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Philadelphia PD won't Look the Other Way on Open-Carry Gun Owners

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  • Originally posted by Kigen View Post
    And here I thought that this nation was one of innocent until proven guilty.

    I fail to see why open carry of a gun when there is a existing permit statue is any different than drivers licenses.
    A person is presumed innocent until proven guilty in court. That is simply a legal presumption affecting the burden of proof at trial.

    I assume you have a license to carry a concealed weapon in Texas. Aren't you required to show it to a Texas peace officer if he asks you for it? Do you think that if he notices that you are carrying a weapon, he should have to assume that you are doing so legally?
    Facts do not cease to exist because they are ignored. -- Aldous Huxley
    Two things are infinite: the universe and human stupidity. -- Albert Einstein

    Comment


    • Originally posted by HEDP View Post
      .

      Just because someone is open-carrying doesn't mean they are legal. Although the chance of that is slim to none.



      If someone needed to be stopped in this situation having them put there hands up, removing the pistol, checking their carry permit and then giving them their pistol back and sending them on there way isn't unreasonable.

      .
      Well, other than that would be illegal, then yeah, sure, whatever. Of course, that would all depend on what you mean by "needed to be stopped". Simply observing someone with a firearm does not provide reasonable, articulable suspicion that a crime as occurred, is occurring, or is in the process of occurring. The mere existence of a firearm does not give legal latitude for an officer to believe a crime is being committed. There are more than a few decisions on this, but most notably, in Georgia(where I live and worked, in the past, as a law enforcement officer), this was decided in State v Jones(I know it does not apply in PA, but I am simply making a point for where I live).

      In as far as Georgia is concerned, I believe a lot of people are do not understand what the difference between element of the defense(which means you have to show proof) and element of the offense(which means the state/officer has to show proof that you cannot carry/possess) is. Since the passing of SB 308, the GWCL became an element of the offense, which means I am not required to show proof of my eligibility to carry a firearm to avoid arrest. I am not sure how the carry licenses are handled in PA, but I will find out.

      I am sure that carriers in PA would love to see better laws passed, but that will not happen until they start electing better representatives in their government. I am sort of surprised that there is still a state that far north that still respects people's right to carry firearms in the manner that they so choose.

      Vincelli(I believe I spelled that correctly), you are wrong. There is really nothing else to say on the matter. People(citizen, not the collective) have a right to carry firearms in any manner they choose. The problem is that we have tolerated governments apply something that is akin to a poll tax on our right. The Second Amendment gave a right to carry a firearm that cannot be infringed upon, but the Fourth Amendment gave government the right to step in, in the case that a gun toter, or anyone else, commits a crime. Checks and balances all around.

      As far as open carrying be a good "tactical" choice is a ridiculous argument to have. If someone chooses to carry a firearm in an open manner, then people need to support that person's right to do so, instead of beating said person over the head for doing something that some people disagree with. Some people might want attention, perhaps the guy who was handcuffs by that unprofessional officer was looking for attention, but not every carrying a firearm in an open manner is looking for attention.

      Perhaps it is better, for them, to carry open. Perhaps they are just choosing to exercise their right to carry in the manner they so choose. If anything, this tarnishes this officer's career, and law enforcement, in general, to some extent. While most officers either do not care, or outright support citizen's right to carry firearms, it is the few that cause the many to look bad. If the citizen in this story was looking for trouble, then shame on him. Regardless, it does not give a pass to bad behavior.

      Comment


      • Originally posted by Montezuma View Post
        Well, other than that would be illegal, then yeah, sure, whatever. Of course, that would all depend on what you mean by "needed to be stopped". Simply observing someone with a firearm does not provide reasonable, articulable suspicion that a crime as occurred, is occurring, or is in the process of occurring. The mere existence of a firearm does not give legal latitude for an officer to believe a crime is being committed. There are more than a few decisions on this, but most notably, in Georgia(where I live and worked, in the past, as a law enforcement officer), this was decided in State v Jones(I know it does not apply in PA, but I am simply making a point for where I live).

