Pennsylvania Firearm Owners Association
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  1. #1
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    Default Concealed carrier (Retired LEO) stopped by Philly PD

    Here's the story,

    Man in workout attire, clean cut, carrying concealed, gets coffee and food items at a Philly Wawa (that he goes to at least three times a week), pays for items and leaves store. As he unlocks his car and opens the door, he is approached by two plainclothes PD Officers. One Officer was at the rear, one at the front, so this was a stop, not a consensual encounter. One asks if he is carrying a firearm. The man identifies himself as a Retired LEO from an out of State agency with credentials along with a PA driver's license and LTCF.

    While that Officer checks with dispatch, the man advises the other Officer in a friendly manner that he is an Academy instructor in the State he worked in and is also a PA MPOETC instructor, and that stopping a subject only on the basis of possession of a firearm is illegal, based on US Court decisions, and that the behavior of a suspect may allow an Officer to stop someone and then check for weapons.

    The Officer states that Philly can stop anyone armed and that laws differ from State to State. The man replied that Federal law is the law of the land, not to be contradicted by State law or local policy.

    The first Officer returned the man's id and LTCF and everyone went on their way. All of the Officers' demeanors were pleasant. The man contacted a friend with Philly PD and was advised that Philly PD can stop anyone armed per policy. The man told his friend that their policy violates Federal law. This lead to a conversation about why did the man had an issue with LEOs doing their jobs vs Officers doing what the law allows.

    The glaring issue is the lack of any behavior on the subject's part that would give an Officer articulable reasonable suspicion or probable cause for a stop.

    Comments?
    Last edited by Pointman73; May 2nd, 2015 at 04:20 PM.
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  2. #2
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    Default Re: Concealed carrier (Retired LEO) stopped by Philly PD

    It's Philly, what do you expect?

    It is pretty ironic that in the city where the Constitution was written and ratified, the officials routinely ignore it at their convenience.

  3. #3
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    Default Re: Concealed carrier (Retired LEO) stopped by Philly PD

    Is a man Jaqen H'ghar?
    There's no such thing as a free lunch.

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    Default Re: Concealed carrier (Retired LEO) stopped by Philly PD

    Quote Originally Posted by Pointman73 View Post
    Here's the story,

    Man in workout attire, clean cut, carrying concealed, gets coffee and food items at a Philly Wawa (that he goes to at least three times a week), pays for items and leaves store. As he unlocks his car and opens the door, he is approached by two plainclothes PD Officers. One Officer was at the rear, one at the front, so this was a stop, not a consensual encounter. One asks if he is carrying a firearm. The man identifies himself as a Retired LEO from an out of State agency with credentials along with a PA driver's license and LTCF.

    While that Officer checks with dispatch, the man advises the other Officer in a friendly manner that he is an Academy instructor in the State he worked in and is also a PA MPOETC instructor, and that stopping a subject only on the basis of possession of a firearm is illegal, based on US Court decisions, and that the behavior of a suspect may allow an Officer to stop someone and then check for weapons.

    The Officer states that Philly can stop anyone armed and that laws differ from State to State. The man replied that Federal law is the law of the land, not to be contradicted by State law or local policy.

    The first Officer returned the man's id and LTCF and everyone went on their way. All of the Officers' demeanors were pleasant. The man contacted a friend with Philly PD and was advised that Philly PD can stop anyone armed per policy. The man told his friend that their policy violates Federal law. This lead to a conversation about why did the man had an issue with LEOs doing their jobs vs Officers doing what the law allows.

    The glaring issue is the lack of any behavior on the subject's part that would give an Officer articulable reasonable suspicion or probable cause for a stop.

    Comments?
    What evidenced that the encounter escalated into a stop/detainment?

    Not sure what "US Court decisions" your (hypothetical?) actor would be referring to with respect to the illegality of engaging an armed person in Philadelphia - some citations would be in order.

    Simple possession on Phila streets satisfies all the criminal elements of a §6108 violation and that licensure, exemption or tolling Federal law (LEOSA) serves as an affirmative defense.

    § 6108. Carrying firearms on public streets or public property in Philadelphia.

