Fishers - Not so cool...

[finity]

be carefull. you could be on the verge of being called names and being flamed for stating a fact and asking a question.

Eh, it won't be the first time & I'm SURE it won't be the last.

 

[Denny347]

I'd like to expound on my previous post. And again, I want to emphasize that I do so in complete respect, because these issues can get tricky. The issue in the Maryland case was whether both the driver and passengers of a car can be ordered out of the car during a traffic stop for officer safety - or as addressed by the 8th Circuit in the underlying case, whether a passenger could be ordered back into the vehicle after he left it. In recognizing the very legitimate need to protect officer safety, the Supreme Court held that the intrusion upon either the driver or the passengers in being required to exit the vehicle was minimal, since they'd been stopped already. And, by removing the occupants from the vehicle, the officer was putting distance between the occupants and any potential weapons in the car.

But very importantly, having the right to remove the occupants from the vehicle has NOTHING to do with: 1) being able to search the vehicle; or 2) being able to seize the property of the driver - particularly after the driver has produced a valid LTCH that makes the presence of a firearm within the vehicle totally legal.

And to address your very reasonable question - isn't requiring the occupants to exit the vehicle roughly the same as removing the firearm from the vehicle? - the answer is absolutely not. What's the difference? This: a search of the vehicle without probable cause and without meeting the strict requirements of the Terry standard - that the officer have a reasonable belief that the driver is dangerous or engaged in criminal behavior (other than the basis for the traffic stop). That search - and any activity that results from it (seizing the firearm, etc.) - is what is illegal under the 4th Amendment and Section 11 of the Indiana Constitution. And that is the point of the Richardson and Washington cases that I referenced earlier.

And let's put this in context - do you think the OP would have been offended (or had is rights violated) if, upon telling the LEO that he had a LTCH and a loaded weapon in the car, the officer would have said, "Ok, why don't you step outside the vehicle while I write your speeding ticket - to get you away from that firearm for my safety"?? Of course not. And that's the point of the Maryland case. In that regard, Maryland most certainly didn't authorize the officer to order the OP to surrender his legally-owned and legally-possessed firearm at gunpoint. That was illegal, IMO.

Guy

Hmm, interesting. Excercising my brain here. I rather enjoy studying USSC decisions. The Maryland case was on a recent Prosecutor Update for us and discussed during an inservice I believe. It is in Maryland however, since it went to the USSC, their ruling is being used as a guide for the rest of us. What it is going to take, is a court ruling clarifying this, absent an Indiana Supreme Court decision narrowing the USSC ruling. We are working with gray areas. There are decisions that skirt this issue so we only operate on what we can infer from decisions that are close to this issue. I welcome a court decision clarifying this.

 

[GuyRelford]

This is why Indiana needs a statute on this. Just sayin'.

I agree. So Kirk - I'll draft a proposed statute - send it to you for comment and edit - then we'll ask for it to be jointly presented to the General Assembly by our two state senators.

Seriously. What do you say?

[Edit] Oops, I see we both live in Zionsville. So we'll ask our ONE state senator to submit it to the GA?

 

[GuyRelford]

Hmm, interesting. Excercising my brain here. I rather enjoy studying USSC decisions. The Maryland case was on a recent Prosecutor Update for us and discussed during an inservice I believe. It is in Maryland however, since it went to the USSC, their ruling is being used as a guide for the rest of us. What it is going to take, is a court ruling clarifying this, absent an Indiana Supreme Court decision narrowing the USSC ruling. We are working with gray areas. There are decisions that skirt this issue so we only operate on what we can infer from decisions that are close to this issue. I welcome a court decision clarifying this.

i agree, but I suggest that the Washington (Indiana Court of Appeals) and Richardson (Indiana Supreme Court) cases provide exactly that clarification.

To be specific;, based on these decisions: In Indiana, during a traffic stop, if the driver of the stopped vehicle produces a valid LTCH and admits to the presence of a firearm within the vehicle, absent any separate basis for a "reasonable belief" that the driver is dangerous or engaged in other illegal behavior, the officer is not legally authorized to take any further action with respect to that firearm, and any such action, including a search of the vehicle or the forcible seizure of that firearm, is illegal.

IMO, that is exactly what these cases say, thus removing any uncertainty in this area of Indiana law.

 

[Denny347]

What took place here is an armed robbery, pure and simple.

I agree that the OP's situation was uncalled for. However, it was NOT armed robbery. That is your opinion without legal backing. Go to the prosecutor's office, go to the DOJ, FBI, the media...they all love a good "dirty cop". I doubt you will get ANY of them to agree with you.

