Brentin Mock is a staff writer at CityLab. He was previously the justice editor at Grist.
Pittsburgh could be the bellwether city in Pennsylvania, defying state law to pass gun control ordinances, but first it has to get past its own district attorney.
The first and last Pittsburgh mayor to sit in jail while in office was Joseph Barker, a Know-Nothing Party nativist extremist who really hated Catholics and who was arrested in 1849 for inciting a riot. During his trial he spouted off at the judge saying, “Let him touch me if he dares. I'll hang him to a lamppost if he lays a finger on me.” The judge laid a year’s worth of jail time on him, during which Barker’s faithful following elected him as Pittsburgh’s mayor in 1850 via a write-in campaign. Today, Pittsburgh Mayor Bill Peduto is looking to become the next mayor to get placed behind bars, though for far nobler reasons.
On December 14, Peduto joined Pittsburgh city council members Corey O’Connor and Erika Strassburger in announcing three city ordinances designed to stem gun violence and prevent another tragedy like the one that occurred two months prior. That was when Robert Gregory Bowers shot and killed 11 people in the Tree of Life synagogue. The December 14 date marked the day when a gunman killed 26 children and adults in the Sandy Hook Elementary School in Newtown, Connecticut in 2012. Pittsburgh’s elected leaders set a goal of passing the gun control bills by February 14, the date of the school shooting tragedy in Parkland, Florida last year.
That Valentine’s Day target came and went, however, without any of the bills even coming up for a vote. Since introducing the legislation in December, Pittsburgh has been hit with a fusillade of gun-control opposition that included a rally where gun-rights protestors stormed city hall draped in heavy artillery—many brandishing the same kind of semi-automatic, military-style weapons that the gun control legislation seeks to ban—petitions circulating to have Peduto impeached, and a warning letter from the local district attorney imploring the mayor and council to drop the bills.
The ordinances in question include legislation that would ban the sale, purchase, or transfer of semi-automatic assault firearms and ammunition; forbid anyone from carrying a gun within city limits (with few exceptions); and allow a person to be stripped of their weapons via a restraining order if they pose an extreme risk to themselves or others. While the bills are a response to the tragic Tree of Life events, they also were presented as a solution for curbing gun violence throughout the city in general, hopefully by pulling more guns off the streets.
One big problem for Pittsburgh is that the state constitution expressly prohibits cities from regulating guns in this manner. Since cities are typically only mere instruments of the state, this means state legislators have immense powers to trump municipal ordinances. Pittsburgh enjoys a certain level of independence due to its home rule charter, which allows the city to employ its own rules and regulations in a great number of circumstances—but not for guns.
Pennsylvania’s law on home rule charters states: “A municipality shall not enact any ordinance or take any other action dealing with the regulation of the transfer, ownership, transportation or possession of firearms.”
And then there’s the Pennsylvania Uniform Firearms Act, which reads “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.”—passed by the state right after Pittsburgh and Philadelphia passed gun control measures in the 1990s.
Stephen Zappala, the district attorney for Allegheny County, which has Pittsburgh as its seat, reminded the city’s leaders about these statues in his warning letter to them, which included some language about how the mayor and city council members could possibly be arrested if they proceeded with the ordinances. Peduto wanted all the smoke, though: “Arrest me,” he tweeted on January 28.
Arrest me. Sue me. Impeach me. I was elected to protect my constituents and that is exactly what I will do. https://t.co/sp1lxRVzVO— bill peduto (@billpeduto) January 28, 2019
While the city isn’t sharing its legal strategy for how it will prevail in the litigation that will inevitably emerge should the gun control bills pass, the mayor is resting on the legal theory that he and council members have immunity to arrests when it comes to proposing legislation. He also believes that the ordinances themselves stand a chance, despite appearing to contradict state laws, because city government has the responsibility to protect its residents and promote public safety.
