Pennsylvania Supreme Court Ruling May Spell Trouble for Pittsburgh Gun Control Laws

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The Pennsylvania supreme court handed down an important decision on Friday in the case of Commonwealth v. Hicks. The court ruled that the mere possession of a firearm — carried either openly or concealed — does not constitute reasonable suspicion of a crime. That’s something that should go without saying, but that’s not the world in which we live.

The ruling invalidated justifications police departments were using for “stop-and-frisk” checks of individuals based solely on the fact that they were in possession of a firearm.

The court wrote:

Although the carrying of a concealed firearm is unlawful for a person statutorily prohibited from firearm ownership or for a person not licensed to do so, see 18 Pa.C.S. §§ 6105-06, there is no way to ascertain an individual’s licensing status, or status as a prohibited person, merely by his outward appearance. As a matter of law and common sense, a police officer observing an unknown individual can no more identify whether that individual has a license in his wallet than discern whether he is a criminal. Unless a police officer has prior knowledge that a specific individual is not permitted to carry a concealed firearm, and absent articulable facts supporting reasonable suspicion that a firearm is being used or intended to be used in a criminal manner, there simply is no justification for the conclusion that the mere possession of a firearm, where it lawfully may be carried, is alone suggestive of criminal activity.

The Firearms Policy Coalition, which wrote an amicus brief in the case, issued this press release . . .

HARRISBURG, PA (May 31, 2019) — Today, the Pennsylvania State Supreme Court issued a significant 53-page majority opinion in the criminal appeal of Commonwealth v. Hicks. Firearms Policy Coalition (FPC) and Firearms Policy Foundation (FPF) filed an important coalition amicus brief cited by the Court supporting Hicks in December of 2017, alongside Firearms Owners Against Crime (FOAC) and seven Members of Pennsylvania’s General Assembly. The Court’s decision, concurring opinions, and the FPC/FPF amicus brief can be viewed at www.firearmspolicy.org/legal.

At issue was whether someone’s carrying of a firearm could be used as reasonable suspicion of criminal conduct, and thus justification for police to conduct a “stop-and-frisk” of the gun owner. The court ruled in Hicks that such searches and seizures, in the absence of other evidence are completely unlawful.

The coalition’s brief, which was relied on heavily in the majority opinion, argued that the Pennsylvania and federal constitutions prohibit searches and seizures based on a suspicion of criminal activity due to carrying a firearm. According to the brief, “As protected by the Second and Fourth Amendments to the United States Constitution and [] the Pennsylvania Constitution . . .  the mere open or conceal carrying of a firearm cannot establish reasonable articulable suspicion of criminal conduct, in the absence of additional indicia of unlawful activity.”

The Court agreed, noting “that the government may not target and seize specific individuals without any particular suspicion of wrongdoing, then force them to prove that they are not committing crimes.”

“Hicks’ position is supported by several amici curiae, including Members of the Pennsylvania General Assembly, Firearms Owners Against Crime, the Firearms Policy Coalition, and the Firearms Policy Foundation. Hicks’ amici argue that the Robinson rule is contrary to this Court’s precedent and to the general teachings of the Supreme Court of the United States’ Fourth Amendment jurisprudence. Amici further point to numerous decisions of the courts of other states and federal appellate courts that have addressed the specific question at issue here, and which have held that mere possession of a concealed firearm provides no basis for an investigative detention,” Supreme Court Justice Wecht wrote for the majority.

FPC President and FPF Chairman Brandon Combs hailed the decision. “Stop-and-frisk practices that harass gun owners who carry for lawful purposes including self-defense, like the one at the core of this case, are unconstitutional, bad public policy, and dangerous,” explained Combs. “We are thrilled that the Supreme Court of Pennsylvania agreed with these fundamental principles and issued such an incredibly positive decision in favor of constitutional rights.”

Kim Stolfer, president of FOAC, was also delighted with the ruling. “We are thrilled to have participated in this case. The Commonwealth’s position, that the ‘mere sight’ of a firearm, with no criminal act, ‘justifies’ arrest and detention at gunpoint, is constitutionally repugnant and unjustified. Today the Court rightly held as much.”

Joshua Prince, author of the coalition’s brief, said that “the Court, in dismissing the Commonwealth’s position, declared that to permit investigative detention solely to determine whether someone is properly licensed is ‘ultimately untenable, because it would allow a manifestly unacceptable range of ordinary activity to, by itself, justify Terry stops.’”

“This ruling rightly puts an end to abusive, non-justifiable searches of law-abiding gun owners, and it should be relished by all those who support the fundamental rights enshrined in our Constitution,” Prince concluded.

