Open Carry Flaw?

[daisy317]

I want to re-iterate my point because I feel it was lost on some.

There is too much emphasis put on the gun and not enough on the criminal. As I had stated guns by far are not the easiest way nor the most efficient way to hurt or maim individuals, or masses.

If you take issue with a felon carrying a gun (Which you will never be able to control) than do you also take issue with him driving a car? Operating a computer? Buying kitchen knives? What if you saw him walking out of the local hardware store with rat poison? Does he have access to gasoline? Hammers? Chainsaws? Rocks can be pretty deadly...

Alas it is the current culture of our society to put the emphasis on the gun because they do not want to be bothered to actually have to put time and effort into training or tools that could potentially save their lives.

Stay alert, stay focused and just live life.

...I agree...

Those people obviously never watched an episode of McGiver... where a simple stick of chewing gum and a toothpick can become a deadly weapon... ok ok, it's extreme... but you know what i mean...

[GA1989]

Wait, wait wait, I have the answer to solve this problem.
Once a criminal is convicted, he should have a bullseye tattooed on his/her forehead. Then just by looking at him/her no one will legally sell them a firearm and if they are OCing we have a target to aim at. Problem solved.
(Only kidding for those ready to pounce on me. lol) Had to break it up alittle.
Seriously though, great question to start his forum and great responses and truths brought out. That is the purpose of this forum.

[daisy317]

Tatoos? Brilliant! That will most definitely work better than the "here's your sign" policy i was thinking of... then there won't be any confusion if they leave them at home...

[policemedic]

Pex,

Policemedic has the opinion that the courts have decided it is ok for an officer to use seeing a firearm concealed as a RAS to terry stop an individual. The cases he has quoted, IMO, do not back that assertion up. The case of Hawkins, decided by the PASC, addresses this very clearly and says it is not. I see a few people who keep saying that the decision only applies to open carry of a firearm. Once again I call BS for selective reading, and application. For the record: Excerpt from Hawkins(Anyone can feel free to look up and read the entire thing, but this excerpt was chosen so that the context was kept)

And since there is no gun exception to the Terry
requirement for reasonable suspicion of criminal activity, in the typical
anonymous caller situation, the police will need an independent basis to
establish the requisite reasonable suspicion.


The Commonwealth takes the radical position that police have a duty to
stop and frisk when they receive information from any source that a suspect has a gun. Since it is not illegal to carry a licensed gun in Pennsylvania,4 it is
difficult to see where this shocking idea originates, notwithstanding the
Commonwealth's fanciful and histrionic references to maniacs who may spray
schoolyards with gunfire and assassins of public figures who may otherwise go
undetected. Even if the Constitution of Pennsylvania would permit such
invasive police activity as the Commonwealth proposes -- which it does not --
such activity seems more likely to endanger than to protect the public.
Unnecessary police intervention, by definition, produces the possibility of
conflict where none need exist.Contrary to the Commonwealth's view, the public will receive its full
measure of protection by police who act within the restraints imposed on them
by Art. I, § 8 of the Constitution of Pennsylvania and this court's relevant
caselaw. Upon receiving unverified information that a certain person is
engaged in illegal activity, the police may always observe the suspect and
conduct their own investigation. If police surveillance produces a reasonable
suspicion of criminal conduct, the suspect may, of course, be briefly stopped....
*bold and size change are mine
.

Actually, the cases I quoted solidly support my position. We'll get to that in a moment.

In your excerpt from Hawkins, you should notice the repeated references to information received by the police from other, specifically unknown and uncorroborated, sources. These, in and of themselves, do not constitute reasonable suspicion. I have no argument there; it seems to me to be a proper application of constitution principle. You've bolded those sections. You've also agreed the central issue before the court was the (in)sufficiency of the radio bulletin. The sections you've quoted must be read in this context.

Nowhere in their opinion did the court in Hawkins address the issue of what actions the police can take upon independently observing a citizen carrying a concealed weapon. They didn't have to. That wasn't the issue brought up on appeal.

Now, I'll insert below the post pex was referring to. Please note that Stevenson was decided in 2006, a full 10 years post-Hawkins. It is not controlled or abrogated by the higher court's ruling in Hawkins because the issues brought forth on appeal were completely unrelated.

I know you (and most others on the board) don't like my view on this subject, and I truly don't mean to be contrary. I do think it's important that people carrying concealed firearms have a clear understanding that they may be stopped if somehow spotted (hell, I've been stopped myself, by a guy I now work with when I was with another agency) and that the officer isn't violating their rights by requiring their LTCF. Note that I said 'concealed' and LTCF. I didn't say 'open carrying', and I didn't say serial numbers/fingerprints/retinal scan/DNA sample.

I also know from experience that many times it's not the inspection of the license and the brief conversation that upsets people, it's the high-handed attitude and disarming coupled with the lack of rudimentary interpersonal skills we would expect to find in a 4 year old that pisses people off-and rightly so. Suffice it to say, I go out of my way to be nice (although I've been known to make the occasional comment about the infrequent need to shoot mice in Philadelphia versus larger vermin...though always with a smile!).

Anyway.... here's the other post, which will keep me from retyping the main points.

Quote:
Originally Posted by GunLawyer001
Arizona v. Hicks is a US Supreme Court case, and it applies to every State of the Union until the issue is revisited. I have not Shepardized the case.

PA courts have held that mere possession of a firearm in public is not enough to justify a detention or search, so just seeing the gun won't support a valid stop. Without that valid initial stop, the rest doesn't happen. No Terry frisk, no taking your gun to unload it or copy the serial numbers, no laying of hands upon your person.<SNIP>

If he has RAS, then he can disarm for his safety. Once the cops legitimately have the gun in hand, I'd imagine that Hicks would allow them to record the serial number, then run it against any database.

