Over the past two weeks, our state legislature showed its true colors, finally putting the big bow on its gift to the NRA by passing the “special standing” legislation we’ve been fighting for years. To ensure its passage, both the Senate and the House met for extra session days, and had to employ several different vehicles and procedural maneuvers (which will be detailed below), but they finally passed this bill—a Bill that is very likely unconstitutional and, at the very least, profoundly reckless, offensive and dangerous.
So now it’s heading to Governor Corbett’s desk and we know that he plans on signing it—the Governor has said as much. At the bottom of this analysis you can review the complete roll calls in both the state Senate and state House, so you’ll be able to see how your state Senator and state Representative ultimately voted on the bill.
THE FRUITS OF OUR LABOR
We know how hard you worked and it made a difference. The legislators know we’re watching them and we know they heard us. Do you want to know how we know?
Without you, we could never have stopped HB 2011 (what this bill was originally called) in its original form as a stand-alone bill.
Without you, we could not have stopped the Senate Judiciary Committee from voting on HB 1243, the “mental health records reporting” Bill to which the House in late September attached as an amendment all of the HB 2011 language.
Without you, we could not have forced the gun lobby to abandon its next move of attaching as an amendment the HB 2011/HB 1243 language to HB 1796, a bill designed to keep domestic violence victims from being discriminated against by landlords and local governments.
And without you, we could not have forced the gun lobby to make a last-ditch, absolutely 11th-hour move to attach the HB 2011/HB 1243 language to HB 80, an otherwise anodyne crime bill designed to increase penalties for criminal trespass and theft of secondary metals (i.e., breaking into homes and business to strip copper wire and pipe for profit).
WHY WE FIGHT
We know that many of you have been following both our e-mail updates and your local/state media coverage regarding this legislation and we’re sure you know the basics about why HB 80 is awful. Simply put, well-meaning (and, in our opinion, lawfully-acting) municipalities who, when faced with a state legislature that has steadfastly refused to act, decided to curb straw purchasing/illegal firearms transfers by passing their own legislation requiring gun owners to report to local authorities the loss or theft of any firearm within (on average) 72 hours of discovering the loss or theft. These municipalities should not be sued into submission by a special-interest group and all of its members, both nationally and statewide.
But just how far this bill goes—taking firearms and public safety completely out of the equation/analysis for now–into demolishing 250+ years of common law, as well as the depths of damage that the legislature is willing to unleash on the Pennsylvania taxpayer, are concepts not easily summarized in a couple-paragraph action e-mail or a 30-second elevator speech. With that in mind, here’s a more detailed analysis of the problems inherent in HB 80.
HOW LEGAL STANDING WILL NOW BE BENCHED
What does “legal standing” mean?
HB 80 does not, as purported, “clarify” or expand the doctrine of preemption. Instead, it undermines the age-old concept of legal standing, which is quite literally the bedrock from which lawsuits originate.
To explain how, here’s an analogy. In this example, “you” are a municipality and the “icy sidewalk” is a local law. Under the current universally-accepted rule of legal standing, someone on the other side of the street can’t sue you just because you have an icy sidewalk; instead, he or she needs to slide on your icy sidewalk and sustain a provable injury (a broken arm, for example). This precludes people who have suffered no loss from recovering damages.
How does HB 80 change the definition of legal standing?
Under HB 80’s new definition of standing, not only can that person from the other side of the street sue you without sliding on your sidewalk, but ALL OF THEIR FRIENDS ON THE OTHER SIDE OF THE STATE who have NEVER BEEN ANYWHERE NEAR YOUR TOWN, LET ALONE YOUR SIDEWALK can now sue you because they are angry that your sidewalk is icy. You don’t need to be a legal scholar to see that this is problematic and fundamentally wrong.
To make this even more unbelievable and offensive, if your neighbor or any of your neighbor’s friends who are now suing you belongs to a so-called “membership organization” (ranging from a local knitting club to the Shriners to the KKK to the—you guessed it!–NRA), that membership organization can also sue you. Crazy, right? But wait—there’s more.
NOWHERE IN HB 80 is there a limitation on the amount of lawsuits that can be filed against—okay, let’s get back to what’s really going on and skip the icy sidewalk—any town that has passed a “lost or stolen gun reporting” law or any other law that imposes some regulation on firearms that the state has not imposed.