But there’s more to the ruling than the Fourth Amendment implications of the ruling.

pittsburgh lawsuit gun control

Pittsburgh Mayor William Peduto (AP Photo/Gene J. Puskar)

As a post at the Prince Law blog notes, the Court appeared to reaffirm the state’s preemption law here:

Consistent with the General Assembly’s reservation of the exclusive prerogative to regulate firearms in this Commonwealth, codified at 18 Pa.C.S. § 6120, the additional requirement that an individual possess a license in order to carry a firearm openly within the City of Philadelphia is prescribed by statute, not by municipal ordinance. See 18 Pa.C.S. § 6108; see generally Ortiz v. Commonwealth, 681 A.2d 152 (Pa. 1996).

That would seem to be bad news for the city of Pittsburgh and Mayor Bill Peduto’s crusade to invalidate the state’s preemption law, allowing him to enforce the gun control ordinances he signed following the Tree of Life synagogue shooting.

As TTAG’s favorite attorney, LKB, told us . . .

This ruling is especially significant in light of the Pittsburgh ordinances — the mayor et al. acknowledge that Pennsylvania state law prohibits their activities, but they are pushing anyway on the hope that the state Supreme Court will overrule the state law precluding cities from passing such ordinances.

This opinion indicates that the state Supreme Court isn’t reflexively anti-gun.

And that could make things uncomfortable for Hizzoner. As LKB told us, the mayor and city council’s reckless disregard for state law . . .

…might even be bad enough to knock out somebody’s qualified immunity.

That would be a real shame.

comments

  1. avatar GS650G says:

    A good sign but for how much longer until activists get on the bench

    1. avatar barnbwt says:

      A better sign would be a successful criminal prosecutuon against these mayors & legislators who pass “hail Mary” laws with the knowledge they violate civil liberties.

      For example, what would happen if some jerkoff city government passed a law mandating racial segregation of city schools? Would it simply be challenged & struck down, or would we expect arrests & jailtime (and possibly worse, from outside the courts)

      1. avatar LarryinTX says:

        I’d prefer to see personal civil liability, split the good mayor apart from a million bucks of his own money, then let’s see how many others want to deliberately break the law. Which is exactly what he did.

      2. avatar joefoam says:

        The city council in Pittsburg knew they were in conflcit with the preemption laws but they went ahead and enacted the laws anyway. If there ever was a reason for a recall, this would be it. Now the citizens will be on the hook for a long legal battle while the politicians get to claim the high ground and let someone else foot the bill.

        1. avatar Whoopie says:

          Because they knew the state didn’t have the balls to enforce it’s own constitution. Philly gets away with refusing to honor state issued CCWs (requiring a difficult to get ‘city permit’ on top of the CCW) and nothing happens to them. So why shouldn’t Pittsburgh feel empowered to flaunt state law? Private citizens shouldn’t have to sue local gov. to get the rights supposedly guaranteed by the state.

  2. avatar Alan says:

    Amazing isn’t it, that some courts, when adding 2+2, come up 4 as the answer.

    1. avatar MaddMaxx says:

      yeah there are a few left that still use the “old” math…

    2. avatar Sam I Am says:

      “Amazing isn’t it, that some courts, when adding 2+2, come up 4 as the answer.”

      Your inflexible, hurtful, mean-spirited pedagogy concerning how math should work makes for an unsafe blog experience. Your archaic, misogynistic, white-privilege, demand that math have stable rules is an attack on my personal freedom; hate speech. A violation of my first amendment right to be free of religion. Why should I give over to your twisted, self-dealing ideas of truth. If I can be happy in a world where 2+2 is dependent upon circumstance and justice, who gives you the right to say I am wrong?

      1. avatar Geoff "I'm getting too old for this shit" PR says:

        You hit all the right notes *exactly*, Samuel.

        *snicker* 😉

        Anyways –

        “…might even be bad enough to knock out somebody’s qualified immunity.”

        It’s cruel to get my hopes up like that, Mr. LKB… 🙂

        1. avatar Sam I Am says:

          “You hit all the right notes *exactly*, Samuel.
          *snicker* 😉”

          We aim to please, so you aim too, please.

        2. avatar Geoff "I'm getting too old for this shit" PR says:

          “We aim to please, so you aim too, please.”

          Well, one girlfriend once told me, “For crying out loud, would you please aim?” 😉

      2. avatar john blanchard says:

        ok already 4+4=5

        1. avatar Sam I Am says:

          “ok already 4+4=5”

          Maybe. Maybe not. Depends.

      3. avatar Klaus Von Schmitto says:

        Is that you Tatiana?

