enacting and enforcing the Firearm Preemption
Statutes, Respondents have prevented Philadelphia and Pittsburgh from adopting
local legislation that would protect the individual Petitioners and their families from
gun violence. They aver that they are uniquely affected because of the
neighborhoods in which they live and their ethnicities and because they have lost
loved ones to gun violence and are still suffering emotional trauma due to those
EC - 5
losses and their fear for their own lives. See Pet. for Rev. ¶¶ 9(d), 10(e), 11(d), 11(f),
12(e), 12(f), 13(e), 14(b), 15(d), 15(f), 16(d), 17(e), & 18(e).
Accepting the averments in the Petition for Review as true, as we must, I
would conclude that the individual Petitioners have established standing to maintain
this action. Therefore, I would overrule Respondents’ objections to the individual
Petitioners’ standing.
B. Philadelphia
Next, Respondents assert that Philadelphia lacks standing to maintain this
action. As this Court has explained, a municipality’s interest in the outcome of a
lawsuit is
(1) substantial when aspects of the state law have particular application
to local government functions (as opposed to general application to all
citizens); (2) direct when the state law causes the alleged constitutional
harm; and (3) sufficiently immediate when the municipality asserts
factually supported interests that are not speculative or remote.
Robinson Twp. v. Com., 52 A.3d 463, 474 (Pa. Cmwlth. 2012), aff’d in part and
rev’d in part on other grounds, 83 A.3d 901 (Pa. 2013).
I believe Petitioners have alleged sufficient facts to establish Philadelphia’s
standing to challenge Section 6120(a).7 As outlined in the Petition for Review,
Section 6120(a) restricts Philadelphia’s power to enact much-needed local
legislation to protect its residents from gun violence. In particular, Petitioners aver:
32. Gun violence in Philadelphia is especially troubling. One
study found that over a two-year period in Philadelphia (from 2013 to
2014), the overall rate of firearm assault was five times higher for Black
residents compared with White residents. Homicide rates in
Philadelphia in general are higher than most other major U.S. cities
7
In their brief, Petitioners admit that Section 2962(g) does not apply to Philadelphia. See
Pet’rs’ Br. in Opp’n to Prelim. Objs. at 28 n.14.
EC - 6
(i.e., cities with a population of 250,000 or greater). In 2018, the
average homicide rate in these cities was 10.0 per 100,000 people; in
Philadelphia that rate was over twice as high: 22.1 per 100,000.
Philadelphia now ranks second in the nation, behind just Chicago, in
the number of homicides involving guns. Nationally, the homicide rate
is 5 per 100,000, meaning Philadelphia’s murder rate is nearly 4.4 times
higher than the national average. Most of the homicides in Philadelphia
are carried out with firearms, specifically handguns. In 2019, 86.8% of
all homicides in . . . Philadelphia were a result of gun violence,
compared to only 70% nationally.
33. Between 2009 and 2018, the firearm homicide death rate by
county in Pennsylvania ranged from 0.8 to 15.0 deaths per 100,000
persons. Philadelphia County had the highest death rate at 15.0 deaths
per 100,000 persons, which is nearly 19 times higher than Bucks
County, which had the lowest firearm homicide death rate (0.8 deaths
per 100,000 persons), and it is more than twice as high as Allegheny
County, which had the second-highest firearm homicide death rate of
7.1 deaths per 100,000 persons.
Pet. for Rev. ¶¶ 32-33 (footnotes omitted). In my view, these are staggering figures
and unmistakably demonstrate that Philadelphia’s interest in this matter is neither
speculative nor remote.
Petitioners also aver that, aside from the loss of hundreds of Philadelphians’
lives each year, gun violence imposes a significant economic burden on the city’s
financial resources. See, e.g., id. ¶ 51 (“A firearm homicide [in Philadelphia] is
associated with an estimated average cost of $1.42 million due to medical expenses,
lost earnings/productivity, property damage, and criminal justice costs. On average,
a non-fatal firearm-related injury costs $46,632 in medical expenses and lost
productivity.”) (footnotes omitted).
Petitioners further allege that the Firearm Preemption Statutes impermissibly
interfere with Philadelphia’s duty to protect the health, safety, and welfare of its
residents. See Ryan v. City of Phila., 465 A.2d 1092, 1093 (Pa. Cmwlth. 1983)
EC - 7
(recognizing that chief among local municipalities’ responsibilities is their
obligation to “protect [their] citizens’ health, safety, and welfare”). Petitioners aver:
55. [Section 6120(a)] endangers the lives of the [individual]
Petitioners and others in their communities by effectively preventing
local municipalities from fulfilling their core duties to protect the health
and safety of their residents. Moreover, since passing this law in 1974,
the General Assembly has continued to amend Section 6120[(a)], and
with each amendment, the General Assembly has further restricted the
ability of municipalities like Philadelphia to address gun violence. At
the same time, the General Assembly has repeatedly blocked any
attempt to loosen preemption restrictions, while steadfastly refusing to
act to curb gun violence at the state level. This combination is a
dangerous one, and by its actions, the General Assembly has exposed
the [i]ndividual Petitioners to direct risk of gun violence.
