What can Philadelphia do to fix its gun violence problem?
Less than halfway through 2023 and over 50 children have been shot on Philadelphia streets. The latest was 12-year-old in South Philadelphia who was shot in the back while riding his bike around the corner from his home.
The number don’t lie…Philadelphia has a problem and families are leaving fast!
These incidents support experts who believe the City is losing residents, especially young professional families at a record rate. Philadelphia lost over 22,000 residents between July 2021 and July 2022. It was the largest decline in population since 1977! While Philadelphia lost residents, Montgomery and Chester counties in Pennsylvania saw increases in their population as did Burlington, and Gloucester counties in New Jersey.
While some residents may remain in the city regardless of how bad things get within it. Young professional families,, however, are clearly leaving Philadelphia for safer suburbs, better schools, better political leaders, and an overall better quality of life in counties in Pennsylvania and New Jersey.
Philadelphia was among the top 10 U.S. counties with the largest population drops from 2021 to 2022. While “experts” have cited various reasons for this mass exodus, it is hard not to look at the spike in crime throughout the city as a major factor. There were 193 carjackings in 2017, but the number increased substantially since that time with 409 in 2020, 847 in 2021 and over 850 in 2022. In addition to carjacking, theft from unattended vehicles also increased substantially in Philadelphia with less than 2,000 in 2019 and over 9,000 in 2021
What can Philadelphia do about gun violence?
The short answer is that Philadelphia cannot make its own gun violence law. Philadelphia cannot do anything to change a person’s ability to legally buy a gun. The City, however, through its Police Department can determine who is permitted to obtain a permit to legally carry a handgun (conceal carry) in the city.
Why can’t Philadelphia make its own gun laws? Hasn’t it legalized marijuana?
In Pennsylvania, the Uniform Firearms Act covers all matters related to the possession, sale, transfer, and maintenance of guns and firearms in the Commonwealth. This law specifically states that “no county, municipality or township may in any manner regulate the lawful possession or ownership of firearms, ammunition or ammunition components” in the Commonwealth. While Philadelphia City Council may argue that the state law (Title 18, Section 6120) contains a loophole with regards to gun ownership within a home, Pennsylvania is a preemptive state.
This means that counties and municipalities like Philadelphia can’t make gun control laws which carry with them criminal penalties. While Philadelphia may expose gun owners to potential civil penalties which could include fines, it can’t create criminal laws without the Pennsylvania legislature and the Governor.
The most common gun and firearm crimes that we see in our criminal defense practice are violations of Title 18, Sections 6105, 6106, 6108, and 6110.2. Section 6108 makes it a crime to carry an unlicensed firearm in the City of Philadelphia but this is a state law that applies to Philadelphia. It wasn’t a Bill which began in City Council and eventually signed by the mayor. It was a Bill that the Pennsylvania legislature (House and Senate) passed and the Governor signed in the law.
One of the latest issues to combat the spiking violence is Stop & Frisk, which at least some of the candidates have deemed an illegal police tactic. Most people, however, including some mayoral candidates, don’t understand their rights, specifically those pertaining to illegal arrest, search and seizure.
When can a police officer stop someone on the street or road in Philadelphia or anywhere in Pennsylvania?
Usually, a police officer or state trooper must have probable cause to stop a pedestrian on the street or a vehicle on the road. Most states, including Pennsylvania, however allow a law enforcement officer to stop a car under Reasonable Suspicion (a lower form of Probable Cause) if the officer believes that the driver is intoxicated (crossing the double lines, driving very slow, etc.). Pennsylvania also permits an officer to stop a pedestrian if the officer has reasonable suspicion that person presents a danger to others or the officer.
Probable Cause vs. Reasonable Suspicion
Probable cause is the reasonable belief that a crime was or is being committed and Reasonable Suspicion is a lower form of Probable Cause. During a traffic stop police can establish probable cause if they observe a driver speeding or disobeying some other section of the vehicle code
Police Car Stops in Pennsylvania
Once the police stop a car, they are permitted to investigate the cause of this traffic violation or confirm their suspicion. During the investigation the police will ask for your driver’s license, registration, and proof of insurance. If during this investigation, the police officer has reasonable suspicion that you have committed some crime or are about to commit a crime the officer may take you out of the car and frisk you along with the occupants in order to protect the officer’s safety. This is known as a “Terry Stop and Frisk” and it is named for the US Supreme Court case of Terry v. Ohio.
