-1 for Delaware County's Finest

[JMoses]

Frank, do you know something we do not? As far as I understand it, if you are carrying a handgun, you are breaking the law. That is black and white. Specific exemptions are set forth for citizens to carry a handgun, LTCH for instance. It is not illegal/unconstitutional for an officer to ask for a LTCH when seeing a handgun. Failure to prove that you are licensed CAN result in an arrest, in which burden of proof is on the licensed, not the state.

You got it.

 

[JMoses]

What would be his reason for stopping you? That's like frisking me when I left the store to make sure I didn't steal a pack of gum

See stephen87's post above.

 

[actaeon277]

From my meager understanding of the law....
If you are driving a car, it is wrong for a police officer to pull you over for the sole purpose of checking your license.
But if you are carrying a pistol, it is okay for a police officer to request you license to carry, for the sole purpose of checking your license.


If an officer asks to see my "permit", he gets to see the license. I figure he don't need more crap than he already has.
But if he tells me to cover, now we're talkin.

 

[Frank_N_Stein]

Frank, do you know something we do not? As far as I understand it, if you are carrying a handgun, you are breaking the law. That is black and white. Specific exemptions are set forth for citizens to carry a handgun, LTCH for instance. It is not illegal/unconstitutional for an officer to ask for a LTCH when seeing a handgun. Failure to prove that you are licensed CAN result in an arrest, in which burden of proof is on the licensed, not the state.

I need to find the caselaw but I was told by the IMPD Legal Advisor (a cop that is also a lawyer) that absent reasonable suspicion or probable cause that the person is carrying the gun illegally or has committed a crime, an officer cannot approach them and ask to see the LTCH.

 

[88GT]

You're correct in that the officer was out of line in telling you to cover it up, it's your decision, but he did have a [STRIKE]right[/STRIKE] authority/power to ask you for your LTCH.

Slight adjustment.

What would be his reason for stopping you? That's like frisking me when I left the store to make sure I didn't steal a pack of gum

Because Indiana law, as written makes the carrying of a firearm illegal. Period. There is an affirmative defense (I think that's the legal term) if one has an LTCH. In this case, the affirmative defense is applied instantaneously instead of going through the motions of a court proceeding. So the answer to your question is that simply having the firearm is technically grounds to ask you for your LTCH....as the law is written.

 

[GodFearinGunTotin]

I need to find the caselaw but I was told by the IMPD Legal Advisor (a cop that is also a lawyer) that absent reasonable suspicion or probable cause that the person is carrying the gun illegally or has committed a crime, an officer cannot approach them and ask to see the LTCH.

I started to bring this up but couldn't remember if this was just a IMPD policy or based on case law.

 

[Nmathew24]

I need to find the caselaw but I was told by the IMPD Legal Advisor (a cop that is also a lawyer) that absent reasonable suspicion or probable cause that the person is carrying the gun illegally or has committed a crime, an officer cannot approach them and ask to see the LTCH.

Are you thinking of Terry v. Ohio? I was...

 

[88GT]

I need to find the caselaw but I was told by the IMPD Legal Advisor (a cop that is also a lawyer) that absent reasonable suspicion or probable cause that the person is carrying the gun illegally or has committed a crime, an officer cannot approach them and ask to see the LTCH.

Is this related to the "new" policy IMPD is taking based on the prevalence of OCing around the city/county? I know we discussed this a while back in another thread.

 

[GodFearinGunTotin]

Is this related to the "new" policy IMPD is taking based on the prevalence of OCing around the city/county? I know we discussed this a while back in another thread.

That's what I was thinking 88GT--it was just a policy. But I wasn't sure. It's a good one though.

 

[stephen87]

What would be his reason for stopping you? That's like frisking me when I left the store to make sure I didn't steal a pack of gum

Since IN requires s LTCH for a citizen to legally carry a handgun in public, it would be the possibility of carrying a handgun without a license.

