Philadelphia is suing Pennsylvania so the city can enact stronger gun control laws

Updated 6:51 p.m.

The City of Philadelphia is suing Pennsylvania so it can enact stronger gun safety laws and curb the epidemic of violence roiling the city.

In the lawsuit, Philadelphia is asking a judge to invalidate a set of regulations under the Pennsylvania Uniform Firearms Act, so it and other municipalities are free to pass their own measures aimed at curbing gun violence.

Brought on behalf of Philly and Pittsburgh residents who have been directly impacted by gun violence, the suit was filed Wednesday in Commonwealth Court.

City officials gathered at Germantown’s Happy Hollow Recreation Center to announce the action, a location chosen “due to historical rates of gun violence in the area,” said Patricia Gillett, spokesperson for Council President Darrell Clarke.

“The simple reality is what we’re asking for from the commonwealth is completely reasonable,” Clarke said on Wednesday.

One plaintiff in the suit, Tamika Morales says the death of her son Ahmad Morales on July 3 had been a nightmare. pic.twitter.com/OAv9CHirBn

— Layla Jones (@bae_lay) October 7, 2020

Several gun control advocacy groups are also listed as plaintiffs in the suit.

“If [Harrisburg lawmakers] are going to abdicate their responsibility and their duty to save the lives of constituents through common sense policy, then they need to let other elected officials step up at the local level to do that duty,” Adam Garber, executive director of CeaseFire PA, one of the plaintiffs, told Billy Penn and WHYY News.

The suit comes as Philadelphia reached a dark milestone of at least 366 murders this year, surpassing the number of victims for all of 2019 with nearly three months to go, a decade-long high.

Homicide is now one of the leading causes of death for Black men in Philly, Health Commissioner Dr. Thomas Farley said Wednesday, adding that the city sees more deaths from gun violence than from diabetes.

City Solicitor Marcel Pratt says there’s clear evidence the state’s preemption laws endanger low income Pennsylvanians and communities of color

— Layla Jones (@bae_lay) October 7, 2020

It’s unclear if any of the bills local lawmakers want to pass would actually fix the gun violence epidemic. Efforts like making parks into gun-free zones and banning assault weapon sales have had varying effects in other cities trying to reverse spikes in shootings. But Philly hasn’t yet gotten a chance to try.

“Members of the General Assembly have even gone so far to even refuse to have serious discussions about developing laws that would address the gun violence costing Pennsylvanians their lives,” said Garber, of CeaseFire PA.

The lawsuit hammers home this point.

It argues the Pennsylvania Legislature has repeatedly prevented municipalities from enacting “sensible policies” aimed at curbing gun violence. It argues this violates not just residents’ constitutional right to “enjoy and defend life and liberty,” but also the legislative body’s obligation “to maintain order and preserve the safety and welfare of all citizens.”

The suit also says the General Assembly has refused to pass — and in some cases even discuss — “evidence-based” gun safety legislation at the state level, exposing residents to “direct risk” of gun violence. In particular, residents in low-income Black and Hispanic communities.

In addition to the commonwealth, the action also names the state General Assembly, Speaker of the House Bryan Cutler (R- Lancaster) and Senate President Pro Tempore Joe Scarnati (R-Jefferson).

Neither Cutler nor Scarnati responded to a request seeking comment.

A spokeswoman for Gov. Tom Wolf said the administration cannot comment on the litigation because it has not seen the suit.

“But the Wolf Administration has pushed the legislature for years to take action to protect communities against gun violence,” said Lyndsay Kensinger in an email.

Suing the commonwealth is a dramatic measure, but it’s been tried before.

Led by Clarke, the city in 2007 sued Pennsylvania for failure to act on gun safety legislation. There were 391 homicides in Philadelphia that year.

The suit was eventually dismissed by the Commonwealth Court. While saying they understood “the terrible problems gun violence poses,” a panel of judges ruled 4 to 1 that the city could not institute its own gun control measures because of existing preemption “imposed by the legislature.”

The city began mobilizing resources to sue the state again this January.

Council then passed a provision allowing the city to employ a robust legal team. In the action announced Wednesday, attorneys from the Public Interest Law Center and Hogan Lovells will provide pro bono services, and represent the city along with Philadelphia Law Department staff.

A new legal strategy is being used this time around, according to City Solicitor Marcel Pratt, with arguments based around the “state-created danger” doctrine.

It’s too early to say if the strategy will pay off. And it could be months, even years before a final decision is reached.

Adam Skaggs, chief counsel for the Giffords Law Center to Prevent Gun Violence, said it’s always challenging to undo state laws because they are crafted and passed by democratically elected representatives. By extension, those measures are generally presumed to be valid and allowed to stand.

But Skaggs said the city’s lawsuit is not a non-starter.

Here are a few of the ideas city lawmakers have presented to battle gun violence in Philadelphia over the past decades.

Make parks and playgrounds into gun-free zones

Introduced in July 2019, City Council’s Safe Haven legislation would prohibit guns from certain sites, including playgrounds and rec centers. It was spurred by two consecutive shooting incidents at or near rec centers that summer. The day after state and local legislators gathered at a North Philly rec center to announce the initiative, someone was shot there.

State Rep. Donna Bullock led the effort for the corresponding state legislation in Harrisburg. It remains stalled in the Republican-controlled General Assembly.

Proposed by Council President Clarke and Councilmember Cindy Bass, the city legislation would ban guns, knives and other deadly weapons from municipal parks, recreation centers and playgrounds. Violations would face a $2,000 fine, 90 days in jail or both.

A study on the effectiveness of different gun-control measures done by the Rand Corporation found no evidence that so-called “gun-free zones” increased or decreased the number of gun violence incidents. Proponents say such measures are predecessors to more stringent initiatives like metal detectors and bag checks. Opponents say they strip a space from having the protection of responsible, licensed gun owners. Worth noting, federal law prohibits guns within 1,000 feet of a school, where 13% of all public mass shootings took place between 2009 and 2018, one study showed.

Ban assault weapons

In the 90s, Philadelphia legislators including former councilmembers Angel Ortiz, David Cohen and Jannie Blackwell sued the commonwealth after an unsuccessful attempt at banning assault weapons. Philly was joined by Pittsburgh, where an assault weapons ban was also struck down by the state.

The Pennsylvania Supreme Court ruled the Legislature’s preemption clause had “denied all municipalities the power to regulate the ownership … transfer or possession of firearms.”

The Rand Corporation study found evidence that banning assault weapons decreases violent crime inconclusive.

Outlaw ‘straw purchasers’

Two decades later, the city tried again to regulate gun crimes by banning assault weapons and outlawing “straw purchasers,” or people who buy guns for others who cannot legally purchase the weapons.

Referencing the Supreme Court decision in the Angel Ortiz case, an appellate court ruled state law prohibited municipalities from enacting any gun regulation ordinances, even though the laws only gave local authorities the ability to act on behaviors that were already illegal.

Correction: This article has been updated to note the accurate count of Philadelphia homicides in 2007; police recorded 391 murders in the city that year.