"The Pennsylvania Constitution guarantees the rights of all people to peace, safety and happiness,” said councilor Erika Strassburger at the press conference announcing the ordinances in December. “The inability for municipal governments to enact their own common sense gun control measures defies this core principle. I hope more cities across the Commonwealth of Pennsylvania and the entire nation will join Pittsburgh in this critical effort."
Peduto is not the first mayor to argue that local government has a compelling interest to staunch urban violence by regulating gun activity. Pittsburgh has tried this argument twice—once in 1993 and again in 2009—and neither time produced court rulings that supported a city’s right to regulate guns in Pennsylvania. Peduto is hoping this time will be different given the momentum from last year’s Parkland, Florida, and Tree of Life shootings, the latter of which has been recognized as the worst anti-Semitic violent crime in U.S. history. It might be helped along by the Southern Poverty Law Center’s report, released this week, saying that hate groups have reached the highest number since 1999.
Pittsburgh also needs a barrage of cities around the state to join it in passing similar gun control ordinances to not only help its own chances of success, but to overturn state laws that pre-empt cities from taking gun safety matters into their own hands. The NRA lobby—”arguably the most powerful lobby in the state,” says City & State—relies on such state laws, as well as a generous U.S. Supreme Court interpretation of the Second Amendment, to fight off gun regulations in court and ensure that cities are rendered powerless.
Peduto is trying to convince cities to pass strong gun control ordinances as an act of municipal disobedience against the state: A critical mass of cities following suit behind Pittsburgh would not only force NRA litigators into a game of legal Whack-A-Mole, but it would also send a forceful message to state lawmakers and district attorneys that are handcuffing cities, preventing them from intervening in gun violence matters. As it stands, 72 percent of Pennsylvanians support stricter gun regulations.
So far, Peduto’s office has not been able to produce any names of Pennsylvania cities that have enlisted in this civil gun-control rights movement, though. The arresting language in District Attorney Stephen Zappala’s letter to Pittsburgh officials might have something to do with that. Reads the letter, which was addressed to Pittsburgh City Councilor Corey O’Connor:
I am certain that you have sought the legal advice of your Law Department as to whether [Pennsylvania Uniform Firearms Act] would permit a criminal complaint to be filed against an individual member of Council who violates [the firearms act] by voting to adopt these types of regulations. Likewise, I am sure you have discussed the due process implications of enacting any legislation reviewed by your Law Department, and found to be unconstitutional. I am also certain that you realize that if such legislation passes, there is sure to be a resident of Allegheny County who seeks to file a private criminal complaint alleging a violation of [the firearms act]. Those are matters which will confront my Office, should the legislation be enacted.
According to Peduto and O’Connor, this is the first time that Zappala, who’s been the district attorney for the last 20 years, has ever weighed in on proposed legislation from the city, and the advice was unsolicited. There’s some dispute over why the district attorney chimed in this manner. Zappala’s office refused comment for the story, however his chief spokesperson Mike Manko told CityLab that “The DA received an email on January 7th from the Chief of Staff for Councilman O’Connor with the legislation attached asking the DA to reach out to the councilman’s office with any feedback or questions.”
However, O’Connor said that Zappala’s office reached out to him first asking for a copy of the legislation shortly after the December 14 announcement. It was only in response to the district attorney’s request that O’Connor’s chief of staff Curt Conrad sent Zappala’s office an email with the bills attached as requested, albeit with a closing line stating that the district attorney should contact them with any questions or concerns. But O’Connor says he did not actively seek Zappala’s legal analysis.
“We don't talk to the district attorney about ordinances in the city and I don't think I've ever talked to him about an ordinance,” said O’Connor, who has been a councilor since 2012. “I would never ask his opinion. We have our own law department. We passed hundreds of ordinances in the city and never once have I ever thought to ask the district attorney or to confide in him before I'm going to introduce a bill.”
After reading the legislation O’Connor sent over, Zappala originally sent his responding letter, with the language about how someone could file a criminal complaint, directly to O’Connor on January 9. However, for reasons that stump both Peduto and O’Connor, Zappala’s office later made the letter public on Twitter.
