New Blog: Illegal to Detain Gun Owners

[GuyRelford]

I just posted a new blog on my page at WIBC: "Court rules that it is illegal to stop and investigate people just for carrying guns." Thought you folks might be interested.

Court rules that it is illegal for police to stop and investigate people just for carrying guns | 93.1 WIBC

Guy

 

[Kirk Freeman]

. . . until the Indiana Supreme Court reverses this.

This is for now and no way can it be permanent.

 

[HoughMade]

How many motions to suppress got filed around the state in the last week?

 

[foszoe]

I see this as an argument for ... wait for it.... open carry.

Also to the lawyers in the room, set aside law arguments and motions and tell me an average to below average citizen whether you agree with the interpretation presented regardless of how the challenges will go...

 

[Kirk Freeman]

I see this as an argument for ... wait for it.... open carry.

Also to the lawyers in the room, set aside law arguments and motions and tell me an average to below average citizen whether you agree with the interpretation presented regardless of how the challenges will go...

Under the current statute, the decision is incorrect.

Under the fact pattern presented to the Indiana Court of Appeals, no possible way on Earth Indiana Supreme Court upholds. The consequences are too shocking to the powers that be to allow this to stand.

 

[Alamo]

When licensed open carry legislation was about to pass during the last Texas Legislature session, an amendment was introduced specifically forbidding the stopping of a person solely for carrying a handgun. This missed derailing open carry "by this much." The LE community at large had a herd of bovines, and the anti-2A forces squealed as well. It didn't help that one of the champions of it had PO'd a large portion of the Legislature already. It was pulled at the last moment, and licensed OC passed.

I have not heard of anyone being targeted by cops just of OC, but then I have not heard nor seen very many people OCing either. A lot of departments were pretty proactive in explaining the law to their officers and public, and noting that they would not be amused by bogus MWAG calls, so that probably helped. (I'd say the vast majority of peace officers in Texas strongly support licensed carry, but unfortunately the big city chiefs are often hired by Democratic administrations, from other states, so they wail at the Legislature about it.).

I will be interested to see how this turns out in Indiana. There will be a bill, at least one, in the upcoming Texas legislature that will remove nearly all restrictions on where a person with a LTC can carry a handgun, I will bet this amendment pops up again.

 

[Fargo]

Assuming that Article 1, section 32 of the Indiana constitution allows blanket presumptive illegalization of a constitutionally enumerated right, I believe there are color able arguments either way.

I personally believe that the Ct. Of Appeals is legally correct, especially since the amendments of 2011. While Malone does not demand this result, the two cases are legally consistent, especially in light of the differences between the 2008 statute and the current one. Muddling that is that Malone was a SVF case, not a ltch case.

Muddling things further is the AG's office apparently foregoing most of the arguments available to it. I too am really curious about transfer.

If it is reversed, I would say it is time for a little Barnes-style pushback in the statehouse.

I wouldnt be surprised if the InSupCt did with this what it did in Gaddie with the resisting law enforcement statute and find application of the law in this fashion to be unconstitutional under Article 1, section 32. They don't have to strike it down, just limit its application like they did with resist fleeing. http://www.in.gov/judiciary/opinions/pdf/06271401bd.pdf

 

[Kirk Freeman]

The Supreme Court may tolerate people running away from the police, but no way, no possible way, that the Supreme Court permits people to carry guns without police intervention.

 

[Fargo]

The Supreme Court may tolerate people running away from the police, but no way, no possible way, that the Supreme Court permits people to carry guns without police intervention.

We shall see...

Once again, if they do reverse I would say it is a prime catalyst to get the general assembly to actually pass a coherent statute.

 

[Kirk Freeman]

We shall see...

Once again, if they do reverse I would say it is a prime catalyst to get the general assembly to actually pass a coherent statute.

Lol, from your keyboard to Brian Bosma's eyes.

 

[Libertarian01]

It is my basic understanding that, for driving a motor vehicle, a person must have a drivers license of some type under IC 9-24-1-1. However, a LEO may not just stop everyone driving down the road in order to check if their drivers license is valid. There must be some other reason for stopping the vehicle like running a red light as an example.

