-1 for Delaware County's Finest

[Jack Burton]

I'll try to explain this the best I can, if anyone has anything to add or change, just call me out. I don't mind.

A law is written to make something illegal. As I posted upthread, carrying a handgun is illegal. One exception is if the person carrying the handgun has a LTCH. There is no law that says an officer may not stop someone with a handgun to check for a LTCH, therefore it is assumed that it is a legal possibility. However, it also says that if someone is stopped and asked, burden of proof of the LTCH is on the licensed, therefore it is assumed that they may legally stop you.

Case law is when a law is written and there is a "grey area," such as we have here. When we have a "grey area" it can be that nothing says it is illegal or someone feels that they have been violated in some fashion. A case will then go before a judge, usually for criminal case, and the judge will then rule one way. Whoever loses, has the ability and option to appeal it. It goes to a higher court, where a panel of judges will rule on it. These can keep going all the way up to the Supreme Court of the US, as long as courts will keep hearing it. Eventually it becomes case law, which is a judge has already ruled on it and says "this is the way it will be."

There is case law, I can't remember the name, that is the biggest example of case law I can think of. Basically, someone was stopped to check for a driver's license, and did not have one. I'm not sure if they were arrested or not, but they challenged the legality of the stop all the way up. SCOTUS ruled that even though it is illegal for someone to drive without a license, it is (I think) unconstitutional for an officer to stop someone just to check for a driver's license.

This is essentially the same thing we are hoping for in Indiana. It has been ruled in other states that officers cannot stop someone to verify the legality of them carrying a handgun, but there is typically an extenuating circumstance that leads to that, in NC for example it's legal to OC a handgun without a license/permit. These ones have gone to District Courts, which they are not in our district, so they do not apply to our state. We're hoping for one that does affect Indiana.

pretty much nails it. However, even if Indiana was in the same district as the court that ruled that cops couldn't stop open carriers it would not affect the state. Because the beginning circumstances were different (no license needed therefor no RAS vs. licenses needed so RAS available) then the application of the ruling would be different also. It's not a court ruling we need... it is Constitutional carry.

 

[CathyInBlue]

How do you know they are a felon just by looking at them?

^^^ Ahh, the essence of the fudge cluster that turned into Malone V State (2008). ^^^

http://www.in.gov/judiciary/opinions/pdf/03200808jsk.pdf

Answer: You don't, so you can't treat everyone as if they were felons just to by-pass their Constitutional rights.

 

[88GT]

How do you know they are a felon just by looking at them?

If they're wearing a black-and-white striped jumpsuit........

 

[CathyInBlue]

There is case law, I can't remember the name, that is the biggest example of case law I can think of. Basically, someone was stopped to check for a driver's license, and did not have one. I'm not sure if they were arrested or not, but they challenged the legality of the stop all the way up. SCOTUS ruled that even though it is illegal for someone to drive without a license, it is (I think) unconstitutional for an officer to stop someone just to check for a driver's license.

Delaware V Prouse (1979). Police stopping motorists just to do document checks unduly burdens their right to be free of unreasonable searches and seizures. Police were literally targetting people for driving while brown.

 

[X piller X]

Indiana isn't an "open carry" state meaning that you can carry open WITHOUT a LTCH. It is silent, but you do need a license to carry to do it.

I'm no expert, but i always thought it similar to driving a vehicle.

Say for instance you are pulled over. Officer instantly asks for your license before writing a ticket for a crime. You are required to have a license to drive, therefore you should not be in the drivers seat without.

Same as carrying, officer sees gun, asks for license, same as if you were driving a car

 

[actaeon277]

I'm no expert, but i always thought it similar to driving a vehicle.

Say for instance you are pulled over. Officer instantly asks for your license before writing a ticket for a crime. You are required to have a license to drive, therefore you should not be in the drivers seat without.

Same as carrying, officer sees gun, asks for license, same as if you were driving a car

You may not have had the ticket written, but it is in the process of being written.
You are being charged with a violation.
If there was no charge, then they can't just start randomly start pulling over people to check their license.

Although lets not even bring up drunk driving checkpoints.

 

[Smokepole]

One thing that I took away from the 17 pages that I just finished reading is this little summary:

Terry, 392 U.S. at 21. 4
There is no reasonable suspicion merely by association.
To be lawful, a Terry stop "must be supported at least by a
reasonable and articulable suspicion that the person seized is
engaged in criminal activity."

Reid v. Georgia , 448 U.S. 438, 440 (1980).
The level of suspicion must be a "particularized
and objective basis for suspecting the particular person
stopped of criminal activity."

United States v. Griffin , 589 F.3d 148, 152 (4th Cir. 2009).
As such, "the officer must be able to point to specific and articulable
facts which, taken together with rational inferences from those facts,
reasonably warrant that intrusion."

