In re Gun Range
| Docket Number | 90 C.D. 2021 |
| Decision Date | 27 February 2024 |
| Citation | 311 A.3d 1242 |
| Parties | IN RE: Appeal of the GUN RANGE, LLC Appeal of: The Gun Range, LLC |
| Court | Pennsylvania Commonwealth Court |
Appealed from No. 151003454, Common Pleas Court of the County of Philadelphia, Linda A. Carpenter, J.
Dawn M. Tancredi, Philadelphia, for Appellant.
Jane Lovitch Istvan, Chief Deputy City Solicitor, Appeals, Philadelphia, for Appellee City of Philadelphia.
Meghan K. Finnerty, Philadelphia, for Appellees Regina Young, Spring Garden Civic Association, Lawrence Rust, Justino Navarro, Bryan Milley, Heeding God’s Call to End Gun Violence, and Patricia Freeland.
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge, HONORABLE ANNE E. COVEY, Judge, HONORABLE MICHAEL H. WOJCIK, Judge, HONORABLE CHRISTINE FIZZANO CANNON, Judge, HONORABLE ELLEN CEISLER, Judge, HONORABLE LORI A. DUMAS, Judge, HONORABLE STACY WALLACE, Judge
OPINION BY JUDGE DUMAS
The Gun Range, LLC (Gun Range) appeals from an order of the Court of Common Pleas of Philadelphia County (trial court), entered January 6, 2021, which affirmed the decision and order of the Philadelphia Zoning Board of Adjustment (Board) and denied its application to operate a gun shop on its property. Gun Range asserts that the Philadelphia Zoning Code1 violates its Second Amendment, U.S. Const. amend. II, right to operate a gun shop in the commercial districts of the City of Philadelphia (City). For the reasons stated below, we conclude that these zoning provisions, which regulate the commercial sale of arms, are not subject to the robust protection of the Second Amendment right to keep and bear arms. Therefore, we affirm in part the order of the trial court, albeit on different grounds. However, Gun Range further asserts that the Code is unconstitutional because it is de facto exclusionary. Upon review, it is apparent that the trial court has yet to review this claim. Accordingly, we vacate its order in part and remand with instructions for the trial court to address this claim in the first instance.
Gun Range operates a shooting range located in the City. In 2015, the owner of Gun Range sought to open a gun shop on its premises and, to that end, filed an application with the Board of Licenses and Inspections (L&I). L&I denied the application on two grounds. First, the Code only permitted gun shops by right in 1-3 zoning districts and by special exception in ICMX and 1-2 districts,3 but Gun Range is located in a CMX-2 commercial district. Second, gun shops are a "regulated use" not permitted within 500 feet of a residential district, and Gun Range was located within 53 feet of a residential district on one side, and 85 feet on another.4
Gun Range appealed to the Board. Initially, Gun Range sought a variance but later informed the Board that it would instead appeal solely on the ground that L&I had erred in denying its application. See Appl. for Appeal, 4/23/15; Notes of Testimony (N.T.) Hr’g, 8/12/15, at 3-5. The Board denied the appeal, and the trial court affirmed. Gun Range then appealed to this Court. Recognizing that the trial court had neglected to address the Second Amendment arguments raised by Gun Range, a panel of this Court remanded with instructions to address those arguments. Rather than address those arguments substantively, the trial court concluded sua sponte and in summary fashion that Gun Range lacked standing to raise any Second Amendment claims. See Trial Ct. Order, 1/5/21, at 1-2.
Gun Range timely appealed again to this Court. During the pendency of this appeal, the United States Supreme Court issued its decision in New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1, 142 S.Ct. 2111, 213 L.Ed.2d 387 (2022), which altered the analytical framework in which we may address Second Amendment claims. Following supplemental briefing from the parties to address Bruen, this matter is now ready for our consideration.
Gun Range asserts that the trial court erred in concluding that Gun Range lacked standing to challenge the Board’s decision on Second Amendment grounds. See Appellant’s Br. at 30-31. Second, Gun Range contends that the Code regulates conduct within the ambit of the Second Amendment and, therefore, runs afoul of the Bruen Court’s decision. See Appellant’s Suppl. Br. at 2-9. Finally, Gun Range contends that the Code is de facto exclusionary because gun shops are only permitted within industrial areas constituting three percent of the City, and not in any commercial district. See Appellant’s Br. at 21-28.
[1] Initially, we consider the trial court’s sua sponte determination that Gun Range lacked standing to challenge the Code on Second Amendment grounds. In our view, the trial court erred for two reasons. First, the trial court may not raise the issue of standing sua sponte, and second, Gun Range possessed derivative standing to bring these claims on behalf of its customers.
