Defense attorney calls law unconstitutional; district judge dismisses citations
By Kathleen Brady Shea, Managing Editor, The Times
A Kennett Township ordinance on guns – described as a work-in-progress when enacted in September – apparently failed to pass muster in district court on Monday, March 10, when a magisterial district court judge dismissed two citations police issued to enforce it.
During a summary trial for Morris Peterzell, his attorney, Stephen J. Kelly, argued that the law is unconstitutional. Kelly, who retired as a longtime deputy district attorney and joined a Kennett Square law firm less than a week ago, contended that state law preempts the township regulation.
Kelly said Magisterial District Judge Daniel J. Maisano agreed, dismissing the Nov. 29 citations against Peterzell. “In my opinion there are enough laws that residents should feel safe without the need for further local laws,” said Kelly. “I understand why the police had to issue the citation, but the township is not authorized to enact such laws.”
Kennett Township Supervisors’ Chairman Scudder G. Stevens said Monday that it was premature to comment on the case and that he had asked the township solicitor to review Kelly’s written motion, which Maisano reportedly relied on in making his ruling.
In his moon to dismiss, Kelly cited a case in which the state’s Commonwealth Court “struck down several ordinances passed by the City of Philadelphia that sought to address problems with violence that the city council believed were not adequately addressed by state law.” The motion quoted state law, which says “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.”
Kelly said Philadelphia had argued unsuccessfully that the statute does not prohibit municipalities from regulating in areas of law ancillary to “the ownership, possession, transfer or transportation of firearms” and that the phrase “when carried or transported” leaves room for municipalities to regulate other circumstances. But the appellate court disagreed, ruling that the “total field of the regulation of firearms” rests with the state, Kelly said.
The impetus for the township’s gun ordinance dates back to June when a group of residents raised concerns about the discharging of firearms in residential areas. Although the ordinance was approved in September, the supervisors said it might need some tweaking. Under the ordinance, people are restricted from shooting within 150 yards of any occupied building or 100 yards of a property line. In addition, no discharge is permitted between the hours of sunset and 8 a.m. and shooters must use a backstop “in accordance with the NRA regulations.”
The supervisors have said that the ordinance, which has generated some dissent since its inception, was designed to protect the legal rights of firearms owners by ensuring that weapons are used safely. As recently as last month, some residents raised questions at a supervisors’ meeting about some of the ordinance provisions that they felt were overly restrictive or arbitrary, concerns the supervisors said would be addressed when the ordinance was reviewed.
Kelly said Peterzell was cited for discharging a firearm within 100 feet of a property line and for shooting at two five-gallon plastic buckets without a backstop.
