Pa ccw

[Steve in PA]

Unless the drunk person is waiving the firearm around, there is no connection between their intoxication and the carrying of the firearm.

What if the person was carrying a pocket knife?? You can certainly kill or attack a person with a knife..........are they going to be charged with public intoxication and reckless endangerment???

Reckless endangerment to who???????

The child left in the car is in danger. Who is in danger because a person carrying a weapon is intoxicated??

There is no generic "reckless and negligent behavior" charge in PA.

§ 2705. Recklessly endangering another person
A person commits a misdemeanor of the second degree if he recklessly engages in conduct which places or may place another person in danger of death or serious bodily injury.

In the above law the police would have to specify who exactly was in danger. They can't charge the person and then say, well............everyone around that person was in danger. Doesn't work that way. Who is in danger because of a holstered weapon? What if the person isn't intoxicated? What is they are just pissed off, ranting & raving..........yelling??? Are they going to be charged with "possibly" placing people in danger because of his attitude/conduct and the fact that he is carrying??

There is no "common law" charge or offense that deals with intoxication and the carrying of a firearm.

 

[BullfrogKen]

No, common law is just another name for case law. In other words, a previous binding court decision must be referenced and cited in order for case law to apply.

No, case law is not just another name for common law. And a previous binding court decision need not be referenced and cited for the courts to exercise common law. You are describing the concept of stare decisis, which obligates judges to follow the common law doctrine to follow the precedents established in prior decisions. Even the concept of stare decisis itself comes down to us through common law tradition.

Common law encompasses the body of law developed from customs or judicial decisions in US and English courts, not attributable to a legislature. Case law is made when a landmark or other defining decision is rendered. Common law often has origins that sometimes cannot readily be found, or its origin cannot be specified at all, but simply is practiced and upheld because, "that's the way we've always done things; or it's the courts tradition," or other similar understanding of what constitutes the body of law.

The concept of common law marriages is probably one of those earliest common law traditions.

They are not identical, interchangeable terms and concepts.

Being arrested and charged with reckless endangerment, regardless of what act took place, is merely dependant on what a reasonable person would believe to be acting with willful disregard for the safety and/or well-being of others. This has nothing to do, per se, with common or case law, except that IF there is binding case law which explicitly shows a specific act to be considered under the purview of reckless endangerment, then there is less or no wiggle room for the defense to prove that it is not.

Many criminal acts, and especially acts of negligence, are dependant on the reasonable person standard. But there are different levels of negligence. Don't confuse negligence per se, which is negligence defined by statute, with simple negligence. We're not discussing negligence per se.


What we are discussing is the state's view of possession of a firearm in an intoxicated state. Pennsylvania hasn't formed a statutory law specifically defining simple possession while intoxicated as a criminal act. Hunting while intoxicated is a statutory crime, with defined penalties, because the state decided it was something that occurred with enough regularity that they wanted to codify it as a criminal act.


Also, keep in mind very few lower court decisions are actually published. That's not to say they aren't recorded, but the proceedings are traditionally not transcribed and made available as reference material to other courts. It's just too costly and time consuming. This is why a great deal of what goes on at the lower court is not known to the public beyond the facts of the case and the decision.



As Sam hints at, there's a whole lot of discretion left up to the officer on the scene to decide whether or not the state's going to become involved. The advice I've been given, and continue to give out to new license holders in PA is to avoid becoming legally intoxicated while carrying a firearm in Pennsylvania.


Then again, what does Kim Stolfer know about all this anyway?

 

[travellingJeff]

Lots of information in here. I've carried in bars, I've carried when drinking. I don't get abusive when I consume alcohol and I don't consume much alcohol when I do. It's up to each person, but at the end of the day you've got to answer mainly to yourself. If you wake up on the toilet, spewing from the night before, and your sidearm is limply hanging from your half-removed pants, I might suggest you don't carry. If you enjoy a glass of Chilean Cabernet with your steak, then you probably won't ever have an issue.

Best regards, no matter which decision you make.


Jeff

 

[Sam1911]

Interesting discussion. We'd all, I'm sure, like to be able to say that we are legal to do this or not legal to do this, with no grey area. The idea that you might be on the line somewhere and not know your legal position -- or that your legal position may rest in the hands of a random officer who brings his or her own background, opinions, predispostion, and current state of indigestion into the mix -- is more than a little scary.

I guess it boils down to the question of, is a person found to be intoxicated and armed (absent of other violations, which might be difficult if they are in any way "in public") in conceivable risk of being accused of "reckless endangerment" or any other charge covered by common law -- if the only critical element of their "offense" is to merely possess a gun while inibriated? Would that pass muster in PA as a prosecutable offense?