56. The General Assembly’s passage of Section 6120[(a)] and
amendments thereto, coupled with its refusal to pass evidence-based
gun safety legislation on the state level, operate to actively prevent an
effective gun safety approach that would save the lives, property, and
bodily integrity of Pennsylvania residents, particularly in low-income
neighborhoods in [Philadelphia and Pittsburgh].
Pet. for Rev. ¶¶ 55-56.
In Franklin Township v. Department of Environmental Resources, 452 A.2d
718, 721-23 (Pa. 1982), our Supreme Court held that a local municipality had
standing to challenge the Department of Environmental Resources’ permit for a
landfill, in light of the “responsibilit[y] of local government” to “protect[] and
enhance[] . . . the quality of life of its citizens.” I believe that protecting residents
from gun violence is equally, if not more, essential to the protection and
enhancement of Philadelphia residents’ quality of life. See City of Phila. v. Com.,
838 A.2d 566, 579 (Pa. 2003) (holding that Philadelphia had standing to challenge
EC - 8
the effects of allegedly unconstitutional legislation because the legislation interfered
with Philadelphia’s interests and functions as a governing entity).
I would conclude that Philadelphia has sufficiently averred an interest in this
litigation that is neither speculative nor remote. Therefore, I would overrule
Respondents’ objections to Philadelphia’s standing.
C. CeaseFire PA
With regard to the standing of an association, such as CeaseFire PA, our Court
has explained:
An association has standing to bring an action on behalf of its members
where at least one of its members is suffering an immediate or
threatened injury as a result of the challenged action. . . . This rule
applies equally to nonprofit membership corporations. . . .
To have standing on this basis, the plaintiff organization must allege
sufficient facts to show that at least one of its members has a
substantial, direct and immediate interest. . . . Where the organization
has not shown that any of its members have standing, the fact that the
challenged action implicates the organization’s mission or purpose is
not sufficient to establish standing.
Ams. for Fair Treatment, Inc. v. Phila. Fed’n of Teachers, 150 A.3d 528, 533-34
(Pa. Cmwlth. 2016) (emphasis added); see Papenfuse, 261 A.3d at 473-74.
Here, the Petition for Review does not identify a single member of CeaseFire
PA who is aggrieved by this matter. That omission alone precludes CeaseFire PA
from establishing associational standing on behalf of its members.
Furthermore, to the extent Petitioners claim that CeaseFire PA has standing
based on its mission of advocating for gun control measures, see Pet. for Rev. ¶¶ 41-
48, an en banc panel of this Court recently rejected a similar claim. In Allegheny
Reproductive Health Center v. Pennsylvania Department of Human Services, 249
EC - 9
A.3d 598, 606 n.11 (Pa. Cmwlth. 2021) (en banc), we stated that “[a]n organization
does not have standing by virtue of its purpose.” This Court further explained:
“‘Where the organization has not shown that any of its members have standing
[individually], the fact that the challenged action implicates the organization’s
mission or purpose is not sufficient to establish standing.’” Id. (quoting Ams. for
Fair Treatment, 150 A.3d at 534) (emphasis added). Here, CeaseFire PA has not
demonstrated that any of its members have standing individually; thus, the fact that
the Firearm Preemption Statutes may implicate CeaseFire PA’s mission or purpose
is insufficient to confer standing under our Court’s precedent.8
Therefore, I would sustain Respondents’ objections challenging CeaseFire
PA’s standing.
III. Non-Justiciable Political Questions
Next, Respondents assert that Petitioners’ claims constitute non-justiciable
political questions that are outside the purview of judicial consideration. Our
Supreme Court has described the political question doctrine as follows:
8
Citing federal cases, Petitioners also argue that an organization may establish standing in
its own right if it has suffered a concrete injury to itself as a result of the complained-of conduct.
See Havens Realty Corp. v. Coleman, 455 U.S. 363, 378-79 (1982) (“Such concrete and
demonstrable injury to the organization’s activities—with the consequent drain on the
organization’s resources—constitutes far more than simply a setback in the organization’s abstract
social interests.”); Blunt v. Lower Merion Sch. Dist., 767 F.3d 247, 308 (3d Cir. 2014) (recognizing
that to establish an injury to itself, an organization “must show that its activities or operations were
sufficiently disrupted by the disputed conduct”). Petitioners admit, however, that this Court is not
bound by federal case law analyzing standing under Article III of the United States Constitution.
See Pet’rs’ Br. in Opp’n to Prelim. Objs. at 25 n.13.
In any event, even applying that analysis, I would conclude that CeaseFire PA has not
established standing in its own right. CeaseFire PA avers that the Firearm Preemption Statutes
have forced it to divert its efforts and resources away from advocacy and public education in order
to challenge the preemption of local gun control ordinances. See Pet. for Rev. ¶¶ 47-48. These
generalized allegations do not establish a concrete, discernable injury to the organization’s
finances or operations as required to establish standing in its own right.
EC - 10
The applicable standards to determine whether a claim warrants the
exercise of judicial abstention or restraint under the political question
doctrine are well[-]settled. Courts will refrain from resolving a dispute
and reviewing the actions of another branch only where “the
determination whether the action taken is within the power granted by
the Constitution has been entrusted exclusively and finally to the
political branches of government for ‘self-monitoring.’”
