NATIONAL RIFLE ASS'N v. City of Pittsburgh ( 2010 )

OPINION BY

President Judge LEADBETTER.

This case is an appeal by the National Rifle Association (NRA) and four Pittsburgh gun owners (Individual Appellants) from the decision of the Court of Common Pleas of Allegheny County, which sustained the preliminary objections of the City of Pittsburgh, its City Council, and its Mayor (collectively, City) and dismissed a declaratory judgment action seeking to invalidate a City ordinance which requires gun owners to report missing or stolen guns. The court determined that the NRA and the Individual Appellants (collectively, Appellants) lacked standing.

The ordinance in question mandates that “[n]o person who is the owner of a firearm that is lost or stolen shall fail to report the loss or theft to an appropriate local law enforcement official within twenty-four (24) hours after the discovery of the loss or theft.” Pittsburgh City Code § 624.01. First-time violations are punishable by a fine of up to $500, and subsequent violations are punishable by a fine of up to $1000 and/or imprisonment of up to 90 days.

Shortly after the ordinance was adopted, Appellants filed suit seeking a declaratory judgment that the ordinance was invalid and an injunction barring its enforcement. They alleged that the ordinance was invalid on its face and an ultra vires act because it was preempted by the Uniform Firearms Act (UFA), 18 Pa.C.S. §§ 6101-6126. The UFA provides that: “No county, municipality or township may in any manner regulate the lawful ownership, possession, transfer or transportation of firearms, ammunition or ammunition components when carried or transported for purposes not prohibited by the laws of this Commonwealth.” 18 Pa.C.S. § 6120(a).

The complaint alleged that the Individual Appellants lived in Pittsburgh, owned guns and had valid permits to carry concealed weapons. In addition, three of the Individual Appellants alleged that they lived in areas where residential burglaries are common, and the fourth alleged that a gun belonging to him had been stolen, without specifying if the theft occurred before or after the ordinance was enacted. The City filed preliminary objections to standing and ripeness; common pleas sustained the objection to standing and dismissed the complaint. An appeal to this court followed.

In general, to have standing in a declaratory judgment action, a plaintiff must show that he or she is aggrieved. A litigant successfully makes a showing that he or she is aggrieved if:

[H]e can establish that he has a substantial, direct, and immediate interest in the outcome of the litigation.... An interest is “substantial” if it is an interest in the resolution of the challenge which surpasses the common interest of all citizens in procuring obedience to the law. Likewise, a “direct” interest mandates a showing that the matter complained of caused harm to the party’s interest, i.e., a causal connection between the harm and the violation of law. Finally, an interest is “immediate” if the causal connection is not remote or speculative.

Pittsburgh Palisades Park, LLC v. Com., 585 Pa. 196, 204, 888 A.2d 655, 660 (2005) (internal citations and quotations omitted).

This court considered the standing of the NRA and resident gun owners to challenge a similar ordinance in National Rifle Association v. City of Philadelphia (Philadelphia), 977 A.2d 78 (Pa.Cmwlth.2009) (en banc). In that case, the NRA and several Philadelphia gun owners challenged a number of Philadelphia’s gun-related ordinances, including a theft reporting ordinance that appears to be identical to the one at issue in this case. The individual plaintiffs in that case alleged that they owned guns and lived in the jurisdiction, but did not allege that their guns had ever been stolen. With respect to the theft reporting ordinance, this court affirmed and adopted the decision below, written by then-Judge Greenspan.¹ Philadelphia at 81-82.

Justice Greenspan’s opinion in Philadelphia concluded that the plaintiffs lacked standing to challenge the reporting ordinance because they had not demonstrated direct and immediate harm. National Rifle Association v. City of Philadelphia, CCP Philadelphia County, April Term, 2008, No. 1472, filed July 1, 2008, slip opinion at 7-9, 2008 WL 5746554 (henceforth Greenspan Opinion). She reasoned that the possibility that one of the plaintiffs might lose a gun in the future, fail to report it, and then be punished was remote and speculative.