        In as far as Georgia is concerned, I believe a lot of people are do not understand what the difference between element of the defense(which means you have to show proof) and element of the offense(which means the state/officer has to show proof that you cannot carry/possess) is. Since the passing of SB 308, the GWCL became an element of the offense, which means I am not required to show proof of my eligibility to carry a firearm to avoid arrest. I am not sure how the carry licenses are handled in PA, but I will find out.

        I am sure that carriers in PA would love to see better laws passed, but that will not happen until they start electing better representatives in their government. I am sort of surprised that there is still a state that far north that still respects people's right to carry firearms in the manner that they so choose.

        Vincelli(I believe I spelled that correctly), you are wrong. There is really nothing else to say on the matter. People(citizen, not the collective) have a right to carry firearms in any manner they choose. The problem is that we have tolerated governments apply something that is akin to a poll tax on our right. The Second Amendment gave a right to carry a firearm that cannot be infringed upon, but the Fourth Amendment gave government the right to step in, in the case that a gun toter, or anyone else, commits a crime. Checks and balances all around.

        As far as open carrying be a good "tactical" choice is a ridiculous argument to have. If someone chooses to carry a firearm in an open manner, then people need to support that person's right to do so, instead of beating said person over the head for doing something that some people disagree with. Some people might want attention, perhaps the guy who was handcuffs by that unprofessional officer was looking for attention, but not every carrying a firearm in an open manner is looking for attention.

        Perhaps it is better, for them, to carry open. Perhaps they are just choosing to exercise their right to carry in the manner they so choose. If anything, this tarnishes this officer's career, and law enforcement, in general, to some extent. While most officers either do not care, or outright support citizen's right to carry firearms, it is the few that cause the many to look bad. If the citizen in this story was looking for trouble, then shame on him. Regardless, it does not give a pass to bad behavior.
        Very well put!

        Comment


        • Philadelphia Police Lt Healy, who is also an attorney, has offered the following cases as their support for detaining people for nothing other than open carrying.

          United States v. Cooper, 293 F. App'x 117 (3d Cir. 2008) and Commonwealth v. Romero, 673 A.2d 374 (Pa. Super. 1996)

          Further research indicates that the Third Circuit case is plainly marked as being of no precedential value. That means that no court is authorized to rely on what it says or use it as authority.

          NOTICE:

          NOT PRECEDENTIAL OPINION UNDER THIRD CIRCUIT INTERNAL OPERATING PROCEDURE RULE 5.7. SUCH OPINIONS ARE NOT REGARDED AS PRECEDENTS WHICH BIND THE COURT.

          PLEASE REFER TO FEDERAL RULES OF APPELLATE PROCEDURE RULE 32.1 GOVERNING THE CITATION TO UNPUBLISHED OPINIONS.

          In Romero the court said “Probable cause for a warrantless arrest exists if the facts

          and circumstances within the knowledge of the police officer at the time of

          the arrest are sufficient to justify a person of reasonable caution in believing

          the suspect has committed or is committing a crime.”
          Commonwealth v.

          Rosario-Hernandez, 666 A.2d 292, 295 (Pa.Super. 1995) (citation

          omitted). When we examine a particular situation to determine if probable

          cause exists, we consider the totality of the circumstances, and do not

          concentrate on each individual element. See Guzman, supra. “[We also]

          focus on the circumstances as seen through the eye of the trained police

          officer, taking into consideration that probable cause does not involve

          certainties, but rather the factual and practical considerations of everyday

          life on which reasonable and prudent men act.” Commonwealth v.

          Romero, 673 A.2d 374, 376 (Pa.Super. 1996) (quotation omitted



          Going to the first sentence of this quote, what facts or circumstances exist to justify a person of reasonable caution to believe someone has committed or is committing a crime?

