Mere carry of a weapon RAS? NO! (Here's why!)

[Lysander]

I'm not licensed in Pennsylvania, and not rendering a legal opinion on Pennsylvania law, be it statutory or case law.

Originally Posted by headcase

I am posting this for a friend, I don't 100% agree with it, but I think he wanted me to post it here.
I also posted it in this thread, instead of the original, for obvious reasons:
...


"After he stepped out of the van, Officer Hamman informed appellee that she had seen a gun in the back of his pants. She performed a quick pat down of appellee and discovered a holster inside the back of his shorts."
and Stevenson says that RAS occurs at the following: "It was Appellant who drew the attention of the officers because: 1) he was actually carrying a handgun; 2) the officers were able to see the outline of the handgun through Appellant's coat pocket; and 3) Appellant was carrying it in a manner very different from those individuals who carry weapons on the job or who are used to carrying licensed handguns."

Emphasis mine.

I would have to read the decision, in context, to make the best sense of the material I emphasized. Are they talking about "Mexican Carry"? Carrying in a pocket in a pocket holster that does not prevent printing? Carrying in a pocket, loose? Simple concealed carry (arguably, this could be seen as how individuals who carry weapons on the job or who are used to carrying licensed handguns carry handguns)? Absent the context in which this criteria is discussed, I'm not sure how much weight to place on it - though, it is suggestive that non-holstered carry may trigger this part of the test.

[LittleRedToyota]

Originally Posted by Lysander

Are they talking about "Mexican Carry"? Carrying in a pocket in a pocket holster that does not prevent printing? Carrying in a pocket, loose?

this was from stevenson. he was carrying in a pocket. there were other factors in stevenson. the police officer said stevenson became "nervous" when he saw the officers. also, the police officer had special training in detecting concealed weapons. but, the non-holstered carry aspect definitely factored into the totality of circumstances in stevenson.

imho, stevenson is a bit problematic, but there is at least some other RAS outlined--though all very subjective (and, frankly, easily concocted after the fact...not to suggest that this is what actually happened in this case...just that it could easily be in some other case).

however, robinson is the real problem. in that case, the RAS consisted entirely of "i saw that he had a concealed gun [which was in a holster] in his waistband and there were children nearby".

[Lysander]

Originally Posted by LittleRedToyota

this was from stevenson. he was carrying in a pocket. there were other factors in stevenson. the police officer said stevenson became "nervous" when he saw the officers. also, the police officer had special training in detecting concealed weapons. but, the non-holstered carry aspect definitely factored into the totality of circumstances in stevenson.

imho, stevenson is a bit problematic, but there is at least some other RAS outlined--though all very subjective (and, frankly, easily concocted after the fact...not to suggest that this is what actually happened in this case...just that it could easily be in some other case).

however, robinson is the real problem. in that case, the RAS consisted entirely of "i saw that he had a concealed gun [which was in a holster] in his waistband and there were children nearby".

My questions were mostly rhetorical; laying items out in a "1, 2, and 3" way is an ideal way to formulate a test, and having never read that case, wasn't entirely sure that that (formulating a test) is what was done. As far as I could tell, it looked like "Mexican carry" sans "clip-draw" or IWB holster may have given rise to RAS - or not.

There's no rule against printing down here, either; but with our (questionable?) law regarding licensed-alcohol establishments and open carry, having a law against printing would be a severe pain.

[LittleRedToyota]

Originally Posted by Lysander

My questions were mostly rhetorical; laying items out in a "1, 2, and 3" way is an ideal way to formulate a test, and having never read that case, wasn't entirely sure that that (formulating a test) is what was done.

IANAL, but i don't think they really forumlated a test.

if you are curious to read it yourself, i have attached the case to this post.

[headcase]

While Robinson disgusts me, I feel that Hawkins, which was a PASC decision, as opposed to an appellate court decision and was 6 years later, does define the groundrules for what is and is not, to be considered RAS when a firearm is involved. These other cases were, IIRC, apellate court decisions as well.

While I do agree with the gist of the re-post I posted, I do not agree that Robinson carries any particular weight in light of Hawkins, and the not so veiled verbal beatdown the PASC gave the actions of the Commonwealth as they relate to LEOs becoming hysterical just because someone is armed...

[LittleRedToyota]

Originally Posted by headcase

While Robinson disgusts me, I feel that Hawkins, which was a PASC decision, as opposed to an appellate court decision and was 6 years later, does define the groundrules for what is and is not, to be considered RAS when a firearm is involved.

i disagree. all hawkins really says with regard to RAS is that an anonymous tip is not, in and of itself, RAS.

the supreme court went out of their way to say they were not commenting on the case where the police officer might develop his own suspicions that the person is illegally armed.

We do not address the scenario in which the officer has an independent reason to believe that a crime (carrying an unlicensed gun) may be in progress, inquires as to whether the gun is licensed and the person does not answer.

thus, hawkins leaves the door wide open as to whether or not a police officer seeing a concealed gun, and asking for an LTCF and having the person refuse to produce it, is RAS of a crime (if refusing to produce the LTCF makes it RAS, it is effectively RAS right from the start since you will not be free to just say no to the LTCF request and leave).

hawkins merely says that an anonymous tip is not RAS. (well, and, of course, it does have that very wonderful footnote pointing out that OC is legal...but that isn't relevant to this discussion.)

[DaveM55]

I see plenty of people CCing while in uniform and if they aren't breaking a law I just leave them alone. Mere carry is not RAS, it's that simple. You have to look at the totality of circumstances.

[Mocha Java]

My bottom line: if a uniformed LEO asks me if I am carrying and/or wants to see my LTC, I will first ask if this is a mere encounter. If he says no, I will show him my LTC and complain later. I am 100% certain that the complaint will go nowhere since some other factor that contributes to RAS will be (at a minimum) invented.
A more interesting academic question would be OC with an LTC in Phila.
None of the "touching heavy pocket, cleverly applying training to know that a gun is being carried" stuff like in Stevenson, just simply walking down the street openly carrying.
Any RAS here?

[LittleRedToyota]

Originally Posted by Mocha Java

Any RAS here?

outside of philly, i would be hard to think there is since you do not need an LTCF to do it.

in philly, in a car, or CCing, are all the same as, for all of them, you do need an LTCF. whether or not the courts would view RAS as existing in those cases is what the debate is all about.

[Mocha Java]

Well the Court found RAS in Stevenson's CC circumstances. I'm changing the circumstances to Phila. and OC. Assuming the LEO does not invent "facts," can anyone conceive of RAS here.