Philadelphia Criminal Defense Blog

Zak Goldstein 2/5/24 Zak Goldstein 2/5/24

Third Circuit Finds Laws Prohibiting 18 – 20 Year Olds From Carrying Guns Probably Unconstitutional

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

The United States Court of Appeals for the Third Circuit has decided the case of Lara v. Commissioner Pennsylvania State Police, holding that Pennsylvania’s firearm laws, which prohibit 18 – 20-year-olds from carrying firearms, are probably unconstitutional. Federal courts in Pennsylvania and throughout the country have recently found many firearms regulations unconstitutional, and this latest case may have the effect of making Pennsylvania’s VUFA § 6106 and § 6108 statutes unconstitutional when applied to someone who is 18, 19, or 20 because Pennsylvania law prohibits someone who is under 21 from obtaining a license to carry a firearm and Philadelphia bars all public carrying of firearms without a license.

Under 18 Pa.C.S. § 6106(a), 6109(b), and §§ 6101 – 6128, an individual may not carry a concealed firearm without a license, and an individual must also be at least 21 years old to apply for a license. This is true even during a state of emergency. Ordinarily, Pennsylvania citizens may open-carry without a license outside of Philadelphia, but when the state has declared an emergency, an individual may not open carry without a license unless they are actively engaged in a “defense” or one of the fifteen other exceptions in § 6106(b) applies. There are exceptions for transporting a gun home from purchasing it or traveling to and from a shooting range.

The plaintiffs filed suit in federal court against the Commissioner of the Pennsylvania State Police in October 2020 seeking an injunction prohibiting the Commissioner from arresting them for carrying firearms. At that point, Pennsylvania had been in a state of emergency for three years due to COVID-19, the opioid addiction crisis, and Hurricane Ida. Accordingly, the plaintiffs, who were under 21, could not carry firearms outside of their homes openly due to the state of emergency or in a concealed manner because someone under 21 cannot obtain a license to carry. The district court granted the Commonwealth’s motion to dismiss the case. The plaintiffs appealed to the Third Circuit Court of Appeals, and the Third Circuit ruled that the statutes are unconstitutional when applied to 18-to-20-year-old citizens.

Where do these gun challenges come from?

The recent successful challenges to gun regulations come from two United States Supreme Court cases – District of Columbia v. Heller, and Bruen v. New York State Rifle & Pistol Association, Inc.

In Heller, the Supreme Court recognized that an individual has a Second Amendment right to possess a handgun in the home for self-defense regardless of whether they serve in a militia. Any law that banned all firearm possession in the home would therefore be unconstitutional. Specifically, the Court found a DC law which required firearms in the home to be rendered and kept inoperable at all times to be unconstitutional.

Then, in Bruen, the Supreme Court held that the Second and Fourteenth Amendments protect the right to carry a handgun outside the home. Bruen in particular has supported these recent challenges to gun regulations.

The US Supreme Court adopted a two part test for evaluating the legality of firearms regulations.

First, a court determines whether the Second Amendment’s plain text covers an individual’s conduct. If it does, then the Constitution presumptively protects the conduct.

Second, a court determines whether the regulation in question is consistent with the Nation’s historical tradition of firearm regulation. If it is, then the presumption applied as part of the first test is overcome, and the regulation is permissible. If it is not, then the regulation is unconstitutional. In order to prove that a regulation satisfies the second part of the test, the government bears the burden of identifying a “founding-era” historical analogue to the modern firearm regulation. In other words, the government must find similar laws from around 1791, or the regulation is unconstitutional. The laws need not be identical, but they must be very similar.

Here, the Third Circuit ruled in favor of the plaintiffs.

First, it concluded that the Second Amendment plainly applies to the action of carrying a firearm outside of the home and that adults under 21 are among the people protected by the Second Amendment.

