Indiana Court of Appeals and Handgun Possession

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  • T.Lex

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    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?

    The middle option: they want to hear the case and haven't made up their mind yet.

    It is basically a functional solution to have the CoA decision vacated once transfer is granted. The CoA opinion is precedential (basically) from the moment it is published. If that decision wasn't vacated, you could have parties out there using it for authority while the ISC decides whether it should be or not.

    That'd be bad. :)

    Is the CoA opinion likely to be repeated as the ISC opinion?
    Rarely, but sometimes, they adopt a CoA opinion in whole or in part. It is rare, though, because if each justice immediately and completely agreed with the CoA opinion, then they wouldn't need to grant transfer. :)

    The most we can read into the transfer grant is that a majority of justices believe there are one or more issues worthy of being addressed by the ISC.

    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.")

    If this case stands, it isn't exactly constitutional carry. If police have RAS of a crime, they can detain the suspect, determine that the suspect should not have a firearm, and then arrest them for CHWOL (Carrying a Handgun With Out a License).

    With constitutional carry, that crime would no longer exist.

    The display of a firearm would not - standing alone - provide the RAS necessary to detain, if this case stands.

    A note of caution: the interaction between this guy and police is what the State is making the focus. The State's position is that the interaction was voluntary, that there was no detention of Pinner. The problem came when Pinner denied he had a firearm, then began acting nervously. If an officer can point to reasons that he is concerned about his safety, he can disarm even a legal possessor of a firearm.

    If the officer searched and found the handgun based on a reasonable concern for his safety, even in a voluntary interaction, and found the wrongly-carried handgun in the process, then this case gets decided in such a way that really avoids what the CoA decided.
     

    MarkC

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    If this case stands, it isn't exactly constitutional carry. If police have RAS of a crime, they can detain the suspect, determine that the suspect should not have a firearm, and then arrest them for CHWOL (Carrying a Handgun With Out a License).

    CHWOL.... I haven't seen that in a while! :):

    But I have to agree with a main point: It is hard to read anything into the ISC's decision to grant transfer.
     

    Bill of Rights

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    Where's the bacon?
    OK, that makes sense. Personally, I'd prefer they looked at it, said, "Cool with me." and let it stand. That they said, "umm... let's look at that, shall we?" tells me that the issue MIGHT be "hey, we want our cops able to stop those nefarious characters! Let's not take the tools they use to do THAT!" but at the same time, I recognize it could be anything. I'm hopeful that your read on the ISC justices means they want to make Pinner do for Indiana LTCH what Delaware v. Prouse did for the driver's license.

    With a good, honest cop (the overwhelming majority of them!) I'm good with "if the officer can point to a reasonable, articulable concern for his/her safety, s/he can still disarm and/or search". I am, of course, concerned about running into the one penile corona that, for example, says you made a "furtive movement" when you slowly reached for your wallet and jams you up for it.

    Not germane to this case, but I was reminded of it by the last sentence. I still don't like the automatic presumption of truth given to anyone. It's like the parents that show up at school and won't believe their little darling did anything wrong unless they're presented absolutely undeniable proof that it happened. Those children learn quickly that they can get away with an awful lot as long as they either have no one as a witness or a group of them who have agreed to say the same thing. I'm not sure what the solution is, but to say that the officer doesn't benefit by lying, so therefore we'll assume his testimony should carry greater weight...that, to me, is problematic.

    Once again, I greatly appreciate you taking the time to explain what all of this means to John Q. Hoosier, and the various ways it could shake out when they finally give their opinion. I'll be subscribing here and watching this thread for more details.

    Blessings,
    Bill

    The middle option: they want to hear the case and haven't made up their mind yet.

    It is basically a functional solution to have the CoA decision vacated once transfer is granted. The CoA opinion is precedential (basically) from the moment it is published. If that decision wasn't vacated, you could have parties out there using it for authority while the ISC decides whether it should be or not.

    That'd be bad. :)


    Rarely, but sometimes, they adopt a CoA opinion in whole or in part. It is rare, though, because if each justice immediately and completely agreed with the CoA opinion, then they wouldn't need to grant transfer. :)

    The most we can read into the transfer grant is that a majority of justices believe there are one or more issues worthy of being addressed by the ISC.



    If this case stands, it isn't exactly constitutional carry. If police have RAS of a crime, they can detain the suspect, determine that the suspect should not have a firearm, and then arrest them for CHWOL (Carrying a Handgun With Out a License).

    With constitutional carry, that crime would no longer exist.

    The display of a firearm would not - standing alone - provide the RAS necessary to detain, if this case stands.

    A note of caution: the interaction between this guy and police is what the State is making the focus. The State's position is that the interaction was voluntary, that there was no detention of Pinner. The problem came when Pinner denied he had a firearm, then began acting nervously. If an officer can point to reasons that he is concerned about his safety, he can disarm even a legal possessor of a firearm.

