Indiana Court of Appeals and Handgun Possession

[Rookie]

How long will it take to find out if this is THE final decision?

 

[Nacelle]

Then there's the other hurdle... Cops knowing and accepting the change.

 

[Fargo]

How long will it take to find out if this is THE final decision?

Depends on if transfer is sought and/or accepted. The AG has 30 days to seek transfer.

 

[GodFearinGunTotin]

Depends on if transfer is sought and/or accepted. The AG has 30 days to seek transfer.

I gotta admit, if I were in his place and being as pro-gun as I am, on one hand, I'd be tempted to let this one go. On the other hand, if I were thinking about my career, I might think I might need to run this to ground.

 

[Fargo]

I gotta admit, if I were in his place and being as pro-gun as I am, on one hand, I'd be tempted to let this one go. On the other hand, if I were thinking about my career, I might think I might need to run this to ground.

Zoeller's career has much bigger problems than this case. I am so happy he is gone soon.

 

[Spear Dane]

The logic doesn't follow, it will get overturned.

 

[2A_Tom]

The logic doesn't follow, it will get overturned.

I have to agree, IF the supreme court accepts transfer.

 

[Fargo]

I never would have thought I would see so many gun owners making a legal argument premised on the idea that the government can blanketly presumptively outlaw an act specifically protected by the state and federal constitutions...

IMO the court came to the correct legal result, albeit by route of the AG's incompetence.

Plus, the exceptions added to the statute a few years ago probably make this a correct ruling based on the statute alone.

 

[ATM]

Just let me know if the legal eagles concur that this decision nullifies IC 35-47-2-24(a).

It is a wretched piece of code we've lived under in Indiana for far too long. Nearly as loathsome as criminalizing handgun carry.

 

[2A_Tom]

I never would have thought I would see so many gun owners making a legal argument premised on the idea that the government can blanketly presumptively outlaw an act specifically protected by the state and federal constitutions...

It is amazing that this has come up so many times and I have always been beaten down because I said the mere possession of a gun should not constitute RS.

IMO the court came to the correct legal result, albeit by route of the AG's incompetence.

IMO the court came to the decision I would like to be right.

Plus, the exceptions added to the statute a few years ago probably make this a correct ruling based on the statute alone.

I am not sure exceptions were added to IC that would justify this . Can you please elaborate.

 

[Fargo]

I am not sure exceptions were added to IC that would justify this . Can you please elaborate.

Up until 5-6 years ago, you couldn't take a handgun to the range without a LTCH. Exceptions were then added removing a ton of types of carry from the prohibition of the article. Those exemptions were broad enough that I don't believe that even on the statute alone you could still call carry presumptively illegal, or at least certainly not under many/most circumstances.

 

[Fargo]

Just let me know if the legal eagles concur that this decision nullifies IC 35-47-2-24(a).

It is a wretched piece of code we've lived under in Indiana for far too long. Nearly as loathsome as criminalizing handgun carry.

This decision doesn't address the issue. This is a Terry stop case, the code you cite refers to the burden of proof after an indictment or information has been filed by a prosecutor. Since PC is required for the filing of an indictment or information, it is a question not addressed by this case.

 

[2A_Tom]

Up until 5-6 years ago, you couldn't take a handgun to the range without a LTCH. Exceptions were then added removing a ton of types of carry from the prohibition of the article. Those exemptions were broad enough that I don't believe that even on the statute alone you could still call carry presumptively illegal, or at least certainly not under many/most circumstances.

Unless I am mistaken that only allows the transportation of unloaded weapons in a vehicle.

IC 35-47-2-1
Carrying a handgun without a license or by a person convicted of
domestic battery; exceptions
Sec. 1. (a) Except as provided in subsections (b) and (c) and
section 2 of this chapter, a person shall not carry a handgun in any
vehicle or on or about the person's body without being licensed under
this chapter to carry a handgun.
(b) Except as provided in subsection

There is no exception for carrying a loaded handgun on your person w/o a license.

In State v Pinner Pinner was guilty of both carrying w/o a license and felon in possession. The case was reversed over Terry.

 

[Fargo]

Unless I am mistaken that only allows the transportation of unloaded weapons in a vehicle.

IC 35-47-2-1
Carrying a handgun without a license or by a person convicted of
domestic battery; exceptions
Sec. 1. (a) Except as provided in subsections (b) and (c) and
section 2 of this chapter, a person shall not carry a handgun in any
vehicle or on or about the person's body without being licensed under
this chapter to carry a handgun.
(b) Except as provided in subsection

There is no exception for carrying a loaded handgun on your person w/o a license.

In State v Pinner Pinner was guilty of both carrying w/o a license and felon in possession. The case was reversed over Terry.

Prior to the exceptions in sub b and c being added, there was no question about the statute being one of blanket presumptive illegality in light of 35-27-2-24. However, section 24 was not amended to include the exceptions in subs b and c. It only refers to section 2 exceptions.

As such, it does not appear to me that Indiana's statute is still one of blanket presumptive illegality. This appears to be the position the court took in this case.

Even if it is, it still doesn't stand in the face of Article 1 section 32.

 

[2A_Tom]

Wow. Just wow. I can not believe the role reversal here, albeit you are not one of the lawyers I've debated on this before.