[2, 3] Generally, a party seeking redress from the courts must establish standing to bring and maintain an action. Firearm Owners Against Crime v. City of Harrisburg, 218 A.3d 497, 505 (Pa. Cmwlth. 2019), aff'd sub nom. Firearm Owners Against Crime v. Papenfuse, — Pa. —, 261 A.3d 467 (2021). To establish standing, a person must show that they are adversely affected and aggrieved by the matter they seek to challenge. See, e.g., Fumo v. City of Phila., 601 Pa. 322, 972 A.2d 487, 496 (2009) ().
[4, 5] However, it is well settled that a court may not raise a party’s standing sua sponte. Commonwealth v. Koehler, 658 Pa. 658, 229 A.3d 915, 940 (2020) (); Rendell v. Pa. State Ethics Comm’n, 603 Pa. 292, 983 A.2d 708, 717 (2009) (); In re Nomination Pet. of DeYoung, 588 Pa. 194, 903 A.2d 1164, 1168 (2006). Indeed, if a court does raise the issue of standing sua sponte, it will constitute grounds for reversal. See DeYoung, 903 A.2d at 1168 n.6.
For example, in DeYoung, a qualified elector filed a petition objecting to the statement of financial interests attached to the nomination petition of a candidate for state-level office. See id. at 1166. This Court sua spante dismissed the petition for lack of standing, opining that only the State Ethics Commission could challenge the adequacy of a candidate’s statement. See id. In support of its sua sponte dismissal, this Court reasoned that the concept of standing was interwoven with subject matter jurisdiction and, thus, became a jurisdictional prerequisite to the action. See id. at 1166-67.
Upon review, the Pennsylvania Supreme Court soundly rejected this reasoning. "This [Supreme] Court has consistently held that a court is prohibited from raising the issue of standing sua sponte." Id. at 1168 (); accord Bisher v. Lehigh Valley Health Network, Inc., — Pa. —, 265 A.3d 383, 403 (2021) ().
Instantly, the City has not challenged Gun Range’s standing to bring a Second Amendment challenge. See Appellee’s Br. to Trial Ct., 3/6/20. Rather, the City has rejected consistently the substantive merits of Gun Range’s constitutional arguments. See id. at 6-15; see also, e.g., Appellee’s Br., 5/5/22, at 10-27; Appellee’s Suppl. Br., 2/6/23, at 5-20.7
Nevertheless, the trial court sua, sponte reasoned that Gun Range was not a proper party to raise a Second Amendment challenge. See Trial Ct. Order, 1/5/21, at 1-2. According to the trial court, "[t]he Second Amendment rights raised in [Gun Range’s] arguments, such as firearm proficiency and certification, are individual rights that are not held by a commercial shooting range and thus cannot be asserted by [Gun Range], as a commercial entity." See id. The trial court concluded that "[t]his is a matter of standing." Id. at 2.
[6] Standing was not at issue before the Board or raised by any party before the trial court. Thus, as in DeYoung, the court erred by addressing sua sponte Gun Range’s standing. 903 A.2d at 1167-68.
[7–10] Moreover, contrary to the trial court’s analysis, federal case law suggests that the operator of a gun store has derivative standing to assert the subsidiary right to acquire arms on behalf of potential customers. See Pierce v. Soc’y of Sisters, 268 U.S. 510, 526, 45 S.Ct. 571, 69 L.Ed. 1070 (1925); Teixeira v. Cnty. of Alameda, 873 F.3d 670, 678 (9th Cir. 2017) (en banc); Ezell v. City of Chicago, 651 F.3d 684, 702-704 (7th Cir. 2011) (Ezell I).8
In Pierce, two private schools brought suit to enjoin the enforcement of an education act in Oregon, which essentially compelled children’s attendance at public school. 268 U.S. at 529-31, 45 S.Ct. 571. One of the schools argued that the act contravened rights guaranteed it by the Fourteenth Amendment.9 See id. at 533, 45 S.Ct. 571. The Supreme Court noted that the schools were corporations and generally could "not claim for themselves the liberty which the Fourteenth Amendment guarantees." Id. at 535, 45 S.Ct. 571. However, because the Act would cause "arbitrary, unreasonable, and unlawful interference with their patrons and the consequent destruction of their business and property," the schools had a "clear and immediate" interest to bring suit. Id. at 536, 45 S.Ct. 571. Thus, albeit in a different context, Pierce stands for the proposition that a private business may bring suit on behalf of its customers.
In Teixeira, a prospective gun store operator brought an action alleging that a county...
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