William Penn Sch. Dist. v. Pa. Dep’t of Educ., 170 A.3d 414, 437 (Pa. 2017)
(alteration in original) (citation omitted) (emphasis added). However, courts “‘will
not refrain from resolving a dispute [that] involves only an interpretation of the laws
of the Commonwealth, for the resolution of such disputes is our constitutional duty.’”
Id. at 438 (emphasis added) (citation omitted). Moreover, “‘[t]he need for courts to
fulfill their role of enforcing constitutional limitations is particularly acute where
the interests or entitlements of individual citizens are at stake.’” Id. (emphasis
added) (citation omitted).
Applying these considerations to the averments in the Petition for Review, I
would conclude that Petitioners’ claims are not barred by the political question
doctrine. Here, Petitioners allege that the Firearm Preemption Statutes: (1)
unconstitutionally infringe on their indefeasible rights to life and liberty under
Article I, Section 1 of the Pennsylvania Constitution; and (2) impermissibly interfere
with Philadelphia’s public health-related duties statutorily delegated by the
Commonwealth. Resolution of these claims will require this Court to conduct
statutory interpretation and to articulate the limitations, if any, on the
Commonwealth’s constitutional powers with respect to gun control legislation.
These are not non-justiciable political questions, but lie squarely within our Court’s
authority. See Council 13, Am. Fed’n of State Cnty. & Mun. Emps. v. Com., 986
A.2d 63, 75 (Pa. 2009) (recognizing that the judicial branch has the power and
EC - 11
authority “‘to determine whether the Constitution or laws of the Commonwealth
require or prohibit the performance of certain acts’”) (citation omitted).
It is true, as Respondents point out, that matters of public policy are reserved
exclusively for the legislature and that the General Assembly has the discretion to
decide, as a matter of public policy, whether to enact, amend, or repeal a particular
statute. While Petitioners make several policy arguments in support of their claims,
the crux of Petitioners’ allegations is that the Firearm Preemption Statutes impinge
on the exercise of their fundamental rights under Article I, Section 1 of the
Pennsylvania Constitution, which weighs in favor of justiciability and against the
finding of a political question. See Gondelman v. Com., 554 A.2d 896, 899 (Pa.
1989) (“Any concern for a functional separation of powers is, of course,
overshadowed if the classification impinges upon the exercise of a fundamental
right[] . . . .”) (emphasis added); Sweeney v. Tucker, 375 A.2d 698, 709 (Pa. 1977)
(“[T]he political question doctrine is disfavored when a claim is made that individual
liberties have been infringed.”) (emphasis added). Indeed, our Supreme Court has
stated: “Where civil liberties are concerned, ‘[o]ne does not think of [the legislature]
as functionally equipped or designed to interpret the Constitution without review,
nor under our system, does one wish to leave to [the legislature] the unbridled
authority to determine the constitutionality of its own acts.’” Sweeney, 375 A.2d at
709-10 (alterations in original) (citation omitted).
Therefore, I would overrule Respondents’ objections based on non-justiciable
political questions.
IV. Ripeness
Respondents also assert that Petitioners’ claims are not ripe for disposition.
Respondents assert that, in support of their claims for relief, Petitioners
EC - 12
impermissibly refer to ordinances that have not yet been passed but may be passed
at some unspecified time in the future, should the Firearm Preemption Statutes be
deemed unconstitutional. Therefore, Respondents contend that there is no actual
controversy. However, I believe this contention is belied by the allegations in the
Petition for Review.
Generally, the doctrine of ripeness requires “the presence of an actual
controversy.” Bayada Nurses, Inc. v. Dep’t of Lab. & Indus., 8 A.3d 866, 874 (Pa.
2010). “When determining whether a matter is ripe for judicial review, courts
generally consider whether the issues are adequately developed and the hardships
that the parties will suffer if review is delayed.” Id.
Because the Petition for Review seeks declaratory relief, this case is governed
by the Declaratory Judgments Act, 42 Pa. C.S. §§ 7531-41. As this Court has
explained:
[T]he Declaratory Judgments Act[] . . . provides a relatively lenient
standard for ripeness in declaratory judgment actions. The
Declaratory Judgments Act is remedial in nature. 42 Pa. C.S. § 7541(a).
“Its purpose is to settle and to afford relief from uncertainty and
insecurity with respect to rights, status, and other legal relations, and
is to be liberally construed and administered.” Id. An action is ripe
for adjudication under the Declaratory Judgments Act where it presents
“the ripening seeds of a controversy.” Wecht v. Roddey, 815 A.2d
1146, 1150 (Pa. Cmwlth. 2002).
Phantom Fireworks Showrooms, LLC v. Wolf, 198 A.3d 1205, 1217-18 (Pa. Cmwlth.
2018) (en banc) (emphasis added).