DA Zappala tells Pgh Council they do not have the authority to pass gun legislation restricting certain weapons.— AlleghenyCountyDA (@AlleghenyCoDA) January 15, 2019
Ltr to Councilman O'Connor re gun legislation.pdf - https://t.co/bAt7jyBGBt
The reason for this, according to the district attorney’s spokesperson Manko: “We decided to share the letter on social media because of the numerous inquiries we received from the public asking what the DA was going to do in the event that the legislation was passed by council. Sharing it that way was the most efficient way to reply to all who had reached out to our office.”
There are two primary ways to read this gesture: Zappala was giving a collegial heads up to Pittsburgh officials about worst-case scenarios, in a protective spirit; or, the letter was a threat, and made public to make sure that any official from any other city would think twice about enacting similar gun control measures. O’Connor afforded the district attorney the benefit of the doubt when asked how he read it. The mayor did not.
“It was a threat,” said Peduto. “I read it as him saying, ‘If you do this, I'll have to pursue criminal charges.’ He didn't question the legality of the law that he is going to pursue. He simply said to councilman O'Connor, unsolicited, ‘Don't do this or else you'll be arrested,’ which came across as a threat.”
Another ramification of the district attorney’s letter is that people who weren’t thinking about taking criminal action against city leaders to prevent gun control from happening before this, certainly could now, and Zappala’s letter spells out the path towards this. Zappala’s spokesperson Manko said that their office received a request about how a criminal complaint might be brought against city officials. The district attorney later released a statement attempting to clear up the intention of its original letter to O’Connor, and to clarify the message around whether elected officials could be arrested:
Procedurally, a private criminal complaint must be personally submitted through the local magistrate’s office…. Further, at this time there is insufficient evidence to charge anyone with an offense. A Criminal Attempt or Criminal Conspiracy charge requires more than a political discussion. It requires an overt act. 18 Pa.C.S.A. 6120 prohibits the regulation of firearms not the mere political debate regarding a public concern. Neither the United States Constitution nor the Pennsylvania Constitution criminalize the exercise of a public discussion or debate of an issue. Clearly the framers of either Constitution would not condone the criminal prosecution of anyone discussing changing laws. It only becomes a crime, when a person’s actions are contrary to established law.
Meanwhile, anti-gun control actions have already been set in motion. Two of Pittsburgh’s nine city council members have withheld support for the bills. Besides the rally held in early January at city hall featuring demonstrators donning military-grade weapons in full display, a petition began circulating for Peduto’s impeachment. However, only the state has the power to impeach the mayor.
Life's little ironies: the city's impeachment provisions were previously declared unconstitutional. Why? For the same reason gun owners say the city shouldnt be regulating guns in the first place: because only the state legislature has that power. Preemption cuts both ways! https://t.co/vxx99okHKt— Chris Potter (@CPotterPgh) January 28, 2019
Peduto, meanwhile, is gearing up for a legal fight that could go all the way to the supreme court—the state’s and/or the United States’—if need be. He says several law organizations have offered to provide pro bono legal services to defend Pittsburgh along the way. And while other Pennsylvania cities may not have yet heeded his war cry, he is working with mayors from other states on efforts to build political, financial, and legal cover for other cities considering taking up gun control [Read CityLab’s Q&A with Mayor Peduto for more details on this].
There has already been momentum outside of Pennsylvania. In the past year alone, 90 percent of gun-lobby bills in states across America were rejected, according to the website Every Town for Gun Safety.
Also, eight states, including Florida, have passed “red flag” laws that would strip a person of their gun via restraining order if there were evidence they were going to harm someone. Pittsburgh is hoping that it can pass its own version of this law later this month, and then convince the state of Pennsylvania to do the same. And yes, the mayor is willing to be put behind bars (though he disputes the legality of this) to make this happen.
“I don't want to go to jail, and I never intended to go to jail,” said Peduto, “but if I was cited and they did have to arrest me, I would go. There's some things that are just worth fighting for.”