J. Barris v. Stroud Twp. ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jonathan Barris, :
Appellant :
:
v. : No. 671 C.D. 2020
: Submitted: February 8, 2021
Stroud Township :
BEFORE: HONORABLE P. KEVIN BROBSON, President Judge
HONORABLE MARY HANNAH LEAVITT, Judge (P.)
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION BY
PRESIDENT JUDGE BROBSON FILED: May 28, 2021
Jonathan Barris (Barris) appeals from an order of the Court of Common Pleas
of Monroe County (trial court), dated May 26, 2020, which granted summary
judgment in favor of Stroud Township (Township) and against Barris.
In this action, Barris challenges the constitutionality of the Township’s Ordinance
No. 9-2011 (Ordinance), regulating the discharge of firearms within the Township.
For the reasons set forth below, we now reverse the trial court’s grant of summary
judgment.
I. BACKGROUND
Barris is the owner of a 4.66-acre tract of land in the Township, located
at 7335 Pioneer Lane in Stroudsburg, Monroe County, Pennsylvania. In 2011, the
Township enacted the Ordinance, which provides, in pertinent part, as follows:
Section 1: Intent and Purpose.
Due to the density of the population in the Township of Stroud,
it is necessary that the discharging of firearms be regulated for the
protection of the public health and safety and general welfare of the
residents, property owners, visitors and others within Stroud Township,
and that the unauthorized discharge of firearms be prohibited.[ 1]
....
Section 3: Firing or discharge restricted.
It shall be unlawful to fire or discharge any firearm within the
Township . . . except as provided in Section 4 Exceptions below.
Section 4: Exceptions.
Exceptions to this Ordinance are as follows, however, in no case
shall a firearm be discharged before dawn or after dusk and/or
within 150 yards of an adjacent occupied structure, camp or farm,
except as provided under paragraphs A., B., indoor facilities under D.,
and E. below:
A. The use of firearms is permitted when employed by any
duly appointed law enforcement officer in the course of his or
her official duty.
B. The use of firearms is permitted when necessary as
authorized under state and/or federal laws.
C. The use of firearms is permitted when hunting . . . .
D. The discharging of firearms shall be allowed on indoor
or outdoor shooting ranges pursuant to applicable provisions of
the Stroud Township Zoning Ordinance, as may be amended,
under the supervision of the owner or occupant of that property
or his or her duly appointed representative, provided that:
1. All shooting ranges shall be constructed and
operated in a safe and prudent manner.
If standards, regulations and/or recommended
procedures for operation are established or
promulgated by any recognized body, such as the
National Rifle Association or the American Trap
Shooting Association, then such standards,
regulations and/or procedures shall be adhered to.
2. Such range is issued zoning and occupancy
permits by the township zoning officer, which
1
Pursuant to Section 1506 of The Second Class Township Code, Act of May 1, 1933,
P.L. 103, as amended, 53 P.S. § 66506, the Board of Supervisors is authorized to make and adopt
ordinances necessary for the proper management, care, and control of the township and the
maintenance of the health and welfare of the township and its citizens.
2
permits shall specify the area or areas designated
for shooting range purposes.
E. Farmers engaged in “normal agricultural operation”
protecting their “agricultural commodity” from animal
predators . . . .
F. Members of any organization incorporated under laws
of this Commonwealth engaged in target shooting upon the
grounds or property belonging to or under the control of such
organization or affiliated club, such as the Pennsylvania
Federation of Sportsmen’s Clubs, Inc.
Section 5: Improper use prohibited.
The careless, reckless or improper use of any firearm tending to
imperil or cause danger or harm to personal security or to endanger the
property of any person within the Township . . . is prohibited.
....
Section 7: Violations and penalties.
Any person or persons discharging a firearm in violation of any
of the provisions of this ordinance shall be subject to a fine of not more
than six hundred dollars ($600.) plus court costs, including reasonable
attorney fees. If the defendant neither pays nor timely appeals the
judgment, the [T]ownship may enforce the judgment pursuant to the
applicable rules of civil procedure. Each day’s continued violation
shall constitute a separate offense. In default in the payment of any fine
imposed hereunder, the defendant shall be sentenced to undergo
imprisonment for a period not exceeding thirty (30) days. . . .
(Reproduced Record (R.R.) at 12-14 (footnote added) (emphasis added).)
Barris submitted a zoning permit application for a proposed shooting range on
his property on December 27, 2012. (R.R. at 47-54.) Relying on the Ordinance and
provisions of the Township’s Zoning Ordinance (Zoning Ordinance), a Township
zoning officer denied the application on January 23, 2013, for the following reasons:
Section 4.200 [of the Zoning Ordinance]—Types of Uses &
Schedule I—Regulations Governing the Use of Land provides
that “shooting range (indoor, outdoor) (7997)” is allowable only as
O-1 Open Space and Preservation Zoning District, and S-1 Special and
Recreational Zoning District.
3
The above[-]referenced property, which is located in an R-1 Low
Density Residential Zoning District, is not located in [an] O-1 or an S-1
Zoning District. The proposed use, therefore, is not permitted.
Also Zoning Ordinance Section 5.386 contains specific standards for
“shooting ranges,” which includes a minimum parcel size of
five (5) acres for a shooting range use. The above[-]referenced
property does not qualify additionally for that reason.
Ordinance 9-2011—Regulation for Discharging Firearms—
Section 4 regulates the discharging of firearms within the Township.
Section 4 of this Ordinance is entitled “exceptions, . . .” [and] it . . .
provide[s] that “in no case shall a firearm be discharged . . . within 150
yards of an adjacent occupied structure. . . .”
The proposed shooting range does not meet the setback requirement
from the occupied dwelling structure on the above referenced property.
Ordinance 9-2011—Regulation for Discharging Firearms—
Section 4(D)(1) provides that all shooting ranges must comply with the
standards and regulations promulgated by either the National Rifle
Association or the American Trap Shooting Association.
The Zoning Application submission did not include standards and
regulations specific to the firearms to be discharged.
(Original Record (O.R.), Item No. 70 at 3, Trial Ct. Op. 5/26/20 at 3 (citing
Zoning Officer Denial Letter, dated January 23, 2013)). Barris did not appeal the
denial to the Township’s Zoning Hearing Board to review the determination of the
Hearing Officer. (Id.)
