On April 10, 2008, just a few months into his first term, Nutter signed into law five local gun-control ordinances, including lost/stolen, that were passed by City Council. The theory was that straw purchasers would no longer be able to use the “It was stolen” excuse, that cops could at least charge them with something, and maybe the ordinance would act as a deterrent.
Hardly a slam-dunk tactic, but city officials were desperate. The year before, 2007, had been especially bloody, with 391 homicides on the books. They were also motivated in part by the Oct. 2007 slayings of armored truck guards (and retired cops) William Widmaier and Joseph Alullo, who were gunned down in Northeast Philly by career felon Mustafa Ali, who’d gotten the handgun used in the killings from a straw buyer.
Meanwhile, the Bureau of Alcohol, Tobacco, Firearms and Explosives determined in 2000 that straw purchases were the source of firearms in nearly half of its national gun-trafficking investigations. That’s often due to the fact that many criminals prefer new guns to the plethora of stolen guns passed around frequently in the illicit market—those guns may already be linked to other crimes or “have bodies on them.”
Law enforcement insisted straw purchasing was a serious problem in Philly, and help wasn’t coming from Harrisburg. Some lawmakers introduced bills in 2007 and 2008 intended to create a state lost/stolen law, but scores of Pennsylvania gun owners—backed by the NRA, FOAC and other gun groups—complained that while they were already law-abiding citizens responsible enough to report their guns missing, to potentially criminalize them for failing to do so was not only unfair but an infringement on their constitutional right to bear arms. The bills failed, so the mayor took it upon himself to act.
“For too long, cities have waited for Washington or Harrisburg to take the lead in the fight for the kind of commonsense gun safety measures our citizens want,” Nutter said upon signing the five ordinances. “This demonstrates what can be achieved when local governing bodies and mayors step up to take action on gun safety.”
Incensed, the NRA immediately sued the city. A Common Pleas judge struck down two of the ordinances—an assault weapons ban and a one-gun-a-month law—as unconstitutional but let the three others, including lost/stolen, stand. The judge ruled that because no one had been prosecuted under lost/stolen, the ordinance couldn’t be challenged.
But now, with HB 1523 threatening Philly’s lost/stolen law, Nutter has implored congressional leadership to oppose the bill. In a letter he sent on Feb. 20, Nutter wrote:
“These local efforts should not be seen as an affront to state authority, given that such efforts will often survive court challenge, but rather as an example of local authorities working in partnership with the statutory framework set out by the Commonwealth.
“We recognize that a policy balance must be struck between the rights of law-abiding citizens to bear arms against the value of sensible, low-impact requirements such as reporting lost or stolen weapons, which can have a significant impact on the availability of unlawful gun use by criminals,” he continued. “There simply is no reasonable basis for coercing local government away from good faith efforts to strike this balance in a measured way.”
Stolfer sees the scales tipping against gun owners. With a law on the books that potentially criminalizes legitimate gun owners for failing to report lost or stolen firearms, he says, “What’s to stop some gun-hating prosecutor from specifically targeting gun owners down the line, just to send a message?”
Stolfer lays out the scenario: “The cops come to the door. You say, ‘No, sir, I didn’t report it stolen.’ So now they arrest you because you were negligent. They put you in handcuffs, they go through your whole house and take all your other firearms. They might have pointed guns at your wife and kids. It hits the papers. You might lose your job. Your reputation is ruined, even if you’re not charged. Say you are charged. Now you’ve got to get an attorney, you know what that costs? Now the judge says, ‘This is a horrible abuse of the system’ and drops all the charges. Now you’ve still got the attorney’s fees. The DA has confiscated all your guns and he’s in no hurry to give them back. And now they revoke your carry permit because you were negligent, or they say you violated the ‘character and reputation’ clause.”
And to Stolfer, this isn’t far-fetched.
“It can happen and it will happen if laws like this that threaten the law-abiders with criminal penalties and do nothing to stop violent criminals are allowed to stand,” he says. “Most responsible gun owners report their guns lost or stolen, but sometimes circumstances prevent that, or people suddenly get busy and can’t do it within 24 hours, or people don’t trust the authorities to do the right thing. There’s no protections for them. It’s absolutely unfair.”
And in case anyone wants to brush off his concerns as baseless paranoia, Stolfer says that all one has to do is look at the February 2011 incident involving Montgomery County gun-rights activist Mark Fiorino. PPD officers drew their weapons on Fiorino, who was open-carrying his firearm (which is legal) in Northeast Philly, and detained him for 40 tense minutes. The American Civil Liberties Union filed a federal lawsuit against the PPD last month on behalf of Fiorino, who’s become a cause celebre for the gun-rights crowd that believes law enforcement—and by extension the government—has no respect for, or belief in, the rights of law-abiding gun owners.
“The track record is there on laws they have abused, as directed by the policymakers,” says Stolfer. “It’s not some tin-foil-hat, sky-is-falling nonsense. It happens.”
Stolfer claims that the ordinance is already having a chilling effect on gun owners he talks to across the state. “A number have mentioned to me that they’re thinking about just getting rid of their guns because they don’t want to take any chances [with getting arrested]. It’s making life miserable for law-abiding citizens. That’s what people like Max Nacheman want.”
Nacheman is director of CeaseFirePA. He, too, believes in the Constitution.
“There is no question there’s a Constitutional right to bear arms, but that doesn’t mean you can’t have certain reasonable limitations on that right,” Nacheman says. “They say that I’m trying to ban guns—I love getting the emails at all hours of night talking about how we’re trying to ban guns. We’re not trying to ban guns.”
But, he says, “A small burden on a law-abiding gun owner [to report a firearm lost or stolen], that’s a pretty small price to pay if you’re gonna get another gun criminal in jail and prevent a homicide.”
Setting the legal arguments regarding state pre-emption aside, Nacheman and other lost/stolen advocates could make a strong case for opposing HB 1523 if they can establish that it works; that the tangible benefits in combating straw purchasers and gun violence outweigh the potential risks to law-abiding gun owners.
PW's Summer Guide 2015