Second, it concluded that the government could not point to a historical regulation that is analogous to the laws in question. Although there were similar laws on the books when the Fourteenth Amendment was ratified in 1868, the Court found that the government had to find similar laws from 1791 when the Second Amendment was ratified. In the court’s view, the government could not satisfy this burden, so the statutes are unconstitutional. The only law the government could find was a 1721 law which prohibited “carrying any gun or hunting on the improved or inclosed land of any planation other than his own.” This law had nothing to do with age, so the court found it to be irrelevant to this case. Meanwhile, numerous laws from that time period showed that young adults were actually permitted to or even required to arm themselves and serve in the miliia upon turning 18. Therefore, the Court granted the plaintiffs’ request for an injunction prohibiting the Commissioner from arresting law-abiding 18-to-20 year olds who openly carry firearms during a state of emergency declared by the Commonwealth.

The final impact of the Court’s holding is still open to debate. The Court did not find the statutes to be entirely unconstitutional. Instead, it simply granted an injunction directing the State Police not to arrest 18-to-20-year-olds for openly carrying guns during a state of emergency. The injunction was not technically issued against the Philadelphia Police Commissioner, but he would likely be sued should he ignore it. It also did not address the unique statutes in Philadelphia. This is important because Philadelphia does not allow the open carrying of a firearm without a license to carry. Similarly, for the rest of the state, the statute is arguably applicable only to carrying a firearm during a state of emergency because the statutes only completely prohibit open carry without a license during such a state of emergency. If the state of emergency provision were eliminated, then the laws may be constitutional, and it is not clear whether 18-to-20-year-olds have the right to obtain a license to carry.

It does seem likely, however, that the federal courts would find Pennsylvania’s statutes unconstitutional in Philadelphia because the laws which apply to Philadelphia make it permanently illegal for an 18-to-20-year-old to carry a firearm either openly or in a concealed fashion. Philadelphia never allows open carry without a license, and someone under 21 cannot get a license, so like an 18 year old in the rest of the state during a state of emergency, an 18 year old in Philadelphia can never carry a firearm outside of the home. Accordingly, if you are 18-to-20 years old and charged with carrying a firearm without a license in Philadelphia, you may have a viable motion to dismiss the charges as unconstitutional.

It is important to remember that even though you may have a viable motion to dismiss and the laws may be unconstitutional, the laws are still on the books. The Philadelphia Police are still enforcing them, and the state courts have largely rejected these types of constitutional challenges. Further, the Third Circuit could revisit this opinion en banc, or the United States Supreme Court could grant review. The Supreme Court has accepted appeals in post-Bruen cases challenging gun regulations, and it is very possible that the Supreme Court could decide that many of these regulations are still constitutional and overrule the lower courts. Therefore, it is generally better not to carry a firearm illegally and potentially be the test case in case this opinion does not hold up or the state courts ignore it. Nonetheless, if the Supreme Court approves of these rulings or does not address them, it will become increasingly difficult for the state courts to continue to ignore them. Ultimately, if you have been charged with carrying a firearm without a license or on the streets of Philadelphia and you are under 21, you should speak with one of our experienced gun lawyers today.

Read the Third Circuit’s Opinion

Facing criminal charges or appealing a criminal case in Pennsylvania? We can help.

Criminal Defense Lawyer Zak T. Goldstein, Esquire

If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, and Murder. We have also won criminal appeals and PCRAs in state and federal court, including the exoneration of a client who spent 33 years in prison for a murder he did not commit. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.

Zak Goldstein 12/22/23 Zak Goldstein 12/22/23

PA Superior Court: “Come Here” Not a Stop

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Superior Court has decided the case of Commonwealth v. Jamal Rice, holding that the police did not stop the defendant by saying “come here” after allegedly seeing a gun. The trial court found the defendant was stopped without reasonable suspicion or probable cause when the police ordered the defendant to come here, so it had suppressed a firearm. The Superior Court, however, reversed the grant of the motion to suppress and remanded for a new trial.

The Facts of Commonwealth v. Jamal Rice

In Rice, the police were on patrol in Philadelphia. They were in uniform and in a marked patrol car. They were in an area which had heightened gun violence, homicides, and drugs ales. At around 7:25 pm, they saw the defendant exit a corner store and begin walking eastbound. They saw a gun shaped bulge in his waistband and naturally assumed its as a gun. They drove towards him. He quickly turned around and began walking in the other direction. He then turned onto another street.

