Commonwealth v. Hicks and LTCF

July 3rd, 2019

I mentioned Commonwealth v. Hicks when the Pennsylvania Supreme Court accepted it for review last year. SCOPA issued its decision at the end of May and it is, in my view, very favorable for those who carry a concealed weapon.

The Court rejected and overruled almost 30 years of (frankly, ridiculous) precedent beginning with Commonwealth v. Robinson, 600 A.2d 957 (Pa. Super 1991) that “possession of a concealed firearm by an individual in public is sufficient to create a reasonable suspicion that the individual may be dangerous, such that an officer can approach that individual and briefly detain him in order to investigate whether the person is properly licensed.”

The timing on Robinson is worth noting as it was a mere two years after Pennsylvania amended it’s concealed weapon permitting system to be “shall issue.” Thus, while you could now get a permit for any valid reasons (e.g., self-defense), the Superior Court basically gave any officer who had a “man with gun” description or saw a bulge under your shirt carte blanche to detain you and ask for your license.

The Court in Hicks made several helpful observations in finding that an officer may not detain somebody suspected of having a concealed handgun even simply to check that they had a valid permit. The Court reasoned that it is not a criminal offense for a[concealed handgun license holder… to carry a concealed firearm in public.” And, “there is no way to ascertain an individual’s licensing status, or status as a prohibited person, merely by his outward appearance.” Thus, the Court concluded “[a]s 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.” This puts the onus squarely on the officer to demonstrate more than simple possession of a concealed handgun to establish reasonable suspicion.

The Court resoundingly rejected a “seize now and sort it out later” approach by police as “antithetical to the foundational protections of the Fourth Amendment.” It noted:

Finally, the Robinson rule cannot be salvaged by any attempt to minimize the authority contemplated by characterizing the seizure as merely a “simple request” to check a license… A seizure is a seizure. That the purported basis for the seizure is simply to “check” whether the suspect is committing a crime does not diminish the constitutional significance of the encounter. It does not render it any less of a seizure; it simply render it a seizure in the absence of a particularized basis for a finding of reasonable, articulable suspicion of criminal activity.

Hicks, at 940 – 941

Something I’ve long griped about is the need for permits in the first place. We know that criminals care not a whit that they need a permit to carry a concealed handgun. If they want to carry, they simply carry and worry about the consequences later (and if they get caught). Possessory offenses for firearms to me should be mostly done away with. Instead, I think the most freedom expanding way to handle firearms is constitutional carry. And, if the person uses or possesses with intent to use the gun in a crime, have a specific finding on the jury form about that. Then the judge can enhance the sentence based on that finding. (And, we actually already have this in PA with the Deadly Weapon Enhancement under the sentencing guidelines, although a jury does not make the finding beyond a reasonable doubt.)

But Hicks should at least begin to minimize the unlawful detention of permit holders (and non permit holders) based solely on suspected possession of a concealed handgun. The police will have to articulate something more – suspected criminal activity – in order to establish reasonable suspicion. Score one for liberty!

While I cannot guarantee that police won’t continue to attempt to detain a valid concealed carrier to check a license, there is at least no longer a legal basis to do so without some other indications of criminal activity. (And, I think this at least opens up the possibility of liability for violation of civil rights under color of law.).

That said, if an officer detains you and will not let you walk away, I give my standard advice, comply in the moment (it can and certainly should be under protest) and show the license. Sort out the violations of civil liberties later with a formal complaint to the department and seeking counsel versed in civil rights litigation.

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