Doylestown Intelligencer | By Jo Ciavaglia | March 6, 2012
Local state representatives are mostly mute on where they stand on a controversial bill that seeks to give gun owners and membership groups such as the National Rifle Association the ability to sue municipalities they perceive as violating state law.
Under proposed state legislation, any legal gun owner who might be subject to the laws could challenge a municipality, even if they have not been adversely affected by the law.
It would also give “membership organizations” the right to sue on behalf of their members.
House Bill 1523 also sets harsh penalties for municipalities including allowing a plaintiff to seek reimbursement for triple the amount of actual damages, even if the local law is repealed before a ruling. It also allows an additional $5,000 penalty.
The bill, which could go to the House floor for a vote later this month, is believed to target the 30 Pennsylvania municipalities, including at least two in eastern Montgomery County, that have enacted local laws that require gun owners to report missing handguns to law enforcement.
Supporters of gun reporting laws contend they target illegal handgun sales and transfers by straw purchasers — people who can legally own a handgun who then sell them or give them to a third party without proper background checks and registration. In those cases, the handgun remains registered in the legal purchaser’s name.
An NRA spokesman and others denied that House Bill 1523 targets local municipalities that require gun owners to report lost or stolen handguns. They contend the bill is designed simply to set penalties for municipalities that violate state law.
“It reinforces already what is in state law. If a local municipality decides to enact a law regulating firearms and ammunition (that) is contrary to state law they are going to pay,” NRA’s Pennsylvania lobbyist John Hohenwarter said. “If they believe they have an ordinance that is not contrary to state law they have nothing to worry about.”
But critics call the bill “special interest legislation at its worst,” contending it sets a precedent for the Legislature to rewrite legal principles to favor special interest groups. They say it also changes the rules of damages, creating a one-sided system where plaintiffs who sue local governments can recover costs and damages even from governments that rescind ordinances.
“State law pre-empts local regulation of lawful use, ownership, possession, transfer or transportation of firearms,” said Max Nacheman, director of the gun-control group CeaseFirePa. “When a gun is lost or stolen, the lawful owner no longer possesses it, and the person who does, does not possess it lawfully.”
Pennsylvania courts have not ruled on the merits of local gun reporting laws and whether they violate state regulations. Twice Pennsylvania’s highest court has struck down NRA legal challenges to local gun reporting laws. The courts ruled the group had no legal standing to sue because the laws did not directly impact them.
Local House lawmakers have mixed opinions on the bill. Of the 14 Bucks and eastern Montgomery county representatives, seven responded to requests for comment.
John Galloway, D-140, and Steve Santarsiero, D-31, both oppose it.
“I stand with law enforcement on this issue,” Galloway said. “I am a strong supporter of our Second Amendment right but that right comes with responsibilities. One of those responsibilities should be to report a lost or stolen gun.”
Santarsiero called the bill an overreach, adding that if people have a problem with a local ordinance their recourse is to that local government.
“Once again Harrisburg is trying to dictate to local governments,” he added. “And I say there is absolutely no reason to overturn local ordinances that merely require that owners of guns to inform the police when they’re lost or stolen.”
Rep. Paul Clymer, R-145, said that he’d vote to pass the bill. “If municipalities begin to enact gun laws on their own you’d have a hodgepodge of laws across the 67 counties.”
Rep. Scott Petri, R-178, said he knows little about the bill. “Further, there are numerous amendments so it’s impossible to determine the merits of the bill until after all of the amendments are considered.”
Bensalem Rep. Gene DiGirolamo, R-18, said he was undecided as of Friday.
“I am still reviewing the bill and, as I understand, a large amount of amendments,” he said. “I do believe that firearm regulations should be uniform across the entire state.”
Rep. Frank Farry, R-142, said he supports the uniformity of firearm rights, but called the penalties in the bill excessive.
“I have very mixed feelings about the bill,” Farry added. “Ultimately, that municipality is the taxpayer.”
No Bucks or eastern Montco county lawmakers are bill co-sponsors, but two local lawmakers who serve on the judiciary committee — Rep. Bernie O’Neill, R-29, and Rep. Todd Stephens, R-151 — were among the 19 committee members who voted in favor of it, allowing the bill to move to the full House floor.
Two municipalities in Stephen’s district, Abington and Ambler, have enacted local lost or stolen gun reporting laws. Hatfield, part of Rep. Robert Godshall’s 53rd district, has a law too. The newspaper was unsuccessful in reaching Godshall or O’Neill for comment last week.
Stephens, the committee’s secretary and a former Montgomery County prosecutor, said the bill is not targeting lost and stolen gun reporting laws.
“The words lost and stolen don’t appear anywhere in it,” he said. “The bill only says if a municipality violates state law, it doesn’t say how.”
As far as his opinion on the local gun reporting laws, and whether they violate state gun laws, Stephens answered, “It is hard to say.” A judge would be the one to determine if a municipality’s law is in violation, he said.
“The same way I don’t think a person should illegally transfer a gun, I don’t think a municipality should violate state law,” he added.
That said, Stephens added that gun owners should report missing guns, but he doesn’t see mandating reporting as a panacea to solving gun violence.
He has seen no evidence either way that shows whether reporting laws reduce violent crime or stop straw purchasers, and worries they waste police resources.
Pennsylvania already has tough penalties on the books for straw purchasers, while violations of reporting laws are summary offenses, similar to a traffic citation. Illegal gun sales are a felony and the gun owner of record can be held civilly and criminally liable for any crime committed with an illegally sold or transferred gun.
But supporters of missing gun reporting laws say they fight illegal gun trafficking by enabling police to respond quicker to a report that a gun is missing, and possibly return it to its owner, and stops straw buyers from evading responsibility by claiming a gun used in a crime was stolen or lost.
CeaseFirePa’s Nacheman said his group does not have any specific data on the effectiveness of reporting laws, because it’s impossible to know how many guns are actually lost or stolen, since straw purchasers can’t be caught until police identify them.
But he pointed to 2010 data that shows states without mandates to report missing handguns to police supply nearly three times as many crime guns to other states as states with handgun reporting requirements.
In the seven states — including neighboring New Jersey — and D.C. where gun owners are required to report missing guns an average of 6.2 guns per 100,000 people are recovered at crime scenes in other states. While from states that do not require reporting of missing guns an average of 16.1 guns per 100,000 people are recovered at crime scenes to other states.