          In any case, these two cases which are offered by the Lt. will surely be part of the impending civil suit by the OC'er who was recently arrested by the PPD for DC and RE. The PPD may end up with something it doesn't like if they're going to continue relying on a non-precedential case to support their assertion that detaining people for OC'ing absent the required elements of Terry is legal.

          If they somehow avoid this, legislators are already at work in Harrisburg, ready to strip 6108 right out of the PA UFA essentially stripping the first class city exception from them which would allow OC without a LTCF, just like the other 66 counties in PA.

          Comment


          • No precential value does not mean a court is not authorized to follow a decision. It means the court is not obligated to follow the decision. Courts are free to adopt and follow any legal reasoning they choose to follow. Montezuma, I assume you are an American citizen. Perhaps you need a refresher course in American History. people do not have an unfettered right to carry a firearm any way they wish. A reading of recent Supreme Court will educate you as to that. Your interpretation of the Second Amendment in your fashion is not supreme. The Court's is.

            Comment


            • Originally posted by vincelli View Post
              What got lost in the mix in this thread is that possession of a firearm is a criminal act in PA.
              That might have to change in the wake of Heller and its subsequent Supreme Court decisions which have held that firearm ownership is an individual guaranteed constitutional right. That puts it in the same category as the right to free speech and freedom of religion.

              Imagine if the state passed a law making religious activity a presumptive crime only rebuttable upon an affirmative defense showing of permission by the government?

              I'm not saying the permit requirement would be thrown out entirely, but it doesn't seem likely that the Court would allow the state to treat the exercise of a guaranteed constitutional right as a presumptive criminal offense.

              Comment


              • Originally posted by Montezuma View Post
                Well, other than that would be illegal, then yeah, sure, whatever. Of course, that would all depend on what you mean by "needed to be stopped". Simply observing someone with a firearm does not provide reasonable, articulable suspicion that a crime as occurred, is occurring, or is in the process of occurring. The mere existence of a firearm does not give legal latitude for an officer to believe a crime is being committed. There are more than a few decisions on this, but most notably, in Georgia(where I live and worked, in the past, as a law enforcement officer), this was decided in State v Jones(I know it does not apply in PA, but I am simply making a point for where I live).

                In as far as Georgia is concerned, I believe a lot of people are do not understand what the difference between element of the defense(which means you have to show proof) and element of the offense(which means the state/officer has to show proof that you cannot carry/possess) is. Since the passing of SB 308, the GWCL became an element of the offense, which means I am not required to show proof of my eligibility to carry a firearm to avoid arrest. I am not sure how the carry licenses are handled in PA, but I will find out.

                I am sure that carriers in PA would love to see better laws passed, but that will not happen until they start electing better representatives in their government. I am sort of surprised that there is still a state that far north that still respects people's right to carry firearms in the manner that they so choose.

                Vincelli(I believe I spelled that correctly), you are wrong. There is really nothing else to say on the matter. People(citizen, not the collective) have a right to carry firearms in any manner they choose. The problem is that we have tolerated governments apply something that is akin to a poll tax on our right. The Second Amendment gave a right to carry a firearm that cannot be infringed upon, but the Fourth Amendment gave government the right to step in, in the case that a gun toter, or anyone else, commits a crime. Checks and balances all around.

                As far as open carrying be a good "tactical" choice is a ridiculous argument to have. If someone chooses to carry a firearm in an open manner, then people need to support that person's right to do so, instead of beating said person over the head for doing something that some people disagree with. Some people might want attention, perhaps the guy who was handcuffs by that unprofessional officer was looking for attention, but not every carrying a firearm in an open manner is looking for attention.

