Judge dismisses Kennett Township firearm citations03/25/2014 05:20PM ● By Acl
By Richard L. Gaw
On March 10, Magisterial District Judge Daniel J. Maisano dismissed two firearms citations issued to a Kennett Township resident last November by the Kennett Township Police Department.
The citations, issued to Dr. Morris Peterzell of Centreville Road in Chadds Ford, alleged that on Nov. 29, 2013, Dr. Peterzell discharged a firearm within 100 feet of his property line, and that he discharged his firearm without regard for the safety of other residents by shooting without a backstop. The citations were signed by Kennett Township Police Chief Albert McCarthy, and amounted to $300 for each citation.
The citations were issued in concert with the township's Ordinance No. 212, which was passed by the township's supervisors in September 2013 in an effort to regulate the discharge of firearms in the township. Among the stipulations included in the ordinance was that no firearm may be discharged within 150 years of any occupied building. The ordinance also prohibits the discharge of any firearm within 100 yards of any property line, without the use of an adequate backstop, in accordance with National Rifle Association (NRA) guidelines, or between the hours of sunset and 8 a.m. – or in any manner that disregards the safety of others.
Using several court decisions as evidence in his brief, Stephen J. Kelly, Peterzell's attorney, contended that the charges against his client were unconstitutional, given that the State of Pennsylvania preempted the township in the regulation of firearms. He said that the township has no authority to pass such laws, and that Ordinance No. 212 violates Article 1, Section 1 of the state constitution.
Kelly wrote that the Commonwealth has demonstrated its intention to regulate laws governing firearms through the passage of Limitation on the Regulation of Firearms and Ammunition. Within the law, it states that “no county, municipality or township may in any manner regulate the lawful ownership, possession, transfer or transportation of firearms.”
“I got the feeling that the township was trying to supplement the state laws, but sought to regulate an issue that has been usurped by the state,” Kelly said. “In most cases, where there are state laws, a township can indeed supplement and regulate in certain area, but this is one of those unique areas that the courts have said it's a matter of importance that requires that it becomes a state-wide issue.”
Scudder Stevens, an attorney and the chairman of the township's Board of Supervisors, disagreed with Judge Maisano's decision, saying that although state laws address the ownership of firearms, they do not include provisions regulating their safe use.
"If Judge Maisano's decision was that state law preempted the subject from municipality laws, I would disagree with that conclusion," Stevens said. "My understanding of the Pennsylvania law has to do with the right to own guns. We were not talking about the right to own guns. We are concerned about how guns are being used, the safety components in place to protect the residents in the immediate vicinity."
Kelly said that the regulation of firearms is deemed “a matter of importance” because its freedoms form the cornerstone of the Second Amendment. “It's like a free speech issue. Can the township regulate free speech?” he said. “That butts up against the First Amendment. In this field, the courts have said when it comes to the regulation of firearms, it's a matter of such importance, that regulation has been given to the states.”
Kennett Township was not represented by legal counsel at the hearing.
The seedlings of Ordinance No. 212 first planted at the township in June 2013, when several township residents began to galvanize in response to hearing gun shots fired from properties throughout the township – high-powered rifle blasts fired for target shooting. At a Board of Supervisors meeting on June 26, more than two dozen residents packed the township building to call for a regulation on the use of firearms within township borders. In subsequent supervisors meetings, a draft of the ordinance, culled from similar ordinances passed in other townships in the state, was discussed before residents, as well as reviewed by the township's planning commission, legal counsel, supervisors and residents, who offered written comments reviewed by township officials.
During many of these meetings, several opponents of firearm use in the township pointed to the target practice Dr. Peterzell was conducting on his property, and several expressed the belief that Peterzell had not provided an adequate backstop for his target practice. In fact, Kelly introduced photographs to the Chester County Press that clearly show a target bucket and beyond it, a blue wall situated well behind the target.
To many, the firearm issue in Kennett Township has more to do with defining the township itself than the use of firearms within its boundaries. Although the township is still very much a rural setting – more conducive to the shooting of firearms than a densely populated development – the density of its population and the influx of newer developments and residents have all redefined the use of firearms from merely a way of life to a modern-day nuisance.
“Did you come to the nuisance or did the nuisance come to you?” Kelly said. “They [newer residents] came to the nuisance. You move out the the country and all of a sudden, you're complaining that they're shooting guns?”
Defining Kennett Township, Stevens said, depends on where one stands in the community at any given time, "but the area has morphed in my time from being a much more rural area to a mixed area with a lot more suburban in it," he said. "Its a challenge to define it, but there is also the realization that there are fewer and fewer areas of land surrounding properties, and therefore, there is arguably less room for bullets to be safely shot.
"I can understand why people in the community, even if they live on a farm with acres of woodland around them, that if they're in an environment where bullets are flying around, it's going to be disturbing," Stevens said. "That's the reason why the township has been trying to address the concern of gun safety."
On April 7, Kennett Township will hold a special meeting to discuss Ordinance No. 212, beginning at 7 p.m. Stevens said that the meeting will allow citizens on both sides of this issue to voice their opinions. In conjunction with the public meeting, Stevens said that the township will be revising Ordinance No. 212 that will enable the township to appeal..
“If the quo is status and everything remains exactly as is, then I think it does set a precedent,” Stevens said. “It tells us that Judge Maisano doesn't want to enforce his statute. We either get rid of the statute or we amend the statute, so that it gives us the right to go beyond Judge Maisano and take an appeal to a record judge. It is my expectation that it will not remain as is. Something will change so that the game is re-set and started again.”