You Are Not A Cop

March 19th, 2018 Law
Conceald Carry Badge

Badges!? We don’t need no stinkin’ badges!

In the “play stupid games, win stupid prizes” department, a GGWG is spending 10 to 20 years behind bars for shooting another man at church.  The Pennsylvania Superior Court recently affirmed his conviction, rejecting his claim that he was defending himself in Commonwealth v. Storms.

Storms had a valid license to carry firearms and was carrying in church.  He also had the terrible sense to purchase a “conceal carry badge.”  As if buying a badge isn’t bad enough, he then pulled the badge during an altercation with an unruly parishioner at church.  As noted by the Court, “[Appellant] had a permit to carry a concealed weapon. As soon will become relevant, he also obtained a gold concealed weapon permit ‘badge.’ The unofficial badge is not issued in connection with the permit but can be obtained on the Internet.”  Storm then inserted himself into a situation he frankly should have stayed out of, and let actual badged law enforcement handle.

An unruly parishioner caused a bit of scene at Storms’ church one Sunday.  Ushers tried to calm the man down, and the associate pastor told them to back away and call the police.  At this point, Storms should have stayed out of it.  The unruly gentleman, soon to be a victim, was calm by all witness testimony, had been given notice to vacate, and police were on the way.  This was a simple defiant trespass at this point which police could have handled.  Instead, Storms wanted more done, and approached with the intent of removing the victim from church.

The trial court recounts what happened next:

With the two separated by a row of chairs, [Appellant] asked [Decedent] to go outside with him. When [Decedent] refused, [Appellant] flashed his unofficial concealed weapon permit badge. [Decedent] recognized it as a fake, telling [Appellant] as much in colorful language. [Appellant] then revealed his 9-millimeter pistol. The victim reacted by punching [Appellant] in the face and proceeding toward him. [Appellant] absorbed the blow and, rather than retreat down the open aisle behind him or call for help from the hundreds of people in church, squared himself into a ready fire stance and shot the unarmed [Decedent] twice.  One of the bullets pierced [Decedent]’s heart and he died soon thereafter despite life-saving efforts by fellow parishioners and emergency medical responders.

There was unquestionably a 20 year age difference between the two, and Storms testified he believed the victim was “younger, bigger, faster, and stronger” than him, could kill him, and would take his gun and use it.  While this may all undoubtedly have been true, a disparity of size and strength, as well as a generalized fear of having your gun taken, does not excuse “continuing the difficulty that results in the slaying” nor failing to retreat when it was safe to do so.

Brandishing a fake “badge” unquestionably continued – created, in fact – a difficulty that was not present until Storms intervened.  The victim was calm and police were on there way.  The badge elicited an unsurprising reaction from the victim and escalated his anger, causing him to focus on Storms.  Now, it is absolutely true that a citizen may make an arrest in Pennsylvania.  See 18 Pa.C.S. 508(b).  However, one cannot create the need to use deadly force by inserting oneself into a situation.  You lose the “mantle of innocense.”  Juries do not buy that, and neither did the appellate court here.

Ditch the badge.  Leave the arresting to the professionals, and you won’t spend 10 to 20 years in jail like Storms is.


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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