Indiana Court of Appeals and Handgun Possession

[Fargo]

Well, that's somewhat mitigated by the fact that a different attorney would probably handle transfer/OA in the ISC. That is, and this is based on familiarity with how it was done nearly 10 years ago now, Tom Fisher gets dibs on anything going to the ISC. If he wants to take the case, then he can try to fix any of those issues.

Even having said that, though, I think the COA was too harsh on the AG's argument. In at least one place, the COA said an argument was unaddressed when it actually was. That's the kind of thing that can help bolster a transfer petition - that the COA didn't even understand the arguments being made.

That's the kind of thing a Solicitor General can argue that a line DAG probably can't.

If there's no xfer petition, I think it is because they'd rather wait for "better" facts to bring it to the ISC. See if they can get a split among the COAs. That's pure speculation, though.

I am not really certain that the argument that the Court of Appeals said was unaddressed wasn't actually unaddressed. The states brief explicitly said that the question of if a handgun alone met reasonable suspicion was not before the court, despite that being the question certified to the court. It did mention possible reasonable suspicion for carrying a handgun without a license, but as I recall it was in the context of additional information such as the lie about the handgun.

I'm going to go back and reread the States brief to see if I'm remembering this correctly.

Edit. After going back and rereading the brief and opinion, it does appear to me that the state did leave the question of whether the handgun alone was adequate for reasonable suspicion unaddressed. Since both the trial court and the appellate court found that the interaction began as a Terry stop, that issue has to be addressed. Instead, the state only appears to have addressed the issue of whether the totality of the circumstances, including the lie and subsequent finding of the handgun met reasonable suspicion.

 

[HoughMade]

...One could have been filed, but not entered into the system yet. Really, I'd give it until tomorrow. If it was filed Friday, it could still take that long to show up...

[video=youtube;otZKdoHs06g]https://www.youtube.com/watch?v=otZKdoHs06g[/video]

 

[Kirk Freeman]

Im with Tlex in that if there is no petition, I think it may have been a conscious decision, albeit for a different reason. The state's briefs had some serious omissions in them and the opinion seemed to really focus on those. When you have work product on record which has already been ripped by the COA, maybe you don't want to highlight it?

You very well may be correct, but to me, in my reptilian mind, given the sea change in law that Pinner represents, I cannot comprehend blowing the transfer deadline as conscious.

 

[HoughMade]

You very well may be correct, but to me, in my reptilian mind, given the sea change in law that Pinner represents, I cannot comprehend blowing the transfer deadline as conscious.

In my mind, in a profession ruled by deadlines, especially in the appellate practice, I can't fathom a non-conscious decision to let the deadline pass.

 

[T.Lex]

Yeah, there are (or were, and I assume still are) multiple layers of calendaring. There's occasionally an appellee's brief deadline that gets missed, but this would be a colossal mixup if it was missed.

 

[Fargo]

Petition to transfer was filed on Friday apparently. It is an interesting one, once again it doesn't really address the reasonable suspicion at the outset question and instead focuses solely on the consensual encounter. https://public.courts.in.gov/mycase...UazRNRGd4TmpFMk1qa3dPamMzT1RNeE9URXlaakE9In19

Link to transfer petition.

https://public.courts.in.gov/mycase...LQgDAfsV_IPfYhLpFOPmtm0KATbrqI8kOVqU7UxpRxlI0

 

[jamil]

Petition to transfer was filed on Friday apparently. It is an interesting one, once again it doesn't really address the reasonable suspicion at the outset question and instead focuses solely on the consensual encounter. https://public.courts.in.gov/mycase...UazRNRGd4TmpFMk1qa3dPamMzT1RNeE9URXlaakE9In19

Link to transfer petition.

https://public.courts.in.gov/mycase...LQgDAfsV_IPfYhLpFOPmtm0KATbrqI8kOVqU7UxpRxlI0

Killjoy!

 

[Fargo]

Killjoy!

Yeah, pretty much. Ah Ahm Deeeeeeeepresssed.

 

[T.Lex]

Well, I go back to the proposition that ISC review won't necessarily be a bad thing. I feel like I have a good read on a couple of the justices, and believe them to be pro-2A. Another one that I'm not sure of, but I hold in great esteem. That justice probably won't reach the issue if it is possible to resolve without reaching it, which is possible in this case.

If they reverse the COA, it is narrowly, with a reserved question as to whether visible gun possession is RAS. If they want to decide that issue, they may wait for different facts.

In a hope-against-hope kinda way, I'd love for them to affirm the COA.

 

[Libertarian01]

...........................................

Ok................ Fine.

So now that we move into the final(?) phase of legal combat, what kind of timeline are we looking at here? Weeks, monthes, or longer?

Thanks,

Doug

 

[Fargo]

...........................................

Ok................ Fine.

So now that we move into the final(?) phase of legal combat, what kind of timeline are we looking at here? Weeks, monthes, or longer?

Thanks,

Doug

Nothing is really predictable with certainty, but I would ballpark month or two if transfer denied. Well into next year if transfer granted.

