Philly’s new legal strategy to bypass the state and enact gun laws

Philadelphia is again suing the state so it can enact its own gun laws, using a new legal strategy called "state-created danger" the city thinks could help them win this time.

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Tamika Morales holds a photo of her son, Ahmad, who was killed July, 2020, in South Philadelphia. (Kimberly Paynter/WHYY)

Tamika Morales holds a photo of her son, Ahmad, who was killed July, 2020, in South Philadelphia. (Kimberly Paynter/WHYY)

Philadelphia is suing state of Pennsylvania so it can enact stronger gun control laws, as at least 391 people have been murdered in the city so far this year. Philly has tried this before — in 2007, the city sued the state for preempting local gun laws and failing to take action on gun violence, without success. There were 391 homicides in the city that entire year.

WHYY criminal justice reporter Aaron Moselle and Billy Penn’s Layla A. Jones explain why attorneys hope a new legal strategy involving something called the “state-created danger” doctrine could help the city win this time.

Hear the whole story on The Why

Interview Highlights

On what measures the city wants to put in place

LAYLA: There’s a long list. City Council wants to create a gun-free zone by prohibiting guns from public areas like parks, playgrounds and rec centers. They want to ban assault-style weapons locally and really be able to enforce that ban locally. And [they want to] to help curb straw purchasing, which is someone purchasing a bunch of guns illegally for someone who can’t legally own them. And that already is illegal, but the city wants to put more stringent measures on it, so that would mean they would want to make it impossible to buy more than one gun per month …

The city has tried to pass and has passed locally, but the city solicitor, Marcel Pratt, he explained at the press conference that, “these laws and others are on the books in Philadelphia, but cannot be enforced due to preemption. But for preemption, Philadelphia would be enforcing these policies today.” The issue is they can’t ever go into effect because they keep coming up against this Pennsylvania Uniforms Firearms Act.

On the city using the ‘state-created danger’ doctrine as a legal strategy

AARON: The argument in this lawsuit is that by not allowing Philadelphia to create its own gun-control regulations that could reduce gun violence, the state is violating [its] constitutional duty. And the way the city plans on proving this harm is something called the “state-created danger” doctrine. Normally, this doctrine is used in cases involving an individual or a small group of people … in cases where the state had a responsibility to care for somebody or to act in a certain way and did not fulfill that duty.

In this case, what the city is going to do is apply the state-created danger doctrine to the general public — specifically Philadelphia and other communities across the state who have been impacted by gun violence; specifically Black and Latino communities in Pennsylvania [that] have been hardest hit.

On what happens next

AARON: Now that Philly has filed a lawsuit in Commonwealth court, the General Assembly and the other defendants that are named in the suit, which also includes the Wolf administration and GOP leadership in the House and Senate … they’ll have a chance to respond to the arguments that Philly has laid out. Typically, those responses would be due 30 days after the suit is served.

Gov. Wolf who is a Democrat, supports the ultimate end goal of the suit, which is to reduce gun violence … Right after the suit was announced, the Republican House Majority leader, who is not named in the suit, put out a statement opposing it. He argued that courts have upheld state preemption over and over and that it’s a “necessary component of municipalities being creatures of the state.” He also said that the suit boils down to Democrats making an end-run around the legislature … basically by seeking change in the courts rather than through the legislative process.

And it’s also important to note that if Philly is successful here, it’ll be a pretty big deal, not just for Philadelphia … At least one expert I talked to said that this would set precedent. So other cities around the country that contend with similar issue when they’re trying to deal with their gun violence problem could use similar argument in court to get that chance for themselves to pass local gun laws.

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