Next Ill be proven wrong on Roe v Wade, and the indiana judge that ruled that there was no right to resist unlawful entry by a law enforcement officer.

 

[Fargo]

Wow. Just wow. I can not believe the role reversal here, albeit you are not one of the lawyers I've debated on this before.

Next Ill be proven wrong on Roe v Wade, and the indiana judge that ruled that there was no right to resist unlawful entry by a law enforcement officer.

I believe I've held this position consistently since the exceptions were added, with the caveat that it was a unsettled question until this ruling. I guess we will see if t remains so.

 

[T.Lex]

The bad stop was off a named complainant saying that he had a gun. That would meet the requirements of Terry except that the court found that carrying a gun is a presumptively legal act. This clarifies a huge grey area where many officers were treating handguns as presumptively illegal.

The case they cited addressed different circumstances than this one, but the holdings in the cases are consistent. In Malone the call was for display of a shotgun on private property, leading to a Terry-frisk seizure of a handgun being possessed illegally under the Serious Violent Felon statute. The two cases are different but not contradictory.

What matters in this case is that the new caselaw is that possession of a handgun in public is presumptively legal in Indiana, unless the Indiana Supreme Court accepts transfer and reverses.

With all respect to MrJ, this is a huge clarification as far as what LE can do to people carrying handguns.

I'm not sure the AG will seek transfer on this considering that the bulk of the opinion is based on the AG's office doing an incredibly crappy job and failing to even make most of the arguments available.

Criminal Appeals have not been good at all under Zoeller.

I never would have thought I would see so many gun owners making a legal argument premised on the idea that the government can blanketly presumptively outlaw an act specifically protected by the state and federal constitutions...

IMO the court came to the correct legal result, albeit by route of the AG's incompetence.

Plus, the exceptions added to the statute a few years ago probably make this a correct ruling based on the statute alone.

Prior to the exceptions in sub b and c being added, there was no question about the statute being one of blanket presumptive illegality in light of 35-27-2-24. However, section 24 was not amended to include the exceptions in subs b and c. It only refers to section 2 exceptions.

As such, it does not appear to me that Indiana's statute is still one of blanket presumptive illegality. This appears to be the position the court took in this case.

Even if it is, it still doesn't stand in the face of Article 1 section 32.

I believe I've held this position consistently since the exceptions were added, with the caveat that it was a unsettled question until this ruling. I guess we will see if t remains so.

+1 to all

Except:
- reasonable restrictions on gun ownership/possession have always been part of the picture
- I'm sad to hear the Criminal Appeals section isn't doing well, although, when it was on top of its game there was the case declaring a pistol gripped shotgun to be a handgun
- I think I've been pretty consistent in just saying this was an open question, good arguments going both ways.

So, mostly +1.

I, too, am not sure if the Supremes will take transfer. I can see Massa and David voting to take it and perhaps even just adopting it. That's kinda part of the problem. If the result is obvious, they may leave it alone.

 

[SwikLS]

this case seems to get into the same issues that DeBerry vs Ohio got into. Violations of the Fourth Amendment are just as important as violations of any of the other Bill of Rights amendments.

we have to stop saying in this country it is the police's job to protect us. it is each individual's responsibility to protect themselves. "protect and serve" might be a great campaign slogan for politicians or for political causes but outside of the military protecting Americans from foreign threats, it is not the government job to protect us. if there is no evidence of criminal activity then there is none. I applaud the courts for recognizing this and upholding the Fourth Amendment in this case.

maybe now from this case more people will realize it is not the government's job to protect us (again with exception to the military) and take on the responsibility to protect themselves.

 

[2A_Tom]

this case seems to get into the same issues that DeBerry vs Ohio got into. Violations of the Fourth Amendment are just as important as violations of any of the other Bill of Rights amendments.

we have to stop saying in this country it is the police's job to protect us. it is each individual's responsibility to protect themselves. "protect and serve" might be a great campaign slogan for politicians or for political causes but outside of the military protecting Americans from foreign threats, it is not the government job to protect us. if there is no evidence of criminal activity then there is none. I applaud the courts for recognizing this and upholding the Fourth Amendment in this case.

maybe now from this case more people will realize it is not the government's job to protect us (again with exception to the military) and take on the responsibility to protect themselves.

I would argue that It is our responsibility to protect ourselves militarily. A large standing army is a danger and detriment to our nation. (see Geo. W.)

A reduction in force is a republican talking point against the democrats (weakening our nation). I am not for a reduction in ARMS, I am for American men acting as productive members of society until such a time as needed.

Look at WWI, all of the large standing armies of Europe embroiled in a morass of impotency. The US with the assistance of the small cadre of regular soldiers and trained officer corps, reluctantly mobilizes the citizen soldiers and defeats the greatest professional army the world had ever seen.

What names do you recall from WWI? J. J. Persing, Old Brass Buttons, professional and West Point trained leader of the AEF. Douglas MacArthur, Professional, highest GPA at West Point to date and commander of the rainbow division. Alvin C. York, citizen soldier, conscientious objector, Medal of honor winner.



























Squirrel!

 

[Kirk Freeman]

As such, it does not appear to me that Indiana's statute is still one of blanket presumptive illegality. This appears to be the position the court took in this case.

They read Malone too broadly. Malone was on his property. Pinner was not.

I cannot foresee the Indiana Supreme Court allowing this to stand.