Instead, Barris filed a complaint (Complaint) in the trial court in
September 2015, seeking declaratory and injunctive relief against the Township and
claiming that the Ordinance effectively prohibited him from using a portion of
his property within the Township as a private shooting range. (O.R., Item No. 4,
Complaint ¶¶ 34-61.) The Complaint claimed that the Ordinance: (1) violates the
4
Second Amendment to the United States Constitution; 2 (2) violates Article I,
Section 21 of the Pennsylvania Constitution; 3 (3) is preempted by Section 6120 of
the Pennsylvania Uniform Firearms Act of 1995 (Firearms Act), 18 Pa. C.S. § 6120;4
and (4) is preempted by Sections 1 and 2 of what is commonly referred to as the
range protection statutes, Act of June 2, 1998, P.L. 452, as amended, 35 P.S.
§§ 4501-4502. 5 (O.R., Item No. 4, Complaint ¶¶ 5-29, 62-123.) In response,
the Township filed preliminary objections in the nature of a demurrer—i.e.,
challenging the legal sufficiency of the Complaint.
The trial court sustained the Township’s preliminary objections and dismissed
Barris’s Complaint in its entirety. The trial court concluded that the Ordinance was
not preempted by the Firearms Act, because the Ordinance regulates only the
“discharge” of firearms within the Township, which the trial court concluded was a
subject omitted from the scope of the Firearms Act. The trial court also concluded
that the Ordinance was not preempted under Pennsylvania’s range protection statutes
because those statutes only protect owners of ranges from civil actions or criminal
2
The Second Amendment provides: “A well regulated Militia, being necessary to the
security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
U.S. CONST. amend. II.
3
Article I, Section 21 of the Pennsylvania Constitution provides for the “right of the
citizens to bear arms in defense of themselves and the State shall not be questioned.”
PA. CONST. art. I, § 21.
4
Section 6120(a) of the Firearms Act provides:
(a) General Rule.--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.
5
The range protection statutes, located in Chapter 23A of Title 35, Health and Safety,
provide noise and nuisance exemptions for shooting ranges.
5
prosecutions relating to noise, noise pollution, and nuisance. Given that the
Ordinance does not purport to regulate noise, noise pollution, or nuisance, the trial
court concluded that it was not in conflict with the range protection statutes and
dismissed the claims.
The trial court, in dismissing Barris’s state and federal constitutional claims,
opined that neither the Second Amendment nor the Pennsylvania Constitution have
been construed “to grant an individual the right to discharge a firearm whenever he
or she pleases.” (O.R., Item No. 16 at 20.) Similarly, the trial court opined that
because the Ordinance regulates the discharge of firearms for the safety of
individuals within the Township and Barris’s “firearms are not being taken away
from him,” the Ordinance passes muster under District of Columbia v. Heller, 554
U.S. 570 (2008) (Heller), wherein the United States Supreme Court held that a
handgun ban violated the rights conferred by the Second Amendment. To the extent
Barris contends that the Ordinance restricts his ability to defend himself in his home,
the trial court dismissed the claim and noted that the Ordinance expressly allows
discharge of firearms for self-defense as authorized under Pennsylvania law.
Barris appealed the decision to this Court, arguing, in part, that the trial court
should have afforded him the opportunity to amend his Complaint, rather than
dismiss it with prejudice. In Jonathan Barris v. Stroud Township (Pa. Cmwlth.,
No. 218 C.D. 2016, filed November 17, 2017) (en banc) (Barris I), we affirmed the
trial court’s dismissal of Barris’s claims alleging violations of the Firearms Act and
the Pennsylvania range protection statutes. We vacated the trial court’s order as it
related to Barris’s constitutional challenge to the Ordinance and remanded the
matter. We wrote that the trial court
failed to conduct any constitutional analysis of the gist of Barris’s
claim—i.e., that the Ordinance, which restricts his ability to practice
6
firing his firearms on his property (an activity that he lawfully engaged
in prior to the passage of the ordinance at issue), unconstitutionally
infringes on his rights under both the Second Amendment
[of the United States Constitution] and Article I, Section 21 of the
Constitution of Pennsylvania either facially or as applied.
Because the trial court’s opinion in support of its dismissal . . .
of the [C]omplaint lacked the necessary constitutional analysis,
we must vacate the portion of the trial court’s order . . . and remand to
the trial court to further consider Barris’s constitutional challenges.
As we are remanding the matter, we also direct the trial court on remand
to afford Barris a reasonable period within which to file an amended
complaint . . . .
Barris I, slip op. at 8, 9. We remanded the case to the trial court for additional
proceedings.
On remand, Barris then filed an amended complaint (Amended Complaint) in
January 2018, again seeking declaratory and injunctive relief against the Township
and claiming that the Ordinance violates his rights under: (1) the Second
Amendment to the United States Constitution, (2) the Fourteenth Amendment to the
United States Constitution, 6 (3) Article I, Section 21 of the Pennsylvania
Constitution, and (4) Article I, Section 26 of the Pennsylvania Constitution. 7
(R.R. at 28-34.) In the Amended Complaint, Barris averred, in part, that
since 2010, he has constructed, maintained, and used a home shooting range on
his 4.66-acre property, zoned R-1, i.e., low-density residential. (Id. at 29.) He also
averred that, until enactment of the Ordinance on December 6, 2011, his
6
The due process clause of the Fourteenth Amendment provides that “[n]o [s]tate shall
make or enforce any law which shall . . . deprive any person of life, liberty, or property, without
due process of law.” U.S. CONST. amend. XIV, § 1.
7
Article I, Section 26 of the Constitution of Pennsylvania provides that “[n]either the
Commonwealth nor any political subdivision thereof shall deny to any person the enjoyment of
any civil right, nor discriminate against any person in the exercise of any civil right.”
PA. CONST. art. I, § 26.
