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Thread: Philly Police directive on OC

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    Activist Member swinokur's Avatar
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    Philly Police directive on OC

    Issued to all Philly police on 9-22
    Police directive sent to all districts regarding open carry in Philadelphia, PA Sept 22, 2010

    GENERAL: 1272 09/22/10 12:53:20

    TO : ALL COMMANDING OFFICERS / DEPARTMENT HEADS
    SUBJECT : FIREARM OPEN CARRY LAW IN PHILADELPHIA

    1. DIRECTIVE 137, ENTITLED “FIREARMS” IS BEING UPDATED
    CONCERNING THE PENNSYLVANIA OPEN CARRY LAWS
    REGARDING THE CITY OF PHILADELPHIA. THIS TELETYPE
    REFLECTS THE NEW POLICY AS IT WILL APPEAR IN THE
    DIRECTIVE.

    2. ALL OFFICERS SHOULD BE AWARE THAT PENNSYLVANIA IS
    CONSIDERED AN “OPEN CARRY STATE” WITH THE EXCEPTION OF
    PHILADELPHIA. IT IS IMPORTANT TO DEFINE A FEW TERMS USED,
    WHICH ARE AS FOLLOWS:

    “OPEN CARRY” REFERS TO THE ACT OF OPENLY AND VISIBLY
    CARRYING A FIREARM ON ONE’S PERSON.

    “OPEN CARRY STATE” REFERS TO A STATE THAT ALLOWS
    PEOPLE TO OPENLY AND VISIBLY CARRY A FIREARM ON ONE’S
    PERSON WITHOUT A SPECIAL LICENSE OR PERMIT.

    “CONCEALED CARRY FIREARMS LICENSE” REFERS TO A SPECIFIC
    LICENSE ISSUED TO AN INDIVIDUAL AUTHORIZING THE PERSON
    TO CARRY A FIREARM CONCEALED ON HIS OR HER PERSON OR
    VEHICLE.


    3. IN PHILADELPHIA, UNLIKE ANY OTHER PART OF THE STATE, FOR
    ANY PERSON TO LAWFULLY, OPENLY AND VISIBLY CARRY A
    FIREARM, THAT PERSON MUST HAVE A CONCEALED CARRY
    FIREARMS LICENSE. SO, IN PHILADELPHIA, IF A PERSON HAS A
    VALID CONCEALED CARRY FIREARMS LICENSE, HE OR SHE CAN
    LEGALLY CARRY A FIREARM EITHER OPEN AND VISIBLE OR
    CONCEALED.

    4. AN OFFICER ENCOUNTERING A PERSON CARRYING A FIREARM
    OPENLY IN PHILADELPHIA SHOULD FOR THE SAFTEY OF PUBLIC
    INVESTIGATE AS A POSSIBLE VUFA VIOLATION.

    A. SINCE A SEPARATE LICENSE IS REQUIRED IN PHILADELPHIA
    AND IT IS IMPOSSIBLE FOR ANY OFFICER TO KNOW WHO DOES
    AND DOES NOT HAVE A VALID CONCEALED CARRY LICENSE, IT
    IS ENTIRELY REASONALBE FOR OFFICERS TO TEMPORARILY
    DETAIN AND INVESTIGATE ANY INDIVIDUAL CARRYING A
    FIREARM EXPOSED TO DETERMINE IF THE PERSON IS
    OPERATING WITH THE LAW.

    B. IMMEDIATLEY SEIZE ANY FIREARMS FOR OFFICER SAFETY
    DURING THE STOP AND UNLOAD THE FIREARMS IF POSSIBLE,
    BUT ONLY IF IT CAN BE DONE SAFELY.

    C. A 75-48A MUST BE COMPLETED AND THE BASIS FOR THE STOP
    WOULD BE A “POSSIBLE VUFA VIOLATION”


    D. ONCE THE OFFICER RECEIVES CONFIRMATION THAT THE
    CONCEALED CARRY LICENSE IS VALID, AND THERE ARE NO
    OTHER OFFENSE OR VIOLATIONS BEING INVESTIGATED,
    OFFICERS SHOULD RETURN THE FIREARM AND AMMUNITION
    BACK TO THE INDIVIDUAL AT THE END OF THE STOP.

