Tuesday, September 9, 2008

Hazle Township opts for "the hard way"

Last night I made the two-hour drive to address the Township Supervisors in person. Despite a wealth of statute and case law supporting our position, the supervisors seemed completely disinterested in what we had to say. One challenged my statement that I was "unable" to rent the facility, and asked if I had tried. I told him I did not because the rental agreement required me to agree to the rules, and I would not agree to come without my firearm. He said "the rules are the rules" and that didn't prevent me from renting the pavilion. I then asked if I should simply agree to the rules, then go ahead and bring my firearm anyway. This was not acceptable. He basically said it was my choice, and not their problem if I refused to abide by their rules and would not leave my firearm behind.

The Solicitor was not there, but his son was 'pinch hitting'. He took personal offense from my "sloppy interpretation" comment. Apparently he was the one who came up with it, and fed it to his father for presentation at the last meeting. He then proceeded to give me a mini-quiz on some of the case law. I think he was expecting me to not be familiar with them - he was wrong.

On tonight's news report they claim to be "still investigating" and say they don't want to rush into anything. However, last night they made it very clear that there would be no agreement on this issue. In fact, in the last four weeks of their supposed "continuing to look into it", they have been either unable or unwilling to even disclose the exact origins of the rule, and whether or not it is actually backed by an ordinance.

After the meeting, I asked the solicitor what would happen if I proceeded directly to the park. He just shrugged his shoulders. I then asked how someone who was not involved in this debate and just happened by the park would be aware of this rule, since it was not posted anywhere at the park. Again, he just shrugged his shoulders.

I believe it is very clear that they will continue to drag this out in an attempt to get us to go away. They have proven that "continuing to look into it" = NOTHING. Rich and I intend to immediately begin collecting funds so that we can challenge the township in court. We strongly believe that our position is correct, and believe that they are pushing to this extent with the belief that we will not follow through.

Here's the statement I gave to the board:

Gentlemen,

My name is Greg Rotz. I am the party who attempted to rent a pavilion for our organizational gathering, but found I would be unable to do so because of the Township's illegal prohibition on firearms in the park. I have been following the ongoing dialog here, and felt it was time to be here in person to address the situation.

Upon review of the information presented last month, we found that not only was it inaccurate and misapplied, but some of it actually supports our claims and refutes the stated basis for your position.

You claimed that Title 55 Pa. Code, Chapter 3270 (which applies to daycare facilities), and specifically §3270.79 (Firearms) carries over to the park, because such facilities utilize the park's amenities. §3270 is 'regulatory' in nature, and is directed at those who own or operate such a facility. It sets the conditions that must be met to receive and maintain a state license to operate such a facility. The penalty for non-compliance is the loss of licensing. Clearly, this could not apply to someone who wouldn't be licensed in the first place – such as a park user who was lawfully carrying a firearm.

Further, there is no suggestion in §3270, or anywhere else in statute that this provision is a "roaming" one, following the involved parties in their travels. As a matter of fact, §3270.75 (First Aid kit) specifically mentions “excursions from the facility,” which according to your argument, isn't really possible.

If it is possible, if the park is indeed also a “daycare facility,” and if §3270.79 (Firearms) applies, then all other provisions of §3270 would also apply. However, it's interesting to note that there are a dozen additional provisions of §3270 with which the park is not in compliance. For brevity, I will omit them here, but I would be happy to detail them at the end of my comments if you wish.

If you take the time to review the entirety of §3270, it becomes very clear that there is no legal standing to consider a public park as an extension of a “daycare facility,” and if the township wished to obtain their own certification as such, they have quite a few issues to correct in order to meet the strict standards set by the state.

You also stated that the provisions under §912 (Possession of Weapon on School Property) share this same "roaming" characteristic. You completely ignored the provisions contained in §912(c) for “a lawful supervised school activity or course or...other lawful purpose,” and §912(b) has very clear language on where this section applies, and I quote,

"in the buildings of, on the grounds of, or in any conveyance providing transportation to or from any elementary or secondary publicly-funded educational institution, any elementary or secondary private school licensed by the Department of Education or any elementary or secondary parochial school."

This is a very important distinction. It makes no mention of any place away from an actual school where students may be present, and it says nothing about "school district property." Administration buildings are not included, athletic facilities not attached to a school are not included, and I would submit that even if the park were deeded to the school district, §912 would STILL not apply, as it would not be the "grounds of any elementary or secondary school."

If such a roaming provision were to exist, any such ambiguity would only be magnified by entrusting the job of determining these standards to local municipalities. The likelihood for wild inconsistencies to exist from municipality to municipality would create exactly the scenario that §6120 is meant to protect us from. How many students need be present to trigger the prohibition? 50? 10? 1? Does the prohibition start and stop coinciding with the arrival and departure of the students, or is it in place all the time, just in case some students drop by? And if that provision follows the students around, are my rights to have a firearm in my home nullified by the fact that I have a school-aged child? Fortunately, I need not worry about such silly circumstances. I follow the state law, which is the final AND ONLY authority in this matter.

Beyond this, there is case law which contradicts this notion of extended prohibition, outside of the strict definition contained in §912. Commonwealth v. Ingram, PA Superior Court (2002), addressed the very issue you are asserting. They ruled that ownership was key to the issue. From their decision:

“Because the Commonwealth failed to establish beyond a reasonable doubt that Appellant was on school property when he was found to be in possession of the weapon, we find there was insufficient evidence to convict him of this crime. Accordingly, we reverse the trial court's decision regarding this conviction and vacate the corresponding judgment of sentence.”

