Indiana Constitutional Carry-Summer Study thread (2017)

[2A_Tom]

Lewis was pulled over for two infractions. So had Lewis produced a DL and the 10-28 come back clea. He would have gotten a ticket or warning for speeding and improper lane changes and been on his way.

In your case he was not pulled out of the car until he could not produce a valid DL and a 10:29 came back positive. He was then arrested. The gun was found in a propper manner after officer already knew he was a fellon.

Post Pinner: No change at all.

An infraction is an infraction until the officer knows more. You may not have heard of a principle called Innocent until proven guilty.

Hough, Felons have always and will always be able to obtain and carry firearms and nothing will stop them.

 

[T.Lex]

Marijuana possession and use are inherently unlawful.

But smelling like marijuana isn't.

Possession of a firearm is not inherently unlawful (something that Pinner does, in fact, affirm).

I'll not pick that nit.

Ok, a little. RAS <> inherently unlawful

I do love a good harmony!

I could tell by the beard.

I don't think the latitude is quite as unlimited as I am inferring from this statement. RAS for a moving violation does not justify detention for anything longer than is reasonably required to investigate/cite the moving violation. If the officer observes evidence that constitutes RAS of some other, unlawful activity during the course of that detention, then the extent of reasonable detention and investigation increases to encompass that new RAS.

The part I highlighted is the not-quite-correct part.

Once detained, there's leeway for investigation. That includes asking questions (limited by Miranda).

Here's the rub: mere possession of a firearm is not RAS of unlawful activity, as affirmed by Pinner.

I have agreed to this. Even written about it.

That is not controversial (anymore).

So, a police officer observing a firearm (handgun) in the car while citing the driver for a moving violation is not the same as that officer seeing/smelling marijuana in the car while citing the driver for a moving violation. The latter provides RAS of additional, unlawful activity beyond the moving violation; the former does not.

While that is true, it does not stop the officer from asking about the handgun, asking for the Larry, and - probably - making a determination as to whether the person is CHWOL.

Well, no. Because you implied that not only could a police officer ask any question he wanted, but that the person being detained would be lawfully compelled to respond to such questions. (Though, you did later clarify, and I agree: criminals are stupid.)

I re-read it, and I deny making any such implications about being compelled to respond. That inference is on you.

 

[HoughMade]

...Hough, Felons have always and will always be able to obtain and carry firearms and nothing will stop them.

That's a given, but also not what my line of questions is about.

 

[T.Lex]

Lewis was pulled over for two infractions. So had Lewis produced a DL and the 10-28 come back clea. He would have gotten a ticket or warning for speeding and improper lane changes and been on his way.

In your case he was not pulled out of the car until he could not produce a valid DL and a 10:29 came back positive. He was then arrested. The gun was found in a propper manner after officer already knew he was a fellon.

Post Pinner: No change at all.

An infraction is an infraction until the officer knows more. You may not have heard of a principle called Innocent until proven guilty.

I have. That's a jury instruction issue. We're still at suppression issues.

The point with Lewis, though, is that post-Pinner it would play out exactly the same. Hangun in plain view? Figure out whose it is, see if they have a Larry.

Let me try a different angle on this.

In Pinner, the ISC invited LEOs to have consensual discussions with gun possessors when dispatched to a MWAG call.

In the course of the consensual conversation, if the officer brings up the Larry issue, and the gun possessor dodges a direct answer, does that add anything to an RAS measurement?

 

[chipbennett]

Skipping down to here, for clarity:

Let me try a different angle on this.

In Pinner, the ISC invited LEOs to have consensual discussions with gun possessors when dispatched to a MWAG call.

In the course of the consensual conversation, if the officer brings up the Larry issue, and the gun possessor dodges a direct answer, does that add anything to an RAS measurement?

If the answer is "yes", then the fourth and fifth amendment protections are completely eviscerated.

But, to be more specific: if the conversation is truly consensual, then the detainee is not legally compelled to answer any questions (aside from those statutorily required to complete the citation for the moving violation: name, address). Refusing to answer a question that one is not legally compelled to answer cannot and must not constitute RAS of some unlawful activity; otherwise, one is de facto compelled to answer every question a police officer asks. In that situation, no conversation is ever truly consensual.

 

[Kirk Freeman]

While I have your attention.

Hypo: generic traffic stop, officer at window, sees handgun in plain view (console, floorboard, passenger seat, whatever), asks if driver has a Larry, driver admits he doesn't.

I think people think that the officer isn't allowed to ask about the Larry after seeing the handgun. But honestly, I'm still not sure if that's what we're arguing about.

That's right out post-Pinner.

I think a veteran cop would write the ticket, hand back the license, tell Mikey McMotorist, you are free to leave, hey, by the way, do you have a license for the pistol? Thus converting detention into consensual encounter.

 

[T.Lex]

If the answer is "yes", then the fourth and fifth amendment protections are completely eviscerated.