                Perhaps it is better, for them, to carry open. Perhaps they are just choosing to exercise their right to carry in the manner they so choose. If anything, this tarnishes this officer's career, and law enforcement, in general, to some extent. While most officers either do not care, or outright support citizen's right to carry firearms, it is the few that cause the many to look bad. If the citizen in this story was looking for trouble, then shame on him. Regardless, it does not give a pass to bad behavior.
                With all due respect, were you drunk when you wrote this? I am NOT being defensive or anything of that nature; I solely mean that the wording sometimes seems to make certain points, and then directly contradicts those points. I'm not kidding, or trying to put you down in any way (please re-read, maybe you were writing fast and that's why some things seem mumbled...)

                First and foremost, let's dispense with the "innocent until proven guilty" crap. This is a VERY true statement, but ONLY once someone has entered the legal system.

                If all Police Officers were REQUIRED to operate under the absolute assumption that EVERYONE is innocent until proven guilty in Court, NO PERSON would ever be arrested. Think about this for a moment, just a moment, and you'll understand what I'm saying. In my State, NY, and I believe in every other State, there is an exception to ANY and ALL criminal acts (including MURDER), termed "Justification":

                S 35.05 Justification; generally.
                Unless otherwise limited by the ensuing provisions of this article
                defining justifiable use of physical force, conduct which would
                otherwise constitute an offense is justifiable and not criminal when:
                1. Such conduct is required or authorized by law or by a judicial
                decree, or is performed by a public servant in the reasonable exercise
                of his official powers, duties or functions; or
                2. Such conduct is necessary as an emergency measure to avoid an
                imminent public or private injury which is about to occur by reason of a
                situation occasioned or developed through no fault of the actor, and
                which is of such gravity that, according to ordinary standards of
                intelligence and morality, the desirability and urgency of avoiding such
                injury clearly outweigh the desirability of avoiding the injury sought
                to be prevented by the statute defining the offense in issue. The
                necessity and justifiability of such conduct may not rest upon
                considerations pertaining only to the morality and advisability of the
                statute, either in its general application or with respect to its
                application to a particular class of cases arising thereunder. Whenever
                evidence relating to the defense of justification under this subdivision
                is offered by the defendant, the court shall rule as a matter of law
                whether the claimed facts and circumstances would, if established,
                constitute a defense.
                Let me provide an example that I have, in fact, encountered:

                Subjects were camping in a remote area which had no cell coverage, and no means of immediate communication with emergency services, or the outside world. One subject was stung/bitten by an unknown insect or other animal life and began suffering from life-threatening anaphylactic shock. ALL subjects had consumed alcohol to the point that ALL were unable to legally operate a motor-vehicle. One subject, clearly and admittedly drunk, threw the patient into a motor-vehicle and illegally drove said patient (DWI) to the nearest point of communication (Campsite Office with a working telephone) in order to summon emergency assistance.

                Myself and other LEO's arrived. Patient was medivac'ed to the hospital. The Driver VIOLATED the law by DWI. He was never arrested, and never went to Court. Why? Because our investigation found that while he VIOLATED law, it was justified. We COULD have arrested him and forced the Court to determine that the VIOLATION of law was justified; however, we did not see the need.

                Under the interpretation that EVERYONE is innocent until proven guilty, we as LEO's would NEVER be allowed to investigate or arrest ANY person under the assumption that ANYONE who commits a criminal act is doing so with justification (under the Justification exemption). No one would ever be arrested, no one would ever be held accountable for actions which were NOT justified (as we would have no cause to determine whether Justification existed), and so NO criminal act could ever be prosecuted in this Country.

                The law might be different in Georgia, however, in PA it is a CRIMINAL ACT to possess a firearm out in public. It is an EXCEPTION/AFFIRMATIVE DEFENSE to that criminal act that the person has a license to carry said firearm in public. Therefore, it is allowed for a LAW ENFORCEMENT OFFICER to conduct an investigation into said criminal act, and determine whether there is a legal exception/affirmative defense.

                As a former LEO you should CLEARLY know and COMPLETELY understand this (as well as the terms "Justification", "Exception", and "Affirmative Defense". PERIOD.

