Indiana Court of Appeals and Handgun Possession

[2A_Tom]

Thanks Kirk, I thought you had deserted me.

But, I do hope we are both wrong.

 

[T.Lex]

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

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

Why? I mean, I agree that it is a small extension, but when you include the guy that got pulled over and had a carry permit along with the changes to the law that Fargo mentions, my thinking is that they'll deny transfer and see what happens.

The addition of the exceptions to the CWOL prohibition really seems to dilute the RAS of just seeing a guy with a gun. Plus, I'm pretty surprised that that panel reached that conclusion anyway.

And, I think I know 2 votes that would affirm. I'd go watch the oral argument on it. (Wonder if Tom Fisher would step up and try to argue it. Kinda hope so. I don't think he'd do it right.)

 

[Denny347]

I have been "falsely" asserting this for years. I'm glad someone else was the test case.

I know there are quite a few LEO's (including myself and Frank) on here that were saying the same thing. You were not alone. We welcome court clarification. I guess time will tell if this holds up.

 

[2A_Tom]

I know there are quite a few LEO's (including myself and Frank) on here that were saying the same thing. You were not alone. We welcome court clarification. I guess time will tell if this holds up.

Thanks fo the Denny, Denny. For a while I was thinking I had stepped through the looking glass into an alternate universe. Kirk was a bearded operator and Bill of Privileges was clean shaven.

 

[GodFearinGunTotin]

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

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

This was how I was reading it as well.

 

[GodFearinGunTotin]

Why? I mean, I agree that it is a small extension, but when you include the guy that got pulled over and had a carry permit along with the changes to the law that Fargo mentions, my thinking is that they'll deny transfer and see what happens.

The addition of the exceptions to the CWOL prohibition really seems to dilute the RAS of just seeing a guy with a gun. Plus, I'm pretty surprised that that panel reached that conclusion anyway.

And, I think I know 2 votes that would affirm. I'd go watch the oral argument on it. (Wonder if Tom Fisher would step up and try to argue it. Kinda hope so. I don't think he'd do it right.)

I though I read where the guy did not have a LTCH. (the guy in the appeal, that dropped the gun exiting a taxi, out in public [in a movie theater, I think]).

 

[Fargo]

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

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

Since the state apparently cited no caselaw to the contrary, I don't believe it is correct to say that they read Malone too broadly. They nowhere said that this case fell foursquare within Malone, rather it appears to me that this case explicitly decides a question of first impression. It appears to me that Malone was primarily cited to avoid some non-binding federal case law which sometimes presumes that carry/presence of guns is automatically Terry reasonable suspicion.

 

[T.Lex]

I though I read where the guy did not have a LTCH. (the guy in the appeal, that dropped the gun exiting a taxi, out in public [in a movie theater, I think]).

Right -sorry, I'm thinking of the guy in the car who had gun under the seat, but also had an LTCH. LEO did a full car search (as I recall) even though driver had the Larry.

 

[2A_Tom]

I see nothing in the exceptions that allow a person to carry a loaded gun in a cab or a theater without a license. Both are private property and would require permission from the owner. Neither is there any exception allowing a person to carry a loaded gun IN PUBLIC without a license, it is in fact explicitly forbidden.

Malone was about private property, excepted, and that is not a new exception.

 

[HoughMade]

If that's the case, this might be a good pdf to keep on the phone for when a cop tries to play 20 questions with you when they see your gun.

Yes. I'm sure the officer would delight in reading an Indiana Court of Appeals decision on your phone. Do you have Shepard's or Key Cite on your phone? Obviously the officer would want to make sure that it's good law.

 

[T.Lex]

I think it is somewhat noteworthy that the dissent focuses on whether it was a consensual encounter, and finds that it was. That sidesteps whether mere possession of a gun is RAS.

That could be read as a tacit understanding that it would NOT be. If Judge Brown (who I am not particularly familiar with) had thought there WAS RAS, seems to me it would have been in the opinion. Of course, it also appears that the trial court found it to be consensual.

Briefs available on Odyssey:
https://publicaccess.courts.in.gov/docket/Search/Detail?casenumber=49A02-1511-CR-02036&eepz=asdf

(Not sure if link will work, but search for the case number.)

State's brief sucks. But, it does argue that there was RAS.

Hate saying that, for several reasons (including that it makes Fargo think he's right). But as a former practitioner in this very arena, I'm disappointed.

ETA:
Pisses me off when appellate courts do this.

On appeal, the State does not address reasonable suspicion.

