The Pennsylvania supreme court handed down an important decision on Friday in the case of Commonwealth v. Hicks. The court ruled that the mere possession of a firearm — carried either openly or concealed — does not constitute reasonable suspicion of a crime. That’s something that should go without saying, but that’s not the world in which we live.
The ruling invalidated justifications police departments were using for “stop-and-frisk” checks of individuals based solely on the fact that they were in possession of a firearm.
Although the carrying of a concealed firearm is unlawful for a person statutorily prohibited from firearm ownership or for a person not licensed to do so, see 18 Pa.C.S. §§ 6105-06, there is no way to ascertain an individual’s licensing status, or status as a prohibited person, merely by his outward appearance. As 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. Unless a police officer has prior knowledge that a specific individual is not permitted to carry a concealed firearm, and absent articulable facts supporting reasonable suspicion that a firearm is being used or intended to be used in a criminal manner, there simply is no justification for the conclusion that the mere possession of a firearm, where it lawfully may be carried, is alone suggestive of criminal activity.
The Firearms Policy Coalition, which wrote an amicus brief in the case, issued this press release . . .
HARRISBURG, PA (May 31, 2019) — Today, the Pennsylvania State Supreme Court issued a significant 53-page majority opinion in the criminal appeal of Commonwealth v. Hicks. Firearms Policy Coalition (FPC) and Firearms Policy Foundation (FPF) filed an important coalition amicus brief cited by the Court supporting Hicks in December of 2017, alongside Firearms Owners Against Crime (FOAC) and seven Members of Pennsylvania’s General Assembly. The Court’s decision, concurring opinions, and the FPC/FPF amicus brief can be viewed at www.firearmspolicy.org/legal.
At issue was whether someone’s carrying of a firearm could be used as reasonable suspicion of criminal conduct, and thus justification for police to conduct a “stop-and-frisk” of the gun owner. The court ruled in Hicks that such searches and seizures, in the absence of other evidence are completely unlawful.
The coalition’s brief, which was relied on heavily in the majority opinion, argued that the Pennsylvania and federal constitutions prohibit searches and seizures based on a suspicion of criminal activity due to carrying a firearm. According to the brief, “As protected by the Second and Fourth Amendments to the United States Constitution and  the Pennsylvania Constitution . . . the mere open or conceal carrying of a firearm cannot establish reasonable articulable suspicion of criminal conduct, in the absence of additional indicia of unlawful activity.”
The Court agreed, noting “that the government may not target and seize specific individuals without any particular suspicion of wrongdoing, then force them to prove that they are not committing crimes.”
“Hicks’ position is supported by several amici curiae, including Members of the Pennsylvania General Assembly, Firearms Owners Against Crime, the Firearms Policy Coalition, and the Firearms Policy Foundation. Hicks’ amici argue that the Robinson rule is contrary to this Court’s precedent and to the general teachings of the Supreme Court of the United States’ Fourth Amendment jurisprudence. Amici further point to numerous decisions of the courts of other states and federal appellate courts that have addressed the specific question at issue here, and which have held that mere possession of a concealed firearm provides no basis for an investigative detention,” Supreme Court Justice Wecht wrote for the majority.
FPC President and FPF Chairman Brandon Combs hailed the decision. “Stop-and-frisk practices that harass gun owners who carry for lawful purposes including self-defense, like the one at the core of this case, are unconstitutional, bad public policy, and dangerous,” explained Combs. “We are thrilled that the Supreme Court of Pennsylvania agreed with these fundamental principles and issued such an incredibly positive decision in favor of constitutional rights.”
Kim Stolfer, president of FOAC, was also delighted with the ruling. “We are thrilled to have participated in this case. The Commonwealth’s position, that the ‘mere sight’ of a firearm, with no criminal act, ‘justifies’ arrest and detention at gunpoint, is constitutionally repugnant and unjustified. Today the Court rightly held as much.”
Joshua Prince, author of the coalition’s brief, said that “the Court, in dismissing the Commonwealth’s position, declared that to permit investigative detention solely to determine whether someone is properly licensed is ‘ultimately untenable, because it would allow a manifestly unacceptable range of ordinary activity to, by itself, justify Terry stops.’”
“This ruling rightly puts an end to abusive, non-justifiable searches of law-abiding gun owners, and it should be relished by all those who support the fundamental rights enshrined in our Constitution,” Prince concluded.
But there’s more to the ruling than the Fourth Amendment implications of the ruling.
As a post at the Prince Law blog notes, the Court appeared to reaffirm the state’s preemption law here:
Consistent with the General Assembly’s reservation of the exclusive prerogative to regulate firearms in this Commonwealth, codified at 18 Pa.C.S. § 6120, the additional requirement that an individual possess a license in order to carry a firearm openly within the City of Philadelphia is prescribed by statute, not by municipal ordinance. See 18 Pa.C.S. § 6108; see generally Ortiz v. Commonwealth, 681 A.2d 152 (Pa. 1996).
That would seem to be bad news for the city of Pittsburgh and Mayor Bill Peduto’s crusade to invalidate the state’s preemption law, allowing him to enforce the gun control ordinances he signed following the Tree of Life synagogue shooting.
As TTAG’s favorite attorney, LKB, told us . . .
This ruling is especially significant in light of the Pittsburgh ordinances — the mayor et al. acknowledge that Pennsylvania state law prohibits their activities, but they are pushing anyway on the hope that the state Supreme Court will overrule the state law precluding cities from passing such ordinances.
This opinion indicates that the state Supreme Court isn’t reflexively anti-gun.
And that could make things uncomfortable for Hizzoner. As LKB told us, the mayor and city council’s reckless disregard for state law . . .
…might even be bad enough to knock out somebody’s qualified immunity.
That would be a real shame.