The officers followed him and pulled up next to him in their patrol car. The defendant kept walking while looking in their direction. One of the officers said, “come here.” At the same time, the defendant began running. The police chased him. As he ran, the defendant tossed a gun underneath a parked car. The police arrested him and recovered the gun.

Philadelphia prosecutors charged the defendant with various violations of the uniform firearms act (VUFA offenses). Those included carrying a firearm as a prohibited person, carrying a firearm with an obliterated serial number, carrying a concealed firearm without a license, and carrying a firearm on the public streets of Philadelphia.

The Motion to Suppress

The defendant filed a motion to suppress. The officers testified to the above facts at the hearing on the motion. The trial court granted the motion to suppress, finding that police had no reason to believe the defendant could not legally possess a firearm prior to ordering him to come here. Further, the police needed reasonable suspicion that he was engaged in criminal activity to order the defendant to come here because a reasonable person would consider themselves to no longer be free to leave. As the police did not know if the defendant possessed the gun lawfully, the trial court reasoned that they did not have reasonable suspicion to issue commands. The prosecution appealed.

The Superior Court Appeal

On appeal, the Commonwealth argued that the defendant was not actually stopped before he fled because the one statement of “come here” did not raise a mere encounter to an investigative detention requiring reasonable suspicion or probable cause. In the prosecution’s view, the defendant would have been free to ignore the command. The prosecution emphasized that police did not activate lights/sirens, exit their cars, brandish their weapons, grab the defendant, tell him he could not leave, block his movement, or make any show of force. Instead, they simply said come here, and the defendant then took off and discarded the gun.

The Superior Court agreed with the prosecution and reversed the suppression of the firearm. The Court reasoned that saying come here alone does not turn a mere encounter into an investigative detention without something more. The defendant obviously still felt free to leave as he took off running and threw the gun, and the police did not do anything to detain him prior to his flight. Saying “come here” alone was just a request which the defendant could have disregarded (as he did in this case). Therefore, he was not illegally seized prior to discarding the gun.

The Takeaway

This is a tough one for the defense, and hopefully the defendant files additional appeals. The test for whether police have escalated a mere encounter into an investigatory detention requiring reasonable suspicion is whether a reasonable person would feel free to leave. It’s an objective standard, and it’s not based on what the individual defendant actually believed or did. There is no reasonable person on the planet who would feel free to leave when uniformed police officers pull up in a marked car and order the person to come here. Any reasonable person would feel compelled to follow that command and stop. Indeed, the court noted that the defendant did not stop, but it failed to note that the police also did not let him go - instead, they chased him in both a car and on foot. He wasn’t actually free to leave. Accordingly, the court ignored the reality that he was in fact seized and that any reasonable person would have believed themselves to be seized.

Facing criminal charges or appealing a criminal case in Pennsylvania? We can help.

Goldstein Mehta LLLC Criminal Lawyer Zak T. Goldstein, Esquire

Zak Goldstein 10/30/23 Zak Goldstein 10/30/23

PA Superior Court: Police may search you to figure out who you are if you’re having a medical emergency

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. Williams, holding that police did not illegally search the defendant and his bag where the search was not for evidence but instead to try to figure out who he was and why he was found unconscious on a public street.

The Facts of Williams

In Williams, the the police received a call for an unconscious male. They arrived at the location in the call, and they found the defendant unconscious in the driver’s seat of a blue Dodge Durango with the driver’s side door open. He was sort of halfway hanging out of the vehicle. One of the officers also saw several pill bottles on the sidewalk nearby and a large amount of money on the ground.

The police got him to wake up a little bit, but he seemed too intoxicated to answer any questions. He had slurred speech and did not appear to understand the police. The police were unable to get his name, and he needed assistance to exit the vehicle and sit on the ground. The defendant continued to mumble incoherently and state that he did not want to get shot.