Our buddy Bill's scenario of, "you're sitting at home, absolutely hammered. Your pistol is on your kitchen table. You're in possession of that gun, and you're intoxicated. What charge am I going to bring you in on?" seems like one end of the spectrum. Of course, the moment that you step off your property, you may be committing other offenses. But I'm having a little trouble picturing how this offense -- on it's own -- makes it through to a trial, if there's no potential victim besides public safety in general.

Or is that enough? Can your state of armed intoxication be a construed as an actionable threat to the public safety? Again, it seems hard to separate this from the easier to nail down statuatory "drunk in public" charge.

Wish I could afford even 5 minutes of a criminal attorney's time to answer this. Or at least offer some opinions.

-Sam

 

[General Geoff]

No, case law is not just another name for common law.

From Bouvier's 1856:

LAW, COMMON. The common law is that which derives its force and authority from the universal consent and immemorial practice of the people. It has never received the sanction of the legislature, by an express act, which is the criterion by which it is distinguished from the statute law. It has never been reduced to writing; by this expression, however, it is not meant that all those laws are at present merely oral, or communicated from former ages to the present solely by word of mouth, but that the evidence of our common law is contained in our books of Reports, and depends on the general practice and judicial adjudications of our courts.

I read that to mean that common law as applied to our current justice system, does in fact depend on records and reports. Otherwise judges could just make the stuff up on the spot, and nobody would be the wiser.



edit; And furthermore, I've found someone whose friend was indeed arrested for public drunkenness, while he was carrying a firearm, in Pennsylvania. The magistrate dismissed the disorderly conduct, reckless endangerment, etc.. and only left the public drunkenness charge, since his firearm never left its holster, and he was not, in fact, endangering anyone. I'd consider that pretty good (if not necessarily binding) case law. I'm trying to get specifics on the particular trial, and hopefully some hard records.

 

[Brian Williams]

and they do not have access to that information via their patrol car computer.

I think that PA LEOs do have access to a list if you have a LTCF.

 

[General Geoff]

They do not have access to a list of LTCF carriers as far as I know, however they DO have access to the database of handgun purchase records (which is not a registry, but sometimes they try to use it like one). Because of this, many times they will disarm you, and "run the serial number" of your sidearm against that database to see who the last recorded purchaser was, and if it's not you, they'll illegally confiscate it. It's happened to many folks before.

 

[Steve in PA]

We do not have direct access, but we can have dispatch run a seperate query and find out if the person has a LTCF.

We do not have direct access to the transfer records either. Again, a seperate query run through dispatch will give the name of the person who last transfered the firearm.

 

[General Geoff]

Thanks for clearing that up, Steve.

 

[tkaction]

As for carrying in a school zone... I believe that is not completely settled. The statue states you can carry on school property for any "lawful purpose".

 

[General Geoff]

More accurately, it is a defense against prosecution that you were carrying on school grounds for any lawful purpose, according to the statute.

 

[travellingJeff]

You guys just wanna meet up for an "OC and Tequila Shots" event? ;-) Just kidding, of course.

My OC/CC preference is based on the time of the year, mainly. My holster is on my right hip, aiming just down my pant's outer seam. I usually wear a t-shirt and an overshirt, both tucked in. In the summer, this means I'm usually OC'ing. When a rain or wind comes up, or the mercury drops, I'll put on a sweatshirt, outer shell or long sleeve shirt and then I'm CC'ing.

I do believe that "self defense" is a "lawful reason" for carrying. I've got a "license to carry a firearm", signed by the Sheriff, that lists the purpose of said license as "SELF-DEF". I'm lawfully carrying my weapon, thus exempt. I'm not a millionaire so I don't want to be the guy that challenges it in court, so if I ever find reason to go into a school, I toss on an outershirt. My setup disappears pretty well under a hooded sweatshirt. I believe I'm legally in the right, it's a very rare situation for me personally, and I've never been "called" for CC'ing in this fashion. If you have reservations about this, lock your sidearm in the vehicle before you go on school property.

 

[ArfinGreebly]

Evidence vs Codification

From Bouvier's 1856:

LAW, COMMON. The common law is that which derives its force and authority from the universal consent and immemorial practice of the people. It has never received the sanction of the legislature, by an express act, which is the criterion by which it is distinguished from the statute law. It has never been reduced to writing; by this expression, however, it is not meant that all those laws are at present merely oral, or communicated from former ages to the present solely by word of mouth, but that the evidence of our common law is contained in our books of Reports, and depends on the general practice and judicial adjudications of our courts.