7
“firearm discharge on said range was deemed lawful and safe by the Township’s
police and otherwise not in violation of any section of the laws of Pennsylvania or
other federal or state governmental codes or regulations.” (Id. ¶ 9.) He characterized
the Ordinance as “outlaw[ing] firearm practice and safe shooting ranges on
residential property and limit[ing] firearm discharge to large-scale commercial
and/or private enterprises or to affluent persons or entities,” presumably due to the
fact that it limits shooting ranges to properties consisting of at least five acres and
located in the Open Space and Preservation Zoning District, O-1, and Special and
Recreational Zoning District, S-1. 8 (Id. at 30 ¶11.)
Following the close of the pleadings, the parties filed cross-motions for
summary judgment, which the trial court denied because there remained a genuine
issue of material fact that affected the appropriate standard of review.
Thereafter, the Township filed a second motion for summary judgment, which the
trial court granted. The trial court entered judgment in favor of the Township and
against Barris by order dated May 26, 2020. This appeal followed.
II. ISSUES
On appeal, 9 Barris argues that the trial court erred when it granted the
Township’s second motion for summary judgment and denied his motion for
8
In the Amended Complaint, Barris also averred that, on May 12, 2012, while discharging
firearms at his home shooting range, the Stroud Area Regional Police Department informed him
that, as a result of the passage of the Ordinance, he was now prohibited from so discharging his
firearms, subject to civil fines of up to $600 with the failure to pay subject to incarceration for up
to thirty days. (R.R. at 30.)
9
This Court’s review of a trial court’s order granting a motion for summary judgment is
limited to considering whether the trial court erred as a matter of law or abused its discretion.
Lambert v. Katz, 8 A.3d 409, 413 n.3 (Pa. Cmwlth. 2010), overruled on other grounds by
Cagey v. Cmwlth., 179 A.3d 458 (Pa. 2018). A court may grant a motion for summary judgment
only when there is no genuine issue of material fact and the moving party is entitled to judgment
8
summary judgment. First, Barris argues that the trial court erred when it determined
that the Township’s Ordinance did not violate his Second Amendment right to
conduct target practice on his residential property. Second, Barris argues that the
trial court erred when it determined that the Township’s Ordinance did not violate
his Fourteenth Amendment substantive due process rights to use his residential
property for target practice. Third, Barris submits that the trial court erred when it
determined that the Township did not violate his Fourteenth Amendment procedural
due process rights when it passed the Ordinance. Finally, Barris argues that the trial
court erred in concluding that he failed to exhaust his administrative remedies in
challenging the constitutionality of the Ordinance. 10
III. DISCUSSION
“The Second Amendment provides: ‘A well[]regulated Militia, being
necessary to the security of a free State, the right of the people to keep and bear
Arms, shall not be infringed.’” United States v. Marzzarella, 614 F.3d 85, 88 (3d
Cir. 2010) (quoting U.S. CONST. amend. II). It confers an individual the right to
keep and bear arms, at least for the core purpose of allowing law-abiding responsible
citizens to “use arms in defense of hearth and home.” Id. (citing Heller, 554 U.S.
at 635). It applies to the states and local governments through the Due Process
Clause of the Fourteenth Amendment. McDonald v. City of Chicago, 561 U.S. 742,
791 (2010).
as a matter of law. Id. (citing Bronson v. Horn, 830 A.2d 1092, 1094 (Pa. Cmwlth. 2003), aff’d,
848 A.2d 917 (Pa. 2004), cert. denied, 543 U.S. 944 (2004)). The right to judgment must be clear
and free from doubt. Id. In reviewing the granting of a motion for summary judgment, this Court
must “view the record in the light most favorable to the non-moving party, and all doubts as to the
existence of a genuine issue of material fact must be resolved against the moving party.” Id.(quoting Pappas v. Asbel, 768 A.2d 1089, 1095 (Pa. 2001), cert. denied, 536 U.S. 938 (2002)).
10
We note Barris has not argued any claims arising under the Pennsylvania Constitution;
accordingly, we consider those claims abandoned in this appeal.
9
There is a strong presumption in the law that all legislative enactments are
constitutional. Caba v. Weaknecht, 64 A.3d 39, 49 (Pa. Cmwlth.), appeal denied,
77 A.3d 1261 (Pa. 2013). To prevail in this case, Barris must show that the
legislative enactment “clearly, palpably, and plainly” violates the United States
Constitution. Pennsylvanians Against Gambling Expansion Fund, Inc. v. Cmwlth.,
877 A.2d 383, 393 (Pa. 2005) (emphasis omitted). “All doubts are to be resolved in
favor of finding that the legislative enactment passes constitutional muster.”
Caba, 64 A.3d at 49. There are two ways to challenge the constitutionality of a
legislative enactment: either the enactment is unconstitutional on its face or as
applied in a particular circumstance. Johnson v. Allegheny Intermediate Unit,
59 A.3d 10, 16 (Pa. Cmwlth. 2012) (en banc).
A facial attack tests a law’s constitutionality based on its text alone and does
not consider the facts and circumstances of a particular case. Peake v. Cmwlth.,
132 A.3d 506, 517 (Pa. Cmwlth. 2015) (en banc) (adopting “plainly legitimate
sweep” standard for evaluating facial constitutional challenges). To prevail, the
challenger must show that “its constitutional deficiency is so evident that proof of
actual unconstitutional applications is unnecessary.” Id.As set forth above, Section 3 of the Township’s Ordinance provides: “It shall
be unlawful to fire or discharge any firearm within the [Township] except as
provided in [Section 4] Exceptions below.” (R.R. at 12.) Section 4 of the Ordinance
sets forth exceptions (A) through (F) to the prohibition on the discharge of a firearm,
as follows: (A) law enforcement activities; (B) situations when necessary under state
or federal laws; (C) hunting; (D) indoor and outdoor shooting ranges permitted under
the Zoning Ordinance; (E) farmers; and (F) sportsmen’s clubs. (R.R. at 13.)
