S. Crawford v. The Com. of PA - 562 M.D. 202

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.

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(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

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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.

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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

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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

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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 –

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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.

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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

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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;

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(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

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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

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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.

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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

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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).

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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.

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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).

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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

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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

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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.

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