The police were unable to get get his name and date of birth from him, so they asked him if they could search the car. He said yes. The police recovered blue pill bottles containing marijuana and $12,500. The officers also smelled marijuana coming from a backpack which was next to him on the ground. They searched the backpack and found a gun. The defendant did not have a license to carry and had prior convictions that prohibited him from carrying a gun, so the police arrested him and charged him with possession of drugs and guns.

The Motion to Suppress

The defendant moved to suppress the physical evidence. He argued that police should have obtained a search warrant before searching his backpack and that they lacked the probable cause and exigent circumstances necessary for a constitutional search. The trial court denied the motion to suppress and found the defendant guilty. It sentenced him to 4 - 8 years’ incarceration followed by 18 months’ probation. The defendant appealed.

The Pennsylvania Superior Court Appeal

The Superior Court affirmed on appeal. The Court found that the officers did not need a search warrant because they were responding to an emergency. The defendant was incapacitated, incoherent, and may have been in the midst of a medical emergency. The police did not know who he was or what was going on, and he appeared to need help. Given that the police were trying to figure out who he was and what medical conditions he might have rather than looking for evidence, the police were performing under the community caretaking function.

This exception allows the police to conduct a search or seizure where necessary to help someone during an emergency. In other words, the police do not have to wait for someone to die of an overdose or other medical condition; they can perform basic searches in order to try to help someone.

Here, the Superior Court found that that was what the police were doing rather than searching for evidence. As they found the evidence while responding to the emergency, they did not have to ignore what was obviously incriminating.

Further, the Court concluded that the evidence was also subject to the search incident to arrest exception. Once they found the defendant with marijuana and a large sum of money, they had the right to finish searching him incident to arrest for possession of narcotics. Therefore, the Superior Court denied the appeal.

The Take Away

Ultimately, if you’re going to possess contraband and illegal weapons, it’s best to try to stay conscious and avoid needing medical attention while committing serious crimes. The case law is clear that the police can and probably should respond to help people with medical emergencies, and when the police are responding to an emergency in good faith, they usually do not have to obtain a search warrant. Exigent circumstances (a real emergency) are almost always an exception to the warrant requirement, and so the Superior Court denied the appeal. The defendant’s sentence will stand for now.

It was always unlikely that the court would grant a motion to suppress in this situation. Instead, the better defense was probably to argue that the contraband could have belonged to someone else. Perhaps the defendant’s companion, realizing that the defendant had become too intoxicated to function and that the police were on their way, took off and left the contraband behind rather than encounter the police and get arrested for possession themselves.

The Search Incident to Arrest Exception

Finally, there is some question regarding the search incident to arrest exception, however. The opinion does not make it totally clear where the bag was. If the bag was in fact outside of the car, then the exception likely applies. But if the bag was in the car, then that exception should not have applied. The search incident to arrest exception allows the police to search someone incident to arrest to make sure the person does not have any contraband or weapons, but it does not generally allow them to search a car for evidence.

The United States Supreme Court has held that it only allows a search of a motor vehicle where there is reason to believe the police will find more evidence of the offense of the arrest, but the Pennsylvania Supreme Court requires a search warrant for the search of the car unless the contraband is in plain view. This case probably does not change that analysis much because the case is somewhat confusing and the court relied primarily on the exigent circumstances, but that issue is something to watch.

Facing criminal charges or appealing a conviction? Give us a call.

Criminal Appeals Lawyer Zak T. Goldstein, Esquire

Zak Goldstein 8/8/23 Zak Goldstein 8/8/23

PA Superior Court: Police May Search Car and Defendant Without Warrant When Defendant Has Gun and Drugs in Plain View

Criminal Defense Lawyer Zak Goldstein — Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. Green, affirming a Philadelphia trial court’s finding that police officers had reasonable suspicion to believe that the defendant was in possession of illegal narcotics and a firearm where the defendant was sitting inside of a car that police believed to be abandoned with drug paraphernalia in plain view, the odor of burnt marijuana emanating from the car, and the outline of what police believed to be a gun in his pocket. Although the Pennsylvania Supreme Court recently granted allocatur on the issue of whether the plain view exception to the warrant requirement applies to automobiles, The moral of the story is that it is ill-advised to keep your guns and drugs in plain view where the police can see them.