Section 4 of the Ordinance also places time and proximity limitations on certain of
10
the exceptions. Specifically, it limits the use of a firearm in connection with the
exceptions for hunting, outdoor shooting ranges, and sportsmen’s clubs by
prohibiting the discharge of a firearm: (1) before dawn or after dusk; and (2) within
150 yards of an adjacent occupied structure, camp, or farm. (Id.) The dusk-to-dawn
and 150-yard limitations do not apply to any of the other exceptions, those being law
enforcement activities, when necessary under the law, indoor shooting ranges
permitted under the Zoning Ordinance, and farmers. Furthermore, given that the
time and proximity limitations are set forth as part of the exceptions and not in the
general prohibition in Section 3 of the Ordinance on the discharge of a firearm
within the Township, they do not apply as general limitations on the discharge of a
firearm in the Township. 11 Thus, they apply only to hunting, outdoor shooting
ranges permitted under the Zoning Ordinance (i.e., those ranges located in the O-1
or S-1 zoning districts pursuant to the Zoning Ordinance), and sportsmen’s clubs—
not to Barris’s property located outside the O-1 and S-1 zoning districts.
Additionally, we note that not only does the Ordinance’s reference to the Zoning
Ordinance have the effect of restricting shooting ranges to parcels in the O-1 or S-1
zoning districts only, but it also further limits the parcels within those districts that
may be used as a shooting range by requiring that the parcel consist of at least five
acres.
Thus, if an individual wants to establish an indoor or outdoor shooting range
on his property, he may do so in two zoning districts—O-1 and S-1—provided that
11
The interpretation of the Ordinance as applying the dusk-to-dawn and 150-yard
limitations to only exceptions makes sense, because the exceptions in Section 4 of the Ordinance
constitute the only circumstances under which an individual may lawfully discharge a firearm
within the Township. Given that there is an outright ban on the discharge of a firearm unless an
exception applies, there would be no reason to apply the time and proximity limitations applicable
to the exceptions in any other context or circumstance.
11
the minimum parcel size requirement of at least five acres is met. 12 (R.R. at 18.)
Simply stated, individuals with property in some zoning areas cannot shoot targets
on their property at all, regardless of the size of the property and location or
configuration of the shooting range. Target shooting in the Township is expressly
limited to indoor and outdoor shooting ranges located in specific zoning districts of
the Township.
In determining the merits of a Second Amendment challenge,
numerous circuit courts of appeals have used a two-step framework.
See Ezell v. City of Chicago, 651 F.3d 684, 702-704 (7th Cir. 2011) (Ezell I);
Marzzarella, 614 F.3d at 89; United States v. Chester, 628 F.3d 673, 680 (4th
Cir. 2010); United States v. Reese, 627 F.3d 792, 800-01 (10th Cir. 2010). 13 First, a
court must “ask whether the challenged law imposes a burden on conduct falling
within the scope of the Second Amendment’s guarantee.” Ezell I, 651 F.3d at 703;
Marzzarella, 614 F.3d at 89. The United States Court of Appeals for the Seventh
Circuit, using the United States Supreme Court’s First Amendment free-speech
jurisprudence as an example for this kind of threshold “scope” inquiry, reasoned:
12
Zoning Ordinance Section 5.386 provides:
Commercial Outdoor Sports (SIC 7941); Shooting Ranges (SIC 799); and
Outdoor Exhibitions, Assembly for Sports, Entertainment and Amusements.
This use is permitted as set forth in Schedule I. The following standards,
requirements and criteria shall apply: A minimum parcel size of five (5) acres is
required for development or operation of these uses. Minimum lot width shall be
two hundred and fifty (250’) feet. These activities shall be developed and operated
so as to create no hazards or safety problems for adjacent properties . . . .
(O.R., Item No. 38 at 19.)
13
Though the Commonwealth Court, in its application of federal substantive law, is not
bound by the decisions of federal district courts, federal circuit courts, or the courts of other states,
it may cite such decisions when they have persuasive value. Desher v. Se. Pa. Transp. Auth.,
212 A.3d 1179, 1186 (Pa. Cmwlth. 2019).
12
The [Supreme] Court has long recognized that certain “well-defined
and narrowly limited classes of speech”—e.g., obscenity, defamation,
fraud, incitement—are categorically “outside the reach” of the First
Amendment. When the [Supreme] Court has “identified categories of
speech as fully outside the protection of the First Amendment, it has
not been on the basis of a simple cost-benefit analysis.” Instead, some
categories of speech are unprotected as a matter of history and legal
tradition. So too with the Second Amendment. Heller suggests that
some federal gun laws survive Second Amendment challenge because
they regulate activity falling outside the terms of the right as publicly
understood when the Bill of Rights was ratified. . . . Accordingly, if the
government can establish that a challenged firearms law regulates
activity falling outside the scope of the Second Amendment right as it
was understood at the relevant historical moment—1791 or 1868—then
the analysis can stop there; the regulated activity is categorically
unprotected, and the law is not subject to further Second Amendment
review.
Ezell I, 651 F.3d at 702-03 (citations omitted). If the challenged law does not impose
a burden within the scope of the Second Amendment’s guarantee, then the inquiry
is complete. Id. at 704.
Conversely, if there is a burden on the Second Amendment, then there must
be a second inquiry into the strength of the government’s justification for restricting
or regulating the exercise of Second Amendment rights under some form of
“means-end” scrutiny. Ezell I, 651 F.3d at 703. The United States Supreme Court
made “it clear that the deferential rational-basis standard is out, and with it the
presumption of constitutionality.” Id. at 706 (citing Heller, 554 U.S. at 628 n.27).
The Seventh Circuit, again using the United States Supreme Court’s First
Amendment free-speech jurisprudence as an example, recognized:
In free-speech cases, the applicable standard of judicial review
depends on the nature and degree of the governmental burden on the
First Amendment right and sometimes also on the specific iteration of
the right. For example, “[c]ontent-based regulations are presumptively
invalid,” and thus get strict scrutiny, which means that the law must be
narrowly tailored to serve a compelling government interest[.]
Likewise, “[l]aws that burden political speech are subject to strict
13
scrutiny.” On the other hand, “time, place, and manner” regulations on
speech need only be “reasonable” and “justified without reference to
the context of the regulated speech.”. . .
....
. . . . [R]estrictions imposed on adult bookstores are reviewed under an
intermediate standard of scrutiny that requires the municipality to
present “evidence that the restrictions actually have public benefits
great enough to justify any curtailment of speech. . . .”
Labels aside, we can distill this First Amendment doctrine and
extrapolate a few general principles to the Second Amendment context.