I read that to mean that common law as applied to our current justice system, does in fact depend on records and reports. Otherwise judges could just make the stuff up on the spot, and nobody would be the wiser.

Just for clarity, "does . . . depend on records and reports" and "evidence . . . is contained in our books or reports . . ." is not the same as "case law."

That a thing is generally described well enough to provide guidance is not to say a thing is formally codified.

 

[General Geoff]

From Black's Law Dictionary (Bouvier's 1856 does not have an entry for case law):

CASE LAW - A professional name for the aggregate of reported cases as forming a body of jurisprudence; or for the law of a particular subject as evidenced or formed by the adjudged cases; in distinction to statutes and other sources of law.

 

[AJChenMPH]

Okay, thread hijack time -- two things made me think of posting in this thread:

1. It looks like I will be moving from PRNJ to a Philly suburb thanks to the wife's potential promotion. So the plan is to put the paperwork in for a CCW permit once the dust settles.

2. This article on bank robberies in NYC suburbs came through today:
http://www.nytimes.com/2009/08/23/nyregion/23robb.html -- I'd assume similar conditions exist in Philly suburbs.

So this leads me down this train of thought:

a. If you are a PA CCW permit holder, are you permitted to OC/CC into a bank while you're conducting normal banking business?

b. Let me say now that I'm NOT an LEO, nor am I qualified as one, so I don't have a duty to act. However, I am an active-duty commissioned officer (not under Title 10, so I don't have any issues with Posse Comitatus) and I cross that line into the gray area as a Federal agent (my HQ actually issued me a shield and credentials), so I have a strong commitment and sense of public service.

If the answer to a. is "yes" and given b., would you confront a bank robber if you felt the odds were in your favor? (There are too many variables to list for the odds to be in one's favor -- let's just say in that split-second where you evaluate the situation and make the determination, you determine the odds are in your favor.) Just want to hear your thoughts as I could easily see myself in such a situation.

Thanks...

 

[tkaction]

of course you can carry in a bank.

 

[General Geoff]

a. If you are a PA CCW permit holder, are you permitted to OC/CC into a bank while you're conducting normal banking business?

Yes, absolutely.

If the answer to a. is "yes" and given b., would you confront a bank robber if you felt the odds were in your favor?

Depends on what the robber is actually doing. Most bank robbers these days just hand the teller a slip of paper saying "give me $xxxx"; the teller gives them an envelope with money in it, and hits the silent alarm button, which notifies police. And the robber then walks off happily with his money, to be later apprehended by the police with the help of video surveillance footage. In this case, I likely wouldn't even know he's a bank robber, and obviously wouldn't try to take him down.

If the robber was instead a guns-ablazin' type, and actually fired off any rounds, or looked like he was imminently going to shoot someone, then yeah, I might consider it.

 

[travellingJeff]

In Pa, it's easier to have a list of non-permitted places than permitted places.

No Federal Buildings, until February when National Parks Service land and facilities will be under local laws.

No court houses or police buildings. Although court houses are required to store your firearm for you and return upon your departure.

Any place with specific signage or policy. Of course, they can't prosecute you for this unless you refuse to leave.

That's about it, I know my PA buddies will help me out if I've forgotten a few.

 

[Sam1911]

Jeff,

I think you ought to make sure you're being as clear as possible about your position on carry in schools.

The law says:

Title 18 § 912 Possession of weapon on school property.
(a) Definition.--Notwithstanding the definition of "weapon" in section 907 (relating to possessing
instruments of crime), "weapon" for purposes of this section shall include but not be limited to any knife,
cutting instrument, cutting tool, nun-chuck stick, firearm, shotgun, rifle and any other tool, instrument or
implement capable of inflicting serious bodily injury.
(b) Offense defined.--A person commits a misdemeanor of the first degree if he possesses a weapon in the
buildings of, on the grounds of, or in any conveyance providing transportation to or from any elementary or
secondary publicly-funded educational institution, any elementary or secondary private school licensed by
the Department of Education or any elementary or secondary parochial school.
(c) Defense.--It shall be a defense that the weapon is possessed and used in conjunction with a lawful
supervised school activity or course or is possessed for other lawful purpose.

Now, reading handgunlaw.us, they simply view this as making schools a prohibited area for CCW. Perhaps they're being overly conservative. I have a strong belief that the way you read that is correct. Self-defense is considered a lawful purpose for the purposes of issuing a License To Carry Firearms. How can it NOT then be considered an "other lawful purpose" in a school zone?

