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Philly Police directive on OC

swinokur

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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.
 

eye95

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Fairborn, Ohio, USA
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.
 

swinokur

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Location
Montgomery County, MD
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)
 
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PrayingForWar

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The Real World.
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.
 

swinokur

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Messages
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Location
Montgomery County, MD
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.
 

TFred

Regular Member
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Most historic town in, Virginia, USA
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
 

Citizen

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Fairfax Co., VA
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/s...Amendment-Resources-Here!!&highlight=inchoate
 
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jgullock

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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."
 

eye95

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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?
 

jgullock

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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).
 

swinokur

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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 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.
 
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eye95

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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.
 

Dreamer

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Grennsboro NC
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.
 
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