COA opinion remains good law until such time as transfer is granted, if it is.

 

[Bill B]

I'm sorry, but I don't believe that a reasonable person would believe that the stop, as described, was consensual. If I's sitting down and two officers approach me and stand in front of me with a space between them I see it as a tactical maneuver on their part, not as leaving a gap that I can leave through.

 

[T.Lex]

Nothing is really predictable with certainty, but I would ballpark month or two if transfer denied. Well into next year if transfer granted.

COA opinion remains good law until such time as transfer is granted, if it is.

^ This.

The decision on transfer will be made in <60 days, probably. That's the decision the ISC makes on whether to even accept the case. If transfer is denied (they don't want the case), then the COA opinion is the law of Indiana until another case reaches the ISC.

If transfer is granted, the COA opinion is treated as vacated - non-existent. Oral argument will be scheduled. Since the transfer decision itself will be either right before or during the holidays, chances are that it won't happen until after the first of the year. Additional briefing may be ordered before or after oral argument. After oral argument, probably 3-6 months for a decision. So next Spring to Summer is what I'd expect.

There is another option - they can withhold a decision on transfer and order oral argument/briefing pending transfer. That's basically saying that they need more information before deciding whether to grant transfer.

Another obscure wrinkle, they can grant transfer, have oral argument/briefing, then decide they shouldn't have granted transfer. "Transfer Improvidently Granted." Happened to me once. Pissed me off. There was a meaty issue that they decided had procedural baggage, so waited for a different case. In that case, I believe the COA opinion is reinstated.

The defense bar is likely looking for promising cases with similar fact patterns to preserve errors and appeal. These things tend to come in waves, like Barnes. An idea takes root and you start seeing other cases with the same issue.

 

[HoughMade]

The focus on whether the encounter was consensual and the inclusion of additional facts such that the case could be reversed and a visible gun alone​ would not be reasonable suspicion may mean we could win either way.

 

[T.Lex]

ISC is considering transfer, as of October 20. State's request for transfer focuses on the voluntary interaction angle.

Difficult to tell how long this will be considered.

 

[HoughMade]

ISC is considering transfer, as of October 20. State's request for transfer focuses on the voluntary interaction angle.

Difficult to tell how long this will be considered.

In the good(?) old days, as I'm sure you know, seems like about 80% of the time you know whether they granted transfer when the opinion game out. It seems like they give a transfer-no transfer decision faster these days and 3 to 8 months from the opinion below seems to be the decision range.

 

[T.Lex]

In the good(?) old days, as I'm sure you know, seems like about 80% of the time you know whether they granted transfer when the opinion game out. It seems like they give a transfer-no transfer decision faster these days and 3 to 8 months from the opinion below seems to be the decision range.

haha

Yeah. I remember asking that very question when I started in appellate practice.
"When do you find out if they grant transfer?" asked I.
"When you read the opinion." was the response.

Did you see the Caterpillar case? They sat on that xfer petition about a month. I noticed that there haven't been any xfer dispositions noted on the website for a few weeks, and there probably won't be this Friday, so there might be a slew of them on the 2nd.

Part of me still thinks this might get oral argument before the transfer decision. If they don't deny transfer right away, this one probably won't get kickstarted again until after January. I doubt this'll get fast tracked.

 

[Fargo]

Transfer granted:

https://public.courts.in.gov/mycase...cT2Hy7Bp8CZVZElcNKyykmJufTVj42-WROQ3YKsZ4cMP0

https://public.courts.in.gov/mycase...EazNNVEV3TmpFek1qRXhPakEzTWprd09UUXlNMlU9In19

 

[T.Lex]

Transfer granted:

https://public.courts.in.gov/mycase...cT2Hy7Bp8CZVZElcNKyykmJufTVj42-WROQ3YKsZ4cMP0

https://public.courts.in.gov/mycase...EazNNVEV3TmpFek1qRXhPakEzTWprd09UUXlNMlU9In19

Dang!

(But I don't think your links work.)

Means opinion is vacated, as if it hadn't happened.

 

[Bill of Rights]

OK, so CoA said possession of a handgun does not justify being stopped to verify licensure, but ISC now says "We vacate that opinion (by saying we'll hear the case)".

I think that's the one-line synopsis of the events so far.

Does that mean that ISC disagrees and wants to reverse, that ISC just wants to hear more and hasn't made up their mind yet, or some other outcome? Is the CoA opinion likely to be repeated as the ISC opinion?

If so, does that make Indiana effectively Constitutional Carry? (that is, "technically, you need a LTCH, but if you don't have one, don't otherwise break the law and no one will ever know.")

I don't advocate breaking the law, but on a quick re-read of a few posts in this thread, that's the impression I've gotten and the meaning of that latter possible outcome, respectively.

Thanks for following this and explaining it for us, gents.

Blessings,
Bill

Dang!

(But I don't think your links work.)

Means opinion is vacated, as if it hadn't happened.