Limerick Township Violates Preemption!?

[exceltoexcel]

Letter to be sent to te following..

Mayor David Urner
Township Manager Daniel K. Kerr
Assistant Township Manager Christopher S. Christman
Township Solicitor Joseph J. McGrory, Jr. Esq.,

Dear Township Solicitor Joseph J. McGrory, Jr. Esq.,

I belong to large gun-rights organization in Pennsylvania.
On the 30th of November we approached the town counsel informing them that the township has an invalid ordinance:

Chapter 114: PARKS AND RECREATION

ARTICLE I Rules and Regulations [Adopted 3-21-2000 by Ord. No. 209]

The following rules and regulations apply to all parklands owned or acquire by Limerick Township:

§ 114-2. Rules and regulations established.

E. Firearms or other weapons are prohibited.

This rule is illegal under the following section of PA law.
CRIMES AND OFFENSES (TITLE 18)
PART II. DEFINITION OF SPECIFIC OFFENSES.
ARTICLE G. MISCELLANEOUS OFFENSES
CHAPTER 61. FIREARMS AND OTHER DANGEROUS ARTICLES
SUBCHAPTER A - UNIFORM FIREARMS ACT
§ 6120. Limitation on the regulation of firearms and ammunition.
(a) General rule.--No county, municipality or township may in any manner regulate the lawful ownership, possession, transfer or transportation of firearms, ammunition or ammunition components when carried or transported for purposes not prohibited by the laws of this Commonwealth.
(a.1) No right of action.--
No political subdivision may bring or maintain an action at law or in equity against any firearms or ammunition manufacturer, trade association or dealer for damages, abatement, injunctive relief or any other relief or remedy resulting from or relating to either the lawful design or manufacture of firearms or ammunition or the lawful marketing or sale of firearms or ammunition to the public.
Nothing in this subsection shall be construed to prohibit a political subdivision from bringing or maintaining an action against a firearms or ammunition manufacturer or dealer for breach of contract or warranty as to firearms or ammunition purchased by the political subdivision.
(b) Definitions.--As used in this section, the following words and phrases shall have the meanings given to them in this subsection:
"Dealer."
The term shall include any person engaged in the business of selling at wholesale or retail a firearm or ammunition.
"Firearms."
This term shall have the meaning given to it in section 5515 (relating to prohibiting of paramilitary training) but shall not include air rifles as that term is defined in section 6304 (relating to sale and use of air rifles).
"Political subdivision."
The term shall include any home rule charter municipality, county, city, borough, incorporated town, township or school district.


It is not prohibited, by the commonwealth of Pennsylvania, to legally carry a gun in a township park.

Limerick needs to make its ordinances comply with Pennsylvania law.

To do this all mentions of firearms must be removed from § 114-2 and the term weapons should be noted to exclude legally owned and carried firearms.

Your prompt attention to this matter is appreciated.

If you could let me know when Town Council is taking up this matter, I and many of our members from the Limerick area would like to attend.

My phone and email address can be found below.

Surely the Town Council would want to know about ordinances that could get the Town into legal problems involving false arrests or prosecutions based on ordinances that do not comply with Pennsylvania law!

Sincerely,

Ted John Noga

[exceltoexcel]

CR

Just so you know, i'm back up and running so I'll be pursuing this and I've found some case law that sort of argues our side. They can argue that they can run the parks anyway they want to but they can't prosecute you. If I didn't have an ltcf I'd consider going for an open carry walk in the park. Unfortunatly it's a guarantee to get my LTCF revoked so I aint touching it with a 100 foot pole. Of course I do have a out of state yet valid in PA CCW.

[Statkowski]

Any news from Limerick Township?

[Dirty_Pete]

As I'm in Pottstown I'd be happy to be a warm body at one of the local township meetings. I used to live in Limerick and I'm not surprised that they're getting gun-shy after all the soccermoms moving into the township.

Pete

[Statkowski]

Part of Limerick Township's problem is it appears they copied a sample ordinance posted on another website. The sample ordinance also includes the "firearms prohibited" statement with no provision for lawful carry. That issue is being addressed elsewhere to preclude any other such occurrances. The website does include a disclaimer requesting that all users have the ordinance run past their solicitor, but apparently at least one township solicitor might have been unaware of the Uniform Firearms Act and state preemption. Of course, the ordinance may well have been in force before state preemption came into being, but that doesn't give the township any excuse for continuing on the the now-illegal prohibition.

[headcase]

Was there a resolution to this???? I just spent over an hour reading through this entire thread and y'all leave me hangin'

[exceltoexcel]

No resolution, I think they prefer to keep their heads in the sand!

[GunLawyer001]

For what it's worth, the NRA reports that Oregon teacher Shirley Katz tried this argument to strike down a school policy that she claimed violated Oregon's preemption law. The Oregon court ruled that the school "policy" was not an "ordinance" preempted by the state.

This logic (if applied in PA) would allow a municipality to have a "policy" prohibiting firearms possession on all municipally-owned land, but it might preempt a local criminal statute. The end result would be that you couldn't be criminally prosecuted for violating the local statute, but you could be criminally prosecuted for trespass under state law if the "no guns" sign was big enough, or if you refused to leave when discovered, or if you did it again after being warned once.

[Pa. Patriot]

Good thing we don't have that policy ruling

[GunLawyer001]

Originally Posted by Pa. Patriot

Good thing we don't have that policy ruling

I expect that we will, it's what I predicted at the outset. The rights of property owners to regulate who can use the land and under what circumstances will usually trump the rights of others, with narrow limitations. You have a right to interstate travel, but if they close the park at 6PM you can't exercise that right through the park. You have a right to free speech, but you can't set up your soapbox at the municipal auditorium during a play. If the local council allows some speech but not Republican speech, that's unlawful. If they allow whites to use the park but not blacks, that's unlawful. But they can probably prohibit skateboards or bicycles or boom boxes or firearms on their land, with their remedy being asking you to leave the first time, and a citation for trespass the 2nd. A big sign at the entrance might allow them to charge trespass the 1st time.

Any local statute that makes possession of a firearm a crime is preempted by the state law. But any non-criminal rule for the use of land owned & run by a government entity has a very good chance of being upheld. The counter argument is that the regulation of the park is "state action" that's subject to civil rights issues, making it similar to the difference between being searched by store security and by local police. Perhaps the local government is violating Art 1, Section 21 with its rule; but it's not preempted by the UFA from making "rules", just laws.

So anyone fighting a park rule should use Article 1, Section 21 as the primary grounds. If the locals pass a criminal statute, then use preemption. But don't confuse the two.