Posted on 02/09/2009 4:23:55 PM PST by marktwain
Charges against a city man who fired a pistol into the air to stop a group from assaulting his cousin should be dropped because the city ordinance limiting the discharge of guns flies in the face of state law and the Constitution, the defendant's attorney told a county judge during a hearing Friday.
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Lancaster city's revised gunfire ordinance unconstitutionally restricts the right to protect oneself and others, a lawyer argued at a hearing Friday.
Attorney Hobie Crystle told county Judge Joseph Madenspacher that the charge filed under the city's ordinance against his client, Curtis L. Swinton, should be dismissed.
Representing the city, attorney Neil L. Albert said the city is entitled to regulate firearms discharge under state law and the charge against Swinton is appropriate.
Both attorneys agree that Swinton, 25, of the 100 block of South Pearl Street, fired a revolver at about 1:45 a.m. Dec. 30, 2007, in the parking lot of the House of Pizza restaurant, 23 W. Chestnut St., as alleged in a police affidavit.
Swinton said his cousin was being attacked and beaten by a group of assailants and that he fired a warning shot to disperse them. He had a concealed-carry permit for the gun.
Police charged Swinton with reckless endangerment and illegal discharge of a firearm. The latter is a crime under an ordinance that City Council strengthened in 2007 at the urging of Mayor Rick Gray. Each shot — even a blank — is a separate offense and can result in a $500 fine and 90 days in jail. Swinton is the first person to be charged under the amended ordinance.
State law gives a person the right to fire a gun if he or she believes another person is in imminent threat of serious harm, Crystle said. The city ordinance, in contrast, says shooting is justified only in defense of one's home, business or "human life." The city can't deny a right to Swinton that he has under state law, Crystle said.
Albert told Madenspacher that there's no state pre-emption of the city's right to say when and how firearms may be fired. Municipalities are not allowed to regulate the ownership or transfer of guns, but they can regulate how guns are used.
Albert said the city's ordinance allows gunfire in a broader range of circumstances than the state's law does. He said Swinton's reason for shooting is a question to be settled at trial, not a rationale for dismissing the charge.
Madenspacher told the attorneys he did not think the city's ordinance is unconstitutional. However, he still could rule that it cannot be applied in Swinton's case, both attorneys said after the hearing.
The two sides have 14 days to file briefs, after which Madenspacher will rule.
Gray, who has repeatedly stressed the importance of public safety to the city's quality of life, is taking "a strong personal interest" in the case, Albert said. Gray attended Friday's hearing but did not address the court.
Swinton initially pleaded guilty to a reduced charge of disorderly conduct in August 2008, but he withdrew the plea in November, and a trial is pending. He did not attend Friday's hearing.
Crystle said later that the city ordinance wrongly limits a person's options when someone comes under serious physical attack: "You can't fire a gun until you think they're going to kill him." Nor does the law make an exception for accidental discharge, he said.
Albert said there was no justification for Swinton's shot. He said the man had reasonable alternative courses of action, such as running to the city police station, which is next to the pizza shop.
"Safety shouldn't depend on luck," he said.
What about the safety of the man who was under attack?
/johnny
soooo...how much does Lancaster have in its lawsuits against unconstitutional ordinances budget for this year?
How can they possible claim that firing a *blank* is a threat to public safety? It seems to me that this alone shows that the intent of this ordinance is to “chill” the ability to defend yourself, not to improve public safety.
Well, i’d say it’s a hint to the group of bad guys. That the fun of beating an outnumbered victim senseless, is about to get a lot more interesting for them if they don’t stop it,,,,immediately.
If this is the case, this slimy little puke of a lawyer will have to bring each and every POLICE OFFICER up on charges every time they use their firearms....
It's only "fair"....
The “reckless endangerment” charge makes sense for firing into the air rather than the ground. The city attorney should get pimp-slapped for the other charge. It’s Bravo Sierra.
So did they charge any of the attackers, or just the defender this time?
He said Swinton's reason for shooting is a question to be settled at trial, not a rationale for dismissing the charge.
So what happens when it is determined that Swinton was in the right? Do they reimburse him for his legal fees and any time off work he had to take for his defense?
He should put a warning shot into the navel of one of the perps.
If Pennsylvania has such a statute, that would suggest that if the person can convince a jury that he reasonably believed the shot to be necessary, he should be acquitted.
As for the notion of a 'warning shot', while I don't think warning shots are usually appropriate, there exist situations where a warning shot is the only thing short of shooting the attacker that will. While one might argue that one should simply shoot the attacker in such cases, such a course of action carries its own risks.
Only 8% of the population has to disagree with the city to put this right.
“The “reckless endangerment” charge makes sense for firing into the air rather than the ground. The city attorney should get pimp-slapped for the other charge. It’s Bravo Sierra.”
Firing in the air can sometimes be less dangerous than firing into the ground. Pistol bullets, particularly have relatively little energy left when they hit the ground after being fired nearly straight up. High powered rifle bullets are another matter.
But, spent bullets traveling at terminal velocity in air, are seldom life-threatening.
Bullets that are fired straight up pose little danger, but often times people shooting skyward don't actually fire straight up. As to what's safest in any particular situation, it's probably a judgment call.
The speed will remain the same between rifle and pistol bullets. The only difference will be the weight of the bullets.
Exactly. If necessary, pick out one from the edge of the pack, to avoid endangering the victim of their attack. That *will* get the attention of the others. Repeat as necessary.
The main problem, would he have emptied that revolver before he ran out of targets? A good argument for a semiauto, or at least a speedloader. :)
From some army tests on .30 cal 150 grain bullets fired vertically (they hit base first).
“Based on the results of these tests it was concluded that the bullet return velocity was about 300 f.p.s. For the 150 gr. bullet this corresponds to an energy of 30 foot pounds. Earlier the Army had determined that, on the average, it required 60 foot pounds of energy to produce a disabling wound. Based on this information, a falling 150 gr. service bullet would not be lethal, although it could produce a serious wound.”
A 9mm bullet weighing 115 grains, with about 33% more cross sectional area, should be quite a bit less.
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