New Philly PD Order on OC

[swinokur]

Issued 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.

[Glenn E. Meyer]

Given our rules - might we get some meaningful commentary. So what? One might ask?

[swinokur]

well for residents of Philly it's worth knowing what to expect

[maestro pistolero]

How can they require open carry to have a concealed permit in Philly with their state firearms pre-emption laws? This seems to be harassment. You can't just pull people over just to see if they have a driver license.

[swinokur]

because PA law allows Philly to require a CC to OC.

[zxcvbob]

How can they require open carry to have a concealed permit in Philly with their state firearms pre-emption laws? This seems to be harassment. You can't just pull people over just to see if they have a driver license.The state firearm laws have an exception for Philadelphia. If I recall correctly, it actually doesn't mention Philadelphia by name, but it's cities of a certain size or something, and Philadelphia is the only one in that class.

[swinokur]

How can they require open carry to have a concealed permit in Philly with their state firearms pre-emption laws? This seems to be harassment. You can't just pull people over just to see if they have a driver license.

if a cop sees what he thinks is an under age driver he has RAS to stop the car. previous case lawhas stated that where a license is required to OC, the OC is enough RAS to check for a permit

stupid but legal. what if the carrier did not have a permit? how would you know without checking?

not agreeing. just asking

[Brian Pfleuger]

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.

Ah, the idiocy. Investigating an apparently lawful activity to determine that it is, in fact, lawful. Seriously makes me wonder why they don't stop everyone in a car to verify that they do, in fact, have a drivers license.:rolleyes:

If they can do it with firearms then they can do it with cars too.... that means they can effectively stop anyone at any time and justify it as "possible XYZ violation". Tell me that's not a civil rights violation!:mad:

[swinokur]

The state firearm laws have an exception for Philadelphia. If I recall correctly, it actually doesn't mention Philadelphia by name, but it's cities of a certain size or something, and Philadelphia is the only one in that class.

correct

[Sefner]

San Diego just lost $35,000 in a false arrest of an open carrier:

http://www.examiner.com/la-in-los-angeles/open-carry-false-arrest-costs-san-diego-35-000-part-1

If they want to get rid of open carry - and there are arguments for that - then police directive is not the way to do it. Even people against open carry will see the issue with a police force making firearms regulations.

Banning of open carry - or any firearms regulation for that matter - needs to go through the legislature. You know, someone held accountable to the people. Normal people will just view this as the oft-mentioned "police state".

edit: this post is based off of faulty premises, please ignore it :D

[Frank Ettin]

...If they want to get rid of open carry - and there are arguments for that - then police directive is not the way to do it...Open carry without a permit is not being banned by the directive. It is already banned, and has been for a long time, by Philadelphia ordinance. The directive is merely outlining how that law is to be enforced.

...Banning of open carry - or any firearms regulation for that matter - needs to go through the legislature....But see swinokur's post just above yours. Pennsylvania State law does indeed allow cities like Philadelphia to ban open carry without a permit.

This is really "old news." It's my understanding that it's been the law for a long time in Pennsylvania that Philadelphia can ban open carry without a concealed gun permit and that Philadelphia has, by city ordinance, for a long time done so. All that seems to be new is that the Philadelphia PD has adopted some new, or revised, policy regarding the manner in which the law is to be enforced.

[NJgunowner]

Sounds to me like they are just trying to standardize their procedure. Way to often Cop A has a different set of rules than Cop B, or doesn't know the law.

Frankly it seems a fair way to deal with it. Verify they are carrying legally and then let them go. Besides if you have a concealed carry license, carry concealed and avoid the whole mess. No need to open carry and get stopped every 10 feet.

[Mike Irwin]

What the hell is a VUFA Violation?

[ChuckS]

Open carry without a permit is not being banned by the directive. It is already banned, and has been for a long time, by Philadelphia ordinance. The directive is merely outlining how that law is to be enforced.

But see swinokur's post just above yours. Pennsylvania State law does indeed allow cities like Philadelphia to ban open carry without a permit.

This is really "old news." It's my understanding that it's been the law for a long time in Pennsylvania that Philadelphia can ban open carry without a concealed gun permit and that Philadelphia has, by city ordinance, for a long time done so. All that seems to be new is that the Philadelphia PD has adopted some new, or revised, policy regarding the manner in which the law is to be enforced.



Just to clarify. It's not a Philly ordinance. Open carry is not "banned." The state has preemption and that law requires a LTCF to carry openly in Philly.

The actual state law:
No person shall carry a firearm, rifle or shotgun at any time upon the public streets or upon any public property in a city of the first class unless:
(1) such person is licensed to carry a firearm; or
(2) such person is exempt from licensing under section 6106 of this title (relating to firearms not to be carried without a license).

[Sefner]

Ahhh. OP made it sound a little different. Thanks for the clarification and correction guys.

[KLRANGL]

I must be confused, because I don't see the difference between open carrying with a license and driving with a license.
OC w/o license is illegal
Driving w/o license is illegal
OC w/ license is legal
Driving w/ license is legal

So how can they detain you for OC to check if you have a license if they can't detain you for driving to check if you have a license?

[Brian Pfleuger]

I must be confused, because I don't see the difference between open carrying with a license and driving with a license.
OC w/o license is illegal
Driving w/o license is illegal
OC w/ license is legal
Driving w/ license is legal

Yeah, except one of those things is defined as a fundamental right and one of them is not!

[Frank Ettin]

But nonetheless, it looks like the PPD will be doing just that unless a court tells them they can't.

[Yellowfin]

Yeah, except one of those things is defined as a fundamental right and one of them is not!If we still had a 9th Amendment that had any meaning whatsoever driving would be a fundamental right too.

