Looking for relevant case law, or info how I might find such info for myself

[gnbrotz]

I'm looking for case law that would establish that the "presence of any type of gun", including long guns, is not a substantial element of a charged assault simply because someone is afraid of said gun? I'm really looking for a case where the person has a LTCF and complies with all orders, lawful gun, but is still charged with assault because the idea of the person being armed puts the "victim" in fear.

Possible examples:

Walking out of the gun store with a long gun that you just bought next to a restaurant, and customer eating outside restaurant calls police and says they were terrified because you had a gun, and charged with "disorderly conduct", "simple assault", or "reckless endangerment" of that person because you "put them in fear" by having the gun.

Walking to your car or from your car to a shooting range and a passer by calls police stating they were in fear of you because you were in the possession of a gun, and police charge you with DC, SA, or RE.

Your standing in the check out line at the store and a customer walks up behind you and notices your side arm. Asks you if your an LEO and you say no and explain you don't have to be to have a gun, person then calls police and says they are afraid because a man without a badge has a gun. Police charge you for DC, SA, or RE because that person was afraid enough to make the MWAG call.

[ByblosHex]

This would be valuable information to have. I personally have not heard of it going forward either way except in the cases of ViperGTS and myself. Though, is it also possible that you could be charged under some local statute as well.

[RobW]

There are a few online initiatives focused on publishing case law in the public domain. One good example here: http://c4sif.org/2011/09/online-case...public-domain/. A good university library is probably another reasonable place to look, but I would imagine that lawyers pay paralegals because finding specific information is time-intensive and not trivial ;->

Lexis has a freely searchable database, but I have no idea how complete it is, I've only used it for homework: http://www.lexisone.com/lx1/caselaw/freecaselaw

[GunLawyer001]

What I recall of the Pennsylvania case law on disorderly conduct is that, in general, it's not a subjective standard, it's not enough that 1 person found activity to be offensive. I believe it's a "reasonable person" standard.

So dressing like a duck is not a crime just because Suzy Soccermom is nearby, and she was savagely attacked by a duck when she was 9. And hoplophobia on the part of the sheep should not turn activity that's lawful under the UFA into some other crime.

But I don't have any current citations. Best way to get them is to Shepardize the relevant statutes, find cases applying them to firearm possession.

For a free search, you might try Google Scholar:
http://scholar.google.com/advanced_s...en&as_sdt=0,39

[Gun]

I'm looking for case law that would establish that the "presence of any type of gun", including long guns, is not a substantial element of a charged assault simply because someone is afraid of said gun? I'm really looking for a case where the person has a LTCF and complies with all orders, lawful gun, but is still charged with assault because the idea of the person being armed puts the "victim" in fear.

If this notion were ever applied, then anyone walking their perceived aggressive canine down a sidewalk could be charged with assault, disorderly conduct, ...

[CartBone69]

I'm looking for case law that would establish that the "presence of any type of gun", including long guns, is not a substantial element of a charged assault simply because someone is afraid of said gun? I'm really looking for a case where the person has a LTCF and complies with all orders, lawful gun, but is still charged with assault because the idea of the person being armed puts the "victim" in fear.

Possible examples:

Walking out of the gun store with a long gun that you just bought next to a restaurant, and customer eating outside restaurant calls police and says they were terrified because you had a gun, and charged with "disorderly conduct", "simple assault", or "reckless endangerment" of that person because you "put them in fear" by having the gun.

Walking to your car or from your car to a shooting range and a passer by calls police stating they were in fear of you because you were in the possession of a gun, and police charge you with DC, SA, or RE.

Your standing in the check out line at the store and a customer walks up behind you and notices your side arm. Asks you if your an LEO and you say no and explain you don't have to be to have a gun, person then calls police and says they are afraid because a man without a badge has a gun. Police charge you for DC, SA, or RE because that person was afraid enough to make the MWAG call.