I need to find the caselaw but I was told by the IMPD Legal Advisor (a cop that is also a lawyer) that absent reasonable suspicion or probable cause that the person is carrying the gun illegally or has committed a crime, an officer cannot approach them and ask to see the LTCH.

If you find it, I would LOVE to read it. I had thought that another IMPD officer on the forum stated that it was the ruling out of NC, I believe that's where it was, that said that open carrying a handgun was not RAS. However, from my understanding, and not reading the actual law for that state, that state is an open carry state and the case law was a district ruling and not a national ruling.

 

[Frank_N_Stein]

Are you thinking of Terry v. Ohio? I was...

It is based on Terry v. Ohio but not the same case.

 

[Frank_N_Stein]

Is this related to the "new" policy IMPD is taking based on the prevalence of OCing around the city/county? I know we discussed this a while back in another thread.

It is related, but it is caselaw and not just an unwritten policy. I texted the officer and am waiting for a reply.

 

[Smokepole]

If the OP pushed the issue and not shown the officer his LTCH or supply his name and DOB, the OP could have been arrested.

I didn't suggest that he should have, nor did anyone else that I recall. The OP stated in the post that he handed it to the DB cop.

 

[jbombelli]

For what? Srsly?

[FONT=TimesNewRomanPSMT,Bold][FONT=TimesNewRomanPSMT,Bold]IC 35-47-2-1 Version a


Carrying a handgun without being licensed; exceptions; person


convicted of domestic battery
[FONT=TimesNewRomanPSMT,Bold][FONT=TimesNewRomanPSMT,Bold][/FONT][/FONT]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 (c), a person may carry a

handgun without being licensed under this chapter to carry a

handgun if:

(1) the person carries the handgun on or about the person's body

in or on property that is owned, leased, rented, or otherwise

legally controlled by the person;

(2) the person carries the handgun on or about the person's body

while lawfully present in or on property that is owned, leased,

rented, or otherwise legally controlled by another person, if the

person:

(A) has the consent of the owner, renter, lessor, or person

who legally controls the property to have the handgun on the

premises;

(B) is attending a firearms related event on the property,

including a gun show, firearms expo, gun owner's club or

convention, hunting club, shooting club, or training course;

or

(C) is on the property to receive firearms related services,

including the repair, maintenance, or modification of a

firearm;

(3) the person carries the handgun in a vehicle that is owned,

leased, rented, or otherwise legally controlled by the person, if

the handgun is:

(A) unloaded;

(B) not readily accessible; and

(C) secured in a case;

(4) the person carries the handgun while lawfully present in a

vehicle that is owned, leased, rented, or otherwise legally

controlled by another person, if the handgun is:

(A) unloaded;

(B) not readily accessible; and

(C) secured in a case; or

(5) the person carries the handgun:

(A) at a shooting range (as defined in IC 14-22-31.5-3);

(B) while attending a firearms instructional course; or

(C) while engaged in a legal hunting activity.

(c) Unless the person's right to possess a firearm has been restored

under IC 35-47-4-7, a person who has been convicted of domestic

battery under IC 35-42-2-1.3 may not possess or carry a handgun.

(d) This section may be not construed:

(1) to prohibit a person who owns, leases, rents, or otherwise

legally controls private property from regulating or prohibiting

the possession of firearms on the private property;

(2) to allow a person to adopt or enforce an ordinance,

resolution, policy, or rule that:

(A) prohibits; or

(B) has the effect of prohibiting;

an employee of the person from possessing a firearm or

ammunition that is locked in the trunk of the employee's

vehicle, kept in the glove compartment of the employee's locked

vehicle, or stored out of plain sight in the employee's locked

vehicle, unless the person's adoption or enforcement of the

ordinance, resolution, policy, or rule is allowed under

IC 34-28-7-2(b); or

(3) to allow a person to adopt or enforce a law, statute,

ordinance, resolution, policy, or rule that allows a person to

possess or transport a firearm or ammunition if the person is

prohibited from possessing or transporting the firearm or

ammunition by state or federal law.

