Today, the Pennsylvania Supreme Court decided Commonwealth v. Hicks, No. 56 MAP 2017, and finding that it is unconstitutional under the Fourth Amendment to detain or frisk a person merely for carrying a firearm in Pennsylvania. The decision in Hicks specifically overrules the Pennsylvania Superior Court’s 1991 decision in Commonwealth v. Robinson, 600 A.2d 957 (Pa. Super. 1991), which had permitted stop and frisks merely because a person was seen carrying a firearm. The Court’s decision in Hicks threatens all criminal cases in Pennsylvania where a person was initially detained or arrested solely because they were carrying a firearm.
Whatever your view may be of carrying firearms in public, the fact is that in Pennsylvania it is perfectly legal. A person who is not otherwise disqualified under the law may carry a firearm openly anywhere in Pennsylvania without a license, except in Philadelphia where a license is required. Moreover, a person may carry a firearm concealed or in a motor vehicle anywhere in Pennsylvania as long as the person obtains a license to do so. In Pennsylvania, licenses are issued at the county level and must be issued unless the person seeking the license is disqualified by statute.
The Court explained that millions of Pennsylvanians carry firearms in public and have licenses to do so. The Court held that a rule permitting those people to be detained to check their licensing status whether police wish to do so violates the Fourth Amendment, which prohibits unreasonable searches and seizures. The Court compared stopping someone carrying a firearm to someone carrying medications that would be illegal but for a prescription and held that it is inconceivable that police could stop anyone they see carrying such medications just to confirm that they have a prescription.
Although Hicks involved a case out of Allentown, Lehigh County, it will also affect stop and frisks occurring in Philadelphia even though Philadelphia has a separate statute requiring a license for carrying a firearm in any manner. Prior to Hicks, Courts had held that because the separate statute relating to the carrying of firearms in Philadelphia makes licensure an affirmative defense that must be proven by the defendant and not an element of the offense that must be proven by the prosecution, police in Philadelphia have a legal right to stop and detain anyone carrying a firearm within the City limits because carrying a firearm in Philadelphia is technically a crime, and having a license to do so is merely a defense to that crime. See, Com v. Bigelow, 484 Pa. 476, 399 A.2d 392 (1979) (In Philadelphia, licensure to carry firearm is affirmative defense that defendant must prove and not element of the offense that prosecution must prove); Com. v. Romero, 449 Pa. Super. 194, 673 A.2d 374 (1996) (Police had right to detain individual in Philadelphia because he was seen in possession of a firearm in Philadelphia); Com. v. Davis, 418 Pa. Super. 318, 614 A.2d 291 (1992) (Police who observed a man holding a gun in the doorway of a private residence had probable cause to suspect that the man had carried the weapon in public in order to reach the residence and therefore had probable cause to arrest).
However, in Hicks, the Court specifically rejected the “element-or-defense test,” holding that even if licensure were merely an affirmative defense, as it apparently is in Philadelphia, it is not a valid basis to detain a person carrying a firearm if there is no reasonable suspicion that the person is committing a crime. The Court explained that such a test “is antithetical to the foundational protections of the Fourth Amendment” because it “casts too wide a net, with no regard for the number of law-abiding citizens ensnared within.”
Addressing the apparent public safety implications of its decision, the Court concluded with the following familiar notion:
Crime and violence are ever-present threats in society, and it can be tempting to look to the government to provide protection from “dangerous” people with constant vigilance. However, the protections of the Fourth Amendment remain an essential bulwark against the overreaches and abuses of governmental authority over all individuals. Notwithstanding the dangers posed by the few, we must remain wary of the diminution of the core liberties that define our republic, even when the curtailment of individual liberty appears to serve an interest as paramount as public safety.
Such a notion is familiar because it is similar to Benjamin Franklin’s warning, said for the first time nearly 264 years ago back in 1755, that “[t]hey who can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.”
Since Hicks was decided solely upon the Fourth Amendment, it is interesting to see whether the prosecution will ask the United States Supreme Court to hear the case. Only time will tell.
If you believe your constitutional rights have been violated, please feel free to contact me to arrange for a consultation.