In Pennsylvania, if you are caught with certain types of weapons, you could be charged with a crime. Many people who are charged with possessing a prohibited offensive weapon are surprised that simply having a specific type of weapon can result in a criminal charge. If you are facing charges after being found in possession of a prohibited weapon, you should talk to an experienced criminal defense attorney at DiCindio Law.
What is the possession of a prohibited offensive weapon?
Possession of a prohibited offensive weapon is codified under 18 Pa.CS 908. You can be charged with this offense if you use, possess, sell, make, or repair an offensive weapon.
Many different types of weapons are considered offensive under this statute, including the following:
- Brass knuckles
- Sawed-off shotguns with short barrels
- Machine guns
- Stun guns
- Stun batons
- Guns with silencers
- Concealed guns
Because the definition of an offensive weapon is very broad, you could be charged with this offense without realizing that the object in question is illegal in the state.
What are the penalties for possession of a prohibited offensive weapon?
If you are convicted of possessing a prohibited offensive weapon, you can face the following penalties:
- First-degree misdemeanor on your criminal record
- Up to five years of prison
- Up to $10,000 in fines
The potential penalties for this offense are quite harsh, making it important to get help from an experienced criminal defense lawyer.
What are the defenses to possessing a prohibited offensive weapon?
Several statutory defenses are listed in 18 Pa.CS § 908. If one of these affirmative defenses applies to your situation, you will have a burden of proving your defense by a preponderance of the evidence.
Some of these defenses include the following:
- You possessed the weapon as a collector’s item.
- You used the weapon for a theatrical performance.
- You followed the National Firearms Act and did not possess an incendiary device or bomb.
- You only possessed the weapon for a short time after finding it or taking it from an attacker.
- You are a law enforcement officer who possessed a blackjack after undergoing training and possessed or used it during the course of your job.
Depending on how the weapon was discovered, you might also have constitutional defenses available to you. For example, if the police discovered a prohibited offensive weapon sitting on the front seat of your car but did not have reasonable suspicion to pull you over, your attorney could file a motion asking the court to suppress the stop. If the court granted the motion, that would mean that any evidence found as a result of the unconstitutional stop would be deemed inadmissible, likely resulting in a dismissal of the case against you.
Another constitutional defense might be available if the police conducted a warrantless search when an exception to the warrant requirement of the Fourth Amendment did not exist. Police are generally required to get search warrants before they can search homes or vehicles. While there are
several exceptions to this requirement, your attorney will carefully review any warrantless search that might have been conducted to see whether it met an exception or was instead unlawful. If a search was unlawful, your attorney may file an evidentiary motion asking the court to suppress all evidence discovered during the illegal search, including the prohibited weapon discovered by the police.
Is the statute constitutional?
It is possible that the possession of a prohibited offensive weapon might be unconstitutional following a recent decision by the U.S. Supreme Court. In Caetano v Massachusetts, 136 S. Ct. 1027 (2016), the Supreme Court issued a per curiam opinion in which it vacated the lower court’s decision and stated that stun guns were included within the Second Amendment’s right to bear arms. While the Supreme Court did not declare Massachusetts’s law unconstitutional, the charges against the defendant we subsequently dismissed by the state. A separate case, Martel v Healey, was filed in federal court to challenge the constitutionality of Massachusetts’s law banning stun guns. Finally, the Massachusetts Supreme Judicial Court found that the law in Massachusetts as applied to stun guns was unconstitutional in Ramirez v Commonwealth, 479 Mass. 331 (2018).
While the case in Massachusetts does not control Pennsylvania’s laws, the Supreme Court’s per curiam opinion in Caetano makes it unclear whether Pennsylvania’s law could be challenged for the possession of certain offensive weapons, including stun guns. While it is not a good idea to try to test the law, you should retain a lawyer if you are charged with this offense for help with protecting and asserting your rights under the Constitution.
How do I find a good criminal defense attorney near me?
If you are facing charges of possessing a prohibited offensive weapon, you should retain an experienced criminal defense attorney as soon as possible. Michael DiCindio at DiCindio Law is a former prosecutor who understands how the state builds its cases and uses that knowledge to benefit his clients. Mr. DiCindio can carefully analyze the evidence in your case to identify the best defenses to raise. Call us at 610.430.3535 to schedule a consultation and learn about your rights.