        1. avatar Sam I Am says:

          “Is that you Tatiana?”

          The whole thing slipped by you, did it?

      4. Pittsburgh is in Pennsylvania. When Mills open up again and start making polymer and aluminum rifles and handguns all political bias will shift away from guns and be in favor of them as the powers to be will dictate it. Gun debate is mostly a smokescreen.

      5. avatar Jim Bullock says:

        Nice

        1. avatar Sam I Am says:

          “Nice”

          I try, but it sometimes hurts my head.

  3. avatar WI Patriot says:

    “Pennsylvania Supreme Court Ruling May Spell Trouble for Pittsburgh Gun Control Laws”

    I would hope so considering that PA has a preemption law…

  4. avatar User1 says:

    Black Guns Matter.

    1. avatar LarryinTX says:

      As an OFWG, I have *GOT* to get me that T-shirt!

      1. avatar Sam I Am says:

        “As an OFWG, I have *GOT* to get me that T-shirt!”

        How ’bout one that states, “Black Coffee Matters”?
        https://shop.tacticalshit.com/black-coffee-matters-shirt

  5. avatar Sam I Am says:

    Yea !! Another victory brought to us by NRA. Are you tired of winning, yet?

    1. avatar HuntingtonGuy says:

      Did NRA even call in on this one?

      1. avatar Sam I Am says:

        “Did NRA even call on on this one?”

        NRA is the single strongest dam against the anti-gun tide. Without NRA, we would lose every legislative battle, every court case. It is only the NRA that keeps government from going door-to-door taking our guns. All other pro-gun organizations are play-acting, looking for money to fund luxurious lifestyles, expensive clothes, world travel, etc. So….yes, the NRA must have masterminded this victory.

        1. avatar Geoff "I'm getting too old for this shit" PR says:

          The sarcasm just ‘drips’ off you in voluminous, endless rivers today, Sam.

          Who loaded your underwear with Texas fire ants today? Mrs. I Am?

        2. avatar Sam I Am says:

          “Who loaded your underwear with Texas fire ants today? Mrs. I Am?”

          When you get puffballs to hit, you gotta swing for the fences.

        3. avatar possum, destroyer of arachnids says:

          I really don’t think the government wants “our” gun$. .

        4. avatar Sam I Am says:

          “I really don’t think the government wants “our” gun$. .”

          Do you mix sparkling water with that kool-aid?

  6. avatar Darkman says:

    Not sure how to comprehend what is going on with these court decisions. Don’t get me wrong they are great. I guess I’m wary of all judges when it comes to making rulings that actually are in line with the Constitution. For to many years we’ve seen activist judges and the courts they control run rough shod over the Bill of Rights and even what is considered Basic Human Rights. Maybe the tide is slowly turning. Time will tell. As for me Trust is a hard thing to give. Especially when politicians and judges are the recipients. Keep Your Powder Dry.

  7. avatar Green Mtn. Boy says:

    “stop-and-frisk” is and always has been unConstitutional,politicians,police and would be petty tyrants will have to get over it,as a infamous Harpy Hag was once fond of saying “Move On’

    1. avatar Geoff "I'm getting too old for this shit" PR says:

      It’s just for PA, though…

      1. avatar Green Mtn. Boy says:

        True but the fact remains it is or would be Fereraly as well if ruled on Constitutionally as applying to all 50 states.

    2. avatar barnbwt says:

      “But muh jerb is easier when I can do whatever I wa-aant…”

      I wonder what the “pro-gun” Fraternal Order of Police has to say about this…

      1. avatar User1 says:

        You will respect thy authority. Comply or die. Stop so I can frisk or I will shoot.

        You liberal Russian-Bloomberg bot trolls won’t use your stupid ACLU to restrict us from stopping and frisking open carriers or CCW holders. We will check papers and make arrests for disorderly conduct if anyone carries a gun without a badge. Even the NRA doesn’t support open carry and they are on our side. So is our great President. The greatest President ever is hiring one of our favorite brothers to help us deal with gun violence.

        You are either with us or the Communists. Make America great AGAIN!

        1. avatar barnbwt says:

          Okay, when ever someone tells me I have no choice but to believe as they believe or I’m some sort of irredeemable deplorable…

          I have to say “fuck you and the jack-booted tools you’d order to kill everyone you disagree with, if anyone ever gave you the least bit of authority.” Communist or fascist, you guys are all the same to me.

          Good day, sir.

  8. avatar Dog of War says:

    ‘there simply is no justification for the conclusion that the mere possession of a firearm, where it lawfully may be carried, is alone suggestive of criminal activity.’