    If the officer searched and found the handgun based on a reasonable concern for his safety, even in a voluntary interaction, and found the wrongly-carried handgun in the process, then this case gets decided in such a way that really avoids what the CoA decided.
     

    MarkC

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    . . .
    With a good, honest cop (the overwhelming majority of them!) I'm good with "if the officer can point to a reasonable, articulable concern for his/her safety, s/he can still disarm and/or search". I am, of course, concerned about running into the one penile corona that, for example, says you made a "furtive movement" when you slowly reached for your wallet and jams you up for it.

    . . .
    Blessings,
    Bill

    Not as bad as the one penile corona that concerns you, as above, but for a while, the management of a large Indiana police department had to put the word out to the officers to QUIT TAKING HANDGUNS AWAY FROM PERMIT HOLDERS AND DISASSEMBLING THEM before giving them back after a traffic stop.

    No, really. We had to put the word out to the field.
     

    MarkC

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    Seriously? What do they call them now? :D

    But yeah, was about 12 years ago that I wasn't one of those anymore.

    Still Carrying a Handgun Without a License; just don't see the abbreviation.

    It was a contemporary of OMVUIL (Operating a Motor Vehicle Under the Influence of Liquor). ;)
     

    Bill of Rights

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    Where's the bacon?
    Not as bad as the one penile corona that concerns you, as above, but for a while, the management of a large Indiana police department had to put the word out to the officers to QUIT TAKING HANDGUNS AWAY FROM PERMIT HOLDERS AND DISASSEMBLING THEM before giving them back after a traffic stop.

    No, really. We had to put the word out to the field.

    This is my surprised face
    unimpressed.png
    When the Terre Haute PD was telling people that OC was against the law and the Evansville PD had to have the ISP tell them to knock off requiring photos for a LTCH... Not to mention the IMPD requiring fingerprints to get your gun back out of the property room if you had the misfortune to have it end up there (to my knowledge, this is still happening) yeah. Lots of those penile coronas in upper ranks. Fortunately, the line officers who are cut of that cloth are fewer and farther between.

    Blessings,
    Bill
     

    T.Lex

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    Transfer granted on Pinner. The Indiana Law Blog: Ind. Decisions - Transfer list for week ending Nov. 25, 2016

    I do not see the Indiana Supreme Court upholding the ICoA on this. It would be re-writing the statute. Don't see this Court going there. Wait and see.

    Dude. Fargo scooped you by a week (or so). ;)

    I see a technical disposition that avoids the issue we really want resolved.
     

    T.Lex

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    Pinner set for oral argument Thursday December 16, 2016 at 9AM:

    Indiana Appellate Clerk's Portal

    Now that is scoopification. :D. (Except it is Thursday, Dec. 15, not 16th. That's a Friday.)

    Shall we live-blog the video-stream in this thread or start a new one? :) Unfortunately, I won't be downtown to watch the live show.

    ETA:
    Absolutely not something to read anything into, but the summary, likely prepared by an intern, reads:
    The Marion Superior Court denied Thomas Pinner’s motion to suppress evidence. On interlocutory appeal, a majority of the Court of Appeals reversed, holding police made an investigatory stop for which they lacked reasonable suspicion in violation of the Fourth Amendment. Pinner v. State, 59 N.E.3d 275 (Ind. Ct. App. 2016), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.

    From at least one person's perspective, that is the issue of the case.

    (Yes, these particular tea leaves are more inscrutable than others.)

    ETA2:

    Now that I look at it, this is actually fast-tracked, it appears. The order issued 11/23 (the day before Thanksgiving), and the parties usually have 15 days to confirm they will be there. The OA is VERY soon thereafter.
     
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    Libertarian01

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    So, lawyer type people, will we know anything by this time tomorrow?

    I know there won't be a decision, but will we have any idea of the trajectory of the case?

    Doug
     

    T.Lex

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    So, lawyer type people, will we know anything by this time tomorrow?

    I know there won't be a decision, but will we have any idea of the trajectory of the case?

    Doug

    I'll let T. Lex be the haruspex on the oral argument.
    Yeah, the easy answer is that we won't "know" anything. We'll have marginally more entrails to interpret, but that's about it. :)

    Well, I will qualify that. We should be able to gauge the appetite of the court to get into the handgun-possession-as-RAS angle that we really want addressed. For INGO purposes, if they ask any questions about that, it'll be a positive sign. If they avoid it, then that suggests they'll be looking at the technical shortcut out of that trick box.
     

    T.Lex

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    Twas the argument morning
    And all through the court
    Lawyers listened for a final warning
    For something sounding in law or tort

    Sheafs of papers were neatly shuffled,
    Notes of precedent tabbed and organized,
    Comments diluted to avoid feathers ruffled,
    Roadmaps and high points were well exercised.

    [dangit was interrupted]

    Looks like it is about to start.
     
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