 

[Denny347]

i agree, but I suggest that the Washington (Indiana Court of Appeals) and Richardson (Indiana Supreme Court) cases provide exactly that clarification.

To be specific;, based on these decisions: In Indiana, during a traffic stop, if the driver of the stopped vehicle produces a valid LTCH and admits to the presence of a firearm within the vehicle, absent any separate basis for a "reasonable belief" that the driver is dangerous or engaged in other illegal behavior, the officer is not legally authorized to take any further action with respect to that firearm, and any such action, including a search of the vehicle or the forcible seizure of that firearm, is illegal.

IMO, that is exactly what these cases say, thus removing any uncertainty in this area of Indiana law.

I will be reading those in more depth. Thanks.

 

[E5RANGER375]

oh, I sooooo hope this goes to court!! this could be what we gun owners need! I will not surrender my weapons on a traffic stop. take me to jail.

 

[Kirk Freeman]

Seriously. What do you say?

Sure, I've volunteered before. I still know people at LSA, including a good friend from undergrad (he was a PhD candidate while I was undergrad).

it was NOT armed robbery

The boys get a little fired up, Denny.

I doubt you will get ANY of them to agree with you.

Or, any mamby-pamby defense attorney.

 

[GuyRelford]

I will be reading those in more depth. Thanks.

Thank you. I can't imagine how tough your job is - to handle all the nuts out there and try to stay informed of the constantly-changing legal landscape at the same time.

And by the way, nothing I said above would prevent the officer from requiring the driver to step outside the vehicle during the stop - to separate the driver from the firearm. IMO, that's the point of the Maryland case. I only wish that would have been how the Fishers LEO had handled the situation in the OP.

 

[Kirk Freeman]

What it is going to take, is a court ruling clarifying this, absent an Indiana Supreme Court decision narrowing the USSC ruling. We are working with gray areas.

Umm, well, the Indiana Supremes cannot narrow the USSC. Wilson discussed the Fourth Amendment, not Article I, §11.

Unless the Indiana Supreme Court speaks to this issue (I can hope GunLawyer's take on Richardson is correct), and I have a hard time envisioning how it would come up, then what we need is a state statute drawing a line of when an officer can take a pistol. In essense I believe we need a codification of Richardson with appropriate remedies.

 

[Denny347]

Thank you. I can't imagine how tough your job is - to handle all the nuts out there and try to stay informed of the constantly-changing legal landscape at the same time.

And by the way, nothing I said above would prevent the officer from requiring the driver to step outside the vehicle during the stop - to separate the driver from the firearm. IMO, that's the point of the Maryland case. I only wish that would have been how the Fishers LEO had handled the situation in the OP.

OK, read them better. I have read Washington v. Indiana in a prior Prosecutor's Update. They stated that their decision was based only on statute and not Constitutionality. It was a seatbelt stop and those are VERY limited in time/scope. Basically stop for seatbelt, get ID, write ticket, let them go. Nothing more. However, I was not aware of Richardson. No permission was given to enter his vehicle and he was cuffed . Voluntarily giving gun up would remove the warrant requirement. However, refusing to do so, the officer could do something else it they are concerned...ex: if gun is not on person, have them step from vehicle. If gun is on person, have them keep hands on steering wheel or have a second officer stand at car if you want to focus on writing a ticket. Sadly, not being a lawyer, I am forced to rely on Prosecutor's office to provide updates. I do try on my own but obviously I miss some. Thanks for the clarification.

 

[GuyRelford]

OK, read them better. I have read Washington v. Indiana in a prior Prosecutor's Update. They stated that their decision was based only on statute and not Constitutionality. It was a seatbelt stop and those are VERY limited in time/scope. Basically stop for seatbelt, get ID, write ticket, let them go. Nothing more. However, I was not aware of Richardson. No permission was given to enter his vehicle and he was cuffed . Voluntarily giving gun up would remove the warrant requirement. However, refusing to do so, the officer could do something else it they are concerned...ex: if gun is not on person, have them step from vehicle. If gun is on person, have them keep hands on steering wheel or have a second officer stand at car if you want to focus on writing a ticket. Sadly, not being a lawyer, I am forced to rely on Prosecutor's office to provide updates. I do try on my own but obviously I miss some. Thanks for the clarification.

That's fair. I think law school is in your immediate future!

 

[Liberty Sanders]

I agree that the OP's situation was uncalled for. However, it was NOT armed robbery. That is your opinion without legal backing. Go to the prosecutor's office, go to the DOJ, FBI, the media...they all love a good "dirty cop". I doubt you will get ANY of them to agree with you.

Read the statute...it was an armed robbery. The fact no one in our criminal justice system has the integrity to prosecute it as such is immaterial.