Right now, in the vast majority of civil lawsuits filed, each side pays its own legal fees and court costs. Legal fees are often in the thousands (if not tens of thousands) (if not more) of dollars and court costs are at minimum several hundred dollars. Once the case is finally litigated, the losing party will often be held responsible for paying the winner whatever amount of money the winner has proven he/she/it has lost because of the loser. In particularly egregious cases—say, when a party provably acts with the intent to knowingly harm the other party or the harming party’s negligence is so great that it should have known harm was going to occur—some form of “punitive” damages may be awarded.
In nearly every case, each litigating party is responsible for its own court costs, attorney fees, and other costs such as expert witness fees or money lost because of time spent away from work to litigate the lawsuit. “Loser pays” cases are very rare, but in those instances, the losing party pays the other party’s costs in addition to whatever other damages are awarded. However, what’s important here is that “loser pays” provisions APPLY EQUALLY TO BOTH PARTIES in the event that said party loses.
HB 80 turns that standard on its head, as well. No matter what happens in the case, each municipality is on the hook for all of its costs associated with the lawsuit. However, in the event that a municipality loses to one of these plaintiffs—EVEN IF THE PLAINTIFF IS A WELL-FUNDED MEMBERSHIP ORGANIZATION or is working with said membership organization — the municipality is ALSO ON THE HOOK for each Plaintiff’s “reasonable expenses.” According to HB 80, these expenses are “including, but not limited to, attorney fees, expert witness fees, court costs and compensation for loss of income.” This EXPANDS the definition of “reasonable costs” to an unprecedented degree. And once again, NO SUCH PROVISION exists in the law for the plaintiffs/NRA to reimburse the municipalities if the plaintiffs/NRA lose the lawsuit.
Of course, if any of these municipalities decides to buckle before the power of the gun lobby and its allies in the state legislature and repeal the local ordinances before the date that HB 80 takes effect (which will be 60 days after the Governor signs the bill), they cannot be sued. Unfortunately, though, if the municipality initially decides to keep its ordinance, only to ultimately repeal the ordinance after being bombarded with lawsuits, the municipality will still be required to endure the entire cost of the litigation (as well as the NRA’s, if the municipality loses).
How will all of this affect municipalities and their tax base? What about Pennsylvania taxpayers?
There is almost no question that the NRA and the gun lobby will fund as many lawsuits as they possibly can the very first day that HB 80 is formally enacted and enforceable, both as the membership/lobbying groups that they are and as backers for as many individual plaintiffs as they can afford. At that point, towns will be forced to defend their ordinances, fronting whatever legal costs they need to front. This will almost certainly bankrupt any municipality that chooses to protect its citizens and NOT repeal its ordinances before the onslaught of lawsuits begins.
If the town is bankrupted, the towns will have to increase local taxes to cover the costs of litigation, thus affecting YOU, the local taxpayer, if you happen to live in one of these towns. Furthermore, and more importantly, if the town in question is an “Act 47” municipality (in other words, if they are a town whose tax base is not sufficient to cover all of the town’s operating expenses and the state has had to step in to provide financial and other assistance/support), EVERY PENNSYLVANIA TAXPAYER will be adversely affected by this gun lobby stunt.
And where do the spoils from these lawsuits go?
Here is the kicker.
Because the vast majority (if not all) of these lawsuits will be bankrolled by the NRA or some other arm of the gun lobby, YOUR TAXPAYER MONEY WILL BE HEADED DIRECTLY INTO THE COFFERS OF THE NRA OR SIMILAR ORGANIZATIONS, covering their legal costs and providing them with more money to pressure lawmakers to keep giving them gifts like HB 80.
WHAT YOU CAN DO
This is the time to redouble our efforts and make sure that all those folks who want to head back to Harrisburg next year explain their votes in these last few weeks. Ask them why serving the gun lobby was a priority. Ask them what happened to expanding background checks. And remind them who they work for — YOU. Here are the vote counts from the Senate and the House.
And right now, you can call and write the Governor to tell him exactly what you think of this bill.
And trust us, we’re working on solutions right now. But we need your support….