So how is this not analogous to the carrying of a firearm? Both actions are illegal without a license, yet the operator of a vehicle is generally presumed to be legal without any other circumstances involved. Prior to this ruling the carrying of a firearm was presumed to be in violation of the law even though no other circumstances had occurred.

Is this ruling not simply making the interpretation of legal activity more consistent across the board?

Regards,

Doug

 

[Fargo]

It is my basic understanding that, for driving a motor vehicle, a person must have a drivers license of some type under IC 9-24-1-1. However, a LEO may not just stop everyone driving down the road in order to check if their drivers license is valid. There must be some other reason for stopping the vehicle like running a red light as an example.

So how is this not analogous to the carrying of a firearm? Both actions are illegal without a license, yet the operator of a vehicle is generally presumed to be legal without any other circumstances involved. Prior to this ruling the carrying of a firearm was presumed to be in violation of the law even though no other circumstances had occurred.

Is this ruling not simply making the interpretation of legal activity more consistent across the board?

Regards,

Doug

Yes, there are many analogs between Indiana's LTCH law and DL law, including that in both the burden of proof shifts to the defendant to show that he has a license. However, they haven't been consistently applied by the courts.

There is an Indiana Supreme Court ruling in a case called Tonge v. State 575 ne2d 269 which basically says that the burden shift on LTCH cases doesn't occur until a person is found with a handgun AND cannot produce a license at that time. However, since the LTCH statutes burden shift doesn't really occur until prosecution, the issue of stops based on failing to have a license hasn't been addressed until this case.

I would maintain that if the 4th Amendment/Article 1 Sec. 11 applies within the unenumerated "right to travel" it even more so applies to the enumerated rights in the 2nd Amendment/Article 1 Section 32.

 

[Libertarian01]

Yes, there are many analogs between Indiana's LTCH law and DL law, including that in both the burden of proof shifts to the defendant to show that he has a license. However, they haven't been consistently applied by the courts.

There is an Indiana Supreme Court ruling in a case called Tonge v. State 575 ne2d 269 which basically says that the burden shift on LTCH cases doesn't occur until a person is found with a handgun AND cannot produce a license at that time. However, since the LTCH statutes burden shift doesn't really occur until prosecution, the issue of stops based on failing to have a license hasn't been addressed until this case.

I would maintain that if the 4th Amendment/Article 1 Sec. 11 applies within the unenumerated "right to travel" it even more so applies to the enumerated rights in the 2nd Amendment/Article 1 Section 32.

So do you think it would be a solid argument to support this ruling on the grounds that it IS moving us to a greater consistency across our legal spectrum where licenses are required?

Doug

 

[Fargo]

So do you think it would be a solid argument to support this ruling on the grounds that it IS moving us to a greater consistency across our legal spectrum where licenses are required?

Doug

There are many reasons I believe the ruling to be correct and that would certainly be one of them.

 

[2A_Tom]

Constitutional carry.

 

[Kirk Freeman]

Constitutional carry.

If Pinner is upheld (big if and I don't see on this fact pattern), it should give greater impetus to Constitutional Carry as police interactions will treated as if Constitutional Carry were already the law.

 

[GodFearinGunTotin]

 

[Kutnupe14]

Sad that there needs to be a court decision for something that should be common sense. But then again, in a nation that has allowed "stop and frisk" (still baffled by that one), it's not surprising.

 

[2A_Tom]

Terry is not the same as the civil liberties crowd's definition of stop and frisk.

Stop and frisk, implies (IMO) that an officer stops and frisks for no reason other than he doesn't like the looks of someone.

A Terry stop very specifically requires Reasonable Articulable Suspicion that a crime is afoot. It requires that an officer can give a solid reason why he believed a felony had been or was about to be committed.

 

[Kutnupe14]

Terry is not the same as the civil liberties crowd's definition of stop and frisk.

Stop and frisk, implies (IMO) that an officer stops and frisks for no reason other than he doesn't like the looks of someone.

A Terry stop very specifically requires Reasonable Articulable Suspicion that a crime is afoot. It requires that an officer can give a solid reason why he believed a felony had been or was about to be committed.

With apologies to NYPD (well, not really... they should know better), I would be a pretty crappy cop, if I didn't understand Terry.