In 2004/05 when my friend and I did our Utah class we had to get our finger prints done we went to the Berks/Lehigh police and a nice officer did the finger prints for us. My friend and I always debated the legality of OC so there we were the cop he was nice and knew what the prints were for, i asked him about OC in PA he said he wasn't 100% sure and said lets go find out and look us to his desk. He pulled out his huge law book and went the the firearms section and read the part and told us if we OC there is nothing he could do about it. So i asked him that same question, well what if someone calls the cops on me for OC can i get in trouble for disorderly conduct etc? He told me NO that UNLESS i was walking around with the gun in my hand pointing it at people or doing something stupid etc there was NOTHING he could get me for. That cops was a really nice guy i had to deal with him a couple times when i worked in shipping and receiving office at a local warehouse.

I know it doesn't answer your question but i figured id share the story anyway.

[ByblosHex]

If this notion were ever applied, then anyone walking their perceived aggressive canine down a sidewalk could be charged with assault, disorderly conduct, ...

If it were the case, knowing how many cops are out to get us, we would have all been charged with DC several times already.

[MDJschool]

Fastcase.com used to offer a 24 hour free trial with no stipulation on trialing over and over again, oddly enough. If you want to have access to PA state and federal-related courts, WestLaw can give you that for less than 200 a month on a one year contract.

I don't recall any firearm-specific cases regarding scaring scaredy-cats, but I know I have seen quite a lot of cases that say disorderly conduct could not possibly be just that kind of thing. If I can remember to do it, I'll check around for cases.

[tacticool]

What about Commonwealth v. Ortiz and Commonwealth v. Hawkins? I believe that in both of those cases, it was held that open carry of a firearm does not constitute reasonable suspicion of a crime. (Reasonable suspicion would allow a cop to temporarily detain you.) If the possession of a firearm is not even reasonable suspicion of a crime, then it can't be a crime itself. Seems like straightforward logic to me.

I am not a lawyer.

[MDJschool]

There's often nothing on point because no one wants to litigate these issues or ensure they have published opinions. Punch the citations into Google Scholar.

On REAP:

A person commits the crime of recklessly endangering another person if he engages in conduct which places or may place another person in danger of death or serious bodily injury. 18 Pa.C.S.A. § 2705. Our law defines “serious bodily injury” as “bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ.” Id. § 2301; Commonwealth v. Rochon, 398 Pa.Super. 494, 581 A.2d 239, 243 (1990). To sustain a conviction under section 2705, the Commonwealth must prove that the defendant had an actual present ability to inflict harm and not merely the apparent ability to do so. In re Maloney, 431 Pa.Super. 321, 636 A.2d 671, 674 (1994). Danger, not merely the apprehension of danger, must be created. Id. The mens rea for recklessly endangering another person is “a conscious disregard of a known risk of death or great bodily harm to another person.” Commonwealth v. Peer, 454 Pa.Super. 109, 684 A.2d 1077, 1080 (1996). Brandishing a loaded firearm during the commission of a crime provides a sufficient basis on which a factfinder may conclude that a defendant proceeded with conscious disregard for the safety of others, and that he had the present ability to inflict great bodily harm or death. Id. at 1080-1081.