    E. HOWEVER, IF THE INDIVIDUAL CANNOT PRODUCE A VALID
    CONCEALED CARRY LICENSE OR THE LICENSE IS NOT VALID
    (I.E. EXPIRED OR REVOKED), PROBABLE CAUSE THEN EXISTS
    TO ARREST THE INDIVIDUAL FOR THE VUFAVIOLATION AND
    TRANSPORT THE INDIVIDUAL TO THE DIVISIONAL DETECTIVES
    FOR PROCESSING. THE FIREARM AND AMMUNITION SHOULD
    BE PLACED ON A PROPERTY RECEIPT (75-3) AND MARKED AS
    “ EVIDENCE”. A 75-48A FOR THE INITIAL STOP MUST BE
    PREPARD ALONG WITH A 75-48 FOR THE VUFA ARREST.

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    I take it that PA does not have preemption?

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    Campaign Veteran Bookman's Avatar
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    They also don't know much about Terry stops.
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    Quote Originally Posted by Bookman View Post
    They also don't know much about Terry stops.
    Actually, what they are doing is in line with a ruling from a case in GA. On OCer got onto a subway train. An officer stopped him and asked for his permit. The court ruled that, even though the officer would not normally have RAS just because someone was OCing, he has RAS if the OCer places himself in a situation where a permit is now required (getting on the train). The officer had RAS that the OCer was carrying without a permit.

    The issue here should not be whether the police are authorized to stop the carrier, but why would OC require a permit in Philadelphia? This requirement is where the infringement occurred. The stop is a lawful extension of what I would say is an unconstitutional infringement.

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    Activist Member swinokur's Avatar
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    Quote Originally Posted by eye95 View Post
    I take it that PA does not have preemption?

    they do but Philly was exempted because of population. The Philly law is to OC you need a CC. stupid but that's the law.

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    Activist Member swinokur's Avatar
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    The issue here should not be whether the police are authorized to stop the carrier, but why would OC require a permit in Philadelphia? This requirement is where the infringement occurred. The stop is a lawful extension of what I would say is an unconstitutional infringement.
    PA law exempts Philly because it mentions a certain population size. Not sure of number but Philly is the only qualifies for the exemption.

    NV has a similar law that allows Clark County (Las Vegas) to require gun registration (blue card)
    Last edited by swinokur; 10-06-2010 at 09:24 AM.

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    Founder's Club Member PrayingForWar's Avatar
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    That's a policy designed to discourage OC. If they just asked to see the permit, that wouldn't be too obnoxious, but taking the weapon, unloading it, and making people stand there while they look for an excuse to make an arrest is more than enough to make people just conceal it in the first place.
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    Activist Member swinokur's Avatar
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    agreed but previous case law says seeing the weapon is enough RAS to stop, disarm and check for the permit. This was from a case in GA and a guy getting on a commuter train.

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    Regular Member TFred's Avatar
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    So are LEOs allowed to arbitrarily pull over drivers and ask for their drivers license?

    "Arbitrarily" being the key word here.

    Allowed or not, that does not seem to be in practice anywhere that I know of.

    TFred

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    Regular Member Thundar's Avatar
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    Philly PoPo - stupid is as stupid does.

    Sad really. PA recognizes all other state licenses. Funny thing is PA doesn't have a concealed carry license, they have a LTCF (License to Carry Firearms).

    Philly PoPo are stepping in it. See the link:

    http://forum.opencarry.org/forums/sh...-comes-second”
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    Regular Member Michigander's Avatar
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    Quote Originally Posted by eye95 View Post
    Actually, what they are doing is in line with a ruling from a case in GA. On OCer got onto a subway train. An officer stopped him and asked for his permit. .
    In my opinion, that was unconstitutional judicial activism, bordering in on treason.
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    Quote Originally Posted by PrayingForWar View Post
    That's a policy designed to discourage OC. If they just asked to see the permit, that wouldn't be too obnoxious, but taking the weapon, unloading it, and making people stand there while they look for an excuse to make an arrest is more than enough to make people just conceal it in the first place.
    It is also illegal. In several SCOTUS decisions* about weapons and seizures-short-of-arrest, the court makes use of the standard "reasonable and prudent". There is nothing reasonable about automatically seizing all OCd guns.

