OC'ing w/Current Pittsburgh State of Emergency

[LDMF]

Being that a State of Emergency has been declared, would you have to provide a LEO with ID, specifically LTCF upon request while OC? Could it be used as RAS? Terry stop?

[TaePo]

All the statute says is this:

18 Pa.C.S. § 6107: Prohibited conduct during emergency
No person shall carry a firearm, rifle or shotgun upon the public streets or upon any public property during an emergency proclaimed by a State or municipal governmental executive unless that person is:
(1) Actively engaged in a defense of that person's life or property from peril or threat.
(2) Licensed to carry firearms under section 6109 (relating to licenses) or is exempt from licensing under section 6106(b) (relating to firearms not to be carried without a license).

I am not aware of case law, if any. IANAL so I defer to their expertise in this area if they spot this and reply.

There is this, but it is the standard proof of license statute. I see no change for Declared Emergencies etc.

18 Pa.C.S. § 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.

I should state that there is some case laws that more or less state that the mere fact of carrying is not RAS that a crime is taking place or is about to take place. There must be other facts present. (However, I suspect a cunning LEO could come up with something) The arguments usually devolve to driving. The fact you are driving a car is not RAS that you are doing so without the requisite license, so they cannot stop you to check your papers. On the other hand, if you make an infraction or a light is out, they can then stop you. (A traffic example to demonstrate the idea)

[LittleRedToyota]

I should state that there is some case laws that more or less state that the mere fact of carrying is not RAS that a crime is taking place or is about to take place. There must be other facts present. (However, I suspect a cunning LEO could come up with something) The arguments usually devolve to driving. The fact you are driving a car is not RAS that you are doing so without the requisite license, so they cannot stop you to check your papers. On the other hand, if you make an infraction or a light is out, they can then stop you. (A traffic example to demonstrate the idea)

the case law says OCing outside of philly is not RAS...because it does not require an LTCF.

there is, however, also case law that basically says any carrying that requires an LTCF is RAS.

one case is commonwealth v. robinson. it has been posted on this forum a few times.

an officer saw a man's concealed gun and demanded to see and LTCF. the guy did not have one. the guy was found guilty and his appeal (on the gorunds the search was unconstitional for lack of RAS) failed.

there really was no more RAS than seeing a concealed gun plus the fact that you need an LTCF to carry a concealed gun.

based on that, and several other cases, i would say there is a very good chance the courts would uphold an officer demanding to see an LTCF if he sees you open carrying during a declared state of emergency.

(there is a copy of robinson in this post: http://forum.pafoa.org/concealed-car...ml#post1015970)

[LDMF]

LRT

Thank you very much. That was exactly what I wanted to know. Once again the system scares me.

[TaePo]

Thanks LRT,

In fact, you were the one poster I had thought about when I posted, hoping you would come by. (Gunlawyer being the other BTW!)

[General Geoff]

the case law says OCing outside of philly is not RAS...because it does not require an LTCF.

there is, however, also case law that basically says any carrying that requires an LTCF is RAS.

one case is commonwealth v. robinson. it has been posted on this forum a few times.

an officer saw a man's concealed gun and demanded to see and LTCF. the guy did not have one. the guy was found guilty and his appeal (on the gorunds the search was unconstitional for lack of RAS) failed.

there really was no more RAS than seeing a concealed gun plus the fact that you need an LTCF to carry a concealed gun.

based on that, and several other cases, i would say there is a very good chance the courts would uphold an officer demanding to see an LTCF if he sees you open carrying during a declared state of emergency.

(there is a copy of robinson in this post: http://forum.pafoa.org/concealed-car...ml#post1015970)

That would seem to run contrary to Commonwealth v. Hawkins, which did not make a distinction between carrying concealed or openly; the ruling merely stated that just carrying a "licensed handgun" (whatever that means) is NOT reasonable articulable suspicion for a detainment.

It leads me to believe that the Superior Court that heard Robinson, was in error and Robinson should have appealed to the Supreme Court.

[LittleRedToyota]

That would seem to run contrary to Commonwealth v. Hawkins,

no it does not.

all hawkins says is that an *anonymous* tip, by itself, is not RAS.

there is a clause in hawkins where they specifically say:

"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."

the ruling merely stated that just carrying a "licensed handgun" (whatever that means) is NOT reasonable articulable suspicion for a detainment.

no it doesn't. all it says that *an anonymous tip* is not RAS.

hawkins is a very misunderstood case. it has a lot of really cool language in the dicta, but, ultimately, all it held was that an anonymous tip is not RAS. and even the dicta has to be put into perspective given the comment about not addressing the instance where a officer develops knowledge of a gun himself rather than based on an anonymous tip.

It leads me to believe that the Superior Court that heard Robinson, was in error and Robinson should have appealed to the Supreme Court.

robinson may have been appealed to the PA supreme court but the court may have denied the appeal. (i seem to remember reading that before, but have been searching and have not been able to find the reference again.) in any case, though, the ruling has been has been cited it in other rulings, so the court system must not have much of an issue with it.

[MDJschool]

6107 in the PAFOA references section is out of date.

In any case, 6107 reads like 6108, and the courts have contrasted 6108 with 6106 such that licensure is an element of the offense in 6106 but not 6108, where it is an affirmative defense. Thus probable cause is going to need to involve licensure (i.e. not philly) but any carrier is subject to detainment simply by being observed carrying on public streets/property in Philly or perhaps even on the probability that a person was just on public ways before accessing private property.

It's all a very sad story, so I suspect, if we accept and apply this to 6107, that it is presumptively unlawful to carry a firearm and you may at all times be detained for it, breaking probable cause by proof of licensure/exception.

Obviously that can't ever stand up to true constitutional scrutiny, but I just wanted to brief you that this is out there in the same unfortunate way that Robinson is.

[AJChenMPH]

They were not patroling, the National Guard was called out to assist medics, PD etc in the event that then cannot gain access due to the condition of the roads. They are there for assistance only.

Used in the context that you used this, it would give the impression they are patrolling in a LE manner due to the state of emergency. Acting in some sort of Martial Law which is not the case.

Just for clarification -- if a National Guard unit is activated by the Governor under Title 32 (state activation), they are permitted to conduct LE operations if so requested/ordered by the Governor. In this case, if LE was not part of the activation order, then they wouldn't conduct LE operations.

As an example:
http://www.defense.gov/news/newsarticle.aspx?id=57866

It's only military forces under Title 10 (active and reserve Federal forces, or National Guard units under Federal activation) that cannot conduct LE operations due to the Posse Comitatus Act, unless those forces are used pursuant to the Insurrection Act.

http://en.wikipedia.org/wiki/Posse_Comitatus_Act

I know Wikipedia should not be used as a definitive source, but the references and links used for that page are pretty robust.

[TaePo]

AJChenMPH,

I think you got it correct regarding Federal vs. State activation.

To all, does anyone have the expertise regarding activation of the National Guard? Specifically, does a State of Emergency, combined with Na'l Guard activation mean police powers or something less for the troops? In order to have police powers for the Guard, does martial law have to be declared and/or a state of insurrection or breakdown of civilian control in evidence?

Does state law allow Na'l Guard troops to aid civilian authority and to what extents? (eg. transport aid, backup, arrest powers while aiding, arrest powers of their own etc.)

Since we are here, now, I would like to know if anyone can explain what the law actually says about our situation.