However, I would not be surprised at all to be told that things are not that simple. Does anyone have any knowledge of case law on the matter? Has anyone ever been arrested, and/or tried, and/or convicted for (otherwise) lawfully carrying on school grounds?

The strictest possible reading of the law could have pretty ironic implications for some of us. For example, my kids are home-schooled!

-Sam

 

[travellingJeff]

No, their aren't any examples of case law. IIRC, it made it to some minor court somewhere and was ruled upon favorably, but the court's decision didn't set precdent.


I carry under the "other lawful purpose", that is, I want to defend myself and have *ugh* permission from the Sheriff to so do. But again, I'm not trying to be THE GUY that has to take that to the PA Supreme Court and pay a jillion bucks in legal fees. I just avoid public schools. I can tell you that the whole time I went to college, I just never read those "rules" that stipulated no firearms. Sure, they could have expelled me, but a smart student with clean clothes, a nice haircut and a car... they never really even considered searching me I'm sure.

 

[Sam1911]

I just avoid public schools.

Ditto.

I can tell you that the whole time I went to college, I just never read those "rules" that stipulated no firearms. Sure, they could have expelled me,

Oh sure, but there are no LEGAL ramifications for violating a college's or university's rules on the subject. I assure you that I had exactly the same attitude toward my institution's policy that you did. But I also knew I couldn't be sent to jail over it.

Thanks for the thoughts.

Steve, are officers given any direction about this?

Interestingly, this could be an issue that is pushed, and soon, if this trend toward OC at town meetings and such continues, considering how often schools are used as the venue. Open carry is legal, and self-defense still must be considered the underlying "lawful purpose" so who's to say someone couldn't come to a political rally down at the local High School (let's leave the Prez. out of it for the moment) OC-ing his .44 Mag? If queried about his purpose for doing so, he replies "self-defense." Does he go about his business in peace or ride away in the back of a squad car?

Inquiring minds want to know!

-Sam

 

[Sam1911]

And here is a case of a PA citizen who did get caught and arrested, though I have no idea how to find out the results of the case:

http://www.dailyitem.com/0100_news/local_story_298080100.html

MIFFLINBURG -- A Watsontown auxiliary police officer is facing charges for allegedly bringing a loaded handgun to a youth football game at Mifflinburg Area High School last weekend.

Clinton S. Mettler, 26, of Watsontown, allegedly had his registered Ruger semi-automatic handgun concealed while watching the midget football game Sunday in the bleachers, according to Mifflinburg police. When confronted by football league officials and asked to leave the school property, Mettler became "agitated and claimed he could be in possession of the handgun" because he was on duty 24 hours a day, officers said.

Cpl. Wade Danley, of the Watsontown police, said the department's auxiliary police officers act almost like fire police, helping with parades and other functions, but have no arrest powers.

"(Mettler's gun) is something he had personally," Danley said. "It has nothing to do with us."

Mettler had a permit for the handgun issued by the Northumberland County Sheriff's Department and a Watsontown Police Department auxiliary police officer badge, Mifflinburg police said. They said he had a full magazine and an additional round chambered.

Mettler was charged with possessing a weapon on school property. The gun and holster were confiscated.

Now, he does appear to have given the officials some flak when asked to leave, but he was NOT charged with trespassing, he was charged with carrying the gun on school property. Unless the case was then thrown out because it was decided that he did possess it for a "lawful purpose" then it definitely appears that this will be enforced.

He did possess the LTCF. His gun was concealed. Someone noticed anyway. He was arrested.

How can we find out how the trial went?

-Sam

 

[Sam1911]

SCHOOL ZONES
Is it illegal for CCW permit holders to carry guns into schools? Partial

Pennsylvania - State law does not clearly prohibit people from carrying hidden handguns into schools if they have an easily-obtained CCW permit. The law provides a defense for CCW permit holders to carry a gun into school "for lawful purpose."

That's the opinion of...THE BRADY CAMPAIGN! Ha ha!

I suppose, though, that their opinion is less instructive than the case law of the proceedings against Mr. Mettler.

Too bad. It would be nice to get the Brady Bunch's help with something for a change!

-Sam

 

[Sam1911]

Also, Jeff, can you clarify your statement here?

No Federal Buildings, until February when National Parks Service land and facilities will be under local laws.