It seems that there is ample case law that points to the necessity for credible RAS to detain or seize someone and/or their property whatever the reason, so that the law making carrying a gun illegal and allowing LEO's to arbitrarily stop someone and request their LTCH could be argued as Unconstitutional as the practice grossly violates the persons 4th amendment protections. In the case that has been referenced here, the 4th Circuit goes to great lengths and detail to make these points as well as deride the practice in the process. If my understanding is correct, it doesn't appear to directly affect Indiana as it is the 4th Circuit and not the 7th and the fact that NC is Constitutional Carry and Indiana law makes carrying illegal unless one has an LTCH. But is would appear to potentially gouge a HUGE 4A hole in the Indiana law as case law that is just waiting for a case to be brought before the 7th Circuit to finish the job. Can only hope for one I guess, but the IMPD policy change looks like an attempt to avoid ending up with such a case, at least where that department is concerned. If my perceptions are correct.

 

[X piller X]

You may not have had the ticket written, but it is in the process of being written.
You are being charged with a violation.
If there was no charge, then they can't just start randomly start pulling over people to check their license.

Although lets not even bring up drunk driving checkpoints.

exactly the next point i was going to say, drunk driving / seat belt / immigration check points.

And not always are you given a violation when pulled over, sometimes you are let go with a warning.

 

[GaDawg]

 

[gjclark]

If you look into sobriety check points the are perfectly legal as long as they follow certain rules. They have to be planned ahead of time and they have to be announced in the media. They are not uunconstitutional because of this... I don't remember the court ruling on this and I think there may have been a third requirement and I also read that in New Mexico. Anywho I know there are restrictions on how police can form those.

 

[GaDawg]

I still don't buy into it's ok to stop someone because they have a gun on their hip.


That is the same as if they would have stopped me on the way out to check me and make sure I didn't steal something. Same reason cops sit outside of bars at closing time and follow someone. They can't pull them over till they give them reason to. Like I said in the OP I'm not wanting to test the system and be detained longer than flashing the pink. My neighbor the full time sherriff said most full time cops know better because they don't want to get the pound sand answer for stopping someone for no reason.

 

[Scout]

The best part is in red above. If you have time to waste, just tell them you "don't have a permit." After all, you don't. You have a LICENSE. Eventually they'll have to let you go and destroy all the records.

The funny part is if you read the ISP website it is sometimes referred to as a permit and sometimes a license. The license itself says "license".

 

[JMoses]

I still don't buy into it's ok to stop someone because they have a gun on their hip.


That is the same as if they would have stopped me on the way out to check me and make sure I didn't steal something. Same reason cops sit outside of bars at closing time and follow someone. They can't pull them over till they give them reason to. Like I said in the OP I'm not wanting to test the system and be detained longer than flashing the pink. My neighbor the full time sherriff said most full time cops know better because they don't want to get the pound sand answer for stopping someone for no reason.

Try it next time, tell the officer to "pound sand" when he asks to see your LTCH and report back to us how it went.

 

[GodFearinGunTotin]

I still don't buy into it's ok to stop someone because they have a gun on their hip.


That is the same as if they would have stopped me on the way out to check me and make sure I didn't steal something. Same reason cops sit outside of bars at closing time and follow someone. They can't pull them over till they give them reason to. Like I said in the OP I'm not wanting to test the system and be detained longer than flashing the pink. My neighbor the full time sherriff said most full time cops know better because they don't want to get the pound sand answer for stopping someone for no reason.

It's probably safe to say, none of us like it. However because it's the against the law for most of us to carry a handgun except when you have a LTCH, a LEO is within his balleywick to verify you have an affirmative defense if he observes you carrying a handgun. It's just the law in Indiana.

 

[wwdkd]

Officers can not stop you and demand for ID/LTCH, open carry or not, if they do not have reasonable and articulable suspicion that you have commited, are committing, or about to commit a crime. Period!

 

[Mark 1911]

OP's story is a mighty sad reflection on the LEOs. They need to know the law and their own job better before jacking folks around like that. Nicely handled by the OP, well done!

 

[Mr. Habib]

Carrying a handgun in public without a LTCH IS A CRIME. PERIOD! The fact that the LEO can see it is reasonable and articulable suspicion of a crime. Why is it that hard to understand?

 

[MisterChester]

Carrying a handgun in public without a LTCH IS A CRIME. PERIOD! The fact that the LEO can see it is reasonable and articulable suspicion of a crime. Why is it that hard to understand?

So the fact that a LEO sees me driving my car is a reasonable suspicion of me driving without a license?

 

[JMoses]

So the fact that a LEO sees me driving my car is a reasonable suspicion of me driving without a license?

No

 

[Rookie]

So the fact that a LEO sees me driving my car is a reasonable suspicion of me driving without a license?

There's a SCOTUS ruling on that, so no you can't be stopped to simply check your drivers license. No ruling on LTCH.