First, a severe burden on the core Second Amendment right of armed
self-defense will require an extremely strong public-interest
justification and a close fit between the government’s means and its
end. Second, laws restricting activity lying closer to the margins of the
Second Amendment right, laws that merely regulate rather than restrict,
and modest burdens on the right may be more easily justified.
How much more easily depends on the relative severity of the burden
and its proximately to the core of the right.
Ezell I, 651 F.3d at 707-08.
In Ezell I, the Seventh Circuit found that the City of Chicago’s firing range
ban that prohibited “‘law[-]abiding, responsible citizens’ of Chicago from engaging
in target practice in the controlled environment of a firing range . . . [was] a serious
encroachment on the right to maintain proficiency in firearm use, an important
corollary to the meaningful exercise of the core right to possess firearms for
self-defense.” Id. at 708-09. The circuit court determined that the “City must
establish a close fit between the range ban and the actual public interests it serves,
and also that the public’s interests are strong enough to justify so substantial an
encumbrance on individual second amendment rights.” Id. at 709. The circuit court
held that the core individual right of armed defense includes a corresponding right
to acquire and maintain proficiency in firearm use through target practice at a range,
and the right to possess firearms for protection would not mean much without the
training and practice that make it effective. Id. at 704. The circuit court reversed
14
the district court’s order and remanded the case with instructions to enter a
preliminary injunction for the plaintiffs. Id. at 711.
Six years later, in Ezell v. City of Chicago, 846 F.3d 888 (7th Cir. 2017)
(Ezell III), the Seventh Circuit reviewed three residents’ challenges to the City of
Chicago’s modifications of its gun range ban that “established a permit regime for
lawful gun possession and required one hour of range training as a prerequisite to a
permit, but prohibited firing ranges everywhere in the city.” 14 Ezell III, 846 F.3d
at 890. At issue in that case was the constitutionality of zoning restrictions:
(1) allowing gun ranges only as special uses in manufacturing districts; and
(2) prohibiting gun ranges within 150 feet of another range or within 500 feet of a
residential district, school, place of worship, and multiple other uses. Id. The district
court had held that the zoning restrictions severely limited where shooting ranges
could be located and required the City to establish a close fit between the restriction
and the public interests they serve. Id. at 891. The district court, without addressing
the 100-foot distancing restriction, had upheld the 500-foot distancing restrictions
because it was “significantly less burdensome” when considered standing alone, and
reasoned that it was similar to a “law forbidding the carrying of firearms in sensitive
places such as school and government buildings.” Id. Both sides appealed the
decision. Id.The Seventh Circuit, prior to addressing the parties’ claims, noted “for good
measure that most other circuits have adopted the framework articulated in Ezell I
and require some form of heightened scrutiny when evaluating the government’s
14
We note that between 2011 and 2017 the City of Chicago replaced the range ban with an
“elaborate scheme of regulations governing shooting ranges . . . [and] [l]itigation resumed,
prompting the City to rewrite or repeal parts of the new regime. [A] district judge invalidated
some of the challenged regulations and upheld others.” Ezell III, 846 F.3d at 890 (citing
Ezell v. City of Chicago, 70 F. Supp. 3d 871, 882-92 (N.D. Ill. 2014) (Ezell II)).
15
justification for a law challenged on Second Amendment grounds.” Id. at 893.
The circuit court then dismissed the district court’s “sensitive places” approach
when it upheld the 500-foot restriction, reasoning that the two zoning restrictions at
issue are a “single regulatory package for purposes of Second Amendment scrutiny.”
Id. at 894.
The Seventh Circuit next reviewed the sufficiency of the City’s proffered
justification for regulating firearms ranges using a heightened scrutiny standard—
i.e., that firing ranges: (1) attract gun thieves; (2) cause airborne lead contamination;
and (3) carry a risk of fire. Id. The circuit court noted, however, the “City continues
to assume, as it did in Ezell I, that it can invoke these interests as a general matter
and call it a day.” Id. The circuit court then reviewed the evidence the City offered
to support its justifications and opined:
We explained in Ezell I that the City cannot defend its regulatory
scheme “with shoddy data or reasoning. The municipality’s evidence
must fairly support the municipality’s rationale for its ordinance.”
To borrow from the free-speech context “there must be evidence” to
support the City’s rationale for the challenged regulation; “lawyers talk
is insufficient.” Here, as in Ezell I, the City’s defense of the challenged
zoning rules rests on sheer “speculation about accidents and theft.”. . .
That’s not nearly enough to satisfy its burden. The manufacturing and
distancing restrictions are unconstitutional.
Id. at 896 (emphasis in original) (citations omitted). The circuit court concluded that
the City has room to regulate the construction and operation of firing ranges to
address genuine risks to public and health safety, but the City must justify its
regulation and did not do so in its case under an intermediate level of scrutiny.
Id. at 898.
While Barris strongly relies on Ezell I and Ezell III to support his arguments,
the Township directs our attention to a recent decision of the United States Court of
Appeals for the Third Circuit. The Third Circuit, in Association of New Jersey Rifle
16
and Pistol Clubs Incorporated v. New Jersey, 910 F.3d 106 (3d Cir. 2018)
(New Jersey Rifle), comprehensively addressed the legal status of the Second
Amendment in this circuit. In June 2018, New Jersey passed a law restricting the
magazine capacity to ten rounds of ammunition, excluding from the ban active law
enforcement and military members authorized to possess and carry a handgun. 15
New Jersey Rifle, 910 F.3d at 110-11. The New Jersey Rifle and Pistol Clubs and
two of its members had filed a civil rights action that, in pertinent part, alleged that
the statute violated the Second Amendment. Id. at 111.
Following a three-day evidentiary hearing on the plaintiffs’ preliminary
injunction request, a federal district court first determined that the ban of magazines
holding more than ten rounds implicated Second Amendment protections.
Id. at 111, 113. The district court then determined that, because the statute places a
minimal burden on lawful gun owners, it should be examined using intermediate
scrutiny. Id. at 114. The district court reviewed evidence that the smaller number
of rounds in the magazine led to a delay in reloading the firearm, which provided an
opportunity for potential victims to escape or a bystander to intercede in the event.
