Employing Innovative Legal Solutions for our Gun Violence Public Health Epidemic
By Jessica R. Hilburn-Holmes, Executive Director of the Philadelphia Bar Foundation
In the eight and a half years I have been with the Philadelphia Bar Foundation, I am often in awe of the outstanding lawyering done by our public interest community. It’s akin to the awe I felt in 1993 when the United Nations Security Council established a judicial institution to bring to justice those most responsible for the atrocities being committed in the conflicts in the former Yugoslavia.
What made this groundbreaking move at the U.N. even more dramatic was that the Council invoked its authority under Chapter 7 of its Charter (i.e., its enforcement authority that authorizes the use of force) to establish the Tribunal. It was a stroke of innovative lawyering (led in large measure by U.S. legal experts). The establishment of the International Criminal Tribunal for the Former Yugoslavia (ICTY) pushed the envelope of public international law far beyond anything that had been thought possible only a few years earlier, and it irreversibly changed the landscape of international humanitarian law.
That is the kind of precedent-setting, courageous lawyering I feel privileged to witness from the Bar Foundation’s legal aid nonprofit partners and their pro bono allies. Legal aid nonprofits have a significant impact on our community because they serve individuals and families with legal issues that no other agency can fully resolve and address legal emergencies that may lead to serious negative long-term consequences for health, safety, or family stability. Legal aid advocates provide a brain trust to address issues comprehensively, often collaborating and working closely with each other, social services, private businesses, and government agencies.
A recent example is the innovative work being done by a broad coalition of organizations to push the envelope in the fight to combat the epidemic of gun violence in Philadelphia and elsewhere. 11 Black and Latinx citizens of Philadelphia and Pittsburgh who suffered from the effects of gun violence that left them permanently scarred and fearful were joined by the City of Philadelphia and CeaseFire PA to challenge Pennsylvania’s Firearm Preemption Laws in the lawsuit of Stanley Crawford et al v. The Commonwealth of Pennsylvania et al.
The practice of “preemption” occurs when a certain level of government uses the law to overrule the authority of a lower level of government. Pennsylvania’s government has overruled local firearm regulations and preemptively stopped local government from enacting regulations. This lawsuit, brought by The Public Interest Law Center and its pro bono partners, presents inventive challenges to the constitution on this issue.
The suit alleges that by repeatedly expanding the Firearm Preemption Laws while failing to enact statewide gun safety measures, the state government has “affirmatively increased the risks of gun violence” in communities. And by increasing the risk of exposure to the potential of gun violence, the state has violated citizen’s interests and their right to be free from state-created danger.
In addition, because the Firearm Preemption Laws eliminate the ability for people to protect themselves by enacting local gun control laws, the suit alleges that the state has violated Article I, Section 1 of the Pennsylvania Constitution, to “enjoy [ ] and defend [ ] life and liberty.”
This litigation presents compelling evidence that Pennsylvania’s state government is complicit in harming its own citizens through gun violence. As the former Philadelphia City Solicitor, Marcel Pratt, put it, “Gun violence is ravaging Black communities and devastating our families daily, yet the General Assembly maintains a legislative scheme that knowingly makes our communities more dangerous. The apathy is bad enough, but continuing to stonewall our local government is unconscionable.”
The evidence of the public health crisis of gun violence and its disproportionate impact on low income and minority communities is overwhelming and compelling. As Mimi McKenzie, Legal Director at The Public Interest Law Center remarked, “Young Black and Brown men are killed with handguns in numbers that shock the conscience.” The legal brief for this lawsuit states that young Black men and Black teenagers are 35 times more at risk from gun violence than their non-Hispanic White counterparts. In October 2020, the law firm of Hogan Lovells reported, “In Philadelphia, firearm homicide is the leading cause of death for Black men and youth between age 15 and 34, and 85 percent of 2018 shooting victims were Black.”
This case illustrates creative, shrewd lawyering and strategic partnering at its best. Challenging the state’s (preemption) actions and harm-producing inaction as violations, lifting up the voices and supporting the rights of gun violence victims, and framing the evidence as a public health crisis supported by a broad coalition of organizations from the Philadelphia medical community is brilliant work. It’s the kind of change-making strategic thinking that goes beyond good lawyering to transformative practice. The Amici Curiae (or friend of the court) brief submitted on behalf of medical community leaders is a phenomenal presentation of the “appalling carnage and terror” that “does not afflict all Philadelphians equally.” Our democracy is complex, and its success depends on our ability to understand how a concept like preemption law might ultimately compromise the ability of individuals to exercise their basic rights and fully participate in our economic and civic systems. This lawsuit demonstrates that some of our country’s brightest attorneys are here with us in Philadelphia and are tirelessly fighting every day to ensure our neighbors receive justice.
Law and justice are human constructs, and as such, must constantly evolve. We will never get things just right. Nor will we ever stop trying. I hope you will join me in being proud and grateful to them all, including the Foundation’s own Josh Snyder, who was among the co-counsel on the medical community’s Amici Curiae brief. The Bar Foundation’s strategic direction is guided by excellent lawyers such as Snyder, who dedicate their time and resources to advancing equal access to justice for all of us. A case like this one confirms the important difference public interest lawyers and their pro bono partners make in our region. I am proud to serve along with them because, collectively, the actions we take today can profoundly impact the tragic circumstances of our gun violence epidemic.