Rare SYG Decision in PA

February 12th, 2018 Uncategorized

Commonwealth v. Williams had so many other things going on with it that I missed the Stand Your Ground aspect of it when it was issued on December 8, 2017.  Since decisions on SYG have been few and far between since SYG was adopted in PA a decade ago, it’s worth taking a look at.  Williams involved a claim of SYG when the defendant was “engaged in a criminal activity.”  It also involved being “in illegal possession of a firearm.”  SYG may not be invoked when either is true.

The appellate court only adopted the trial court’s reasoning and did not really discuss this issue further.  However, the trial court’s reasoning made clear that the defendant was precluded from raising a SYG defense because he was in illegal possession of a weapon (“Since Appellant clearly was in illegal possession of the firearm, he could not stand his ground and use deadly force”).  Of course, a person in possession of a license to carry firearms should generally not have to worry about being in illegal possession of a firearm.  However, if you carry, you should take care to be aware where you cannot carry even with a valid license to carry firearms.  Under the law, if you were carrying even with a valid permit in a location where carry was prohibited, you would (legally speaking) be in illegal possession of a firearm under Section 505(c)(2.3).

While I think the argument is more tenuous, there is nothing stopping a prosecutor from arguing someone is “engaged in a criminal activity” when they are in illegal possession of a firearm or other prohibited offensive weapon, even if that weapon was not used during the incident.  In other words, take care that your pepper spray, folding knife, key chain “kubotan,” and other EDC items are in fact legal in your jurisdiction and where you are specifically located.  The Prohibited Offensive Weapons statute (18 Pa.C.S. § 908) has a laundry list of items that are illegal to carry in Pennsylvania.

Mens Rea and Carrying a Concealed Firearm without a License

December 14th, 2017 Law

The first thing to note about the recent Pennsylvania Superior Court case, Commonwealth v. Scott (PDF), is make sure you have a License to Carry Firearms, and further make sure it is still valid. While Scott would have been arrested for the domestic dispute, he would not have been facing serious charges for carrying concealed without a license had he simply went through the fairly simple process of obtaining a license to carry firearm in Pennsylvania.

Scott was charged with carrying a concealed firearm without a license, which is a violation of 18 Pa.C.S. 6106. Scott had an Act 235 permit, which permits security guards, armored car drivers, private investigators, and other non-government employees to carry a firearm while acting in the scope of their employment. It does not, however, take the place of a valid License to Carry Firearms, a fact the Superior Court noted in its opinion.  Why does it matter?  I don’t have an Act 235 permit.  Well, open carrying a firearm without a license is legal in Pennsylvania, except in Philadelphia (as well as anywhere in a vehicle), so this could apply to those who open carry and do not have a concealed weapon permit.  As I said, get the permit, even if you open carry.

Scott was involved in a domestic dispute. Police were called and an individual at the home identified Scott as the perpetrator. The police learned that Scott was in front of the post office not far away. When the police approached, they had Scott show his hands and placed him under arrest for domestic violence. While conducting a patdown, the officer discovered a Sig Sauer firearm in a holster concealed under Scott’s t-shirt. The officer testified that the t-shirt “was not tucked in, but was loose, and hanging over the firearm, so that the weapon was completely concealed.” Scott, himself, testified at his trial stating that he began the morning with his shirt tucked in. At some point, he removed a hooded sweatshirt because it got warm and he believed that his shirt became untucked when he removed it, thus concealing the firearm.

Now put aside whether you buy that story, the question here is whether it mattered at all. The trial court treated the offense as a “strict liability” offense. That means there is no requirement that the Commonwealth prove the defendant intentionally (or knowingly or recklessly or even negligently) committed the crime. In short, there is no mens rea (“guilty mind”) associated with the offense. You are caught doing it. You’re guilty. Period. The trial court in this case even noted at the end of trial “although I think that your client probably did not intend to conceal the weapon, the weapon was concealed,” then found Scott guilty.

The Pennsylvania Superior Court reversed his conviction and remanded for a new trial. The Court first dismissed any notion that Scott met one of the exceptions for Act 235. It plainly noted that an Act 235 permit is not a replacement for a valid permit to carry concealed under the Uniform Firearms Act (UFA). It did, however, note that it was unlikely that the legislature intended Section 6106 to be a strict liability offense because Section 6106 is a criminal statute for which there were significant penalties (5 or 7 years’ maximum imprisonment for a violation).

Scott’s conviction was reversed, but typical with appeals, his charges were not dismissed. He only obtained a new trial, which means he has to do this all over again, absent the prosecutor dropping the charges (which I don’t see happening here) or working out an alternative resolution.

Lesson learned: Make sure you have a Pennsylvania license to carry firearm (or one from a state with reciprocity) and make sure it is valid. Don’t rely on other permits that allow carry under limited circumstances (like employment) as a replacement.

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