Id. The district court concluded that the magazine limitation was reasonably tailored
to achieve New Jersey’s goal of reducing the number of casualties and fatalities in a
mass shooting. Id. Consequently, New Jersey met its burden under the intermediate
scrutiny standard, and the district court denied the motion for a preliminary
injunction. Id.On appeal, the Third Circuit applied the two-step framework it established in
Marzzarella (i.e., the same test utilized in the Ezell I and Ezell III cases).
15
We note that “[a] magazine is an implement that increases the ammunition capacity of a
firearm.” New Jersey Rifle, 910 F.3d at 112.
17
The circuit court agreed with the district court that the regulation of magazines
imposed a burden on conduct falling within the scope of the Second Amendment’s
guarantee. Id. at 116. The circuit court, in reaching this conclusion, considered
whether the type of firearm at issue is commonly owned and is typically possessed
by law-abiding citizens for lawful purposes. Id. at 116.
The Third Circuit then determined the appropriate level of scrutiny that must
be applied, noting the applicable level of scrutiny is dictated by whether the
challenged regulation burdens the core Second Amendment right. Id. at 117.
If the core Second Amendment right is burdened, then strict scrutiny applies;
otherwise, intermediate scrutiny applies. Id. The circuit court reasoned that the
New Jersey statute did not severely burden the plaintiffs’ core Second Amendment
right to self-defense in the home for five reasons: (1) the restriction did not
categorically ban a class of firearms, only the number of rounds the magazines could
hold; (2) the magazines did not relate to handguns, which was the “quintessential
self-defense weapon” in home self-defense; (3) the prohibition did not take firearms
out of the hands of law-abiding citizens and had no impact on the many other firearm
options that individuals could use to defend themselves in their homes; (4) the statute
did not render the firearm at issue incapable as operating as intended; and
(5) the possession of a firearm in the home for self-defense is not a protected form
of possession under all circumstances, otherwise, any type of firearm possessed in a
home would be protected merely because it could be used for self-defense.
Id. at 118. Accordingly, the circuit court applied an intermediate level of scrutiny.
Id.The Third Circuit then explained that “‘under intermediate scrutiny[,]
the government must assert a significant, substantial, or important interest;
18
there must be a reasonable fit between the asserted interest and the challenged law,
such that the law does not burden more conduct than is reasonably necessary.’”
Id. at 119 (quoting Drake v. Filko, 724 F.3d 426, 439 (3d Cir. 2013)). The circuit
court cautioned, however, that the law need not be the least restrictive means of
achieving that interest. Id. The circuit court reasoned that the State of New Jersey
undoubtedly had a significant, substantial, and important interest in protecting its
citizens’ safety that included reducing the lethality of active shooter and mass
shooting incidents. Id. The circuit court explained that prohibiting the use of
magazines holding more than ten rounds reduced the number of shots fired and the
resulting harm and that changing or reloading weapons during a mass shooting
incident provided a pause and an opportunity for bystanders or police to intervene
and for victims to flee. Id. at 120. The circuit court concluded that the statute
survived intermediate scrutiny and upheld the district court’s decision. Id. at 122.
Generally, we are persuaded by the Third Circuit’s and Seventh Circuit’s
interpretation of Second Amendment jurisprudence and adopt the two-step
framework in determining whether a constitutional violation occurred in this case.
Our first step in reviewing the constitutionality of the Ordinance is to determine
whether the Ordinance imposes a burden on conduct falling within the scope of the
Second Amendment’s guarantee. If there is a burden, we must then determine the
appropriate level of scrutiny to apply and weigh the strength of the government’s
justification for restricting or regulating the exercise of an individual’s Second
Amendment rights. Ezell I, 651 F.3d at 703.
As to the first step of the analysis—whether a Second Amendment right is
burdened—the Seventh Circuit, in Ezell I, determined that “the right to maintain
proficiency in firearm use[ is] an important corollary to the meaningful exercise of
19
the core right to possess firearms for self-defense.” Ezell I, 651 F.3d at 708-09.
Here, the Ordinance outright prevents individuals such as Barris from target
practicing on their residential property unless they live in two specific zoning
districts, regardless of the characteristics of their residential property. The scope of
the Ordinance, therefore, imposes a burden on the right to maintain proficiency in
firearm use, which triggers Second Amendment scrutiny.
As to the second step of the analysis—the level of scrutiny to be applied and
the strength of the government’s justification—the burden on Barris concerns his
ancillary right under the Second Amendment to maintain proficiency in his firearm
use. Notably, the Ordinance does not concern a core individual right under the
Second Amendment to keep and bear arms and allow law-abiding citizens to use
arms in defense of hearth and home. Rather, the Ordinance burdens his ability to
target practice on his property to maintain that proficiency. Thus, we will apply an
intermediate scrutiny standard requiring the Township to assert a significant,
substantial, or important interest for the Ordinance, and there must “be a reasonable
fit between the asserted interest and the challenged [ordinance], such that the
[ordinance] does not burden more conduct than is reasonably necessary.”
See New Jersey Rifle, 910 F.3d at 119 (quoting Drake, 724 F.3d at 439).
The Township argues that there are four reasons that the Ordinance is
constitutional using an intermediate scrutiny standard. (Township’s Brief at 11-13.)
First, the challenged Ordinance allows firearm ranges in both the O-1 and S-1 zoning
districts, where, according to the Township, “[p]otentially, 82% of the area in the
two zoning districts is available, constituting 259 lots.” (Id. at 11.) The Township
submits that the land available is “markedly greater than the 2.2 percent which
troubled the Seventh Circuit in [Ezell III] and it represents a real and substantial
20
opportunity to construct a shooting range on any one of the available lots within a
few minutes of his home.” (Id. at 12.) Second, the Township submits that it has a
reasonable interest in public safety, and “that interest in public safety is well served
if its citizens are not shot by accident, especially those visiting the mall nearby.”
(Id.) Third, the “same logic applies . . . against discharging firearms within [150]
yards of an adjacent occupied structure” and “the freedom not to be accidently shot
in one’s home by a neighbor blazing away on an unsafe shooting range is a legitimate
public concern.” (Id.) Finally, “the Ordinance requires that firing ranges comply
with [National Rifle Association (NRA)] standards . . . [and] [a]pplying the technical
standards of the [NRA] to the construction of the shooting range is not only
constitutionally defensible, it is a wise and prudent exercise of the government’s
obligation to protect the safety of its citizens.” (Id. at 13.)