                As for your assertion that the 2nd grants the unfettered right to all US Citizens to "keep and bear arms" at anytime, in any place, and in any manner that they choose, and that said right is "inviolate" - well, now you REALLY come off as someone who is NOT a former LEO of any kind. This assertion would mean that all criminals sentenced to jail or prison would have the "inviolate" right to possess firearms while serving their time IN THE CORRECTIONAL FACILITY, and nothing could prevent it.

                Last time I checked, this was still NOT ALLOWED, but please inform me if SCOTUS has changed years of precedent by ruling that the 2nd is "inviolate" and prisoners/convicted felons are indeed freely allowed to possess firearms any place, and in any manner that they so choose.

                (BTW, I FULLY support the 2nd, and sincerely hope that EVERY decent US Citizen is given the right to possess firearms; that said, the manner has yet to be decided by SCOTUS).

                Thanks for playing; Ehhhh, wrong answer; would you like to try for Double-Jeopardy where the prizes can really double?

                And, have the best day ever...

                -V
                Last edited by vincelli; 06-02-2011, 09:23 PM.

                Comment


                • Originally posted by phillyboyz View Post
                  Very well put!
                  You're just another disillusioned person who is praising yet another disillusioned person because his (ridiculous) argument is what you want to hear.

                  Read my above post...

                  -V

                  Comment


                  • Originally posted by BTR1701 View Post
                    That might have to change in the wake of Heller and its subsequent Supreme Court decisions which have held that firearm ownership is an individual guaranteed constitutional right. That puts it in the same category as the right to free speech and freedom of religion.

                    Imagine if the state passed a law making religious activity a presumptive crime only rebuttable upon an affirmative defense showing of permission by the government?

                    I'm not saying the permit requirement would be thrown out entirely, but it doesn't seem likely that the Court would allow the state to treat the exercise of a guaranteed constitutional right as a presumptive criminal offense.
                    Even with the recent rulings, any State is free to outlaw firearms possession outside of one's home. SCOTUS has never made a ruling which would disallow a State from doing that.

                    Please understand, that is not what I MYSELF want; I believe that all decent US Citizens should be allowed to carry concealed. Just be aware that it very well COULD be ruled (and in perfect keeping with the 2nd) that said right to "keep and bear arms" is solely limited to one's home.

                    My point is that we should not keep throwing guns in the faces of those who are (even if unreasonably) terrified of them. This will do nothing except cause said citizens to demand laws outlawing ALL public carry...

                    -V

                    Comment


                    • Originally posted by vincelli View Post
                      The law might be different in Georgia, however, in PA it is a CRIMINAL ACT to possess a firearm out in public. It is an EXCEPTION/AFFIRMATIVE DEFENSE to that criminal act that the person has a license to carry said firearm in public. Therefore, it is allowed for a LAW ENFORCEMENT OFFICER to conduct an investigation into said criminal act, and determine whether there is a legal exception/affirmative defense.

                      -V
                      FYI, it is NOT a criminal act in PA to possess firearm out in public. Where did you get this big pile of horse dung???

                      Open carry is 100% legal in PA, including Philly. A "license to carry firearms" or LTCF is only needed in order to carry concealed on or about your person, or in a vehicle. Only in Philly is a LTCF needed in order to carry openly. In other parts of the state Joe Blow can walk down the street with a handgun exposed, ie open carry. There mere fact that a person is carrying openly is NOT justification to stop, detain and or ask for any type of license. Commonwealth v. Hawkins covers this.
                      Steve

                      Comment


                      • Originally posted by vincelli View Post
                        Even with the recent rulings, any State is free to outlaw firearms possession outside of one's home.
                        Well, sure. But your original statement was that mere possession of a firearm in PA is a crime. There was no in-home/out-of-home distinction. Just that having a gun period is illegal. Not knowing PA law myself, I took you at your word.

                        That would seem to fly in the face of the Heller ruling.