But, to be more specific: if the conversation is truly consensual, then the detainee is not legally compelled to answer any questions (aside from those statutorily required to complete the citation for the moving violation: name, address). Refusing to answer a question that one is not legally compelled to answer cannot and must not constitute RAS of some unlawful activity; otherwise, one is de facto compelled to answer every question a police officer asks. In that situation, no conversation is ever truly consensual.

We'll see. I suspect this will be the next scenario to get examined.

That's right out post-Pinner.

Seriously? Hmmm.

Asking the question isn't like waiting half an hour for the drug dog. It wouldn't unreasonably extend the stop.

With the dicta at the end of Pinner about the MWAG call, it is hard to imagine that they'd fault the cop for asking, even repeatedly.

I think a veteran cop would write the ticket, hand back the license, tell Mikey McMotorist, you are free to leave, hey, by the way, do you have a license for the pistol? Thus converting detention into consensual encounter.

See - I think that would lead to the argument that, despite being told he could leave, the officer stayed at the window preventing safe entry back into the travel lane. Detaining the motorist.

Wow. I guess we'll have to see.

That would also mean that, effectively, Pinner may HAVE brought us ConC. I mean, what other benefit is there to the legislation?

 

[jamil]

Just getting this to the floor for a vote sure is like pulling turkey teeth...WHY does it have to be so very hard to just get a vote?

So if the organizing principle of Constitutional Carry is "what part of 'shall not be infringed' do you not understand"? Where is the Constitutional exception for felons? I missed that part of the text.

Isn't it at some level a sort of "due process" argument? Seems like there are two parts to that. Can a law duely enacted, by itself, prohibit a constitutionally protected right altogether? Can a law prohibit a constitutionally protected right through due process?

I'm not sure if I'm conveying the thought so maybe some examples. A law can say that the penalty for a crime is to restrict a person's rights such that they can be locked up for a period of time, or actually even take away his life, through the due process of a criminal proceding. If due process is followed it then seems to be more an issue of whether punishment under the law is constitutional, ie, not cruel/unusaual. I don't think "shall not be infringed" applies to that. If a person can have their life taken away through due process as a consequence of their crimes, certainly a lifetime prohibition on having firearms is fair game. The only question left from there, is should it be? That's something individuals in society get to answer by consensus.

So the other part, does the constitution allow laws to flat out deny 2A rights to people who've not obtained the permission slip? As I said, I think it's constitutional, though not sufficiently selective, or wise, to ban all felons from owning firearms. I think it's fair to restrict certain rights as ordered by courts as part of due process. But you don't need a license to speak freely. You may need a permit to schedule a rally in the city, but that's more of a logistical issue and not an issue of you not being able to say something without having a permission slip.

 

[T.Lex]

Isn't it at some level a sort of "due process" argument? Seems like there are two parts to that. Can a law duely enacted, by itself, prohibit a constitutionally protected right altogether? Can a law prohibit a constitutionally protected right through due process?

I'm not sure if I'm conveying the thought so maybe some examples. A law can say that the penalty for a crime is to restrict a person's rights such that they can be locked up for a period of time, or actually even take away his life, through the due process of a criminal proceding. If due process is followed it then seems to be more an issue of whether punishment under the law is constitutional, ie, not cruel/unusaual. I don't think "shall not be infringed" applies to that. If a person can have their life taken away through due process as a consequence of their crimes, certainly a lifetime prohibition on having firearms is fair game. The only question left from there, is should it be? That's something individuals in society get to answer by consensus.

So the other part, does the constitution allow laws to flat out deny 2A rights to people who've not obtained the permission slip? As I said, I think it's constitutional, though not sufficiently selective, or wise, to ban all felons from owning firearms. I think it's fair to restrict certain rights as ordered by courts as part of due process. But you don't need a license to speak freely. You may need a permit to schedule a rally in the city, but that's more of a logistical issue and not an issue of you not being able to say something without having a permission slip.

You know. That's kinda a lot like the Serious Violent Felon regime. "Limit" (seems like new predicate felonies keep getting added) the denial of 2A to only those who've been convicted of certain felonies.

 

[chipbennett]

That's right out post-Pinner.

I think a veteran cop would write the ticket, hand back the license, tell Mikey McMotorist, you are free to leave, hey, by the way, do you have a license for the pistol? Thus converting detention into consensual encounter.

Kirk's take on it seems consistent with my post-Pinner interpretation.

 

[Thor]

I'm making no argument. I am wondering why we are calling this "Constitutional Carry". Beyond that, those who are in favor of "Constitutional Carry" and barring felons from having guns legally (or inmates for that matter) what is the argument? What is the Constitutional bases for these restrictions? Is there one?

I am simply asking for people to think this through.

I would argue that anyone being released from prison should be able to be trusted to act as a citizen who is not a threat to society...if they can't be trusted to their rights without violating others then they should not be released from prison. If the felon can not be trusted to carry a weapon he should stay in the cell or take a trip through the felon zapper.

Perhaps the founders expected those who can't be trusted to be swinging from a gibbet...or shot by law abiding citizens when they decided to go back to their old ways. Of course the prisons were a lot less comfortable back then...folks really didn't want to go back.

