On March 9 at 11 p.m., two gunmen opened fire on dozens of people enjoying an unseasonably warm night at a family cookout in Wilkinsburg, Pennsylvania, a suburb of Pittsburgh. Armed with a .40-caliber handgun and an AK-47-style rifle, the assailants killed five, including a pregnant woman, and wounded three. Investigators have yet to piece together a motive, leaving area officials little to do except sympathize with the pain of the victims and promise to bring the shooters to justice.
Dramatic incidents of gun violence are often followed by public commitments to try to stop the next shooting. John Thompson, the mayor of Wilkinsburg and a member of Mayors Against Illegal Guns, said in the aftermath, “I can say for certain there is more we can do to reduce the senseless violence that claims 91 American lives every day.” But just how much Pennsylvania’s local officials can do in pursuit of that goal is sharply constrained: Thanks to a unique, year-and-a-half-old Pennsylvania law, any city or town that attempts to take gun safety into its own hands risks a costly lawsuit from the National Rifle Association.
Passed by the State Assembly in November 2014, Act 192 allows any resident of Pennsylvania — or, crucially, any larger organization of which he is a member, such as the NRA — to sue a township or city over its gun restrictions, even if the plaintiff lives outside the township or city’s jurisdiction. Just before the massacre in Wilkinsburg, neighboring Pittsburgh was in the final stages of its legal battle to take down Act 192, which the city says strips local leaders of the ability to deal with gun violence.
Act 192 opened the floodgates to individual gun owners and national gun lobbies who didn’t agree with municipal restrictions on firearms. In effect, the act says that as long as a group like the NRA has members in Pennsylvania, the organization has the green light to dip into its litigation war chest to go head-to-head with local governments over their gun ordinances.
That power is something that the NRA had wanted for decades. Under an older, 1974 law, local governments in Pennsylvania have been barred from passing restrictions on the sale, transport, and possession of guns, part of a wave of similar so-called “preemption” laws enacted across the country in the late 1980s and early 1990s in a campaign that stands as one of the NRA’s hallmark legislative victories. In the years since, cities and towns in Pennsylvania have nonetheless moved forward with some new local ordinances, such as limitations on assault weapons or concealed carry.
The local leaders behind those rules believe they do not violate the preemption law. The NRA has begged to differ. But before Act 192, the gun group did not have an easy way to argue its side in court. To bring a case, it had to find actual gun-owning plaintiffs who lived in a city with a restrictive ordinance and could claim to be negatively impacted by those restrictions. Years could go by before the NRA could file a new lawsuit against a single city.
Once Act 192 paved the way to the courts, the NRA acted swiftly, filing lawsuits against the capital city of Harrisburg in December 2014, the month after the law went onto the books. The following month, it sued Pittsburgh, Philadelphia, and Lancaster.
The NRA’s lawsuit against Pittsburgh centered on ordinances that banned carrying in cars and on the person without a license, prohibited the sale of ammunition, and required gun owners to report lost or stolen weapons to law enforcement. The group told a state court that Pittsburgh had no right to adopt those safety measures. When Pittsburgh, in response, decided to hold off on enforcing its stolen gun ordinance, residents showed up to a city council meeting to testify on the continuing neighborhood gun violence that the stolen gun ordinance was meant to address. “I’m getting scared to sleep in my house at night,” said one resident.
As more NRA lawsuits rolled in, more than 20 cities across Pennsylvania began to repeal their firearms ordinances — preemption, as it were, against costly legal battles over whether they had violated the preemption law. Wilkinsburg was one of those cities. In January 2015, the Borough Council repealed its own stolen-guns reporting mandate.
Act 192 contains a particularly devastating provision for local governments contemplating court standoffs against the group. Under the law, if a city loses a lawsuit brought against it, it has to pay — at a minimum — attorneys’ fees, lost income, court expenses, and the cost of expert witnesses. And even if a city repeals its gun laws before a judge makes a ruling, it’s still on the hook for legal costs incurred by the NRA up to that point. Leaving gun ordinances on the books became an untenable financial liability for small governments with limited resources.
Pittsburgh was one of a handful of cities with the wherewithal to push back. While keeping its gun ordinances intact, the city sued the Assembly itself for passing Act 192, arguing it violated lawmaking procedures. The Pennsylvania constitution requires laws to follow through on the “original purpose” of the bill while remaining limited to a single subject. Pittsburgh made the case that Act 192 — filed as an eleventh-hour appendage to legislation brought to address scrap metal theft — didn’t meet that standard.
While Pittsburgh was pressing Pennsylvania courts to rule Act 192 unconstitutional, a judge put the NRA’s lawsuit — which only existed because Act 192 passed — on hold. Last June, the Commonwealth Court took Pittsburgh’s side and agreed that Act 192 was exactly the kind of sneaky hybridization of bills that the Pennsylvania constitution tried to curtail. If every law was passed the way Act 192 was, the court explained, the legislature would have full license to hide its real intentions from the people.
The NRA has appealed that ruling, leaving its lawsuit against Pittsburgh in limbo.
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As it happens, the latest arguments in the case were presented to the Pennsylvania Supreme Court last Wednesday morning, roughly 12 hours before the shooting in Wilkinsburg. The justices seemed unconvinced by assurances from the NRA and Republican lawmakers that Act 192 was legitimate, saying that they didn’t see what the firearms provisions had “to do with stealing copper wire.”
Meanwhile, for the smaller local governments — including Wilkinsburg — who repealed their gun ordinances because they lacked the means for the kind of fight Pittsburgh is waging, pursuing their own solutions to gun violence will remain off the table unless the Supreme Court fully dismantles Act 192. “It seemed to make a lot of sense to repeal and wait,” said the solicitor for a township outside Philadelphia, “and that’s exactly what we’re doing.”
[Photo: AP Photo/Keith Srakocic]