In late 2019, Philadelphia asked a court to fine a defendant $2,000 for failing to notify police about his missing pistol. It was the city’s first enforcement action under a decade-old anti-trafficking ordinance requiring gun owners to report lost or stolen firearms within 24 hours after discovering that they’re gone. Philadelphia’s top prosecutors had long written off the ordinance as a violation of Pennsylvania’s pre-emption law, which says that municipalities can’t regulate firearms.
The accuracy of that view is being tested as a judge weighs the defendant’s request for a permanent injunction that would not only derail the case against him but also block Philadelphia from enforcing the ordinance against anybody else. A hearing on the request is scheduled for November 12.
Philadelphia officials expected their enforcement of the lost-and-stolen reporting requirement to be challenged, but they have a renewed appetite for contesting state limits on municipal policymaking as their city, like many around the country, experiences an upswing in violence. With less than two months left in the year, Philadelphia has endured 425 homicides. That’s 69 more killings than the city recorded in all of 2019. Local leaders have attributed the surge to myriad factors, but chief among them, they say, is easy access to firearms, a problem that could be ameliorated if they had more legislative latitude.
“We are in a crisis here,” Kenyatta Johnson, a member of the City Council who chairs Philadelphia’s Special Committee on Gun Violence Prevention, told The Trace. “We have to pass policies to keep illegal guns out of people’s hands, and we can only do that if the Legislature grants us the ability.”
More than 40 states have adopted pre-emption laws to curtail municipal regulatory power over firearms to varying degrees, the results of an effort by the National Rifle Association. Over the last few years, pre-emption laws have stood at the center of legal battles in Ohio and Washington. In Iowa, pre-emption caused Des Moines to abandon prohibitions on bump stocks and high-capacity magazines. And in Arizona, the law forced Tucson to change its practice of destroying firearms seized by police; now, the city must resell those weapons to dealers.
Pre-emption emerged in the context of this year’s presidential election, with critics noting that local governments in states like Pennsylvania and Wisconsin were powerless to ban guns from polling places, despite fears about unofficial poll-watchers intimidating voters.
In Philadelphia, City Council members joined Mayor Jim Kenney in early October to announce that they were suing to have Pennsylvania’s pre-emption law declared unconstitutional. The 95-page complaint accuses the state’s General Assembly of carrying out a campaign to “handcuff” local governments that attempt to ban guns in public parks and recreation centers, require licenses to own firearms, or limit handgun purchases to one per month, among other measures.
The complaint also recounts how, in the 1970s, lawmakers opposed to passing pre-emption warned their colleagues about the public safety risks posed by such a law. “There were legislators from this city saying, ‘Please don’t do this. Here’s what will happen,’” said Joe Grace, a spokesperson for Philadelphia City Council President Darrell Clarke. “‘And the Legislature did it anyway.”
Like Chicago, Los Angeles, and New York, Philadelphia has focused violence prevention efforts on shoring up community programs, increasing trauma services, and improving coordination between city departments, said Johnson, who also co-chairs the City Council’s Public Safety Committee. But the availability of illegal guns remains a top concern. Johnson’s office recently demanded data from the Bureau of Alcohol, Tobacco, Firearms and Explosives in hopes of learning more about the provenance of firearms used in crimes.
“We know the trafficking of guns plays a major role in Philadelphia, and we’re now starting to understand where those guns are coming from,” Johnson said. “Hopefully, we can use this information to prevent these guns from getting into young people’s hands.”
In defending its lost-and-stolen reporting requirement, Philadelphia drew on an analysis by The Trace and local NBC TV stations. The analysis, which looked at data from hundreds of law enforcement agencies around the United States, identified more than 23,000 stolen firearms recovered by police between 2010 and 2016. That tally included more than 1,500 stolen guns involved in murders and other violent acts.
The Trace has also found that the dearth of lost-and-stolen reporting requirements hobbles criminal investigations and insights into gun trafficking networks. Eleven states and numerous cities have adopted reporting requirements, but they are rarely enforced.
Court filings indicate that the city’s targeting of the defendant, Rashad Armstrong, was not happenstance: The 28-year-old former mail carrier and Red Lobster busboy pleaded guilty to gun trafficking-related charges in 2019 after police linked him to several firearms recovered at the scenes of crimes, including a shooting. Philadelphia’s attorneys have seized on that case to bolster their argument that the reporting requirement should be preserved, contending that Armstrong’s “flagrantly unlawful conduct” was “precisely” what the ordinance was meant to address, according to one filing.
But history is not on the city’s side. “There has been a frustrating and decades-long record of losses in the courts by cities that attempted to enforce gun regulations,” said Ben Geffen, a staff attorney with the Philadelphia-based Public Interest Law Center, which is representing gun violence prevention groups aiding the city’s efforts to block Armstrong’s injunction request. “Nevertheless, there is a lot of unexplored terrain, and we don’t believe that the law completely prohibits all local regulations having anything to do with guns.”
That argument faces an adversary in the form of Armstrong’s attorney, Joshua Prince, who’s made a living representing gun owners, stores, and ranges. Prince is an active NRA member and figured prominently in an explosive 2019 revolt against the gun group’s leadership after The Trace and The New Yorker revealed a pattern of self-dealing within the organization.
Prince has taken a much more expansive view of state control over gun policy, contending that it’s the exclusive domain of Pennsylvania’s General Assembly. In October, he led a successful push on behalf of gun rights groups to torpedo three Pittsburgh ordinances passed after the 2018 fatal shooting of 11 worshippers at the Tree of Life Synagogue. The ordinances — which restricted military-style rifles and armor-piercing ammunition, and allowed for the temporary seizure of guns from people deemed a danger to themselves or others — were declared by the judge to be “void and unenforceable.”
Prince did not respond to requests to comment for this article. Attempts to contact Armstrong were unsuccessful.
Philadelphia contends that the reporting requirement is legally permissible because it stops short of restricting the ownership, possession, transfer, or transportation of firearms — the four categories covered under the pre-emption ban. Prince, on the other hand, says the law is all-encompassing, and he has denounced Philadelphia’s arguments as “interpretive jiggery-pokery” and “pure applesauce,” according to filings. The city is only pursuing the lawsuit to “harass” his client, Prince wrote.
A law enforcement investigation pinpointed Armstrong as the original purchaser of at least four guns recovered at crime scenes. Authorities suspected Armstrong of buying the guns on behalf of people who were legally precluded from owning them, a crime known as straw purchasing, court records show. Armstrong falsely reported two guns stolen after one of them was used in a shooting — a common tactic for straw purchasers trying to evade detection from law enforcement. The gun at the center of Armstrong’s alleged lost-and-stolen reporting violation is a Ruger recovered by police in the possession of another person during a May 2018 traffic stop about an hour’s drive west of Philadelphia. When investigators interviewed Armstrong about how he lost possession of the weapon, he said his cousin had taken it without his permission more than a week earlier, putting him beyond the 24-hour deadline for reporting it missing.
The 2009 reporting requirement went unenforced until after Philadelphia District Attorney Larry Krasner, an NRA critic, announced plans to begin filing charges to crack down on straw purchasers’ ability to use false alibis to sidestep legal penalties.
Krasner’s predecessor, Lynne Abraham, who was district attorney from 1991 to 2010, testified before the City Council during its debate over the reporting requirement and a slate of other gun-control laws. Abraham told The Trace that she thought the laws would have been useful, but from a legal standpoint, she doubted their weight. “They were unenforceable and worthless,” Abraham said, recalling her testimony. “They would be immediately challenged, and immediately they were.”