I believe Petitioners have sufficiently alleged that the Firearm Preemption
Statutes have precluded, and continue to preclude, Philadelphia and Pittsburgh from
passing much-needed gun control legislation to protect their residents. In their
Petition for Review, Petitioners identify numerous examples of past ordinances –
EC - 13
including permit-to-purchase laws, one-gun-per-month limits, and extreme risk
protection orders – that have been struck down because of the Firearm Preemption
Statutes. See Pet. for Rev. ¶¶ 57-60, 92, 99, 110-11, & 124; see also id. ¶ 88
(averring that the General Assembly has blocked 17 previous attempts to narrow or
repeal the Firearm Preemption Statutes). Petitioners aver that these types of
ordinances, tailored to the specific needs of the communities they are intended to
protect, would have significantly reduced gun violence if not for the Firearm
Preemption Statutes. Simply because these ordinances are no longer in effect, or
were never passed, due to preemption does not render this controversy unripe.
Respondents compare Petitioners’ challenge to the Firearm Preemption
Statutes with several cases challenging proposed or unenforced legislation. See, e.g.,
President Pro Tempore’s Br. in Support of Prelim. Objs. at 27-29. I believe
Respondents’ reliance on these cases is misplaced, however, because Petitioners
here do not challenge proposed legislation or unenforced ordinances. Rather,
Petitioners challenge the Firearm Preemption Statutes, which are currently in effect
and have been applied, and continue to be applied, to their detriment. Cf. Phantom
Fireworks, 198 A.3d at 1218 (distinguishing a challenge to “a zoning ordinance that
had not been enforced or applied” with a challenge to “a taxing statute” that is
presently “in force”).
In my view, Petitioners have shown a demonstrable pattern of Pennsylvania
municipalities passing gun control legislation, only to have that legislation
subsequently preempted. I do not believe that Philadelphia, or any other
municipality, is required to pass new gun control ordinances in order to render this
controversy ripe, particularly in light of the lenient ripeness standard applicable in
declaratory judgment actions.
EC - 14
Therefore, because I would conclude that “the ripening seeds of a
controversy” are clearly present here, I would overrule Respondents’ objections
based on ripeness.
V. Res Judicata and Collateral Estoppel
Respondents assert that Philadelphia’s causes of action are barred by the
doctrines of res judicata and collateral estoppel. Our Court has explained these
principles as follows:
Res judicata encompasses two related, yet distinct principles: technical
res judicata and collateral estoppel. Technical res judicata provides that
where a final judgment on the merits exists, a future lawsuit on the same
cause of action is precluded. Collateral estoppel acts to foreclose
litigation in a subsequent action where issues of law or fact were
actually litigated and necessary to a previous final judgment.
Technical res judicata requires the coalescence of four factors: (1)
identity of the thing sued upon or for; (2) identity of the causes of
action; (3) identity of the persons or parties to the action; and (4)
identity of the quality or capacity of the parties suing or being sued.
Res judicata applies to claims that were actually litigated as well as
those matters that should have been litigated. Generally, causes of
action are identical when the subject matter and the ultimate issues are
the same in both the old and new proceedings.
Similarly, collateral estoppel bars a subsequent lawsuit where (1) an
issue decided in a prior action is identical to one presented in a later
action, (2) the prior action resulted in a final judgment on the merits,
(3) the party against whom collateral estoppel is asserted was a party to
the prior action, or is in privity with a party to the prior action, and (4),
the party against whom collateral estoppel is asserted had a full and fair
opportunity to litigate the issue in the prior action.
J.S. v. Bethlehem Area Sch. Dist., 794 A.2d 936, 939 (Pa. Cmwlth. 2002) (internal
citations omitted) (emphasis added).
EC - 15
In arguing that Philadelphia’s action is barred by res judicata and collateral
estoppel, Respondents rely on three cases: Ortiz; Clarke v. House of
Representatives, 957 A.2d 361 (Pa. Cmwlth. 2008), aff’d, 980 A.2d 34 (Pa. 2009);
and Schneck v. City of Philadelphia, 383 A.2d 227 (Pa. Cmwlth. 1978).
Ortiz was a declaratory judgment action in which members of Philadelphia’s
City Council and others sued the Governor, the Pennsylvania Attorney General, and
Philadelphia’s District Attorney. The Ortiz petitioners sought to enjoin Section
6120(a)’s preemption of local assault weapons regulations enacted by Philadelphia
and Pittsburgh, as well as a declaration that Section 6120(a) violated both cities’
home rule power to enact local legislation. Clarke was a declaratory judgment action
in which members of Philadelphia’s City Council sought a declaration that several
of Philadelphia’s then-existing gun control ordinances were not preempted by
Section 6120(a). Schneck was a class action suit against Philadelphia in which
individual gun purchasers sought to enjoin enforcement of a Philadelphia firearm
ordinance on preemption grounds.
None of these cases, however, involved an Article I, Section 1 constitutional
challenge, nor did they challenge the Firearm Preemption Statutes’ interference with
Philadelphia’s ability to fulfill its delegated duties under the Local Health
Administration Law (LHAL), Act of August 24, 1951, P.L. 1304, as amended, 16
P.S. §§ 12001-12028, or the Disease Prevention and Control Law of 1955 (DPCL),
Act of April 23, 1956, P.L. (1955) 1510, as amended, 35 P.S. §§ 521.1-521.21. As
such, the causes of action in this case differ significantly from the causes of action
in Ortiz, Clarke, and Schneck.
Respondents’ collateral estoppel objection fails for the same reason.
Collateral estoppel bars a subsequent lawsuit only where a legal issue decided in the
EC - 16
prior action is identical to one presented in the later action. J.S., 794 A.2d at 939.