    That line makes me think of a skit from an old British comedy sketch involving a police officer (played by Rowan Atkinson AKA Mr Bean) that was in charge of the firearms licensing. The only real question on his test was weather or not you wanted to own a gun. And anyone that did was a firearm he would then instantly disqualified them given it was his opinion that made the too dangerous. It seems to me that this case is an example of that same mindset from the state of Pennsylvanian.

  9. avatar possum, destroyer of arachnids says:

    Common sense gun law, . To own a firearm an infrared tattoo visible by law enforcement scan 25 yards away. See how easy it is, everyone wins, easy identification by law enforcement and security for legally licensed firearm owners

    1. avatar User1 says:

      Make it simple. Have gun owners get a QR code tattoo on their hand. One on the right hand if they own guns and one on their left hand if they carry.

      We can also require gun owners be chipped too. The chip will verify their permission slip status and identity. It will use NFC to unlock their smart gun.

      We can force gun ranges to have NFC rings for rental guns. That way anyone that isn’t chipped already can still rent a smart gun.

      1. avatar possum, destroyer of arachnids says:

        Throw in a GPS tracking device and you’ve got a deal

        1. avatar User1 says:

          We can install the GPS tracker inside the rectum.

        2. avatar Geoff "It's always good to turn a troll into a fun punch-toy" PR says:

          “We can install the GPS tracker inside the rectum.”

          So, that’s where yours is, eh? 😉

      2. avatar LarryinTX says:

        Way far easier to tattoo the faces of prohibited persons in giant block letters visible at 100 yards, while they are in custody, whether they agree or not. That would allow dropping ALL other gun control, right? Since all we’re doing (supposedly) is keeping guns out of the wrong hands? Looks pretty easy to me, and only around 1% as many people affected (criminals rather than law abiding). In fact, the rest of the country can then jump right to Constitutional carry, since all bad guys are under control.

  10. avatar Old Hawg says:

    The arrogance of Pittsburgh Mayor Peduto and the City Council is quite simply mind-boggling. They have declared that the state’s preemption law doesn’t apply to them, that they can do whatever they want to do is perfectly okay as a righteous method to reduce “gun violence”, no matter what the laws of the state and the Constitution say. The Supreme Court made the conditions for which “stop and frisk” is constitutional quite clear in Terry v. Ohio and Mapp v. Ohio; the Pennsylvania Supreme Court has now declared that the mere carrying of a firearm is not an offense absent knowledge that a police officer knows that it is illegal for that person to be in possession of a firearm or the perpetration of a crime is imminent as in the Terry case.

    The question now is what legal sanctions will be levied against the Mayor and City Council for instituting a law which flies in the face of the Fourth Amendment and the state’s preemption law? Surely, breaking clearly elucidated law must merit some sort of legal sanction, either criminal or civil.

    1. avatar barnbwt says:

      Is it really arrogance…if there’s no consequences for him doing this?

    2. avatar Mark N. says:

      It is not arrogance, it is an intentional attempt to directly challenge Pennsylvalia’s pre-emption law. In reading the article, there is nothing to suggest that the stop and frisk policy was defended on the basis that the pre-emption law was invalid. A case is not authority for a proposition not considered, and hence the case does not directly establish that when the Pittsburgh case gets there the outcome is pre-determined. he Pittsburgh ordinance is therefore no different than the slew of state laws recently passed on the abortion issue, which they knew were unconstitutional under current standards but were passed any way as a vehicle to chllenge the current standards in the Supreme Court.

  11. avatar Moltar says:

    It’s not often I’m all for making a new law but there really REALLY needs to be a law against these blatantly unconstitutional laws. Hell you could even modify an existing law long as this shit stops and don’t try to tell me oh but Moltar politician A didn’t know it was unconstitutional. Bullshit they knew full well it was they passed it anyway and hoped it wouldn’t get smacked down. Please put up a law that punishes that stupid shit give em 20 years for every law they pass and every executive order they write up from mayor up to president. The founders as intelligent as they were never really counted on the ability of lawyers and judges to fuck up a wet dream.

    1. avatar LarryinTX says:

      You give a pretty good description of NFA 1934, there.

  12. avatar The Crimson Pirate says:

    You guys need to understand that was a close call. In our 2017 state election we lost the Supreme Court to the democrats/liberals. We have not expected anything in our favor from them. I stood outside gun shows around PA in 2017 handing out voters guides and encouraging gun people to vote in the off year election. I got a lot of “I voted for Trump, he’ll take of it.” and “I didn’t get anything about that from the NRA.”

    This victory is in spite of our own side. Not because of it. The multiple amicus briefs prepared by everyone except the NRA helped narrowly avert a disaster.

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