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. As our readers are aware (and the Court took notice of in footnote 10), I filed an Amicus Brief on behalf of Members of the Pennsylvania General Assembly, Firearm Owners Against Crime (FOAC), Firearm Policy Coalition, and Firearm Policy Foundation in support of Mr. Hicks and arguing, after conducting a 50 state and federal survey that the mere open carrying of a firearm does not constitute reasonable suspicion.
Justice Wecht, writing for the majority, declared that the Superior Court has consistently applied the “inverse of the bedrock rule” that an officer must have reasonable suspicion to stop and frisk an individual by holding that “possession of a concealed firearm by an individual in public is sufficient to create a reasonable suspicion that the individual may be dangerous, such that an officer can approach the individual and briefly detain him in order to investigate whether the person is properly licensed.” As Mr. Hicks was stopped solely because a city camera saw him carrying a firearm, the Court held that “there being no other lawful basis for the seizure at issue,” the Superior Court’s decision affirming his conviction for DUI had to be reversed.
As the Court explained
To maintain constitutional validity, an investigative detention must be supported by a reasonable and articulable suspicion that the person seized is engaged in criminal activity and may continue only so long as is necessary to confirm or dispel such suspicion
Nevertheless the Commonwealth took a very different position, which was acknowledged by the Court:
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.
The Court, in dismissing the Commonwealth’s position, declared that to permit investigative detention solely to determine whether someone is properly licensed is “ultimately untenable, because it would allow a manifestly unacceptable range of ordinary activity to, by itself, justify Terry stops.”
The Court then went on to delcare
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. (emphasis added)
The Court then went on to agree with the primary argument that I made in the Amicus Brief that just as the police cannot stop an individual who is driving to see if he/she is licensed, police cannot stop an individual with a firearm (without more) to see if he/she is licensed to carry. In doing so, the Court declared “that the government may not target and seize specific individuals without any particular suspicion of wrongdoing, then force them to prove that they are not committing crimes.”
Perhaps even more importantly and the two portion of the decision that makes me stand in awe, the Court declared
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).
Also of particular note is footnote 6 in the Majority Opinion which declares
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).
If you or someone you know has had their constitutional rights violated by merely openly possessing a firearm, contact Firearms Industry Consulting Group today to discuss YOUR rights and legal options.
Firearms Industry Consulting Group® (FICG®) is a registered trademark and division of Civil Rights Defense Firm, P.C., with rights and permissions granted to Prince Law Offices, P.C. to use in this article.
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I am interested in your opinion on how the language of this decision might apply to a “Red Flag” statute possibly passing the legislature.
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You guys are AWESOME!
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thank you for everything you do
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I would like to send you information on a similar case/argument made in the Second Circuit. rich [at] ctcarry.com
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Any thoughts on whether the state will appeal to the Supreme Court of the United States? Can they make this a Constitutional argument?
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Finally, a court ruling that places the 2nd Amendment on equal footing with the rest of the Bill of Rights. However, I am afraid the PA will not let it stand and will appeal to the Federal courts.
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Everything mentions concealed carry. In the decision is there a specific reference to Open carry?
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