    No person shall carry a firearm, rifle or shotgun at any time upon the public streets or upon any public property in a city of the first class unless:

    (1) such person is licensed to carry a firearm; or


    (2) such person is exempt from licensing under section 6106(b) of this title (relating to firearms not to be carried without a license).

    ----------------------

    § 6122. Proof of license and exception.
    (a) General rule.--When carrying a firearm concealed on or
    about one's person or in a vehicle, an individual licensed to
    carry a firearm shall, upon lawful demand of a law enforcement
    officer, produce the license for inspection. Failure to produce
    such license either at the time of arrest or at the preliminary
    hearing shall create a rebuttable presumption of nonlicensure.

    (b) Exception.--An individual carrying a firearm on or about
    his person or in a vehicle and claiming an exception under
    section 6106(b) (relating to firearms not to be carried without
    a license) shall, upon lawful demand of a law enforcement
    officer, produce satisfactory evidence of qualification for
    exception.
    IANAL

  5. #5
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    Default Re: Concealed carrier (Retired LEO) stopped by Philly PD

    Florida v. J.L., 529 U.S. 266, 120 S. Ct. 1375, 146 L.Ed.2d 254 (2000).
    Alabama v. White, 496 U.S. 325, 1105 S. Ct. 2412, 110 L.Ed.2d 301 (1990); U.S. v. Diallo, 29 F.3d 23 (1st Cir. 1994); U.S. v. Taylor, 162 F.3d 12 (1st Cir. 1998)
    Com. v. Alvarado, 423 Mass. 277, 667 N.E.2d 856 (1998)

    U.S. Supreme Court in 2000 ruled that an anonymous tip that a person is carrying a gun is not sufficient to justify a police officer's stop and frisk of that person, even where descriptive detail regarding the subject has been corroborated. The Court declined to adopt the "firearms exception" to Terry's requirement of reasonable suspicion. Similarly, in another 2000 Supreme Court case, an anonymous tip with a physical description and location that a person had a gun was not enough for reasonable suspicion, absent anything else to arouse the officer's suspicion.

    The ultimate issue on the report's usefulness is whether the contents (and other attendant circumstances) create a reasonable suspicion that a dangerous situation exists, creating authority to detain or frisk or both. It certainly helps if the report contains particular facts that do one or more of the following:

    •Create a suggestion of threats of violence in this situation

    •Are themselves acts of violence

    •Indicate impending criminal activity

    •Raise a reasonable concern for public safety

    State laws vary regarding both open and concealed carrying of firearms, but courts are usually sensitive to officer and public safety concerns over the presence in public of firearms. Mere possession may not be sufficient to authorize police action, but in circumstances where the gun presents an imminent threat because of shots just fired, or likely to be fired, and thereby presents a "suggestion of threats of violence, acts of violence, impending criminal activity, or concern for public safety," a court is likely to find there was reasonable suspicion for a threshold inquiry.

    It was me. My G19 grip pokes out slightly from underneath a t shirt and workout shirt.

    Just many other States, one would need a permit/license for concealed carry. The issue here is the decision to make a stop where there was no legal authority to stop. Legal authority is defined as articulable reasonable suspicion or probable cause.

    Do LEOs outside of Philly stop every open carrier and run a background check to see if the person can possess a firearm?
    Last edited by Pointman73; May 2nd, 2015 at 05:45 PM.
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    Default Re: Concealed carrier (Retired LEO) stopped by Philly PD

    Quote Originally Posted by Pointman73 View Post
    Florida v. J.L., 529 U.S. 266, 120 S. Ct. 1375, 146 L.Ed.2d 254 (2000).
    Alabama v. White, 496 U.S. 325, 1105 S. Ct. 2412, 110 L.Ed.2d 301 (1990); U.S. v. Diallo, 29 F.3d 23 (1st Cir. 1994); U.S. v. Taylor, 162 F.3d 12 (1st Cir. 1998)

    U.S. Supreme Court in 2000 ruled that an anonymous tip that a person is carrying a gun is not sufficient to justify a police officer's stop and frisk of that person, even where descriptive detail regarding the subject has been corroborated. The Court declined to adopt the "firearms exception" to Terry's requirement of reasonable suspicion. Similarly, in another 2000 Supreme Court case, an anonymous tip with a physical description and location that a person had a gun was not enough for reasonable suspicion, absent anything else to arouse the officer's suspicion.