As explained above, the Courts in Ortiz, Clarke, and Schneck did not consider or
decide whether the Firearm Preemption Statutes violate individual citizens’ rights
under Article I, Section 1 of the Pennsylvania Constitution or whether they interfere
with Philadelphia’s delegated duties under the LHAL or the DPCL.
Therefore, because this case involves different causes of action and different
legal issues than the prior cases, I would overrule Respondents’ objections based on
res judicata and collateral estoppel.
VI. Scandalous or Impertinent Matter
President Pro Tempore of the Pennsylvania Senate Jake Corman (President
Pro Tempore) objects to numerous paragraphs in the Petition for Review on the basis
that they contain scandalous or impertinent averments. In particular, he contends
that the challenged averments “cast a derogatory light on the General Assembly or
the Commonwealth,” “pertain to statements and information regarding gun violence
that certain legislators presented to the General Assembly as it was considering
whether to enact or amend the [Firearm] Preemption [Statutes],” “concern how [the
i]ndividual Petitioners or other citizens were impacted by gun violence,” and “are
focused on irrelevant background information or are purely speculative.” President
Pro Tempore’s Br. in Support of Prelim. Objs. at 48-49.
Under our Rules of Civil Procedure, preliminary objections may be filed for
“failure of a pleading to conform to law or rule of court or inclusion of scandalous
or impertinent matter.” Pa.R.Civ.P. 1028(a)(2). To be scandalous and impertinent,
“the allegations must be immaterial and inappropriate to the proof of the cause of
action.” Common Cause/Pa. v. Com., 710 A.2d 108, 115 (Pa. Cmwlth. 1998) (en
banc), aff’d, 757 A.2d 367 (Pa. 2000). However, “the right of a court to strike
EC - 17
impertinent matter should be sparingly exercised and only when [the objecting] party
can affirmatively show prejudice.” Dep’t of Env’t Res. v. Hartford Accident &
Indem. Co., 396 A.2d 885, 888 (Pa. Cmwlth. 1979) (emphasis added).
Here, President Pro Tempore offers a lengthy list of allegedly offending
paragraphs in the Petition for Review and categorizes them by the general manner
in which he believes they run afoul of Pa.R.Civ.P. 1028(a)(2). See President Pro
Tempore’s Br. in Support of Prelim. Objs. at 47-51. However, President Pro
Tempore does not identify the specific language in each paragraph to which he takes
offense, nor does he explain how he has been prejudiced by any of the challenged
averments. Instead, he baldly asserts that the averments are “wholly irrelevant to
Petitioners’ causes of action and in some respects scandalous[] too.” Id. at 51. I
would conclude that this unsupported declaration is insufficient to justify striking
the averments.
Therefore, I would overrule President Pro Tempore’s objections based on
scandalous or impertinent averments.
VII. Demurrer
I will now turn to the three demurrer Preliminary Objections that form the
basis of the Majority’s Opinion.
A. State-Created Danger
First, I disagree with the Majority’s conclusion that Petitioners have failed to
plead a legally sufficient state-created danger claim. To state a claim of state-created
danger, a petitioner must satisfy four requirements:
(1) the harm ultimately caused was foreseeable and fairly direct;
(2) a state actor acted with a degree of culpability that shocks the
conscience;
EC - 18
(3) a relationship between the state and the [petitioner] existed such that
the [petitioner] was a foreseeable victim of the [respondent’s] acts, or a
member of a discrete class of persons subjected to the potential harm
brought about by the state’s actions, as opposed to a member of the
public in general; and
(4) a state actor affirmatively used his or her authority in a way that
created a danger to the citizen or that rendered the citizen more
vulnerable to danger than had the state not acted at all.
Bright v. Westmoreland Cnty., 443 F.3d 276, 281 (3d Cir. 2006) (internal quotation
marks and footnotes omitted).
In concluding that Petitioners have failed to state a viable state-created danger
claim, the Majority relies on Johnston v. Township of Plumcreek, 859 A.2d 7 (Pa.
Cmwlth. 2004). In Johnston, residents of several townships challenged local
ordinances requiring them to connect their homes to the public water system, which
they claimed were unconstitutional due to the threat of terrorist attacks upon the
public water supply. The Johnston Court considered the state-created danger
doctrine in the context of the residents’ substantive due process claims made under
42 U.S.C. § 1983, relating to violations of civil rights, and Article I, Section 1 of the
Pennsylvania Constitution, ultimately concluding that the doctrine was not
applicable to either claim. This Court held:
First, the state-created danger [doctrine] has been used to make states
liable in damages where the state, by affirmative exercise of its power,
has rendered an individual unable to care for himself. The leading case
in this area of law is DeShaney v. Winnebago County Department of
Social Services, 489 U.S. 189[] . . . (1989), in which the [United States]
Supreme Court held that a county agency could not be held liable in
damages where a child suffered abuse while in his father’s custody.
The Court reasoned that the Due Process Clause does not guarantee
minimal safety for citizens but, rather, protects citizens from
overreaching by the state. DeShaney placed limits upon what is known
EC - 19
as the “state-created danger” theory for creating Section 1983 civil
rights liability in damages to the situation where the state has limited
the liberty of the citizen to act in his own behalf. However, as far as
can be determined, the “stated-created danger” body of jurisprudence
has never been used to nullify a statute or ordinance.