 

[Pocketman]

I do not believe for a minute that anyone in this discussion, or any honest citizen for that matter, does not have a concern for the safety of police officers. I'm also pretty confident that most of us would readily jump in to protect an officer in jeopardy. All this despite the precarious situations some have experienced at the hands of well intentioned officers.

From what the OP described, there was no indication of suspicious behavior nor danger to the officer. Man was licensed and stopped for a traffic violation. Doesn't sound like Terry applies. I doubt any prosecutor or judge would likely see the officer's actions as robbery.

So what's the real issue here? In the name of "officer safety" incidents such as the OP's actually create unsafe situations. Any time a weapon is handled, there's a chance of something bad happening. Two firearms removed from their holsters, in what has suddenly become a less than friendly environment, is a recipe for disaster.

 

[Bunnykid68]

I do not believe for a minute that anyone in this discussion, or any honest citizen for that matter, does not have a concern for the safety of police officers. I'm also pretty confident that most of us would readily jump in to protect an officer in jeopardy. All this despite the precarious situations some have experienced at the hands of well intentioned officers.

I have no love for cops in general, but you are right. If I saw an officer in a situation in which I could help I would.

I bash cops, but only with my closest friends in private because whether I like them or not I wil still show repsect for them. The previous statement is the only bad thing anyone on hear will ever here me say about officers.

 

[grizman]

Read the statute...it was an armed robbery. The fact no one in our criminal justice system has the integrity to prosecute it as such is immaterial.

Apparently when an Indiana LEO, in the line of duty commits a forceable felony, it's magically a non issue.

How dare we expect a public servant to show us, the public, any respect or concern for our safety.

My God man, that would be paramount to performing their duty with the absence of the "you will respect my authority" power trip.

Being a cop is not the most dangerous job in the world, doesn't have the highest job related death rate either!

If I hated my job to the point I was prick to almost everyone I had to have contact with I would be smart enough to find a new profession! Not deny innocent folks their freedoms and abuse their rights just to make myself feel better,safer or in control.

These guy's try to make it seem like no one understands how stressful and dangerous their jobs are, I can say for fact I have been in more "situations of extreme stress" than any LEO here! I fully understand the stress of facing an armed opponent intent on killing me, I fully understand putting my life on the line for another!
But then again I never had to deal with the likes of punk kids pulling burglaries or some stupid drunk idiot not wanting to go to jail. Wow, those types must be some real desperate bad *sses! I only dealt with some of the most highly trained killers our enemies could create with the sole intent on killing me! Yeah I can see where I don't have a clue!

 

[6birds]

If I hated my job to the point I was prick to almost everyone I had to have contact with I would be smart enough to find a new profession! Not deny innocent folks their freedoms and abuse their rights just to make myself feel better,safer or in control.

I only dealt with some of the most highly trained killers our enemies could create with the sole intent on killing me! Yeah I can see where I don't have a clue!

WOW! you're supoposed to say "Rant Over" or something like that, What a great reply! Maybe you can start a blog and help to poor hating officer on how to deal with the stress of being a [strike]keyboard commando[/strike] warrior.

 

[NewsShooter]

I agree that the OP's situation was uncalled for. However, it was NOT armed robbery. That is your opinion without legal backing. Go to the prosecutor's office, go to the DOJ, FBI, the media...they all love a good "dirty cop". I doubt you will get ANY of them to agree with you.

The media will totally believe it. We don't know shi*t about guns. Just sayin'

 

[Lobo]

Read the statute...it was an armed robbery. The fact no one in our criminal justice system has the integrity to prosecute it as such is immaterial.

Perhaps the fact that no one in the entire criminal justice system agrees with you says volumes. There's this thing called "case law" and "precedent." Not sure if they covered that in Cincinnati, given their long history of citizen abuses and federal oversight. Hard to believe that all that went on without the tacit approval of senior supervisors with several years of experience.

How many Cincinnati police officers did you arrest during your career, given the obvious violations of the 2nd Amendment by them enforcing Ohio's tyrannical gun laws?

 

[Lobo]

But then again I never had to deal with the likes of punk kids pulling burglaries or some stupid drunk idiot not wanting to go to jail. Wow, those types must be some real desperate bad *sses! I only dealt with some of the most highly trained killers our enemies could create with the sole intent on killing me! Yeah I can see where I don't have a clue!

Because that's all cops deal with. Kids and drunks. It's not like they ever get shot at or anything. If they did though, it would be really cool to hide in a bush and shoot them from hundreds of yards away, instead of getting up close and personal. But yeah, like I said, they never get shot or anything, so that type of comparison would be silly, wouldn't it?