In a decision that went virtually unnoticed during the high point of COVID-19, in July of 2020, the PA Supreme Court issued a decision in Commonwealth of Pennsylvania v. Darren Montgomery, 234 A.3d 523 (PA 2020), holding that sometimes a visible firearm is a concealed firearm. Say what?!?!
As I’m sure you’re wondering, when does carrying a visible firearm count as concealed? Well, they didn’t bother to give a clear answer to that question.
The background to the case is that a police officer in Philadelphia saw Mr. Montgomery walking on the street and entering a store with the “brown handle of a gun” protruding from his waistband. After exiting the store and noticing the officers, he went back into the store and put the firearm on a potato rack. The officer followed him into the store and arrested Mr. Montgomery. He was subsequently charged with violating 18 Pa.C.S. § 6106 for carrying a concealed firearm on his person without a License to Carry Firearms (LTCF). The charges against Mr. Montgomery were dismissed at the preliminary hearing and the Philadelphia District Attorney’s Office appealed.
Regardless of your feelings on the propriety of the conduct, you should be alarmed by the outcome reached by the highest court of this state, which ultimately boils down to:
[O]ne carries a firearm concealed on or about his person pursuant to Section 6106 when, viewed in the totality of the circumstances, he or she carries a firearm in such a manner as to hide the firearm from ordinary observations; absolute invisibility to others is not required
In addition to being alarmed, you should also be supportive of Justice Wecht, who has once again authored a scathing dissent to the majority decision including such gems as, “there is nothing unreasonable about not prosecuting people who have not violated the plain terms of a criminal statute.”
The Majority of the Court clearly declined to “interpret ‘concealed,’ as requiring the defendant to obscure the firearm from sight completely.” Instead, stating:
This interpretation would be unreasonable as it would allow the defendant to avoid prosecution for carrying an unlicensed concealed weapon if he were to leave the smallest portion of the firearm exposed to view.
Not to allow the absurdity of the issue to go unnoticed, Justice Wecht included the below photograph in his dissent to illustrate the effect of the Majority’s decision.
Justice Wecht then declares,
The question is whether this person has “concealed” his handkerchief? Bound to its own logic, the Majority would have no choice but to say “yes.”
The Majority also casts aside one of the most important rules of statutory construction, the Rule of Lenity, or as referred to in the majority decision, the “rule of strict construction.” For those not aware, the Rule of Lenity is a legal principle, well established in the United States, which requires ambiguities in the law to be interpreted to the benefit of the defendant. To do otherwise would violate the principles of due process by subjecting individuals to criminal penalty without adequate notice of what conduct is prohibited. In doing so, the Majority cited to the decision of a lower court, which has no binding authority over the state Supreme Court, for the proposition that “the canon of strict construction of penal statutes ‘is not an inexorable command to override common sense and evident statutory purpose.’”
Justice Wecht in his dissent asserts that this rule should not be so cavalierly disregarded, and that the majority’s interpretation:
[V]iolates not only Montgomery’s due process rights but also the due process rights of all Pennsylvanians, as we all are now unsure about when a firearm is concealed and when it is visible enough to allow carry without arrest and prosecution.
Justice Wecht continues on to explain the full breadth of the new problem created by the Majority:
By allowing some visibility to still be considered ‘concealed,’ but not explaining at all how much visibility is permitted and how a court or police office or gun owner is supposed to know, the Majority infuses uncertainty where it does not need to be, depriving our citizenry of full and fair notice of what is and what is not criminal conduct in Pennsylvania. The Majority’s answer to citizens, police officers and trial judges is: “Take your best guess as to what is ‘concealed enough’ to be ‘concealed.’ Maybe we’ll decide later if your guess was wrong, or maybe not.”
It should be noted that Justice Donohue also issued a concurring/dissenting opinion, where she declared:
I join the Majority’s holding that the Superior Court erroneously concluded that any level of concealment satisfies the element of “concealment” as required by 18 Pa.C.S. § 6106. I further agree that the term does not require absolute invisibility and that a totality of the circumstances analysis governs the question of whether a firearm was concealed. I respectfully dissent, however, with respect to the Majority’s application of the test on the facts presented here. I agree with Montgomery that his firearm was readily discernible to the public and therefore not concealed. Thus, the Commonwealth failed to establish a prima facie case.
If you or someone you know has had their constitutional rights violated by merely possessing a firearm, whether open or concealed, contact Firearms Industry Consulting Group today to discuss YOUR rights and legal options
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