Second, even if the “state-created danger” theory could be used to
render a statute unconstitutional, it does not fit the facts of this
complaint. In Kallstrom v. City of Columbus, 136 F.3d 1055, 1066 (6th
Cir. 1998), the [United States] Court of Appeals [for the Sixth Circuit]
held that the state could not be held liable for a “risk that affects the
public at large.” The state has to be aware that its actions specifically
endanger an individual in order to be held liable. . . . All government
activities involve some risk; for example, motorists are killed each year
on state highways. The mere construction of a highway, however, does
not give rise to civil rights liability to each of those accident victims in
part because the risk is general and not specific to an individual. Here,
the trial court correctly observed that the harm alleged by Residents was
conjectural, not imminent and real.
The [o]rdinances do not violate [the r]esidents’ substantive due process
rights under the state-created danger theory. Under DeShaney, the
[t]ownships do not have an obligation to guarantee that terrorists, who
are private actors whether homegrown or international, will not
contaminate the [w]ater [a]uthority’s system. Further, there are no
allegations in the complaint that [the r]esidents, as opposed to any and
all citizens of this country, are in imminent danger and at special risk.
Most importantly, the state-created danger theory is a construct by
which damages are awarded for constitutional torts. It is not used to
nullify statutory law, and we will not do so here.
Johnston, 859 A.2d at 12-14 (footnotes omitted).
Significantly, in reaching this decision, the Johnston Court emphasized that
“if the ‘state-created danger’ theory could be used to render a statute
unconstitutional, it [did] not fit the facts of th[at] complaint” because “the harm
alleged by [the r]esidents was conjectural, not imminent and real,” and because
“there [were] no allegations in the complaint that [the r]esidents, as opposed to any
EC - 20
and all citizens of this country, [were] in imminent danger and at special risk.” Id.
at 13-14 (emphasis added). It was on this basis that our Court concluded that the
residents could not establish a state-created danger claim.
I believe Johnston is factually distinguishable from this case in a critical
respect. The alleged harm in Johnston was purely conjectural. The residents in
Johnston “asserted that as a result of the terrorist attacks on September 11, 2001, and
the nation’s war on terrorism, there is now a real and present danger of terrorist
attacks on public water systems.” Id. at 9. However, as this Court noted, “[t]here
[were] no allegations, for example, that the [w]ater [a]uthority, the [t]ownships or
Armstrong County ha[d] been identified as special targets for terrorists.” Id. at 13
n.15 (emphasis added). Here, however, the individual Petitioners have articulated
precisely how the Firearm Preemption Statutes have placed them at “special risk”
compared to the general public due to their ethnicities, the cities in which they live,
and the recent shooting deaths of their loved ones. These allegations are not based
on conjecture, but on very real facts. See Pet. for Rev. ¶¶ 9(a)-18(f). Contrary to
the Majority, I do not believe our Court’s pronouncement in Johnston – that “as far
as can be determined,” the state-created-danger doctrine “has never been used to
nullify a statute or ordinance” – should be read as blanketly prohibiting all state-
created-danger challenges to state laws, because our ruling in that case was clearly
limited to its facts. See Johnston, 859 A.2d at 13-14.9
I would conclude that Petitioners have stated a legally sufficient state-created
danger claim. Therefore, I would overrule this objection.
9
As Petitioners correctly point out, no Pennsylvania appellate court has cited or relied on
Johnston for its state-created danger analysis since the decision was issued in 2004.
EC - 21
B. Substantive Due Process
Petitioners allege that the Firearm Preemption Statutes violate their
substantive due process rights to enjoy and defend life and liberty under Article I,
Section 1 of the Pennsylvania Constitution. Our Supreme Court has explained:
Substantive due process is the “esoteric concept interwoven within our
judicial framework to guarantee fundamental fairness and substantial
justice,” and its precepts protect fundamental liberty interests against
infringement by the government. . . .
[F]or substantive due process rights to attach there must first be the
deprivation of a property right or other interest that is constitutionally
protected.
Khan v. State Bd. of Auctioneer Exam’rs, 842 A.2d 936, 946 (Pa. 2004) (emphasis
added) (footnote and internal citation omitted). In particular, Petitioners assert that
the Article I, Section 1 protections include the right to “enjoy[] and defend[] life and
liberty” and that the Firearm Preemption Statutes prevent Petitioners from protecting
themselves from gun violence.
The Majority applies the rational basis test to Petitioners’ substantive due
process challenge and concludes that the Firearm Preemption Statutes bear a
substantial relationship to a legitimate state interest – namely, the statewide
regulation of firearms. Even assuming that the rational basis test is the correct
standard to be applied here, I would conclude that Petitioners have stated a legally
sufficient substantive due process claim.
The General Assembly’s power to preempt local legislation is not absolute,
and our Supreme Court has previously struck down preemption statutes that violate
Article I of the Pennsylvania Constitution. See, e.g., Robinson Twp. v. Com., 83
EC - 22
A.3d 901, 946 (Pa. 2013).10 That is because preemption statutes, like other laws, are
“subject to restrictions enumerated in the [Pennsylvania] Constitution and to
limitations inherent in the form of government chosen by the people of this
Commonwealth,” including “the express exception of certain fundamental rights
reserved to the people in Article I of our Constitution.” League of Women Voters v.