The Facts of Green

On June 1, 2019, two Philadelphia Police officers were on routine patrol in a marked police vehicle and investigating complaints of narcotic sales and illegally parked vehicles near the West Poplar Apartment Complex. One officer was familiar with the housing complex as he had worked in that district for more than ten years and made numerous narcotics and firearms arrests in that apartment complex and area. One of the officers noticed a white Chevy Malibu he believed had been parked in the complex, unmoved, for about two weeks. The officers pulled up to investigate the vehicle, believing that it may have been abandoned. The officers approached on foot, noticed the vehicle’s inspection stickers were peeling off and it had damage to the body of the vehicle. They smelled the odor of burnt marijuana emanating from the car. The vehicle had tinted windows, and as one officer went to the front to look through the windshield, he noticed the defendant in the front passenger seat fully reclined. The officer then noticed small vials and plastic baggies, which he recognized to be consistent with narcotics packaging for crack cocaine, as well as “blunt guts” scattered around the vehicle.

As the officer took a closer look at the defendant through the windshieled, he noticed the outline of a firearm in the front pocket of the defendant’s tight-fitting sweatsuit. The officer could see the entire imprint of the firearm. That officer notified his partner he believed he saw a firearm and radioed for backup.

One police officer attempted to speak with the defendant by knocking on the windshield and requesting that the defendant step out of the vehicle and provide paperwork. The defendant opened his eyes slightly and then closed them again as if he were checking if the officers were still there and then pretending to be asleep. The police were unable to get him to respond.

The officers attempted to make contact for fifteen minutes. They were on the verge of calling for a SWAT team, but their supervisor directed them to break the windows and pull the defendant out of the car. They did so, and they recovered a 9mm pistol from the defendant and placed him under arrest.

The Criminal Charges

The defendant was charged with carrying a firearm without a license and carrying a firearm on the public streets of Philadelphia without a license (VUFA § 6106 and § 6108). Both these offenses are violations of the Uniform Firearms Act. The defendant filed a motion to suppress the firearm, and the trial court denied the motion to suppress. The judge found him guilty following a bench trial, and he appealed.

The Superior Court’s Ruling

On appeal, the defendant argued that the trial court should have granted the motion to suppress. First, the Court explained the typical rules that may apply to this type of police encounter. Pennsylvania Courts have developed three categories of interactions between citizens and police officers to better determine if an individual’s rights are being infringed. The categories are:

1) a “mere encounter” (or request for information) which need not be supported by any level of suspicion but is not an order and can be completely ignored.

2) an “investigative detention” which must be supported by a reasonable suspicion; it subjects the individual to a stop and a period of detention but does not rise to the level of the functional equivalent of arrest, and

3) “custodial detention,” or the functional equivalent of an arrest, which must be supported by probable cause.

A person is subject to an investigative detention, which requires reasonable suspicion, when a reasonable person in their position would not feel free to leave.

In this case, the Superior Court concluded that the officers did not need any level of suspicion to approach the parked car on foot, but they needed reasonable suspicion to break the windows and pull the defendant out of the car. The Court, however, found that they had reasonable suspicion based on the totality of the circumstances - the defendant was in a car which had numerous obvious motor vehicle code violations, there was drug paraphernalia in plain view, he pretended he did not see the police even though he opened his eyes, and he also had a gun on him.

Accordingly, the police were justified in breaking into the car and removing him from the vehicle. Whether or not the police may retrieve contraband from a car when the contraband is in plain view is still an open question; as previously mentioned, the Pennsylvania Supreme Court recently granted review on that issue. So far, however, the Superior Court has repeatedly held that police may enter a car to retrieve obviously visible contraband even without a search warrant. The police ordinarily may not search a car without a warrant, but when guns and drugs are out in the open, the police may not need to get a warrant.

Facing criminal charges? We can help.

Goldstein Mehta LLC Criminal Defense Lawyers

If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, and Murder. We have also won criminal appeals and PCRAs in state and federal court. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.