Allegheny County DA Says Proposed City Gun Legislation Would Be Unconstitutional

Jan 15, 2019

A prosecutor is telling Pittsburgh's city council that it lacks the authority to pass proposed restrictions on some firearms and ammunition. 

And he warns that if council tries to do so, gun-rights supporters may try to charge them criminally – a move that at least one constitutional expert said would be highly unlikely to succeed.

Allegheny County District Attorney Stephen Zappala said in a letter to City Councilman Corey O'Connor, dated Jan. 9, says he understands the effort to curtail gun violence, but believes the proposed legislation would be unconstitutional.

The bills would ban semi-automatic rifles and certain ammunition and firearms accessories within city limits. City Council introduced the bills last month in the wake of the October massacre at Tree of Life Congregation, where 11 worshippers were killed.

The gunman shot his victims with an AR-15 — the weapon used in many of the nation's mass shootings — and three handguns.

Zappala said the restrictions would need to come from the state legislature. State law prohibits municipalities from regulating firearms.

Zappala’s letter cites section 6120 of the state’s Uniform Firearms Act, which says that “[n]o county, municipality or township may in any manner regulate the lawful ownership, possession, transfer or transportation of firearms, ammunition or ammunition components.”

But Zappala’s letter goes further by saying that section 6119 reads “[e]xcept as otherwise specifically provided, an offense under this subchapter constitutes a misdemeanor of the first degree.”

If council passes the ordinances, Zappala’s letter warns, “There is sure to be a resident of Allegheny County who seeks to file a private criminal complaint alleging a violation of 6120.”

Gun-rights groups have frequently suggested that local officials who pass gun regulations could and should be charged criminally for doing so.

“I certainly think it would be credible for a district attorney to look into whether a criminal charge is warranted for violating the pre-emption statute,” said Jonathan Goldstein, a Pennsylvania attorney who has represented the National Rifle Association in legal disputes over gun laws.

He said that the misdemeanor offense spelled out in section 6119 was a “baseline offense” that could be applied to any violation of the act that lacked a specific punishment of its own.

Although Pittsburgh and numerous other municipalities have passed gun laws before, including a 2009 bid to require gun owners to report the loss of theft of weapons, Goldstein acknowledged that “I don’t know of a case where it has been charged,” in such cases. “But that doesn’t mean it can’t be. The potential use of these laws to stop politicians from committing illegal acts is absolutely a viable mechanism that is worthy of further consideration.”

“Passing bad laws isn’t a crime,” he added. But where guns are concerned, “the General Assembly has said, ‘We and only we occupy this regulatory field.’ … The General Assembly has criminalized certain conduct, and local politicians who want to go head-to-head with the General Assembly do so at their own peril.”

He said while he couldn’t be sure of the legislature’s intent, gun owners themselves were all too accustomed to murky rules.

“The people of Pennsylvania have to live under these sort of ambiguities all the time. Now [elected officials] get to see what it feels like.”

Asked whether the District Attorney had ever filed such charges before, DA spokesman Mike Manko said, “That has never happened in this office but we were getting some calls and emails from people asking how they could do it.”

Duquesne University law professor Bruce Ledewitz says Goldstein’s argument misreads the law, which includes both criminal provisions and other provisions – like judicial paperwork requirements -- that are obviously non-criminal.

“It’s really a made-up issue,” he said. Opponents of gun regulation “aren’t going to say, ‘No that’s ridiculous. But I think the answer is, ‘No, that’s ridiculous.’ And it’s not the intention or the letter of the chapter.”

“Then again,” he added brightly, “I’m not the one facing a potential criminal complaint.” And Ledewitz expressed some sympathy for critics of the city’s laws.

“We all know that the area of gun control is pre-empted [by the state], and it’s very likely that anything they were doing would be unconstitutional.”

Ledewitz said the city could pass a law that said its gun regulations would be enforced only “insofar as state law allows,” which would put the city’s position on record, and give it tools to use if the state did ease up its restrictions on local officials. But “passing obviously unconstitutional laws ought to have some kind of consequence, because it’s expensive and stupid. … This kind of grandstanding – let them do it with their own money. “

Tim McNulty, a spokesman for Mayor Bill Peduto, said the city would have no comment on Zappala’s letter. Asked whether the city’s law department had weighed in on the legal debate around the measures, or the likelihood of officials being prosecuted for passing them, he said, "The city is not sharing its legal strategy on these bills."

*This story was updated at 12:11 p.m. to include more information. 

The Associated Press contributed to this report.