    The ultimate issue on the report's usefulness is whether the contents (and other attendant circumstances) create a reasonable suspicion that a dangerous situation exists, creating authority to detain or frisk or both. It certainly helps if the report contains particular facts that do one or more of the following:

    •Create a suggestion of threats of violence in this situation

    •Are themselves acts of violence

    •Indicate impending criminal activity

    •Raise a reasonable concern for public safety

    It was me. My G19 grip pokes out slightly from underneath a t shirt and workout shirt.

    Just many other States, one would need a permit/license for concealed carry. The issue here is the decision to make a stop where there was no legal authority to stop. Legal authority is defined as articulable reasonable suspicion or probable cause.

    Do LEOs outside of Philly stop every open carrier and run a background check to see if the person can possess a firearm?
    I believe that your observed possession within Philadelphia is RAS that state statute is being violated (6108) and a stop is warranted.

    The scenario is not an outside Philadelphia occurrence.
    IANAL

  7. #7
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    Default Re: Concealed carrier (Retired LEO) stopped by Philly PD

    Without legal authority, a stop is not warranted, that's what the cites are all about. There was no way to articulate a reason for it besides, "We can do that in Philly." No, you can't, it's illegal according to the Supreme Court.

    A verbal approach would have been perfect, which means no show of authority, no blocking of the path, and not telling a person to stop. If you even make someone reasonably feel that they are not free to go, they are detained.

    I spent many years teaching Constitutional law and criminal interdiction. These technical things tend to make Philly pay out large sums of money when the proper training and application of the training would result in less liability.
    Those who dare.

  8. #8
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    Default Re: Concealed carrier (Retired LEO) stopped by Philly PD

    Quote Originally Posted by Pointman73 View Post
    Without legal authority, a stop is not warranted, that's what the cites are all about. There was no way to articulate a reason for it besides, "We can do that in Philly." No, you can't, it's illegal according to the Supreme Court.

    A verbal approach would have been perfect, which means no show of authority, no blocking of the path, and not telling a person to stop. If you even make someone reasonably feel that they are not free to go, they are detained.

    I spent many years teaching Constitutional law and criminal interdiction. These technical things tend to make Philly pay out large sums of money when the proper training and application of the training would result in less liability.
    Could you expound on all the requisite criminal elements for a §6108 violation and, specifically, which were lacking in your happening?
    IANAL

  9. #9
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    Default Re: Concealed carrier (Retired LEO) stopped by Philly PD

    Read the posts with the Supreme Court decisions. You clearly are missing the point.


    Even your own posting shows

    (b) Exception.--An individual carrying a firearm on or about
    his person or in a vehicle and claiming an exception under
    section 6106(b) (relating to firearms not to be carried without
    a license) shall, upon lawful demand of a law enforcement
    officer, produce satisfactory evidence of qualification for
    exception.

    The key being LAWFUL demand. That means lawful contact as well.
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  10. #10
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    Default Re: Concealed carrier (Retired LEO) stopped by Philly PD

    Quote Originally Posted by Pointman73 View Post
    Read the posts with the Supreme Court decisions. You clearly are missing the point.


    Even your own posting shows

    (b) Exception.--An individual carrying a firearm on or about
    his person or in a vehicle and claiming an exception under
    section 6106(b) (relating to firearms not to be carried without
    a license) shall, upon lawful demand of a law enforcement
    officer, produce satisfactory evidence of qualification for
    exception.

    The key being LAWFUL demand. That means lawful contact as well.
    As to 6122, I presented it as an informational adjunct and not as deterministic of the main question - RAS/PC for further inquiry/stop.

    Perhaps you can elucidate, since I miss your point regarding your SCOTUS cite(s), how they are on-point when the LEO personally observes the firearm possession coupled with the 6108 statute.

    Reaffirming my previous post seeking your riposte:
    Quote Originally Posted by tl_3237 View Post
    Could you expound on all the requisite criminal elements for a §6108 violation and, specifically, which were lacking in your happening?
    IANAL

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