Defenses to Weapons and Firearms Charges and Recent Helpful Supreme Court Caselaw

Firearms Violations

Firearms and other weapons offenses are some of the most serious charges a criminal defendant can face in Pennsylvania. Although many Pennsylvania mandatory minimums have been eliminated, gun charges result in extremely high bail until the case is over, a felony record, and significant jail time upon conviction.

Pennsylvania Law criminalizes both the possession of firearms under certain circumstances as well as the possession of certain “offensive weapons.” Gun charges are typically referred to as VUFA charges (“Violation of the Uniform Firearms Act”). The most common gun charges seen in Philadelphia court are typically 18 Pa.C.S. § 6106, § 6108, § 6105, and § 6110.2.

VUFA § 6106 makes it illegal to carry a firearm in a car or in a concealed manner without a license to carry. In Philadelphia, § 6106 is almost always graded as a felony because it is charged at the same time as § 6108, and it may carry significant jail time even for defendants who do not have a prior criminal record. In the rest of the state, § 6106 is more likely to be a misdemeanor for a defendant who has no prior criminal record.

VUFA § 6108 makes it illegal to carry a firearm on the streets of Philadelphia. VUFA § 6108 is a misdemeanor of the first degree, but it is still taken very seriously.

VUFA § 6105 makes it illegal for people with prior convictions for certain offenses to carry a firearm. § 6105 may apply even to someone who does not have a prior felony conviction as certain misdemeanors, juvenile adjudications, and even Protection from Abuse orders may make someone subject to § 6105. It is typically referred to as the “felon in possession of a firearm” statute, and it is likely to carry the most severe penalties of any gun charge. However, § 6105 is not always properly graded as a felony. Depending on the disqualifying prior conviction or adjudication, a defendant may have committed only a misdemeanor, and the Commonwealth often charges defendants with felonies without realizing this.

Finally, VUFA § 6110.2 makes it a felony to possess a firearm with an obliterated serial number.

If you are charged with a violation of one of these statutes or some other weapons offense, you need to hire an experienced criminal defense attorney immediately. It is very possible that you may have a strong defense to your case.

First, for each charge, the police and prosecutor will have to prove that they found the weapon legally. If the police conducted an illegal stop or search, an experienced criminal lawyer may be able to have the weapon suppressed or excluded from evidence and the charges thrown out. In many cases, the police conduct stops and searches without proper reasonable suspicion or probable cause, and therefore the fruits of the illegal search must be excluded.

Second, the prosecution has to be able to prove that the gun was actually possessed by the defendant. Simply because a gun was found near the defendant, in a car in which the defendant was the passenger or even driver, or in a house, does not automatically mean that the gun was possessed by the defendant. The prosecution must show that the defendant actually possessed or constructively possessed the weapon. Constructive possession means that the defendant had knowledge of the weapon’s existence and the intent to control it. It is not enough to show that the defendant knew the weapon existed or was nearby because it may have belonged to someone else. The Commonwealth must also show that the defendant intended to control it. Experienced defense counsel can investigate the circumstances and determine if it may be possible to show that the gun belonged to someone else.

Third, each statute has very specific elements which the Commonwealth must prove. For example, § 6108 requires the prosecution to show that the gun was actually possessed on the streets of Philadelphia. If the prosecution can show only that the defendant had the gun in the front of private property, the prosecution may not be able to secure a conviction. Likewise, the Commonwealth often charges § 6106 as a third-degree felony even where they cannot show that the defendant actually concealed the gun.  

Gun charges are extremely serious, and they are far more complex than just whether or not the police found a gun. All of the statutes have highly technical elements which the prosecution must be able to prove beyond a reasonable doubt, and the state and federal constitutions require a showing that the police found the guns legally. If you are charged with a gun charge or other weapons offense, call 267-225-2545 now for a free, confidential consultation with an experienced criminal defense lawyer.

Other Weapons

In addition to these common VUFA charges, Pennsylvania law also prohibits carrying many types of “offensive weapons” under 18 Pa.C.S § 908. The statute prohibits carrying offensive weapons, and defines offensive weapons as follows:

Any bomb, grenade, machine gun, sawed-off shotgun with a barrel less than 18 inches, firearm specially made or specially adapted for concealment or silent discharge, any blackjack, sandbag, metal knuckles, dagger, knife, razor or cutting instrument, the blade of which is exposed in an automatic way by switch, push-button, spring mechanism, or otherwise, any stun gun, stun baton, taser or other electronic or electric weapon or other implement for the infliction of serious bodily injury which serves no common lawful purpose.

These offenses can also be extremely serious. However, just as with a firearm, the police and prosecution must be able to show that they found the weapon lawfully. If the police conducted an illegal stop or search, then the weapon could be excluded and the charges dismissed. Likewise, the prosecution must be able to show that it was the defendant that actually possessed the prohibited weapon.

Most importantly, a recent United States Supreme Court case casts significant doubt on the constitutionality of the Prohibited Offensive Weapons statute. In Caetano v. Massachusetts, the United States Supreme Court reversed the conviction of a Massachusetts woman who owned a taser for self-defense against an abusive boyfriend. The Supreme Court held that the Second Amendment provides the right to possess "all instruments that constitute bearable arms," even those not in existence at the time of the founding of the country. Accordingly, the Supreme Court found that the Massachusetts statute which prohibited tasers violated the Constitution and could not be enforced. The Pennsylvania statute has not yet been challenged in the appellate courts, so prosecutors continue to charge defendants with violations of the Prohibited Offensive Weapons statute. While we do not recommend that you start carrying a prohibited weapon in order to test the law, if you are charged with a violation of this statute, you need an attorney to fight for your rights under the United States Constitution.

If you are charged with a gun or other weapons offense, you need an experienced criminal defense attorney to evaluate your case, investigate and analyze potential defenses, and provide you with all of the options. Call 267-225-2545 now for a free consultation.