Firearm Owners Against Crime v. Papenfuse

Decision Date20 October 2021
Docket NumberNo. 29 MAP 2020,29 MAP 2020
Citation261 A.3d 467
Parties FIREARM OWNERS AGAINST CRIME; Kim Stolfer; Joshua First; and Howard Bullock, Appellees v. City of Harrisburg Mayor Eric PAPENFUSE; and Police Chief Thomas Carter, Appellants
CourtPennsylvania Supreme Court

Jasmeet Kaur Ahuja, David Newmann, Esqs., Hogan Lovells US, LLP, William J.W. Crum, Evan W. Guimond, Esqs., for Cities of Philadelphia and Pittsburgh, Amici Curiae.

Martin Jay Black, Luke Michael Reilly, Esqs., Dechert LLP, Andrew S. Bruns, Brook Dooley, Esqs., for CeaseFire Pennsylvania Education Fund, et al., Amici Curiae.

Rodney A. Corey, James Guthrie Mann, Esqs., Pennsylvania House of Representatives, Republican Caucus, for Republican Caucus of the Pennsylvania House of Representatives, Amici Curiae.

Rachel Renee Hadrick, Kandice Kerwin Hull, Esqs., McNees Wallace & Nurick LLC, for County Commissioners Association of Pennsylvania, et al., Amici Curiae.

Seth F. Kreimer, James Christopher Martin, Esqs., Reed Smith LLP, Mary Catherine Roper, Esq., American Civil Liberties Union of Pennsylvania, for ACLU of Pennsylvania, et al., Amici Curiae.

Maureen Murphy McBride, Vincent Matthew Pompo, James C. Sargent Jr., Esqs., Lamb McErlane, PC, for Appellants.

Joshua Garet Prince, Esq., for Appellees.




In this appeal by allowance, we consider whether the Commonwealth Court erred in concluding that Firearm Owners Against Crime (FOAC), Kim Stolfer, Joshua First, and Howard Bullock (collectively, Appellees) had individual and associational standing to challenge four of the City of Harrisburg's ordinances regulating firearms: the Discharge, Parks, Lost/Stolen, and Minors Ordinances. We affirm the Commonwealth Court because we conclude Appellees have standing to bring this declaratory judgment action before the City enforces the challenged ordinances against them.


On January 16, 2015, Appellees filed a complaint for declaratory judgment and injunctive relief1 against the City of Harrisburg, Mayor Eric Papenfuse, and Police Chief Thomas Carter (collectively, City) in the Court of Common Pleas of Dauphin County seeking to have the following Codified Ordinances of Harrisburg ("Code") declared unconstitutional and statutorily preempted:

The "Discharge Ordinance," Code Section 3-345.2 - originally adopted in 1821 - which restricts the discharge of firearms within the City of Harrisburg to firing ranges in educational institutions accredited by the Pennsylvania Department of Education and approved by either the Mayor or Harrisburg Police Chief or a firing range operated by the Bureau of Police;2
The "Parks Ordinance," Code Section 10-301.13 - originally adopted in 1905 - which prohibits the possession and discharge of firearms within City parks;3
The "Minors Ordinance," Code Section 3-245.1 - originally adopted in 1951 - which makes it unlawful for unaccompanied minors under the age of 18 to possess firearms outside of their residences in the City of Harrisburg;4 The "State of Emergency Ordinance," Code Section 3.355.2(A)(1) - originally adopted in 1969 - which prohibits the sale, transfer, or purchase of firearms or ammunition during the period of emergency declaration by the Mayor and further authorizes the Mayor to prohibit the public possession of firearms during such a state of emergency;5 and
The "Lost/Stolen Ordinance," Code Section 3.345.4 - originally adopted in 2009 - which requires firearms owners to report lost or stolen firearms to law enforcement within 48 hours of discovery of the loss or theft.6

Complaint, 1/16/15, at 9-13, ¶¶ 28-37; 18, ¶ 86.

FOAC, a statewide, non-partisan political action committee (PAC), averred that it has 1,649 members and actively works to "defend, preserve, and protect the constitutional and statutory rights of lawful firearm owners." Id. at 2-3, ¶ 3. FOAC alleged that one of its members was a City resident who was under the age of 18 and lawfully possessed firearms. Id. at 16, ¶ 60. Additionally, three individual members of FOAC were named plaintiffs in their individual capacities. Joshua First is a gun owner and City resident who fears prosecution under the ordinances. Id. at 17, ¶¶ 71, 72, 74. Howard Bullock is not a City resident but commutes daily to Harrisburg for work. Id. at 17, ¶ 79. Like First, Bullock lawfully possesses firearms and fears prosecution under the ordinances.