    One case** even holds that nothing in the initial stages of an encounter serves to dispel the cop's concern for safety. Meaning the cop has to use judgement.

    The simple fact that cops don't always seize guns during traffic stops proves that mere possession of a gun does not equate to dangerousness, and disproves the "reasonableness" of always seizing guns.

    Separately, I find it interesting that this policy is even written. The actual policy is the 4th Amendment case law and statutes; yet, here is a police department issuing their own version of the policy. And, of course, it twists the actual law. As you will be able to see for yourself when you read or even skim the cases I've cited below. The link at the bottom takes you to a page with links to the cases.

    Essentially this policy establishes Philly's version of a CA 12031(e) check. Call it, derisively, a Phill(e)-check. Or, a "Dumb37-check" (a spin on the directive number, #137).

    *Terry v Ohio, PA v Mimms, Michigan v Long

    **Terry v Ohio:

    ...he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him...

    http://forum.opencarry.org/forums/sh...light=inchoate
    Last edited by Citizen; 10-06-2010 at 08:37 PM.

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    Quote Originally Posted by Michigander View Post
    In my opinion, that was unconstitutional judicial activism, bordering in on treason.
    That may well be. However, until another court says otherwise, that's the law.

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    Quote Originally Posted by eye95 View Post
    Actually, what they are doing is in line with a ruling from a case in GA. On OCer got onto a subway train. An officer stopped him and asked for his permit. The court ruled that, even though the officer would not normally have RAS just because someone was OCing, he has RAS if the OCer places himself in a situation where a permit is now required (getting on the train). The officer had RAS that the OCer was carrying without a permit.

    The issue here should not be whether the police are authorized to stop the carrier, but why would OC require a permit in Philadelphia? This requirement is where the infringement occurred. The stop is a lawful extension of what I would say is an unconstitutional infringement.
    I believe recent legislation got rid of the "affirmative defense" mess and it is now an "element of the crime" so the above issue would turn out differently. IANAL.

    Judge Thrash - "Because a Georgia firearms license is an affirmative defense to the crime of boarding with a concealed weapon and the crime of carrying a concealed weapon, it does not matter if there was no reason to suspect that Raissi did not have a Georgia firearms license. After Raissi concealed his handgun and started walking toward the MARTA station, he had committed all of the acts required for the crime of boarding with a concealed weapon and the crime of carrying a concealed weapon."

    Attorney John Monroe - "Anyone carrying a firearm in a restaurant that serves alcohol or a state park is fair game. The same goes for police officers. A police officer carrying a firearm in a restaurant, bar, or school is subject to arrest, including a citizen’s arrest, because being a law enforcement officer is an affirmative defense and not an element of the crime."

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    Good information.

    So, in Philadelphia, is having a permit an affirmative defense? Or, is not having a permit an element of the crime? My citation may be totally off-point, depending on the answer.

    How, in the law (typically), is the distinction made?

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    Depends on how the PA laws read. Need an actual attorney to go through it (unfortunatly too common with most laws).

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    Activist Member swinokur's Avatar
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    Quote Originally Posted by eye95 View Post
    The issue here should not be whether the police are authorized to stop the carrier, but why would OC require a permit in Philadelphia? This requirement is where the infringement occurred. The stop is a lawful extension of what I would say is an unconstitutional infringement.
    PA firearms law states that "cities of the first class" may be exempt frpm the open OC LAW . That applies to cities with more than 1 million population. Philly is the only city that qualifies for the exemption.


    The requirement for CC permit to OC is legal. IT'S PPD's enforcement that is at issue.
    Last edited by swinokur; 10-07-2010 at 11:26 AM.