And yet:

The totality of the circumstances supported Officer Palmer’s reasonable suspicion that Defendant was armed and dangerous and/or that criminal activity was afoot. All of this evidence supported any reasonable person’s belief that Defendant was carrying a handgun for which he had no license, see Ind. Code § 35-47-2-1, or that some other criminal activity was “afoot.” Webb v. State, 714 N.E.2d 787, 788 (Ind. Ct. App. 1999) (citing Terry, 392 U.S. at 27 (stating that police may, without a warrant, stop an individual for investigatory purposes if, based upon specific, articulable facts, the officer has a reasonable suspicion that criminal activity “may be afoot”)). As this Court has stated, “[p]rotecting the public from gun violence is a legitimate and paramount concern of law enforcement, and the State is legitimately concerned with deterring gun violence and possession of firearms by unlicensed individuals. Grayson v. State, --- N.E.3d ----, 2016 WL 881951, slip op. at 8 (Ind. Ct. App. March 8, 2016).

Just because the judge's clerk didn't see it when they were skimming the brief doesn't mean the state didn't address it.

This wrinkle adds to the transfer-worthiness, IMHO. Rehearing might be sought first, though.

 

[Fargo]

I see nothing in the exceptions that allow a person to carry a loaded gun in a cab or a theater without a license. Both are private property and would require permission from the owner. Neither is there any exception allowing a person to carry a loaded gun IN PUBLIC without a license, it is in fact explicitly forbidden.

Malone was about private property, excepted, and that is not a new exception.

You (and Kirk) need to go back and read the LTCH statute from 2008 when Malone was decided. (Hint: it didnt have a general private property exception).

When you read Malone in light of the 08 statute, these cases are actually pretty similar.

 

[2A_Tom]

This may be totally moot.

The appellate held there was no RAS for a search. It was a consensual encounter. There was no gun visible until Pinner stood upon confrontation.

If a gun is clearly visible or observed as concealed before the encounter an officer could continue observation and if the carrier acted in any suspicious or furtive manner (in the officer's opinion) he could claim RAS.

 

[Fargo]

This may be totally moot.

The appellate held there was no RAS for a search. It was a consensual encounter. There was no gun visible until Pinner stood upon confrontation.

If a gun is clearly visible or observed as concealed before the encounter an officer could continue observation and if the carrier acted in any suspicious or furtive manner (in the officer's opinion) he could claim RAS.

The court of appeals found it was not a consensual encounter. As noted above, there was already a named complainant saying he had a gun. Under the Terry caselaw, that is reasonable suspicion if the activity is it self criminal.

 

[2A_Tom]

I mis read this paragraph.

Consensual Interaction or Investigatory Stop?

[8] Before the trial court, the State conceded “[t]his case involves an investigatorystop,” (App. at 39), and argued the officers had the reasonable suspicionrequired by Terry to approach Pinner. But on appeal, the State argues theofficers’ interaction with Pinner was consensual, and thus not subject to FourthAmendment protections, until they saw the gun. This encounter was notconsensual and Pinner was subjected to an investigatory stop.

It should have been consensual, but was carried out as an investigatory stop (w/o RAS).

I do not have an archive copy of dash 2 could you please direct me to a link or post it. My understanding is that Indiana never had a duty to retreat or requirement to be licensed to carry on private property.

EDIT Laws are NORMALLY written to inhibit not to grant privileges or rights.

 

[Fargo]

I mis read this paragraph.



It should have been consensual, but was carried out as an investigatory stop (w/o RAS).

I do not have an archive copy of dash 2 could you please direct me to a link or post it. My understanding is that Indiana never had a duty to retreat or requirement to be licensed to carry on private property.

Indiana Code 2009 - Indiana General Assembly, 2016 Session

Prior to 2011 Indiana's license requirement covered all private property except your own dwelling or a business you owned or ran.

 

[2A_Tom]

Indiana Code 2009 - Indiana General Assembly, 2016 Session

Prior to 2011 Indiana's license requirement covered all private property except your own dwelling or a business you owned or ran.

That is a current link, my googlefu can handle that.

Yeah so how does that change Malone. Did you reap your grain and have a lot of straw left over?

 

[Fargo]

That is a current link, my googlefu can handle that.

Yeah so how does that change Malone. Did you reap your grain and have a lot of straw left over?

Because the case wasn't decided on the basis that it was Malone's dwelling... In fact, I don't believe the word even appears in the opinion.

 

[ATM]

That is a current link, my googlefu can handle that...

It is a current link to the archived IC of 2009 pointing directly to the chapter requested.

 

[Kirk Freeman]

Because the case wasn't decided on the basis that it was Malone's dwelling... In fact, I don't believe the word even appears in the opinion.

I don't understand. The very first sentence of the Malone decision states that Malone was in his dwelling. The 16th and 17th word of the opinion in Malone state "his home" in reference to the Defendant.

Fargo, sorry, not tracking. I would LIKE to believe the Indiana Supreme Court would let this be the decision, but the real politics of this and the consequences of allowing Pinner to stand will not stand.

Let me find it (Malone's dwelling); here is the very first sentence of James Malone v. State of Indiana (March 2008):

May police officers seize a handgun from an individual standing on the front porch of his home . . .