The trial court, when it granted the Township’s second motion for summary
judgment, concluded that public safety is a significant, substantial, and important
interest, and correctly focused on whether the “challenged [O]rdinance is a
reasonable fit such that the law does not burden more conduct than necessary.”
(O.R., Item No. 70 at 11.) The trial court found that the lots in zoning districts O-1
and S-1 provided 8,671.55 acres of area for a shooting range. (Id.) The trial court
found that “all the lots in excess of six acres would meet the 150-yard separation
requirement for a gun range, and many of the five[-]acre lots would.” (Id.) The trial
court found that the Ordinance’s restriction on target practicing related to the
“important government interest of protecting [T]ownship residents from being
injured by irresponsible use of firearms” and concluded that the Ordinance is not
facially unconstitutional for violating the Second Amendment. (Id. at 12.)
While we do not disagree that the reasons provided are important considerations,
21
we disagree with the trial court’s conclusion that the Ordinance is facially
constitutional. Our concern is that, on its face, the Ordinance burdens more conduct
than is necessary to meet the important government interests in this case.
We note that municipalities, through their comprehensive plans and zoning
ordinances, routinely prescribe the manner in which property may be used by
designating the zoning districts in which certain broad categories of uses may occur.
For instance, zoning ordinances generally allow for a variety of residential,
commercial, industrial, and agricultural uses, and they specify the zoning districts in
which each use may occur. Within these broad zoning categories, municipalities
will often develop more specific subcategories of zoning districts that more narrowly
limit the type of uses that are allowable therein. Simply because a municipality
designates that property in a certain zoning district may be used for a particular use
does not mean that individuals cannot engage in an activity encompassed by a use
category on a personal level elsewhere in the municipality. For instance, simply
because a municipality may designate a particular zoning district for commercial car
washing activities does not mean that individuals may not engage in the personal
activity of washing their own cars in the driveways of their residential properties.
Here, the Township, in its zoning plan, has specified that shooting ranges may
be located in the O-1 and S-1 zoning districts. Thus, if a person or an entity seeks
to operate a shooting range in the Township—whether it be a commercial range,
private gun club, or otherwise—it can do so in those zoning districts, provided that
other conditions are satisfied. To be clear, however, this case is not a challenge to
the “use” of a property in the traditional zoning sense or an appeal of the denial of a
zoning permit. Rather, this matter is a challenge to an ordinance set forth in
Chapter 6 of the Stroud Township Code of Ordinances, pertaining to Conduct, and
22
not a challenge under Chapter 27 of the Stroud Township Code of Ordinances
(i.e., the Township’s Zoning Ordinance), pertaining to Zoning.
The Township, in enacting the Ordinance, opted to prohibit personal target
shooting throughout much of the Township by restricting the exercise of the
Second Amendment right to maintain firearm proficiency to just two zoning
districts—the O-1 and S-1 zoning districts—thereby establishing an outright ban on
this conduct in all other zoning districts. The Township has not justified why an
outright ban was necessary for the remainder of the Township in order to protect the
public. Instead, the Township appears to defend its decision to outright ban target
shooting of any kind in any district other than the two identified above by noting that
those districts consist of 8,671.55 acres. The ability under the Township’s Zoning
Ordinance to develop properties in those districts as shooting ranges does not
somehow allow the Township to overcome the deficiencies in the Ordinance.
We do not believe that an individual’s right under the Second Amendment to
maintain proficiency in firearm use via a personal shooting range on one’s property
should be contingent on owning property or residing in zoning districts O-1 and S-1.
In summary, the conduct Ordinance here fails to pass constitutional muster.
The Ordinance imposes a burden on the Second Amendment right to maintain
proficiency in firearm use by essentially imposing an outright ban on target shooting
everywhere in the Township except two specific zoning districts. The Township did
not meet its burden under the intermediate scrutiny standard to justify such an
outright ban on personal shooting ranges at one’s residence, because it did not
establish that the Ordinance “does not burden more conduct than is reasonably
necessary.” See New Jersey Rifle, 910 F.3d at 119 (quoting Drake, 724 F.3d at 439).
23
In reaching our conclusion, we do not discount the importance of regulating
target shooting in a residential environment and the important policy reasons for the
Ordinance, nor are we holding that every person needs to have the ability to have a
personal shooting range on his property. To the contrary, a municipality clearly may
regulate such activity. This Court has recognized that Second Amendment rights
are “not unlimited” and “may be restricted in the exercise of police power for the
good order of society and [the] protection of citizens.” Perry v. State Civ. Serv.
Comm’n, 38 A.3d 942, 955 (Pa. Cmwlth. 2011). Yet, as we have previously held:
It must be remembered . . . that the police power delegated by the state
is not infinite and unlimited. The action taken thereunder must be
reasonable, it must relate to the object it purports to carry out, and it
must not invade the fundamental liberties of the citizens. It must also
be remembered that even legitimate legislative goals cannot be pursued
by means which stifle fundamental personal liberty when goals can be
otherwise more easily achieved.
Commonwealth v. Sterlace, 354 A.2d 27, 29 (Pa. Cmwlth. 1976) (holding
ordinance purporting to restrict door-to-door distribution of all advertising,
both commercial and noncommercial, was unconstitutional as being unduly
burdensome restriction on distributors’ First Amendment constitutional rights)
(citing Warren v. Philadelphia, 115 A.2d 218 (Pa. 1955) (holding rent and eviction
control ordinance designed for health and welfare of its citizens was valid exercise
of police power)).