Com., 178 A.3d 737, 803 (Pa. 2018).
Citing Ortiz, the Majority concludes that the Firearm Preemption Statutes
further the Commonwealth’s legitimate interest in regulating citizens’ possession
and ownership of firearms on a statewide basis. In Ortiz, the Supreme Court was
faced with a constitutional challenge involving the right to bear arms under Article
I, Section 21 of the Pennsylvania Constitution. The Ortiz Court concluded:
Because the ownership of firearms is constitutionally protected, its
regulation is a matter of statewide concern. The [Pennsylvania
C]onstitution does not provide that the right to bear arms shall not be
questioned in any part of the [C]ommonwealth except Philadelphia and
Pittsburgh, where it may be abridged at will, but that it shall not be
questioned in any part of the [C]ommonwealth. Thus, regulation of
firearms is a matter of concern in all of Pennsylvania, not merely in
Philadelphia and Pittsburgh, and the General Assembly, not city
councils, is the proper forum for the imposition of such regulation.
681 A.2d at 156 (emphasis added); accord Clarke, 957 A.2d at 364 (invalidating
local ordinances that “regulate[d] firearms – an area that both Section 6120[(a)] and
[Ortiz] have made clear is an area of statewide concern over which the General
Assembly has assumed sole regulatory power”).
10
Notably, the Supreme Court’s plurality decision in Robinson Township did not endorse
or reject our Court’s Article I, Section 1 substantive due process analysis and deemed the
environmental statute at issue unconstitutional on other grounds. Justice Baer, in his Concurring
Opinion, specifically stated that he agreed with our Court’s substantive due process analysis and
believed it was the proper basis for ruling that the challenged statute was unconstitutional. See
Robinson Twp., 83 A.3d at 1001-08 (Baer, J., concurring).
EC - 23
Critically, however, Ortiz did not involve a substantive due process challenge
under Article I, Section 1 of the Pennsylvania Constitution, as is alleged in this case.
In light of Ortiz’s holding that the “regulation of firearms is a matter of concern in
all of Pennsylvania,” this Court is being asked to balance the constitutional right of
Petitioners to defend their lives and liberty under Article I, Section 1 and the
constitutional right of all Pennsylvania citizens to bear arms under Article I, Section
21. That question was not before the Supreme Court in Ortiz. Therefore, I do not
believe Ortiz bars the present substantive due process challenge to the Firearm
Preemption Statutes.
Furthermore, 26 years have passed since Ortiz was decided. The United States
of 1996 is very different from the United States of 2022. As painstakingly described
in the Petition for Review, gun violence in our country and in our Commonwealth
has reached epidemic levels and is wreaking havoc on the lives of the individual
Petitioners and their families. Perhaps it is time for our Supreme Court to revisit
Ortiz in light of these circumstances.
At this stage of the proceedings, this Court need only consider whether the
Petition for Review adequately alleges a substantive due process claim under Article
I, Section 1 of the Pennsylvania Constitution. I believe that it does. Therefore, I
would overrule this objection.
C. Interference with Delegation
Lastly, I disagree with the Majority’s conclusion that Philadelphia (the only
Petitioner to assert this claim) has failed to state a viable claim of interference with
delegated duties. In the Petition for Review, Philadelphia avers that Section 6120(a)
impermissibly interferes with the public health-related duties that the
Commonwealth expressly delegated to it under both the LHAL and the DPCL.
EC - 24
Section 10(c) of the LHAL provides in pertinent part: “After it has been
established, the county department of health . . . shall prevent or remove conditions
which constitute a menace to public health.” 16 P.S. § 12010(c). In this case,
Philadelphia has specifically alleged that gun violence is a menace to the public
health of its residents. Pet. for Rev. ¶¶ 32-35, & 148. It has also offered specific
examples of how gun violence poses a health risk to the individual Petitioners who
reside in high-crime, low-income neighborhoods in Philadelphia. See id. ¶¶ 9-18.
Philadelphia avers that without localized gun control measures, it is unable to protect
its residents from the high rate of firearm homicides, id. ¶ 32, the mental health crisis
manifest in increasing firearm suicides occurring in Philadelphia, id. ¶ 36, and the
physical and mental health crises experienced by residents of high-crime
neighborhoods due to their fears of gun violence, id. ¶¶ 9-18.
Section 3(a) of the DPCL states:
Local boards and departments of health shall be primarily responsible
for the prevention and control of communicable and non-
communicable disease, including disease control in public and private
schools, in accordance with the regulations of the board and subject to
the supervision and guidance of the [Pennsylvania D]epartment [of
Health].
35 P.S. § 521.3(a) (emphasis added).11 Under this provision, the Commonwealth
has delegated to Philadelphia the primary responsibility of preventing and
controlling “non-communicable disease” and the authority to address conditions
within its borders that contribute to the spread of non-communicable disease. In this
case, Philadelphia avers that gun violence contributes to the spread of disease in
11
Section 2(f) of the DPCL defines “local board or department of health” as “[t]he board
of health or the [d]epartment of public health of a city, borough, incorporated town or township of
the first class, or a county department of health, or joint county department of health.” 35 P.S. §
521.2(f).
