By Christine Vendel
City officials want Commonwealth Court to review last month’s ruling by Judge Andrew H. Dowling that concluded three of the city’s five gun ordinances were illegal under Pennsylvania law.
Dowling’s ruling stemmed from a request for a preliminary injunction by attorney Justin McShane, who is suing the city on behalf of gun rights group U.S. Law Shield. The injunction establishes how the ordinances should be viewed as the case plays out in court.
The city’s attorney, Josh Autry, filed the notice for appeal Thursday afternoon, the day before the 30-day appellate window closed. The city will file supporting legal briefs in the coming weeks.
City officials believe their gun ordinances comply with state law, said city solicitor Neil Grover.
“We disagree with the judge’s ruling, and we’re exercising our right to appeal,” Grover said.
But McShane called the city’s action frivolous.
“The only possible logic that the city has in appealing a preliminary injunction is the same type of logic that Capt. Edward J. Smith, captain of the luxury vessel Titanic, likely had,” McShane said. “The course is set. The ship cannot be turned. Disaster is the only outcome.”
The U.S. Law Shield lawsuit is one of two filed against the city under Act 192. The new state law gave gun rights groups legal standing to challenge municipal gun ordinances and allows plaintiffs to seek attorney fees and other expenses if they win.
McShane had repeatedly offered to drop any claim to attorney fees and expenses if the city would rescind all of its gun ordinances. McShane also warned city officials that his deal would be forever voided if the city appealed Dowling’s preliminary injunction.
City officials said they weren’t concerned about McShane removing his offer, because they believe in the city’s ordinances. They also said they could not promise to rescind the ordinances, because that action would have to come from council members after public hearings. Further, McShane’s reported offer would have opened up the city to legal fees from the other lawsuit they are fighting, city officials said.
Depending on how long the lawsuits take to wind through the court system, the city could be on the hook for up to $250,000 for each lawsuit. That’s the amount the city must cover before insurance kicks in.
Defending the lawsuits has cost the city more than $20,000 in legal fees so far.That amount doesn’t count plaintiff’s attorney fees, which McShane has previously reported were approaching $100,000.
The city will only have to pay McShane’s fees and expenses if Act 192 is found to be constitutional. Several cities are challenging the new law. The case is scheduled for arguments in April in Commonwealth Court.
That court should decide the constitutionality of Act 192 before deciding on Harrisburg’s appeal of Dowling’s ruling, Grover said.
The status of the lawsuit in Dowling’s court remains uncertain, but Grover said he believes the lower court would likely wait for the appeals case to be decided before proceeding.
The ordinances that were struck down will likely remain unenforceable during the appeal, Autry said.
In his ruling, Dowling granted a preliminary injunction, or temporarily struck down, the ordinances that prohibit the possession of guns in parks, during a state of emergency and by unaccompanied minors.
Dowling left two other ordinances standing. He ruled preliminarily that the city’s ordinances prohibiting the discharge of guns and requiring gun owners to report lost or stolen guns are valid and do not violate Pennsylvania’s Uniform Firearms Act, which gives the state preemption in regulating firearms.
City officials have said the two ordinances left standing were the most important ones for the public safety.