We’ve had debates in the past on the topic of Commonwealth v. Hawkins, the Pennsylvania case that held an unsubstantiated call to police of “Man with a Gun” did not amount to RAS to do a Terry stop. In Hawkins, the Pennsylvania Supreme Court stated:
The Commonwealth takes the radical position that police have a duty to stop and frisk when they receive information from any source that a suspect has a gun. Since it is not illegal to carry a licensed gun in Pennsylvania, it is difficult to see where this shocking idea originates, notwithstanding the Commonwealth’s fanciful and histrionic references to maniacs who may spray schoolyards with gunfire and assassins of public figures who may otherwise go undetected. Even if the Constitution of Pennsylvania would permit such invasive police activity as the Commonwealth proposes — which it does not – such activity seems more likely to endanger than to protect the public. Unnecessary police intervention, by definition, produces the possibility of conflict where none need exist.
I believe there was some discussion over at PAFOA that Hawkins could be read so far as to suggest that an officer can’t make a stop to ascertain whether someone carrying concealed has a license. I think Hawkins provides a good case to be made, but it’s not an open and shut thing. A new case in Georgia essentially rules on a very similar subject, where a judge ruled:
After seeing Raissi’s firearms license and driver’s license, the officers ran background checks on Raissi and held him, according to Raissi, for half an hour. The officers transported Raissi to a locked area out of the public eye before finally releasing him and returning his firearm and other property.
In the ruling today, Judge Thrash held that merely carrying a concealed firearm justifies such detention and disarmament. He wrote in his opinion that “possession of a firearms license is an affirmative defense to, not an element of, the crimes of boarding [MARTA] with a concealed weapon and carrying a concealed weapon.”
I’m not saying it would necessarily go this way in Pennsylvania, in regards to Hawkins, but now we have a federal court essentially saying that a police officer spotting a man concealing a firearm is RAS to detain him until they can confirm his legal status. Georgia’s law is similar to Pennsylvania’s in that it is generally unlawful to carry a concealed firearm. You can carry one under exceptions, one of which is having a License to Carry. Hawkins is an interesting ruling, and certainly a useful tool, but I think gun owners in this state shouldn’t believe they can take it to the bank in every situation.
I don’t think it sheds any light on Hawkins. I think the court ignored the Constitution – again.
I hope the decision is appealed. It’s not a big leap to…
Driving a car on a public road is generally unlawful – unless you have a license. Seeing a man driving on the road is enough RAS to stop him, arrest him, search him, and question him until it is deemed that he is lawfully licensed. Having a license is an affirmative defense.
and then a small hop to…
Being in the US is generally unlawful – unless you are a citizen of the US or posses the proper documentation (visa, green card, etc). Seeing a man in the US is enough RAS to stop him, arrest him, search him, and question him until it is deemed that he is lawfully a citizen or posses the right paperwork to be in the US.
I agree, but as you can see from this case, you can’t always expect judges to do what’s right.
Well, the law in GA, NY, PA etc. are built on the premise that possession/carry is a crime. Nuance of wordings differentiate licensed carry between a legal exception (“except as provided for in section Q…”) vs. an affirmative defense (“section P shall not apply under these conditions…”). The difference allows police the option to assume a crime, and detain the perp until convincing conditions for exception are confirmed (and they can still just toss you in a cage and let a judge figure out the details).
In the GA case, the accused was observed preparing to carry on the train, unpacking & concealing the piece in the parking lot – sadly, not behavior normal to someone who is “just carrying” but instead looking to the twitchy like preparation for ill intent. Legal, yes, but perceived as abnormal and worth investigating by those who investigate alleged abnormal behavior. (Hence the mantra “if you have decided to carry, ALWAYS carry”. Nothing would have happened had he put it on as soon as he was legally allowed to, i.e. before leaving home.)
Note too there is a great legal tension between Atlanta and GA regarding concealed carry, hence the festivities involving the airport and trains.
Hence the need for governments to recognize RKBA as a _right_. Liberty subject to regulation is not liberty (a la “shall not be infringed”).
Most troubling is that when the standard applies to citizens apprehension of criminal activity. If the standard is to assume carrying = crime, then the Georgia reasonable person standard is now to assume anyone carrying is a criminal.
As a concealed carry instructor in Ohio I continually get the question, “what do I do if someone sees my gun?” to which I continually answer, “then you DO NOT UNDERSTAND THE CONCEPT OF CONCEALED!”
I feel for the gun owners in these situations, but if they would carry in a concealed manner – that includes not letting the gun “print” through your clothing, these issues would likely never have been discussed.
” “then you DO NOT UNDERSTAND THE CONCEPT OF CONCEALED!†”
For those of us in states that are shall issue and do not require a “class” to obtain a carry permit or license, and those that live in states where open carry is completely legal, your argument holds no water.
My PA License To Carry Firearms gives me the OPTION of concealing a firearm.
I simply don’t care if it “scares the white people”. Their “feelings” are not my issue to address.
I will say, though, that the individual in the case in GA exercised poor judgment in loading his firearm and holstering up in a public place. A loaded gun has no reason to be out of it’s holster in a public place unless it is being used for it’s intended purpose. But, the police who noticed him loading and holstering his gun did not approach him because his actions may have been unsafe. And so, his 4th amendment rights were violated – IMO.
To add irony per Skullz’s comment: if the guy in GA had not fiddled with the thing in the parking lot, but had been carrying OPENLY, he would (should) have been OK.
Remember that in US history, concealed carry has long been considered an act presumptive of guilt – hence the need for a permit, whereby the gov’t says “yeah, but we know this particular guy is OK”, to wit concealed = assumed guilty intent. It is open carry which garners a presumption of innocence.