[Sefner]

If we still had a 9th Amendment that had any meaning whatsoever driving would be a fundamental right too.

Huh? I don't think that's what the Framers were intending when they wrote the 9th Amendment... Using that argument you could argue that almost everything would be a fundamental right (health care, anyone?) under the 9th Amendment.

[gc70]

But nonetheless, it looks like the PPD will be doing just that unless a court tells them they can't.

And it sounds like a great opportunity for a lawsuit.

[Tom Servo]

because PA law allows Philly to require a CC to OC.
Is there any chance of Pennsylvania law being amended to make pre-emption statewide? In that case, Philadelphia would be the same as the rest of the state.

Forgive my ignorance of Pennsylvania's history with CCW laws, but how did the carve-out come about in the first place?

If we still had a 9th Amendment that had any meaning whatsoever driving would be a fundamental right too.
Doubtful, though a "right to travel" has been implied.

[Aguila Blanca]

I see two problems here:

1) Pennsylvania recognizes carry permits from a number of other states. Given that there is currently a court case on-going over the fact that Philadelphia has illegally arrested people for lawfully carrying with a Florida license, and unlawfully confiscated their firearms, I would have expected to see mention that out of state permits are valid ... or a list of which out of state permits are valid.

2) I don't think this directive passes constitutional muster. It is illegal to operate a motor vehicle without a license, too, but you don't see the Philadelphia police stopping every car on the streets until they can verify that the driver has a license, and that the license is current and valid. The legal basis for making a Terry stop is that there must be a "reasonable suspicion" based on clearly articulable facts on the part of the officer that a crime is being committed, has been committed, or is about to be committed. Having just been informed that open carry is legal within Philadelphia if the carrier has a carry permit ... what possible "reasonable suspicion" of a crime can there be just from seeing a person wearing a firearm in a holster? What clearly articulable fact could possibly turn that into a potential criminal act?

[Glenn Dee]

That alleged Teletype message/ directive looks bogus to me. It's not written in "police-speak". and uses terms mostly popular with the firearms comunity.

It would probably be directed to "all officers, and comands"
It probably would include an "efective date" in the heading.
I dont think they would instruct an officer to "Sieze" the firearm, but retain posession, or remove from the person pending investigation.

It just dont read right to me.

Glenn D

[Aguila Blanca]

Glenn, I ran this by a friend who is a retired police officer living in Philadelphia. He responded this morning that it is genuine.

[Glenn Dee]

Thanks Aguila

[Aguila Blanca]

I'd like to know what a 75-48A is. Some sort of reference to a PA statute? Or a report form that arresting/investigating officers have to submit?

[mete]

Can someone tell me if as a NY resident and with NY CCW and PA CCW ,can I carry concealed in Philly or must I have a special Philly permit ?

[swinokur]

The PPD wording on the memo is poorly worded. There is no special permit. Any permit that PA recognizes is ok in Philly.

PA does have preemption but a special exception was made in the law that just affects OC in "cities of the first class" which means 1 million or more population. Philly is the only city in the state that meets the exception. All other PA firearms laws apply in Philly. The exception is only for OC

I don't see this law as any different than a sobriety checkpoint. The cops have no RAS but stop you anyway. How is that legal?

[Aguila Blanca]

Sobriety and seatbelt checkpoints have been specifically rules acceptable by the Supreme Court, and to be legal they have to meet certain criteria. Not being even a pretend lawyer, I don't remember what those criteria are. Nonetheless, criteria applicable specifically to motor vehicle checkpoints at specific locations are not applicable to stops at will be any officer on any street.

I think the Philadelphia police department really REALLY needs to re-read the SCOTUS rulings on Terry and Hiibel. Terry clearly established that before a police officer can detain an individual there must be "a reasonable suspicion, based on clearly articulable facts, that a crime has been committed, is being committed, or is about to be committed."

As I posted above, given that open carry in PA (and Philadelphia) is legal with a carry permit, the mere sight of someone carrying a firearm openly does not and cannot give rise automatically to a "reasonable suspicion" of criminal activity. Now, if the officer happened to recognize the individual and know that the individual is a convicted felon and thus a prohibited person ... that's the sort of thing that would give rise to a "reasonable suspicion based on clearly articulable facts."

As to verifying permits -- how does that work? I don't live in PA. I have non-resident permits from both FL and NH (among others), both of which are recognized by PA. So if I am stopped in Philadelphia in the middle of the night for open carrying (to use an EXTREMELY unlikely scenario) ... how long is it going to take the Philadelphia PD to contact anyone in FL or NH to confirm that my permits are valid and current? Suppose I only have FL ... the FL permit is issued by the Department of Agriculture. My guess is that they don't man the phones 24/7, waiting for calls from the Philadelphia PD to verify carry permits. Or what if my permit is from Alaska, Wyoming, Montana, or one of those states?

[swinokur]

I know a couple of reciprocity agreements that were cancelled due to lack of a 24/7 phone number for license verification. I can't remember which one. I have permits from VA,FL,UT, and NV. The only one with a 24/7 phone number for verification is UT. This is a freakin mess.

[ViperGTS19801]

Ha! Looks like the news is spreading.

This update came about as a direct result of me being stopped in Philly with my gun, which I carry openly. I have a PA LTCF. I filed a complaint because I was treated like a criminal during the stop, even though they did eventually give me the gun back.

However, a second confrontation occurred on South Street a couple of weeks later, and my firearm was confiscated because I "refused to conceal." Public safety my ass, more like poorly trained cops.

Anyway, here's a link to how all this mess got started.

http://forum.pafoa.org/open-carry-144/112072-open-carry-city-philadelphia-update-post-149-a.html