That's the point I was trying to make regarding the serial numbers.

However, I'm not aware of any case in PA that says that an officer's independent observation of a concealed firearm does not constitute reasonable suspicion of a violation of 18 PA CS sections 6106 and/or 6108. Hawkins certainly addresses open carry, and with good reason. It does take judicial notice that a situation involving a concealed gun, which requires a license, is entirely different from the facts in Hawkins. The Court could have addressed the disparity but chose not to, thus leaving it open.

More recently than Hawkins, there is Commonwealth vs. Hall 2007 PA Super 220. In Hall, the PA Superior Court held that an officer's observation of a bulge in appellant's jacket was sufficient for a frisk and affirmed the lower court's denial of a motion to suppress the gun.

Quoting Hall:
"Prior to trial, Appellant filed a motion to suppress physical evidence,
alleging that the police lacked probable cause to stop and arrest him. The
suppression court denied the motion, concluding that (1) the officers made a
lawful traffic stop of Appellant’s vehicle to investigate the damage to the
vehicle and whether the damage to the vehicle constituted a safety concern;
(2) the officers acted reasonably in investigating the circumstances of the
presence of a firearm on Appellant’s person and acted appropriately in their
attempts to secure the firearm in furtherance of their own safety as well as the
public safety; and (3) the officers had probable cause to arrest Appellant in light of
the fact that Appellant appeared to possess a weapon and was resisting efforts to secure the weapon."
(Emphasis mine)

Admittedly, Hall does not address whether the observation of a bulge shaped like a handgun, by itself, forms the basis of suspicion sufficient to justify a Terry stop. It merely says that once a legal stop is effected, a bulge resembling a weapon is cause for a frisk.

However, there are numerous cases which support the ability of a police officer to initiate an investigative detention and frisk based on the officers observation of a concealed firearm. Two such cases are Commonwealth v. Stevenson 2006 PA Super 38 and Commonwealth v. Robinson 600 A.2d 957, 959 (Pa.Super. 1991).

Quoting Stevenson:
"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."

"Moreover, Officer Absten testified that his intention in detaining Appellant was to ascertain whether he had a permit to carry a concealed handgun. (N.T., Suppression Hearing, at 21)."

"...there can be no doubt, under the above precedent, that Officers Absten and Prilla had reasonable justification to stop Appellant and take hold of his weapon. "

Seamus McCaffery, writing for the court in Stevenson, emphasizes in dicta the need for the court to be mindful of officer safety ("Further, the court must be guided by common sense concerns that give preference to the safety of the police officer during an encounter with a suspect where circumstances indicate that the suspect may have, or may be reaching for, a weapon.").

Quoting Robinson at 959-60:
"[P]ossession 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. In the
present case, [the police officer] was acting upon a
reasonable suspicion based upon her personal observation of
the weapon in combination with her concern with the
presence of children in the area. The need to conduct an
investigatory detention under the present facts clearly
outweighs any harm which the stop and frisk entails. "

As Robinson deals very narrowly with a concealed firearm observed by police, it is not modified or abrogated by Hawkins.

So, while it would seem fair and accurate to say that there is no justification for a police officer to initiate an investigative detention because a citizen is openly carrying a holstered pistol, the same is not true regarding concealed handguns.

What matters most during these encounters is the manner in which the officer approaches the citizen, as the citizen may or may not be licensed. In my personal practice, I am guided by the totality of the circumstances and act accordingly.

[gnbrotz]

Nowhere in their opinion did the court in Hawkins address the issue of what actions the police can take upon independently observing a citizen carrying a concealed weapon. They didn't have to. That wasn't the issue brought up on appeal.

I disagree on this point. Hawkins says "The Commonwealth takes the radical position that police have a duty to stop and frisk when they receive information from any source that a suspect has a gun.".....I would argue that "any source" would include the officer's own observations.

[rmarkob]

So, while it would seem fair and accurate to say that there is no justification for a police officer to initiate an investigative detention because a citizen is openly carrying a holstered pistol, the same is not true regarding concealed handguns.

Sounds like more reason to OC.

[pex]

As noted in the other thread, Hawkins originated from Philadelphia, where any nonexceptional posession of a 6102 'firearm' must be accompanied by licensure.

[headcase]

A couple of things.

First, I don't think Hall applies at all here.

Second, Stevenson is a superior court decision, that I believe goes directly against Hawkins and should have been pushed to Supreme Court review.

Third, we are going to have to end this at a stalemate. I have tried to read Hawkins from your perspective and can not see it. You are obviously never going to read it from my perspective. To me, the meaning is crystal clear and it frustrates me to no end that I can't bring you around to it. I understand there is the daily reality that most LEOs will do whatever they like. And a great deal seem to be like you, willing to show respect, but when push comes to shove, the court can sort out rights violations. There are more than a few who care nothing for the people they serve, and there are more than a few who go out of their way to respect the rights of citizens. The Hawkins ruling says very clearly that just the presence of a gun is not cause to do a damn thing. There needs to be a clear reason to suspect criminality. LEOs should have had this info put out to them, and they should conduct themselves by it, because, in the bottom line of things, that is how it was supposed to be all along in this country. Somewhere along the line, citizens became worth less than police officers, politicians, and in many cases, criminals.....

Anyway, I am done on this topic.

HC

[Pa. Patriot]

As noted in the other thread, Hawkins originated from Philadelphia, where any nonexceptional posession of a 6102 'firearm' must be accompanied by licensure.

Thanks for re-iterating this point. It is of major significance.