Pennsylvania Supreme Court: Open Or Concealed Carrying Of A Firearm Is Not Reasonable Suspicion Of A Crime

BY Herschel Smith
4 months, 2 weeks ago

Prince Law:

Today, the Pennsylvania Supreme Court issued a 53 page majority opinion, a 2 page concurring decision by Justice Baer and a 16 page concurring opinion by Justice Dougherty which Justice Mundy joined, in the case of Commonwealth v. Hicks, which addressed whether the mere open or concealed carrying of a firearm constitutes reasonable suspicion of a crime.

[ … ]

“Before this Court, the Commonwealth again advanced its “radical position,” Hawkins, 692 A.2d at 1071, in the present iteration contending that police officers are not only entitled, but “duty bound” to seize and investigate the licensing status of every individual who carries a concealed firearm in Pennsylvania. Brief for Commonwealth at 11. We have little difficulty in again rejecting this proposition, because we conclude that the Robinson rule contravenes the Terry doctrine and, indeed, the fundamental guarantees of the Fourth Amendment.

Although the carrying of a concealed firearm is unlawful for a person statutorily prohibited from firearm ownership or for a person not licensed to do so, see 18 Pa.C.S. §§ 6105-06, there is no way to ascertain an individual’s licensing status, or status as a prohibited person, merely by his outward appearance. As a matter of law and common sense, a police officer observing an unknown individual can no more identify whether that individual has a license in his wallet than discern whether he is a criminal. Unless a police officer has prior knowledge that a specific individual is not permitted to carry a concealed firearm, and absent articulable facts supporting reasonable suspicion that a firearm is being used or intended to be used in a criminal manner, there simply is no justification for the conclusion that the mere possession of a firearm, where it lawfully may be carried, is alone suggestive of criminal activity.

If the consequence of our decision is that future courts afford meaningful Fourth Amendment protection to individuals engaged in other commonly licensed activities, that result is preferable to our allowance of governmental overreach that undermines the individual freedom that is essential to our way of life in this constitutional republic.

Crime and violence are ever-present threats in society, and it can be tempting to look to the government to provide protection from “dangerous” people with constant vigilance. However, the protections of the Fourth Amendment remain an essential bulwark against the overreaches and abuses of governmental authority over all individuals. Notwithstanding the dangers posed by the few, we must remain wary of the diminution of the core liberties that define our republic, even when the curtailment of individual liberty appears to serve an interest as paramount as public safety. “Experience should teach us to be most on our guard to protect liberty when the government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.” Olmstead v. United States, 277 U.S. 438, 479 (1928) (Brandeis, J., dissenting).

Consistent with the General Assembly’s reservation of the exclusive prerogative to regulate firearms in this Commonwealth, codified at 18 Pa.C.S. § 6120, the additional requirement that an individual possess a license in order to carry a firearm openly within the City of Philadelphia is prescribed by statute, not by municipal ordinance. See 18 Pa.C.S. § 6108; see generally Ortiz v. Commonwealth, 681 A.2d 152 (Pa. 1996).”

So the court did three things: [1] decreed that the mere carrying of a firearm in a concealed manner isn’t a reasonable suspicion of a crime (I would have to know the specifics of the case to be able to ascertain why this is important since if the firearm is concealed well, it wouldn’t be seen by anyone), [2] decreed that the mere carrying of a firearm openly isn’t a reasonable suspicion of a crime (apparently Pennsylvania has a permitted open carry system, and cops don’t have the right to stop someone who is openly carrying to ask about a permit), and [3] decreed that little tyrants in locales like cities or townships don’t have to right to upend this judgment.

Every once in a while someone gets it right.  I would think that after the decision by the Fourth Circuit Court of Appeals viz. The Charlotte Mecklenburg Police Department, they would stop trying to argue that they have unlimited rights.

But also just as apparent is the fact that the police go from judge to judge, and court to court, until they find someone who agrees with them.

That’s the American way, yes?


Comments

  1. On June 2, 2019 at 10:38 pm, Dan said:

    The cops simply DO NOT CARE about the constitutionality or unconstitutionality of what they do. They are essentially
    immune to the consequences of their conduct….or misconduct.
    It’s the city/county that bears the burden for these actions.
    The cops don’t even TRY to learn what the law says…the DA knows
    but often doesn’t care.
    And it’s the local prosecutor/DA who has the final say on whether
    charges go forward or are dropped….again with NO PERSONAL
    CONSEQUENCES being faced for their choices. ANY negative
    consequences from abuse of authority is paid for out of the pockets
    of the taxpayers. This means the cops and the DA have ZERO
    incentive to follow worry about the Constitution or the law. And
    as long as that is the reality in America abuses and assaults such
    as this WILL CONTINUE unabated.

  2. On June 3, 2019 at 7:37 am, Heywood said:

    Quite a few cops were the kids in grade school who got their butts kicked and their lunch money taken. They get older, get a badge and a gun, and then we all know what happens…..

  3. On June 3, 2019 at 8:43 am, BRVTVS said:

    @ Heywood

    I think a lot of cops are the ones who were kicking others kids butts and taking other kids lunch money. Now they are all grown up and want to rekindle the experience of pushing people around.

  4. On June 3, 2019 at 11:14 am, moe mensale said:

    “So the court did three things: [1] decreed that the mere carrying of a firearm in a concealed manner isn’t a reasonable suspicion of a crime (I would have to know the specifics of the case to be able to ascertain why this is important since if the firearm is concealed well, it wouldn’t be seen by anyone)…”

    @Herschel,

    The suspect, Michael Hicks, was caught on a live video surveillance operation at a quicky mart. He was showing his gun to another person, returned it to his concealed carry holster and went about his business. He had no intention to rob the store as was proved by the video. The video operator notified the cops of a “man with a gun.” The rest is history.

    This is from page 3 of the Opinion and where the meat starts.

    “According to the suppression court’s factual recitation, the “camera operator advised officers that the [observed individual] showed the firearm to another patron, put the firearm in his waistband, covered it with his shirt, and walked inside” the convenience store.

    The observed individual was Michael Hicks. It later emerged that Hicks possessed a valid license to carry a concealed firearm.”

  5. On June 3, 2019 at 5:28 pm, Michael said:

    Here in PA, open carry is unlicensed. Unfortunately, most local and state police don’t recognize this. Concealed carry requires a license, and in your vehicle is considered concealed even when in the open. The exception is in the City of Brotherly Love, where the “License to Carry Firearms” is required even for open carry.

  6. On June 3, 2019 at 9:09 pm, Fred said:

    This was settled in Cain v. God some years back. Why is mankind constantly revisiting it? Cain grabbed a rock and killed Abel as a result of Adam disobeying God. What is so very difficult about this? Every Abel has a duty to defend himself and his own and every Cain must be without the camp or killed under two witnesses. Duh!

    And Dan is correct. The fed dot gov has granted unto itself qualified (sovereign government) immunity…just like the Nazis claimed at Nuremberg and the municipalities and states have been trying to follow suit. That was a REPUBLICAN supreme court that granted this right to government and in so doing, told God to take a hike. Ain’t we got fun?

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You are currently reading "Pennsylvania Supreme Court: Open Or Concealed Carrying Of A Firearm Is Not Reasonable Suspicion Of A Crime", entry #21344 on The Captain's Journal.

This article is filed under the category(s) Firearms,Guns,Second Amendment and was published June 2nd, 2019 by Herschel Smith.

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