In this case, the Court found that while these brief detentions and frisk were seizures and searches under the 4th Amendment to the United States Constitution but that they were permissible. The Court found that this type of investigation didn’t violate the Constitution because of the need to protect the officer and the public from potential criminal act. In Pennsylvania, a stop and frisk is limited to a subject’s or suspect’s person. Other states may, however, allow the officer to search other compartments that are in a person’s immediate control such as a glove box or a center console area.
Stop & Frisk does violate your rights but…
While a stop and frisk does technically violate your Constitutional Right under the 4th and 14th Amendments, the law permits this “minor” infringement because the public’s interest supersedes your constitutional rights. This is law in the Commonwealth and Philadelphia’s next mayor, whoever that person may be, can’t change it despite their opposition to it. The Mayor can, however, direct the police commissioner, who serves at his or her pleasure, to adopt certain department policies to lessen stop and frisk incidents. These policies, however, are not the law in the Commonwealth of Pennsylvania.
Who can’t purchase or possess a gun or firearm in Pennsylvania?
In Pennsylvania you are not allowed to own a firearm if you fall into any of the following categories:
- Convicted of a crime of violence (enumerated felony offense)
- Are a fugitive from justice
- Convicted of a controlled substance offense punishable by more than a 2 year sentence (misdemeanor of the 1st degree)
- Have been adjudicated mentally incompetent or involuntarily committed to a mental institution
- Are an illegal alien
- Are subject to a protection from abuse (PFA)
- In addition, if you are convicted of drunk driving (DUI) at least 3 times in a 5 year period you cannot own a firearm.
Any person who falls in the above categories and possesses a firearm in Pennsylvania, violates section 6105 (Title 18 of Pennsylvania’s Uniform Firearms Act), and will, in most situations, commit a felony of the 2nd degree offense and a misdemeanor offense if the illegal possession is the result of an active Protection From Abuse Order (PFA.)
The Permit to Carry – What can Philadelphia control when it comes to guns?
While section 6105 governs the illegal possession of a firearm because of a person’s status, Section 6106 pertains to carrying a firearm within the Commonwealth without a license (permit to carry). In Pennsylvania, anyone who is over the age of 21 may apply for a license to carry through a completed application. Following the application, the sheriff’s office or police department (Philadelphia). Under Section 6109 a sheriff or police department may deny a person’s right to carry if there is a “reason to believe that the character and reputation of the individual is such that they would likely act in a matter that is dangerous to public safety”.
It’s important to keep in mind that there is a background check and also an assessment of the person’s good character, which would include an arrest which did not result in a conviction. The license is good for 5 years unless it is sooner revoked for some reason.
Traveling to Other States With Your Pennsylvania Gun
If you’re traveling to a different state, Pennsylvania may have reciprocity with that state regarding a license to carry a firearm. It is very important not to assume reciprocity but to check with the state regarding status. Further, if you are traveling to a state like New Jersey, always travel with the gun unloaded and in a secure lock box with the ammunition separate. Read my article on traveling to New Jersey with a firearm for more information. Pennsylvania does not have reciprocity with New Jersey regarding the permit to carry a gun. It is virtually impossible to obtain a permit to carry in the Garden State.
Medical Marijuana & Your Gun Rights
Recently, I wrote an article regarding medical marijuana and gun rights. Initially Pennsylvania was providing the names of medical marijuana patients to law enforcement agencies. These agencies were using these names, coupled with federal law, to deny a person the right to purchase a firearm in the Commonwealth. This was because the federal government still classifies marijuana as a Schedule I substance and this status prohibits a person from consuming such a substance and possessing a firearm. Even though federal law remains the same, Pennsylvania will no longer provide the names in this database.
Contact Our Criminal Defense Lawyers in PA & NJ
Please click here to contact our Philadelphia criminal defense lawyers. We offer free case reviews and serve the following areas in Pennsylvania and New Jersey, Atlantic City, Camden, Cherry Hill, Chester, Conshohocken, Doylestown, Media, Norristown, Philadelphia, Pottstown, Salem, Upper Darby, Upper Merion, Upper Providence, Vineland & Woodbury areas.