In Commonwealth v. Heidler, the court overturned a conviction under §912, even though a gun was present in a vehicle parked in the parking lot of a public high school. The man charged had left his firearm with his girlfriend, who remained in his vehicle while he entered the school. While there, he was served with a Protection From Abuse order. During this process, the police talked to both parties, and became aware of the presence of the firearm. Both parties possessed a valid Pennsylvania License To Carry Firearms. They charged Mr. Heidler, but his eventual conviction was overturned by the Superior Court of Pennsylvania, ruling that he did not have constructive possession of the gun. His girlfriend, who clearly did have constructive possession, and was undeniably present on “the grounds of a secondary publicly-funded educational institution” was not charged with any crime.

These cases seem to clearly indicate that any loose interpretation or alleged mobility of some "zone of safety" is grossly inaccurate. It is also very important to note that there has not been a single upheld conviction under §912 without the presence of other criminal acts - NOT A SINGLE ONE, EVER in Pennsylvania.

Now that your supposed extensions of other applicable regulations have been refuted, we are left with the sole question of preemption, as defined in §6120, and the township's authority to independently institute a firearms prohibition in its parks.

We believe that suggesting that Minich v Jefferson County permits such exceptions to preemption is sloppy interpretation. The county ordinance in question was upheld because it was parallel to state law. Any local measures weaker than or equal to Pennsylvania statute, are certainly permitted. If you wished to pass ordinance after ordinance to duplicate the provisions of Title 18 in totality, there would be no issue. The conflict arises when you attempt to “enact an ordinance which regulates firearm possession if the ordinance would make the otherwise lawful possession of a firearm unlawful.”

That is exactly what your park rule does. Absent your rule, carry in a public park, under any circumstance, and regardless of whatever other persons are present (be it students, daycare users or otherwise) is indisputably lawful under state law. Therefore, your rule which makes this otherwise lawful act unlawful, is in clear violation of §6120, and must be amended to be in compliance with state law.

The state law makes no allowance for any consideration for increased or decreased park usage that may occur as a result of compliance.

The state law does not make an exception permissible in order to avoid financial loss from any fluctuation in the aforementioned park usage.

The state law does not permit an exception if enacted by Township Supervisors who are themselves gun owners or if they are acting "in the interest of the safety of youth".

If other park users no longer feel comfortable using the park, that is regrettable, but irrelevant. Their solution is to contact their legislators and work to have existing law changed, not to have the Supervisors act outside of their legal authority and attempt to supercede state law. The only result of such action will be continued negative attention and increasing legal expense for the township.

The state law is simple. The state law is clear. Your rule (whether backed by an ordinace or not) is in violation, and it MUST be modified. This is not a “constitutional issue.” §6120 is part of Title 18, which is a criminal statute. Violating it is a criminal offense. Even if you refuse to amend it, you are powerless to enforce it, and doing so would constitute yet another violation of the law. Schneck v. City of Philadelphia reminds us that it is a well-established principle of law that where a state statute preempts local governments from imposing regulations on a subject, any ordinance contrary to state law is unenforceable, and Ortiz v. Commonwealth holds that the General Assembly may negate ordinances enacted by home rule municipalities when the conflicting state statute concerns substantive matters of statewide concern. We believe that this clearly qualifies as “substantive and of statewide concern.” Reiteration of these facts is included in the publication 'Home Rule in Pennsylvania', published by the Governor's Center for Local Government Services.

Should we leave this meeting tonight, and proceed directly to the park for a walk, you would have no legal authority to intervene in ANY way because we are carrying firearms. We are completely and unshakably confident in our legal position. Are you?

As has been stated on previous occasions, this is not simply about our group wishing to use your park. This is about the township being in compliance with long established state law, and not exceeding their authority – regardless of their motives for doing so. This is not the first such rule that our organization has addressed. Some have been quickly corrected, others with some reluctance. But in the end, all so far have conceded the applicability of §6120 and have made the necessary changes.

Make no mistake. There is only ONE outcome that we will accept. Any attempted regulation of firearms possession by the township, including the carrying of same, is prohibited by state law. We have made our position clear. We have consulted with attorneys who specialize in firearms law, and parties who actually help draft firearms legislation. We are fully prepared to pursue this matter in a more authoritative venue if necessary, and believe the information we have presented tonight establishes a foundation for a successful outcome.

Thank you.
In addition, we presented the following documentation to support our claims:

Statutes:
  • §912 - Possession of Weapon on School Property
  • §3270 - Daycare facilities
  • §6120 - Limitation on the Regulation of Firearms and Ammunition
  • § 5301 - Official oppression
Case Law:
  • Com. v. Heidler (issue: school carry)
  • Com. v. Ingram (issue: school carry)
  • Minich v. Jefferson County (issue: preemption)
  • Ortiz v. Com. (issue: preemption)
  • Schneck v. Philadelphia (issue: preemption)
Additional documentation:
  • Home Rule in Pennsylvania (reinforces preemption)
  • Pennsylvania Legal Ethics (speaks to "counseling illegal conduct")

4 comments:

Anthony said...

Absolutely fantastic. I have been trying to follow this as much as possible, as I am a Pennsylvania resident (Berks County), as I commented in an earlier blog post about Mr. Noble, let me know what I can do to help out. I saw that you are going to collect donations to fight this legally. I am not in a position to donate right now, but I should be soon and I will donate. Let me know of anything else I can do to help out. I can be emailed at acosenza2@gmail.com or on PA Firearm Owners Association under the name acosenza2

Anthony

Anthony said...

I just went over to PAFOA and saw that you are actually a mod over there....now I feel stupid for not knowing that lol

West, By God said...

Wow. What a shot across their bow. Irrefutable. Excellent work.

Brigid said...

We are really, really lucky there are people like you out there.

Bravo.