 

[T.Lex]

Kirk's take on it seems consistent with my post-Pinner interpretation.

Indeed.

 

[chipbennett]

We'll see. I suspect this will be the next scenario to get examined.

In that regard, I would like to see the courts get this one right, just for the principle of the matter, before ConC passes in the legislature.

Seriously? Hmmm.

Asking the question isn't like waiting half an hour for the drug dog. It wouldn't unreasonably extend the stop.

The question is: can asking the question and then requiring a response from the detainee lawfully extend the detention? If it does, then the question is not consensual, and the continued detention must be based on RAS - which we have already agreed, the mere presence of a firearm does not provide.

With the dicta at the end of Pinner about the MWAG call, it is hard to imagine that they'd fault the cop for asking, even repeatedly.

The important question is: would the courts fault the officer for extending the detention if the detainee refuses to answer?

See - I think that would lead to the argument that, despite being told he could leave, the officer stayed at the window preventing safe entry back into the travel lane. Detaining the motorist.

Wow. I guess we'll have to see.

That would also mean that, effectively, Pinner may HAVE brought us ConC. I mean, what other benefit is there to the legislation?

Probably not, though it would be nice. If a firearm is found in an otherwise lawful detention/search, then its possession is still admissible - and therefore, charges for possession of a handgun without an LTCH remain valid. All that really changes is that possession of a handgun without an LTCH can no longer be the primary/only reason for detention/investigation/search/arrest.

 

[chipbennett]

You know. That's kinda a lot like the Serious Violent Felon regime. "Limit" (seems like new predicate felonies keep getting added) the denial of 2A to only those who've been convicted of certain felonies.

This point was also brought up in the Tennessee v Garner decision.

 

[Kirk Freeman]

See - I think that would lead to the argument that, despite being told he could leave, the officer stayed at the window preventing safe entry back into the travel lane. Detaining the motorist.

Wow. I guess we'll have to see.

That would also mean that, effectively, Pinner may HAVE brought us ConC. I mean, what other benefit is there to the legislation?

Yes, wait and see.

The benefit of the legislation is that carrying a handgun is treated like other civil rights and no license is needed. It also puts Indiana in the "no license needed" column in the coming Supreme Court case on carry.

 

[jamil]

You know. That's kinda a lot like the Serious Violent Felon regime. "Limit" (seems like new predicate felonies keep getting added) the denial of 2A to only those who've been convicted of certain felonies.

I think my way would be fair. Let the court decide at sentencing, or upon parole, whether or not the person is prohibited, rather than just assuming that any felon is any more dangerous to own a firearm than non-felons.

 

[chipbennett]

I think my way would be fair. Let the court decide at sentencing, or upon parole, whether or not the person is prohibited, rather than just assuming that any felon is any more dangerous to own a firearm than non-felons.

No. This is not a decision that should be left at the discretion of the courts. Let "felon" be restored to its original intent: i.e. someone who has committed a violent crime against another. Or else, limit prohibited persons to "Serious Violent Felon" (with an appropriate, objective definition that is based on actual harm, rather than on length of sentence, etc.).

 

[T.Lex]

Probably not, though it would be nice. If a firearm is found in an otherwise lawful detention/search, then its possession is still admissible - and therefore, charges for possession of a handgun without an LTCH remain valid. All that really changes is that possession of a handgun without an LTCH can no longer be the primary/only reason for detention/investigation/search/arrest.

Man, I really kinda hate to come back to this, but this feels circular now. I'm gonna leave it alone. Its almost like you're saying the same thing I've been saying. Especially the part about the otherwise lawful detention....

 

[HoughMade]

Isn't it at some level a sort of "due process" argument? Seems like there are two parts to that. Can a law duely enacted, by itself, prohibit a constitutionally protected right altogether? Can a law prohibit a constitutionally protected right through due process?

I'm not sure if I'm conveying the thought so maybe some examples. A law can say that the penalty for a crime is to restrict a person's rights such that they can be locked up for a period of time, or actually even take away his life, through the due process of a criminal proceding. If due process is followed it then seems to be more an issue of whether punishment under the law is constitutional, ie, not cruel/unusaual. I don't think "shall not be infringed" applies to that. If a person can have their life taken away through due process as a consequence of their crimes, certainly a lifetime prohibition on having firearms is fair game. The only question left from there, is should it be? That's something individuals in society get to answer by consensus.

So the other part, does the constitution allow laws to flat out deny 2A rights to people who've not obtained the permission slip? As I said, I think it's constitutional, though not sufficiently selective, or wise, to ban all felons from owning firearms. I think it's fair to restrict certain rights as ordered by courts as part of due process. But you don't need a license to speak freely. You may need a permit to schedule a rally in the city, but that's more of a logistical issue and not an issue of you not being able to say something without having a permission slip.

So what you're saying is that there has to be some context beyond "shall not be infringed" that defines what the "right to keep and bear arms" consists of and who has such a right?

 

[2A_Tom]

That's a given, but also not what my line of questions is about.

In that case are you asking if Stste CC would allow felons to carry legally? If so, No, not until the feds overturn their infringements.