Thus, our decision does not in any way prohibit the Township from enacting
an ordinance targeted to protecting the public, provided that it satisfies the
intermediate scrutiny test as described above. As we have repeatedly stated
throughout this opinion, there must “be a reasonable fit between [the] asserted
interest and the challenged [ordinance], such that the [ordinance] does not burden
more conduct than is reasonably necessary.” See New Jersey Rifle, 910 F.3d at 119
24
(quoting Drake, 724 F.3d at 439). For instance, the Township may determine that
the goal of protecting the public could be met by imposing requirements on personal
shooting ranges, such as a minimum lot size, setback requirements, safety
requirements (e.g., targets and backstops be built and used according to certain
standards), and requirements on the configuration or positioning of a shooting range
on the property to account for distances between buildings or other obstacles beyond
the target. 16 The ordinance could require that the Township or law enforcement
inspect the personal shooting range and approve it annually to ensure that the safety
requirements are being met. If the Township chooses to enact a new ordinance that
imposes reasonable limitations in the forms described above, it is entirely possible
that the ordinance could pass the intermediate scrutiny test. 17 In order to do so,
however, the Township must balance the constitutional rights of individuals to
16
Here, as discussed above, the Ordinance imposes additional limitations on hunting,
outdoor shooting ranges permitted under the Zoning Ordinance (i.e., shooting ranges in the O-1
and S-1 zoning districts), and sportsmen’s clubs that a firearm may not be discharged before dawn
or after dusk or within 150 yards of a structure, farm, or camp. Furthermore, the Zoning Ordinance
(not the Ordinance itself) requires a parcel in those districts to consist of at least five acres if it is
to be used as a shooting range. Although the Ordinance does not apply those time and proximity
limitations nor the Zoning Ordinance’s five-acre parcel limitation throughout the Township, it is
conceivable that such time, proximity, and property-size limitations could pass constitutional
muster. Those limitations, however, as currently set forth in the Ordinance and Zoning Ordinance
do not apply to Barris’s conduct or property.
17
We note that it is not uncommon for municipalities to regulate personal recreational
activities on residential properties. For instance, while individuals swim at commercial swimming
pools or private swim clubs, some individuals install a swimming pool on their residential
properties. Municipalities often regulate that activity by requiring the residential swimming pool
to have a fence of a certain height and/or type of construction with a lock in order to protect against
accidental drownings. See Stroud Township Zoning Ord. § 27-508(1)(E). While shooting firearms
on a residential property presents different dangers than the use of swimming pools, as with
swimming pools those dangers can be mitigated to some extent by requiring safety features to be
incorporated into residential target ranges.
25
maintain proficiency in firearm use through firearm-related activity on their
properties with the Township’s important goals of keeping the general public safe. 18
IV. CONCLUSION
For the reasons discussed above, we conclude that the trial court erred as a
matter of law when it determined that the Ordinance did not violate Barris’s Second
Amendment rights. Accordingly, we reverse the trial court’s order granting
summary judgment in favor of the Township and against Barris.
P. KEVIN BROBSON, President Judge
18
In light of our decision, we need not address Barris’s due process claims, nor do we need
to address in great detail the Township’s exhaustion of administrative remedies argument.
As for the latter, we note:
[T]he exhaustion of administrative remedies is not required where a statutory
scheme’s constitutionality or validity is being challenged. [Nat’l] Solid Waste
[Mgmt. Ass’n] v. Casey, . . . 580 A.2d 893[, 897] ([Pa. Cmwlth.] 1990).
In order to qualify under the exception “the attack must be made to the
constitutionality of the statute or regulation as a whole and not merely to how
the statute or regulation has been applied in a particular case.” Barr v. State Real
[Est. Comm’n], . . . 532 A.2d 1236[, 1238] ([Pa. Cmwlth.] 1987), [(citing St. Clair
v. [Pa. Bd. of Prob. &] Parole, . . . 493 A.2d 146, 153 ([Pa. Cmwlth.] 1985))].
Giffin v. Chronister, 616 A.2d 1070, 1073 (Pa. Cmwlth. 1992). Accordingly, because we
concluded that the Ordinance is facially unconstitutional and in violation of Barris’s Second
Amendment rights, he did not need to exhaust his administrative remedies with the Township prior
to appealing the zoning permit denial to the trial court and this Court.
26
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jonathan Barris, :
Appellant :
:
v. : No. 671 C.D. 2020
:
Stroud Township :
ORDER
AND NOW, this 28th day of May, 2021, the order of the Court of Common
Pleas of Monroe County, dated May 26, 2020, is REVERSED.
P. KEVIN BROBSON, President Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jonathan Barris, :
Appellant :
:
v. : No. 671 C.D. 2020
: SUBMITTED: February 8, 2021
Stroud Township :
BEFORE: HONORABLE P. KEVIN BROBSON, President Judge
HONORABLE MARY HANNAH LEAVITT, Judge (P)
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
DISSENTING OPINION BY
SENIOR JUDGE LEADBETTER FILED: May 28, 2021
I respectfully dissent. I do not believe that the Second Amendment
gives one the right to have a shooting range in his backyard regardless of where he
lives or the surroundings of his property. Even if the right to bear arms carries with
it the right to become proficient in the use of firearms, all that should require is that
some practice facilities be allowed within a reasonable distance of the gun owner,
not that they be permitted in every zoning district in the community, particularly
residential districts. In that respect, I disagree with the Majority that maintaining a
personal shooting range is analogous to washing a car in the driveway. Furthermore,
even if Appellant’s property were situated in a district that allowed shooting ranges,
it would not meet the 5-acre lot size or 150-yard setback requirement for shooting
ranges,1 both of which I find reasonable safety restrictions on the discharge of
1
I disagree with the Majority’s assertion that the 150-yard limitation applies only in the O-1
or S-1 zoning districts and specifically to shooting ranges allowed therein. Section 3 of Ordinance
No. 9-2011 provides that “it shall be unlawful to fire or discharge any firearm within the Township
of Stroud except as provided in Section 4 Exceptions below…. however, in no case shall a firearm
be discharged…within 150 yards of an adjacent occupied structure, camp or farm….” (emphasis
(Footnote continued on next page…)
firearms. Accordingly, I believe that Ordinance No. 9-2011 survives the
intermediate scrutiny appropriate here, and that it does not violate Appellant’s
Second Amendment rights. I would affirm the trial court.
__________________________________
BONNIE BRIGANCE LEADBETTER,
President Judge Emerita
added). Given that the limitation is obviously a safety measure, it defies logic to infer that it would
apply only in those districts thought sufficiently uninhabited to be safe for outdoor shooting ranges,
but would not apply anywhere else in the Township such as residential or densely populated
commercial districts.
BBL - 2