EC - 25
Philadelphia by filling hospital beds with individuals injured by gun violence,
inflicting severe mental trauma on the victims of gun violence, and imposing other
public health-related ills on the city’s institutions. See Pet. for Rev. ¶¶ 13(e), 34, 36,
40, 49, 51, & 52; cf. Pa. Rest. & Lodging Ass’n v. City of Pittsburgh, 211 A.3d 810,
828-29, & nn.17-18 (Pa. 2019) (concluding that a city ordinance requiring paid sick
leave “relat[es] to disease prevention and control” by preventing sick individuals
from showing up to work).
Respondents contend that neither the LHAL nor the DPCL grants
Philadelphia the authority to enact legislation in areas expressly preempted by the
General Assembly. Philadelphia, however, does not argue that the statutes grant
such authority; rather, Philadelphia argues that it has been given the responsibility,
but not the authority, to pass local regulations to address the public health crisis
caused by gun violence. Philadelphia avers that, in this way, Respondents have
interfered with its statutorily delegated duties.
Our Supreme Court has recognized that the Commonwealth has a
fundamental duty to “maintain order and to preserve the safety and welfare of all
citizens.” Cnty. of Allegheny v. Com., 490 A.2d 402, 410-11 (Pa. 1985). Pursuant
to the LHAL and the DPCL, the Commonwealth expressly delegated a portion of
this duty to Philadelphia, by charging county health departments with the “protection
and promotion of the health of the people,” Section 2(a) of the DPCL, 16 P.S. §
12002(a), the prevention or removal of “conditions which constitute a menace to
public health,” Section 10 of the DPCL, 16 P.S. § 12010, and the prevention and
control of the spread of “non-communicable disease,” Section 3(a) of the LHAL, 35
P.S. § 521.3(a). Petitioners aver that by continuing to enforce and expand the
Firearm Preemption Statutes, Respondents have deprived Philadelphia of its ability
EC - 26
to carry out these duties, because it cannot enact life-saving ordinances that would
protect its residents from gun violence. See Pa. Rest., 211 A.3d at 828 (explaining
that the DPCL is “a holistic scheme that, for purposes of disease prevention and
control, favors local regulation . . . over state-level regulation, and correspondingly
allows local lawmakers to impose more stringent regulations than state law
provides”) (emphasis added); Section 16 of the DPCL, 35 P.S. § 521.16 (allowing
municipalities to “enact ordinances or issue rules and regulations relating to disease
prevention and control, which are not less strict than the provisions of this act or the
rules and regulations issued thereunder by the [State Advisory Health B]oard”).
In rejecting Petitioners’ interference with delegation claim, the Majority relies
exclusively on Ortiz and concludes that its holding necessarily forecloses
Petitioners’ claim. I cannot agree. As discussed above, Ortiz involved
Philadelphia’s authority to enact gun control legislation pursuant to its home rule
charter. The petitioners in Ortiz did not raise an interference with delegation claim,
nor was the Supreme Court asked to consider the impact of Section 6120(a) on
Philadelphia’s statutorily delegated duties under either the LHAL or the DPCL.
I would conclude that the Petition for Review states a legally sufficient claim
that Respondents have impermissibly interfered with Philadelphia’s statutorily
delegated duties under the LHAL and the DPCL. Therefore, I would overrule this
objection.
VIII. Conclusion
It is well settled that “[i]n order to sustain preliminary objections, it must
appear with certainty that the law will not permit recovery, and any doubt should be
resolved by a refusal to sustain them.” Pa. Virtual Charter Sch. v. Dep’t of Educ.,
244 A.3d 885, 889 (Pa. Cmwlth. 2020) (en banc) (emphasis added). I would
EC - 27
conclude that Respondents have not shown with certainty that the law will not permit
recovery in this case. I believe Petitioners have pled sufficient facts to overcome
Respondents’ Preliminary Objections, except for their challenge to CeaseFire PA’s
standing.
While I recognize that Ortiz is binding precedent, it did not address the
specific constitutional challenge asserted here. Ortiz was also decided in 1996. In
the nearly three decades since that decision, gun violence in our Commonwealth has
skyrocketed, increasing exponentially in the past few years alone. Allowing local
municipalities to adopt more stringent regulations to protect their residents from gun
violence is becoming an increasingly urgent matter. As Justice Russell Nigro
convincingly stated in his Dissenting Opinion in Ortiz: “[W]henever the state
legislature fails to enact a statute to address a continuing problem of major concern
to the citizens of the Commonwealth, a municipality should be entitled to enact its
own local ordinance in order to provide for the public safety, health and welfare of
its citizens.” 681 A.2d at 157 (Nigro, J., dissenting). I could not agree more.
Therefore, I would overrule each of Respondents’ Preliminary Objections to
the Petition for Review, except for the objection challenging CeaseFire PA’s
standing. For these reasons, I respectfully dissent from the Majority’s Opinion.
__________________________________
ELLEN CEISLER, Judge
Judge Wojcik joins in this Dissenting Opinion.
EC - 28