I believe this is in error:

The press release from the Department of the Interior on the matter included these lines:

...The final rule, which updates existing regulations, would allow an individual to carry a concealed weapon in national parks and wildlife refuges if, and only if, the individual is authorized to carry a concealed weapon under state law in the state in which the national park or refuge is located. ... Existing regulations regarding the carrying of firearms remain otherwise unchanged, particularly limitations on poaching and target practice and prohibitions on carrying firearms in federal buildings

Now, this the original version of the NPS carry ruling, before the court injunction against it. I know we're now all waiting for the aspect of the credit card reform act to take effect which will allow it (again?) but I don't know what other effects the wording of that bill might have. Did it change this wording as well, or just push through the original DOI policy change?

If the latter, park buildings still equal federal buildings and so still equal NO CARRY.

-Sam

 

[Sam1911]

Wow. After a bit of searching I was able to find the exact text of the NPS amendment to the Credit Card Accountability Responsibility and Disclosure Act of 2009. And here it is!

SEC. 512. Protecting Americans from violent crime.

(a) Congressional findings.—

Congress finds the following:

(1) The Second Amendment to the Constitution provides that “the right of the people to keep and bear Arms, shall not be infringed”.
(2) Section 2.4(a)(1) of title 36, Code of Federal Regulations, provides that “except as otherwise provided in this section and parts 7 (special regulations) and 13 (Alaska regulations), the following are prohibited: (i) Possessing a weapon, trap or net (ii) Carrying a weapon, trap or net (iii) Using a weapon, trap or net”.
(3) Section 27.42 of title 50, Code of Federal Regulations, provides that, except in special circumstances, citizens of the United States may not “possess, use, or transport firearms on national wildlife refuges” of the United States Fish and Wildlife Service.
(4) The regulations described in paragraphs (2) and (3) prevent individuals complying with Federal and State laws from exercising the second amendment rights of the individuals while at units of—

(A) the National Park System; and
(B) the National Wildlife Refuge System.

(5) The existence of different laws relating to the transportation and possession of firearms at different units of the National Park System and the National Wildlife Refuge System entrapped law-abiding gun owners while at units of the National Park System and the National Wildlife Refuge System.
(6) Although the Bush administration issued new regulations relating to the Second Amendment rights of law-abiding citizens in units of the National Park System and National Wildlife Refuge System that went into effect on January 9, 2009—

(A) on March 19, 2009, the United States District Court for the District of Columbia granted a preliminary injunction with respect to the implementation and enforcement of the new regulations; and
(B) the new regulations—

(i) are under review by the administration; and
(ii) may be altered.

(7) Congress needs to weigh in on the new regulations to ensure that unelected bureaucrats and judges cannot again override the Second Amendment rights of law-abiding citizens on 83,600,000 acres of National Park System land and 90,790,000 acres of land under the jurisdiction of the United States Fish and Wildlife Service.
(8) The Federal laws should make it clear that the second amendment rights of an individual at a unit of the National Park System or the National Wildlife Refuge System should not be infringed.

(b) Protecting the right of individuals To bear arms in units of the National Park System and the National Wildlife Refuge System.—

The Secretary of the Interior shall not promulgate or enforce any regulation that prohibits an individual from possessing a firearm including an assembled or functional firearm in any unit of the National Park System or the National Wildlife Refuge System if—

(1) the individual is not otherwise prohibited by law from possessing the firearm; and
(2) the possession of the firearm is in compliance with the law of the State in which the unit of the National Park System or the National Wildlife Refuge System is located.

Soooooo... one reading of that seems to indicate that the DOI may not in any way limit the 2nd A. rights of a citizen to any extent beyond what the state where that park is located already does.

Which is interesting in and of itself, as I believe the DOI's rule change of last year (April?) specifically said "Concealed Carry" leaving Open Carry off limits regardless of the host state's position on that.

However, the DOI previously had very specifically called out "Federal Buildings" as still off limits. Which may be simply because the Secretary does not have the authority to allow weapons in Federal Buildings whether he wants to or not, so his ruling reversing the no-weapons policy in Parks could have no bearing on the legality of doing so in the buildings on that property.

The only other way I can read this is for the Act to declare park buildings to not be "federal buildings" -- so the host state's rules apply within them. It doesn't specifically say that, either.

So, after a lot of reading, I'm still confused.

-Sam

EDIT: Due to the nature of this particular question having effects over the whole country, (begging the Mods' forgiveness), I'm going to start a separate thread in "Legal" on this specific topic. I'll copy the text of this post as the first post of the new thread. It is here: http://www.thehighroad.org/showthread.php?p=5854442