Id. at 17, ¶¶ 77, 80. Kim Stolfer is a member and the president of FOAC. Id. at 16, ¶ 68. He does not live in Harrisburg but travels there regularly. Id. He too lawfully possesses firearms and fears criminal prosecution under the ordinances. Id. at 16, ¶ 66; 17, ¶ 69. Further, all three individual plaintiffs are licensed to carry concealed firearms in Pennsylvania. Id. at 18, ¶ 85.

Before filing their complaint, Appellees expressed to the City their concern that the challenged ordinances are unlawful and requested the City repeal them. Id. at 19, ¶ 89. However, on December 29, 2014, Mayor Papenfuse publicly declared his intent to continue to enforce the ordinances and his refusal to repeal them. Id. The Mayor was quoted in a news article as stating "[t]he city's not going to repeal its ordinances, because our police department feels that they are in the public interest, and I do too[.] ... What responsible gun owner believes guns should be recklessly discharged within the city limits?" Id. at 19, ¶ 90; id. at Ex. B (attaching Christine Vendel, Harrisburg stands firm on gun regulations despite threat of lawsuit , PENNLIVE , Dec. 29, 2014, Further, the same article reported that "Police Chief Tom Carter said officers regularly cite violators for reckless discharge of guns in the city and when minors are caught in possession of firearms. But he could not recall an instance where anyone was cited under the lost/stolen ordinance." Id. at 19, ¶ 91; id. at Ex. B. Additionally, in a January 5, 2015 article, Mayor Papenfuse confirmed that "[p]olice do cite people for [violating the Discharge Ordinance] on a regular basis. That is a sensible measure." Id. at 19, ¶ 92; id. at Ex. C (attaching Dave Marcheskie, Harrisburg mayor fires back against gun ordinance legal threat , ABC27, Jan. 5, 2015).

In their complaint, Appellees asserted that the challenged ordinances violate the Second Amendment of the United States Constitution ("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 infringed") and Article I, Section 21 of the Pennsylvania Constitution ("The right of the citizens to bear arms in defense of themselves and the State shall not be questioned."). Id. at 86. They also maintained that the ordinances are preempted by Section 6120 of the Pennsylvania Uniform Firearms Act (UFA), 18 Pa.C.S. §§ 6101 - 6128, which provides that "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."7 18 Pa.C.S. § 6120(a) ; Complaint, 1/16/15, at 86. Further, Appellees sought injunctive relief to require the City to repeal the challenged ordinances and to prevent the City from enforcing the challenged ordinances or enacting other firearms regulations. Complaint, 1/16/15, at 87.

On February 13, 2015, the City removed the case to the United States District Court for the Middle District of Pennsylvania (district court), which dismissed the suit for lack of subject matter jurisdiction on March 24, 2016, concluding Appellees lacked standing under federal law to challenge the ordinances.

Firearm Owners Against Crime v. City of Harrisburg , No. 1:15-cv-0322, 2016 WL 1162283, at *9 (M.D. Pa. Mar. 24, 2016). On April 25, 2016, the district court remanded the case to the court of common pleas, which then sustained the City's preliminary objection in the nature of a demurrer and dismissed the complaint on October 9, 2018, based on Appellees’ failure to plead sufficient facts to establish standing to sue. The court reasoned:

[Appellees] have not pled any facts to show that they were harmed by any of the subject Ordinances. [Appellees] do not allege that they have ever been cited or personally threatened with citation under any of the Ordinances. Rather, [Appellees] assert potential harm that is entirely speculative, as it is based on events that may never occur. This is an improper use of the Declaratory Judgments Law. See Gulnac by Gulnac v. S. Butler Cty. Sch. Dist. , 526 Pa. 483, 488, 587 A.2d 699, 901 (1991) ("A declaratory judgment must not be employed to determine rights in anticipation of events which may never occur or for consideration of moot cases or as a medium for the rendition of an advisory opinion which may prove to be purely academic.") (citations omitted). As such, [Appellees] have failed to allege facts sufficient to establish standing, and this Complaint should be dismissed.

Trial Ct. Op., 10/9/18, at 4. Appellees appealed to the Commonwealth Court.

In a 6 to 1 en banc decision, the Commonwealth Court affirmed in part and reversed in part the trial court's order. Firearm Owners Against Crime v. City of Harrisburg (FOAC ), 218 A.3d 497, 516 (Pa. Cmwlth. 2019) (en banc). The Commonwealth Court held Appellees had standing to challenge the Discharge, Lost/Stolen, Parks, and Minors Ordinances, but they did not have standing as to the State of Emergency Ordinance. Id. at 515. The court explained that "under a traditional standing analysis, the individual initiating the legal action must show that he is aggrieved by the matter he seeks to challenge", and that "[t]o be aggrieved, the party must have a substantial, direct and immediate interest in the outcome of the litigation[.]" Id . at 506....

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