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.

Self-defense Is No Accident

“The gun just went off!”

“It was an accident!”

“I didn’t mean to shoot him!”

Self-defense is an intentional act.  In essence, you are saying “Yes, I did it, and I would do it again if put in the same position.”  The law acknowledges this, and a sure fire way to have a judge not provide the jury with the instructions on self-defense is to, in the immediate aftermath, say something that provides the appearance that your actions were not intentional. If the jury doesn’t have the instructions, it is going to be very difficult for them to put themselves in your shoes in order to determine whether you were objectively reasonable.

None of the above statements indicate you intended to act at the time you are claiming self-defense, and thus, the law says you could not have been defending yourself.  Let’s take a look at a real life example.  Take a look at this line of questioning of a defendant at trial by a prosecutor:

Q: And, you were going to protect your home with an unloaded shotgun; is that right?
A: Yes.
Q: What were you going to do, sir? It was unloaded.
A: Well, I seen people back up if they see the object.
Q: So, you came downstairs with an unloaded shotgun. Thomas Hooper didn’t back away; did he?
A: No, [he] didn’t.
Q: So, it was only then you thought I better go back up stairs and load the shotgun; is that what you thought sir?
A: Well, I went back up stairs to think things out and then I decided to put the shotgun shell in.
Q: So, you thought about it for awhile, is that right?
A: Right.
Q: And, Thomas Hooper, he never came up the steps after you; did he, sir?
A: No, he never did, but he was inching for the steps.
Q: But, he never came up to where you were; was he?
A: No.
Q: So, you loaded that shotgun; is that right?
A: Yes.
Q: What did you cock the hammer for, sir?
A: You can’t shoot until you cock the hammer back.
Q: So, you knew that you were going to shoot the gun?
A: No.
Q: So, why cock the hammer if you’re not sure you’re going to shoot the gun?
A: To protect myself because I know him to carry a gun in the past.
Q: That’s how the gun went accidentally off?
A: It went off because of me backing up, is from my wife trying to grab it, and he trying to grab it.
* * * * * *
Q: How did you know you were going to the district?
A: Because of the way the situation looks, because I know they had to get a report.
Q: Because you knew you did something wrong; didn’t you, sir?
A: No. It was self-defense, but it was an accident of me backing up the steps.
Q: Was it an accident, sir, or was it self-defense, because they are not the same thing.
A: Well, accident; excuse me on that.
Q: So, if it was an accident you were not fearful for your life; is that right?
A: That is right.
Q: Your life was not in jeopardy if it was an accident.
A: No.

If you are imagining your self-defense claim goes down the tubes here, you would be correct.  You can’t claim it was an accident and also self-defense at the same time.  If it was an accident, you are going to be missing one or more of the elements of a valid self-defense claim.

The Pennsylvania Supreme Court took a dim view of this self-defense claim:

[W]hen he took the stand and denied that the shooting was intentional and, instead, said it was caused by mistake or accident as he backed up the stairs, he denied that the act was done intentionally in defense of self. Under such circumstances, therefore, a defense of self-defense is not available to such a person because it is mutually exclusive of the defense of accident or mistake.

Take a look at Commonwealth v. Harris, 665 A.2d 1172 (Pa. 1995) for how this case played out.

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