747 A.2d 910, 915-916

In Commonwealth v. Sanders, 426 Pa.Super. 362, 627 A.2d 183 (1993), the Superior Court observed that “the mere act of pointing a gun at another person is not sufficient to support a conviction for aggravated assault. Something more is required in order to establish a specific intent to cause injury to the person at whom the gun is being pointed.” Id. at 370, 627 A.2d at 187. However, the act of pointing a gun at another person “[can] constitute a simple assault as an ‘attempt[ ] by physical menace to put another in fear of imminent serious bodily injury.’ ” Commonwealth v. Savage, 275 Pa.Super. 96, 103, 418 A.2d 629, 632 (1980), quoting 18 Pa.C.S. § 2701(a)(3).
In the instant case, there did not appear to be any evidence that Dr. Pyles attempted to cause bodily or serious bodily injury to appellant. Because there was no actual injury, a violation of sections 2701(a)(1), *328 2702(a)(1) and 2702(a)(4) required a specific intent to cause injury. See: Commonwealth v. Everett, 408 Pa.Super. 166, 169, 596 A.2d 244, 245 (1991); In the Interest of J.L., 327 Pa.Super. 175, 177-178, 475 A.2d 156, 157 (1984). This intent may not be inferred from the mere act of pointing a gun at another person. Commonwealth v. Sanders, supra; Commonwealth v. Savage, supra.
18 Pa.C.S. § 2705. To sustain a conviction under this statute, the Commonwealth must prove that the defendant had an actual present ability to inflict harm and not merely the apparent ability to do so. Commonwealth v. Trowbridge, 261 Pa.Super. 109, 115, 395 A.2d 1337, 1340 (1978) (en banc). “Danger, and not merely the apprehension of danger, must be created.” Id. Thus, in Commonwealth v. Smith, 292 Pa.Super. 443, 447-448, 437 A.2d 757, 759 (1981), the Superior Court held that, absent evidence a gun held by the defendant was loaded, there was insufficient evidence to sustain a conviction for recklessly endangering **675 another person. It would appear, therefore, that in order to obtain a conviction for recklessly endangering another person, the Commonwealth must “ ‘prove actual present ability to inflict death or serious bodily harm by showing either that the gun was loaded or the surrounding circumstances were inherently dangerous.’ ” Commonwealth v. Baker, 287 Pa.Super. 39, 45, 429 A.2d 709, 711 (1981), quoting opinion of the trial court. See also: Commonwealth v. Gouse, 287 Pa.Super. 120, 124, 429 A.2d 1129, 1131 (1981) (“[T]he pointing of an unloaded weapon, without more, does not constitute recklessly endangering.”). Compare: Commonwealth v. Rivera, 349 Pa.Super. 303, 306-307, 503 A.2d 11, 12-13 (1985) (en banc) (evidence that gun was pointed at victims during a robbery was sufficient to support inference that the robbers had actual ability to inflict death or serious bodily injury even though Commonwealth failed to show by direct evidence that the gun was loaded).

636 A.2d 671, 674-675

A person commits the crime of recklessly endangering another person “if he recklessly engages in conduct which places or may place another person in danger of death or serious bodily injury.” 18 Pa.C.S. § 2705. This statutory provision was directed against reckless conduct entailing a serious risk to life or limb out of proportion to any utility the conduct might have. This Court held, in Commonwealth v. Trowbridge, 261 Pa.Super. 109, 395 A.2d 1337 (1978), that recklessly endangering another person is a crime of assault which requires the “creation of danger.” As such, the Court concluded, there must be an “actual present ability to inflict harm.” Id. at 115, 395 A.2d at 1340. To point an unloaded BB gun at another person, the Court held, did not alone constitute a violation of the statute. In a later decision, the Superior Court expanded the holding in Trowbridge and held that a defendant could not be convicted of recklessly endangering another person where the charge had been based on an alleged threat to shoot another person with a gun but there had been no evidence that the gun was in fact loaded. Commonwealth v. Smith, 292 Pa.Super. 443, 437 A.2d 757 (1981). See also: Commonwealth v. Gouse, 287 Pa.Super. 120, 429 A.2d 1129 (1981) (evidence disclosed that shotgun which defendant had pointed at other persons had been unloaded).

503 A.2d 11, 12

Also worth a read: 429 A.2d 709

Because the crimes with which Fowlin was charged require proof of recklessness, and because Hilbert holds that a claim of self-defense, if believed, negates any element of recklessness, Fowlin, a fortiori, cannot be found to have been reckless, for the Commonwealth admits that his actions were justified. If he cannot be held to have been reckless, he cannot be convicted of aggravated assault or reckless endangerment. It was error, therefore, to have denied Fowlin's application for habeas corpus relief.
In short, the law of Pennsylvania does not require one to stand by helplessly while he is injured or killed by an assailant. And as Judge Cirillo aptly points out, when one is the victim of an attack, the assailant, not the victim, picks the time, the place, the manner, and the circumstances of the attack. Leisurely assessment of the circumstances and the danger to others is almost never a feature of such an assault, and most often, the best the victim can do is to mount a defense which hopefully will preserve his life. In many cases, the victim has only seconds to act in order to avoid injury or death.
Any victim of crime who justifiably exercises his right of self-preservation may inadvertently injure a bystander. Admittedly, this court could fashion a rule of law which holds the defender criminally liable, but in doing so, we would have furthered no policy of the criminal law. Instead, we would have punished a person who was acting within his instinct for self-preservation and, in an appropriate case, within the boundaries of our law.

710 A.2d 1130, 1133-1134