[/FONT][/FONT][FONT=TimesNewRomanPSMT,Italic][FONT=TimesNewRomanPSMT,Italic]As added by P.L.311-1983, SEC.32. Amended by P.L.326-1987,

SEC.1; P.L.195-2003, SEC.6; P.L.98-2004, SEC.155; P.L.118-2007,

SEC.35; P.L.164-2011, SEC.1; P.L.6-2012, SEC.231
[/FONT][/FONT][FONT=TimesNewRomanPSMT,Italic][FONT=TimesNewRomanPSMT,Italic][/FONT][/FONT]

[FONT=TimesNewRomanPSMT,Bold][FONT=TimesNewRomanPSMT,Bold]IC 35-47-2-24

Indictment or information; defendant's burden to prove exemption

or license; arrest, effect of production of valid license, or

establishment of exemption

[/FONT][/FONT][FONT=TimesNewRomanPSMT,Bold][FONT=TimesNewRomanPSMT,Bold][/FONT][/FONT]Sec. 24. (a) In an information or indictment brought for the

enforcement of any provision of this chapter, it is not necessary to

negate any exemption specified under this chapter, or to allege the

absence of a license required under this chapter. The burden of proof

is on the defendant to prove that he is exempt under section 2 of this

chapter, or that he has a license as required under this chapter.

(b) Whenever a person who has been arrested or charged with a

violation of section 1 of this chapter presents a valid license to the

prosecuting attorney or establishes that he is exempt under section 2

of this chapter, any prosecution for a violation of section 1 of this

chapter shall be dismissed immediately, and all records of an arrest

or proceedings following arrest shall be destroyed immediately.

[FONT=TimesNewRomanPSMT,Italic][FONT=TimesNewRomanPSMT,Italic]As added by P.L.311-1983, SEC.32.
[/FONT][/FONT][FONT=TimesNewRomanPSMT,Italic][FONT=TimesNewRomanPSMT,Italic][/FONT][/FONT]

The best part is in red above. If you have time to waste, just tell them you "don't have a permit." After all, you don't. You have a LICENSE. Eventually they'll have to let you go and destroy all the records.

 

[88GT]

That's what I was thinking 88GT--it was just a policy. But I wasn't sure.

I was under the impression that IMPD was just changing policy and acknowledging that in the absence of evidence to the contrary, the mere act of carrying a firearm shouldn't be viewed as illegal or sufficient in itself to stop someone. I don't remember a specific case law being discussed in the thread on this topic, but that doesn't mean much. It may have been mentioned and I simply forgot, or didn't see the post (I confess I don't follow threads to their end sometimes. Oh the horror )

It's a good one though.

Absolutely!!!!! I will not complain one bit about not having to worry about being seen as a de facto criminal just because Indiana contradicts itself by requiring a permission slip to exercise a right. A big +1 to IMPD for recognizing this and acting accordingly.

 

[JMoses]

It is related, but it is caselaw and not just an unwritten policy. I texted the officer and am waiting for a reply.

LOL, if that were the case, we'd need to start telling all the serious violent felons to just start open carrying.

 

[Smokepole]

I've got him

Thank you sir.

 

[88GT]

It is related, but it is caselaw and not just an unwritten policy. I texted the officer and am waiting for a reply.

Sweet. Thanks. I appreciate your efforts in this. I didn't realize there was case law attached to it. It's good enough if IMPD is just changing policy. But it's even better that case law now sets a precedent for it as well.

 

[JMoses]

I didn't suggest that he should have, nor did anyone else that I recall. The OP stated in the post that he handed it to the DB cop.

The OP stated in his first post that he thought about not showing the officer.

 

[stephen87]

Per Denny347, one of the case laws used for that ruling was Black v. U.S. No. 11-5084 (4th Cir. 2013) http://www.ca4.uscourts.gov/opinions...d/115084.p.pdf.

It is out of the 4th circuit and is an open carry state.
https://www.indianagunowners.com/forums/carry-issues-self-defense/305011-impd-oc-legal-updates.html