Why Nutter Isn’t in Jail

Jeff Soyer asks:

So why isn’t Nutter in jail?

It’s something I’ve been hearing a lot of, but the short answer is that the law has to be enforced before possible civil and criminal penalties come into play, and as best as I can tell, the city ordinances aren’t being enforced yet.  There’s no penalty for passing a law in violation of preemption under Pennsylvania law, so the act of merely passing a gun control ordinance is not itself illegal in the sense that you can go to jail for violating it.

Penalties don’t come in until someone attempts to enforce it.  Under our system of government, a law that is unconstitutional is essentially not law, so any arrests made under the Philadelphia gun ordinances would be done under color of law, which opens the arresting officer, and the people all the way up the chain of command, to liability under the Civil Rights Act of 1871.  The Civil Rights Act allows for state and local officials to be stripped of their immunity and to be sued as individuals, rather than in their official capacity.  For local government officials, they may be sued in both their official and personal capacities, since local governments are not considered sovereigns, don’t enjoy sovereign immunity.

There are also criminal penalties, both federal and state, which can apply, but prosecution under these statutes is rare, and when it has happened, it’s been difficult to get convictions.  In order to press criminal charges, either the local Assistant United States Attorney would have to bring charges, or the Pennsylvania Attorney General.  But as with the civil case, the law has to be enforced before there’s criminal liability.