The only difference between the facts in Philadelphia and the pleadings in this case are that three of the Individual Appellants have pled that they live in areas where residential burglaries are common, and one has pled that a gun of his was stolen in the past. These differences are insufficient to confer standing.

In their brief, Appellants take one line from the Greenspan Opinion and argue that it proves standing in this case. In summing up her opinion, Justice Greenspan wrote, “plaintiffs have failed to show any evidence that any one of them has had a weapon stolen or lost from their collection at any time.... Thus, the line between this possible future illegal conduct and plaintiffs’ alleged injury is too attenuated.” Greenspan Opinion, slip opinion at 9. Appellants argue that this logic works in reverse: that because one Individual Appellant in this case has had a weapon stolen, standing has been demonstrated. However, this simply does not follow; common pleas was evaluating the sufficiency (or lack thereof) of the facts before it, not opining on what facts would be sufficient to establish standing in future cases. Therefore, we must consider whether the averments in Appellants’ complaint in this case are sufficient to establish direct and immediate harm.

Despite the fact that one of Appellants has had a gun stolen at some time in the past, the Individual Appellants have not alleged the direct and immediate harm standing requires. Because Appellants do not allege that the gun was stolen while the ordinance was in force, the facts as pled do not bring them any closer to establishing sufficient harm under the ordinance than the plaintiffs in Philadelphia. The Individual Appellants in this case, like the plaintiffs in Philadelphia, have never violated the ordinance, do not allege that they would disobey the ordinance if one of their guns is lost or stolen, and do not allege that a gun has been lost or stolen since the ordinance has been enacted. One of the Individual Appellants in this case would not be fined under the ordinance unless he had a gun stolen or lost, failed to report it, and was prosecuted for that failure. Because, as in Philadelphia, the possibility of harm is remote and speculative, Appellants lack standing.

Appellants make a number of additional arguments to demonstrate standing, including that the ordinance impermissibly burdens their right to bear arms, creates an affirmative duty to inventory firearms and, as a violation of a statute, is hardship per se. However, these arguments fail because they are controlled by Philadelphia. All three of these arguments are unaffected by the factual differences between this case and Philadelphia, and Appellants have given us no reason why that case is not dispositive. Nevertheless, we will briefly address each argument in turn.

Appellants argue that they have standing because their right to bear arms is impinged upon by the ordinance, even if they are never punished for violating it. However, they cite no authority for the proposition that the right to bear arms precludes a legal responsibility to report stolen firearms. Because we are unconvinced that the ordinance burdens the right, Appellants do not gain standing based on this argument.

Appellants also argue that the ordinance requires gun owners to inventory their firearms to determine if they have been lost or stolen, therefore creating a burden on the Individual Appellants’ current behavior. However, this interpretation is contrary to the plain language of the ordinance. In fact, the ordinance only requires reporting within twenty-four hours of the discovery of the loss, not the loss itself, creating no affirmative duty to inventory firearms. See Pittsburgh City Code § 624.01. Therefore, the ordinance creates no burden on Appellants’ current behavior, and this argument fails.

Finally, Appellants argue that the ordinance violates a statute (namely, the UFA) and therefore creates hardship per se. However, the doctrine of hardship per se is confined to preliminary injunctions for parties who already have standing, and appears to never have been applied to the issue of standing itself. See Pub. Util. Comm’n. v. Israel, 356 Pa. 400, 52 A.2d 317 (1947); Stilp v. Com., 910 A.2d 775 (Pa.Cmwlth.2006); Council 13 v. Casey, 141 Pa.Cmwlth. 199, 595 A.2d 670 (1991). Because Appellants lack standing, they cannot avail themselves of the doctrine of hardship per se.

For all the foregoing reasons, we affirm.

ORDER

AND NOW, this 25th day of June, 2010, the order of the Court of Common Pleas of Allegheny County in the above-captioned matter is hereby AFFIRMED.

1 . Judge Greenspan went on to serve on our Supreme Court, and will subsequently be referred to as Justice Greenspan.