                        Comment


                        • Originally posted by BTR1701 View Post
                          That might have to change in the wake of Heller and its subsequent Supreme Court decisions which have held that firearm ownership is an individual guaranteed constitutional right. That puts it in the same category as the right to free speech and freedom of religion.

                          Imagine if the state passed a law making religious activity a presumptive crime only rebuttable upon an affirmative defense showing of permission by the government?

                          I'm not saying the permit requirement would be thrown out entirely, but it doesn't seem likely that the Court would allow the state to treat the exercise of a guaranteed constitutional right as a presumptive criminal offense.
                          SCOTUS has allowed the states broad legislation on the carry of firearms on one's person. Regulation on open/concealed carry has been in force for years. Obviously DC and Chicago attempted to outlaw or place restrictions on firearms in the home and that didn't fly. That's not surprising and many officers here agree with the Heller and McDonald rulings. What I don't understand is how many people think these rulings are going to open some sort of gateway to unrestricted carry across the U.S. It isn't going to happen.

                          Vincelli(I believe I spelled that correctly), you are wrong. There is really nothing else to say on the matter. People(citizen, not the collective) have a right to carry firearms in any manner they choose.
                          Actually he's right, people don't have a right to carry firearms in any manner they choose because the designated state, it's courts, and the US Supreme Court have said otherwise. Your holier than thou attitude won't get you anywhere here because your OPINION on the issue doesn't hold weight. What matters to those who enforce the law are what the laws and courts have to say about it.
                          I'm 10-8 like a shark in a sea of crime..

                          Comment


                          • What I don't understand is how many people think these rulings are going to open some sort of gateway to unrestricted carry across the U.S. It isn't going to happen.
                            "The right of the People to keep and bear arms shall not be infringed."...SCOTUS already seperated gun ownership from a person needing to be in milita service in Heller and McDonald. How could they be consistent and not also include the right of the people to bear arms when a case comes to them about carrying firearms? How can they say that only half of the 2nd amendment applies to the states, while the other half does not?

                            Comment


                            • Originally posted by Steve in PA View Post
                              FYI, it is NOT a criminal act in PA to possess firearm out in public. Where did you get this big pile of horse dung???

                              Open carry is 100% legal in PA, including Philly. A "license to carry firearms" or LTCF is only needed in order to carry concealed on or about your person, or in a vehicle. Only in Philly is a LTCF needed in order to carry openly. In other parts of the state Joe Blow can walk down the street with a handgun exposed, ie open carry. There mere fact that a person is carrying openly is NOT justification to stop, detain and or ask for any type of license. Commonwealth v. Hawkins covers this.
                              Originally posted by BTR1701 View Post
                              Well, sure. But your original statement was that mere possession of a firearm in PA is a crime. There was no in-home/out-of-home distinction. Just that having a gun period is illegal. Not knowing PA law myself, I took you at your word.

                              That would seem to fly in the face of the Heller ruling.
                              Sorry, I misspoke. Meant to say that the carry of firearms in Philly (not PA) is illegal on the face and requires an exception/affirmative defense, as that is the area the incident occurred in.

                              You are correct that in the rest of PA this point is moot as open carry without a permit is legal.

                              -V

                              Comment


                              • Originally posted by MagnumForce View Post
                                "The right of the People to keep and bear arms shall not be infringed."...SCOTUS already seperated gun ownership from a person needing to be in milita service in Heller and McDonald. How could they be consistent and not also include the right of the people to bear arms when a case comes to them about carrying firearms? How can they say that only half of the 2nd amendment applies to the states, while the other half does not?
                                Here we go with the "shall not be infringed" means a US Citizen can do anything he wants with any firearm.

                                SCOTUS has already ruled that this right is NOT inviolate; hence the reason certain Citizens CAN be stripped of the right to bear arms (i.e. felons, institutionalized, jailed, etc.).

                                -V

                                Comment

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