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    Quote Originally Posted by swinokur View Post
    PA firearms law states that "cities of the first class" may be exempt frpm the open OC LAW . That applies to cities with more than 1 million population. Philly is the only city that qualifies for the exemption.

    The requirement for CC permit to OC is legal. IT'S PPD's enforcement that is at issue.
    It's legal in the sense that it conforms with PA law. The infringement occurs in that no one can carry in Philly without the permission of the State. That, to me, violates the 2A. We can only hope that SCOTUS uses McDonald to say that States which do not provide a permissionless method of carry (such as Alabama does) are abridging the RKBA.

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    Activist Member swinokur's Avatar
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    totally agree

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    Quote Originally Posted by swinokur View Post
    The requirement for CC permit to OC is legal. IT'S PPD's enforcement that is at issue.
    PA does not have a "concealed carry" permit. Their permit is a "License to Carry Firearms" The "Philly exemption" was on the books LONG before PA had reciprocity agreements with most states, and so although the law NOW recognizes ANY valid state-issues permit from a state with PA Reciprocity (general carry or CC) as being valid under the "Philly exemption", at the time the law was originally effected, it was written with PA's LTCF in mind.

    And even with regards to other state-issued permits, not all of them work in PA--even for the "Philly Exemption". PA only has reciprocity with 25 other states.

    And many of the states that, like PA require a permit for ANY mode of carry and do not specify whether the permit is for OC or CC (like MD), are not honored at all in PA, and DEFINITELY not for the "Philly exemption"...

    The problem with this law, this #136 Directive, and even most laws being enacted these days on the Federal level, is that the people voting on these laws never actually READ the wording, so a lot of dicey, BS-laden meaningless crap gets enacted as law. This directive is a prime example of that. It essentially does NOTHING to increase public safety, adds no real limitations on LE, gives no protection (or even guidence) to citizens, and adds nothing to the alread-existing statutes already in place. It is a "feel-good" policy, put in place so the anti-gun politicians will have something to point to in November when people ask them "what have you done to make Philly Safer?".

    It does nothing, except to cloud the waters even further, from the standpoint of the rights and obligations of the people, the duty of LE, and the overall procedures for dealing with lawful, legal carry in the city of Philadelphia.

    This city should be renamed to "Phillaodia"--the city of brotherly hate. Because the people that are running the show there, obviously hate freedom, liberty, the Rule of Law, and the People.
    Last edited by Dreamer; 10-07-2010 at 02:38 PM.
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    eye95:

    It would be interesting if Philadelphia's General Assembly would opt to remove 18 Pa.C.S 6108, concerning Open Carry in Cities of The First Class, however; I sincerely doubt that there will be any effort to do so.

    In accordance with Pennsylvania Law 18 Pa.C.S. 6106, it is a Crime to Carry a Firearm either: 1. Concealed on ones Person OR 2. In any Motor Vehicle, without a Pennsylvania Valid License to Carry a Firearm.

    *** The provisions of 18 Pa.C.S 6106 are similiar to Alabama Code 1975 13A-11-73, however, 18 Pa.C.S. 6106 is stricter as it covers ALL Firearms, unlike Alabama Code 1975 13A-11-73 which just covers Pistols. ***

    *** Pennsylvania Law accepts ALL State-issued Permits for Motor Vehicle Carry, per 18 Pa.C.S. 6106(b)(11), however; in a curious and odd-sense, such exception does not cover Concealed Carry. Concealed Carry coverage need not be entered into any such Reciprocital Agreement, but it does have requirements under 18 Pa.C.S 6106(b)(15)(i) and 18 Pa.C.S. 6106(b)(15)(ii). ***

    Pennsylvania Prohibits Carry during a declared State of Emergency under 18 Pa.C.S. 1607(a), unless such Person is Defending Himself from a threat, OR such Person has a License to Carry a Firearm under either/both: 18 Pa.C.S. 1607(a)(1) AND 18 Pa.C.S. 1607(a)(2).

    *** Remeber the provisions of 18 Pa.C.S. 6106(15)(i) and 18 Pa.C.S.6106(15)(ii) for the purposes of Reciprocity. ***

    Pennsylvania Prohibits the Registration of Firearms that are Privately-owned, per 18 Pa.C.S. 6111.4.

