Firearms Owners Against Crime
Institute for Legal, Legislative and Educational Action
Institute for Legal, Legislative and Educational Action
Attorneys representing Harrisburg will face a gun rights group in Dauphin County Court Friday in an effort to shoot down a lawsuit that threatens the city's finances and gun ordinances.
In preparation for the court hearing at 9 a.m. Friday, attorneys for Harrisburg filed three motions Thursday that aim to:
In court Friday, the McShane Law Firm plans to argue for a preliminary injunction, which would prevent Harrisburg from enforcing its gun ordinances while the lawsuit is pending.
The McShane Law Firm on Jan. 13 filed the first of two lawsuits challenging Harrisburg's gun ordinances under a new, expanded state law known as Act 192. The new law allows any legal gun owner in the state to sue municipalities over gun regulations and force those municipalities to pay their legal and attorney fees.
Several municipalities across the state have already repealed their gun ordinances, fearing expensive lawsuits that could bankrupt them. Several other cities, including Harrisburg, have stood firm on their ordinances, saying the regulations are legal, reasonable and important for public safety.
Justin McShane, of the McShane Law Firm, told PennLive Thursday night that he had offered earlier in the day, in writing, to drop the lawsuit and all attorney fees if Harrisburg would simply rescind its ordinances, which he claims are illegal under the state's preeminence in regulating firearms.
"Please take our offer," he said, directing his comments at Mayor Eric Papenfuse. "It would be one thing if the attorney's fees and money came from the private household expenses of the mayor and city council members, but for all of the money that it is going to take to litigate this, I am ashamed to think of where that money could go to put more police officers and victims services in place to make a real impact on crime."
The first motion filed by Harrisburg on Thursday asks the court to press the pause button on the McShane lawsuit while the Commonwealth Court reviews the constitutionality of Act 192 in a case filed by the cities of Philadelphia, Lancaster and Pittsburgh.
The attorneys for Harrisburg, Frank J. Lavery, and Joshua M. Autry, wrote in their motion that the city intends to join the petitioners in that case, but are contemplating the best way to do it without disrupting the expedited briefing schedule. A hearing in that case is set for April 15.
"Prudence dictates that this Court let the Commonwealth Court, sitting en banc, rule first," the motion said. "For this Court to proceed with this case, including... defendants' preliminary objections which raise the identical issue to be decided shortly by Commonwealth Court, would effect a tremendous waste of judicial resources, and would risk inconsistent rulings between this Court and the Commonwealth Court."
The motion notes that the McShane Law Firm is trying to begin depositions and the discovery process with city officials, which could be costly for Harrisburg and, unnecessary if the Commonwealth Court strikes down Act 192.
Harrisburg's second motion asks the court to deny McShane's request for a preliminary injunction, because the city's ordinances have been in effect from five to 64 years, so a few more months "won't hurt" the plaintiffs.
To gain the injunction, the plaintiffs must prove they will suffer immediate injury, the motion said, but the plaintiffs have not suffered any injuries to date from the longstanding ordinances.
The final motion, to disqualify Justin McShane and his firm, from the case, argues that McShane can't act as both as attorney and plaintiff.
His representation is "clearly improper," the motion said, because McShane will have to testify in the case as a witness and his interests would likely diverge from the other plaintiffs.
In one example of a possible conflict of interest, the motion said McShane could have a vested interest in continuing litigation to rack up legal expenses when other plaintiffs may be satisfied with a no-money exchanged or reduced fee settlement.
The court filings gave the first glimpse of Harrisburg's defense strategy, at least for the McShane lawsuit. A second lawsuit filed by the Prince Law Office, will likely end up in federal court and may require a different defensive strategy.
Thursday's filings contend the plaintiffs:
Have not suffered any injuries and therefore don't have rights at stake in the case.
Don't have authority for their position that any gun regulation violates the Second Amendment or Pennsylvania's right to bear arms. "Plaintiffs can cite no legal authority for their position...because no Judge or Justice agrees with them. For now, it is worth noting that the U.S. Supreme Court cases in Heller and McDonald struck down complete bans on handguns. Harrisburg's ordinances do not come close to that. Indeed, as will be explained in more detail, the U.S. Supreme Court cited Philadelphia's ban on the discharge of guns as a longstanding reasonable restriction. There can be little doubt that Courts would find the same regarding Harrisburg's."
Can't contend the regulations prevent them from defending themselves or cite a single instance of the ordinances being applied in a self-defense case. "Nor is there any reason to believe that now Harrisburg will start applying the ordinances in such a way and start enforcing the ordinances against people who discharge their weapons in self-defense.
UPDATE: The first few sentences of this article were adjusted to emphasize the court hearing on Friday morning.
http://www.pennlive.com/midstate/index.ssf/2015/02/harrisburg_tries_to_shoot_down.html