    Pennsylvania Prohibits the Possesion of ANY Firearm by ANYONE less than 18 years old, per Pa.C.S. 6110.1(a), except as provided under 18 Pa.C.S 6110.1(b), which; in turn, mimics Federal Law 18 U.S.C. 922(x).

    Pennsylvania Law allows Persons to be Licensed, consistent to Alabama Law, per 18 Pa.C.S. 6109.

    Pennsylvania has a Law that Preempts Firearm-related Laws solely to the CommonWealth of Pennsylvania, per 18 Pa.C.S. 6120.

    *** Pennsylvania Law Prohibits the Possesion of Firearms in Primary or Secondary Public, Private, or Parochial School Buildings, or their Grounds, or School Buses, except for 'Lawful Purposes', per 18 Pa.C.S. 912. The term 'Lawful Purposes' is NOT defined, and there is NO Locker exception as under 18 Pa.C.S. 913, as such Pennsylvania Law is discussed below***

    *** Pennsylvania Law Prohibits the Possesion of Firearms in CourtHouses by Private Persons, except that the Firearms Carried pursuant to a Pennsylvania License to Carry a Firearm, or its equilvalent, as discussed above, are able to be secured in a Locker upon arrival at the CourtHouse, pursuant to 18 Pa.C.S. 913(e). ALL CourtHouses have to follow this procedure, therefore; in theory, the ONLY place that is OFF-LIMITS for Firearms throughout Pennsylvania is the Schools discussed above. ***

    aadvark

    P.S.: As for my Personnal Opinion, Pennsylvania is a VERY Pro-Firearm State for a Northern State, and that Surprised me very much indeed!

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    Campaign Veteran since9's Avatar
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    Quote Originally Posted by swinokur View Post
    PA law exempts Philly because it mentions a certain population size.
    I don't see how this squares with the SCOTUS ruling on McDonald. Chicago is much larger than Philidelphia.
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    Activist Member swinokur's Avatar
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    PA UFA exempts cities of the first class (over 1 mil population) from unlicensed OC. You can CC or OC with a permit. McDonald affirms the right to carry in the home but was somewhat vague on carry outside the home. more litigation will have to resolve that

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    Checkmating Reasonable Articulable Suspicion against Phila Police

    What would it do to RAS in Phila if OCers had a reduced size copy of their LTCF laminated and attached to their holster plus a full size copy (notarized?) hanging from a chain around their neck?? Would PPD be able to defend taking an OCer at gunpoint, disarming him/her and detaining the OCer with the LTCF staring them in the face? An OCer would have to orally alert the PPD what the documents are and request/demand that they examine them before violating the carrier's rights. Naturally, the OCer should have the original in their possession too to back up the copies. I have the old image in mind of a cameraman or reporter with a PRESS card in the headband of their hat. (Yeah, it is a black and white image from old movies.)

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    Quote Originally Posted by bill gray View Post
    What would it do to RAS in Phila if OCers had a reduced size copy of their LTCF laminated and attached to their holster plus a full size copy (notarized?) hanging from a chain around their neck?? Would PPD be able to defend taking an OCer at gunpoint, disarming him/her and detaining the OCer with the LTCF staring them in the face? An OCer would have to orally alert the PPD what the documents are and request/demand that they examine them before violating the carrier's rights. Naturally, the OCer should have the original in their possession too to back up the copies. I have the old image in mind of a cameraman or reporter with a PRESS card in the headband of their hat. (Yeah, it is a black and white image from old movies.)
    I like your thought here. As a PA resident (about 4 hours from Philadelphia), I'd like to see a large OC meet there. It's about time we had some recognition in a big way. There have been a little spur in that direction for some time on PAFOA.org and I'd like to see it happen soon.

    I'm going to look further in to what you suggested here and try to organize an OC meet in "the city of the first class" come some "more climate OC weather". With the way the election results are going so far here, it might not be a bad idea this spring. We might just have some back-up in office.

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