Need Some quick help with a legal question

[CathyInBlue]

The only thing that remotely makes the disarming legal was the subject's refusal to provide evidence of licensure, which gave rise to legitimate RAS for carrying a handgun without being licensed, per IC 35-47-2-1 et seq. Had he either: A) produced his little pink permission slip, B) recited his LTCH License number for the officers to call up on their IDACS terminals, or C) given his ID as name, address, and DoB, again for looking up LTCH status on IDACS, disarming him would have been a violation of his rights under IC 35-47-11.1. Disarming him would also have been a violation of 11.1 if he had been on his own property and any of the officers present suspected or knew that fact. This situation will be vastly simplified once Indiana adopts Constitutional carry for at least open carry. Then, there won't even be this small measure of power LEOs have over OCers.

In any case, his refusal to ID was entirely legitimate and I applaud the officers for letting that drop. IC 34-28-5-3.5 is clear, there is no legal obligation for a pedestrian to ID themselves, unless the officer already has RAS that they have committed an infraction or a an ordinance violation. Misdemeanors and felonies don't work for a refusal to ID charge. Carrying a handgun without a license is a misdemeanor charge, but IDing, per 34-28-5-3.5 is one way of providing proof of licensure.

I also applaud them, or at least Socomike (Is that SOCOM Mike or SOCOM Ike, btw?), for seeking the opinions of others to flesh out his self-admittedly lacking legal knowledge base. That alone puts him head and shoulders above more Indiana LEOs.

Socom's absolutely right in that no LEO can be expected to know the entire body of the law, but every LEO can be expected, as a matter of both professionalism and law, to know the laws that he attempts to enforce. See Gunn V State (2011) for what happens when they don't. Further, if they run into someone who knows the law they're trying to enforce better than they do, and they are attempting to enforce non-law as if it were law, IC 35-41-3-2(i) — 2(k) insures their victims' rights to resist their unlawful conduct. The first rule of enforcing any law, if be damn sure you know the law you're trying to enforce.

 

[KJQ6945]

Why does the man with the gun have to produce a LTCH? He hadn't violated any laws and the officers had no reasonable suspicion he was about to. They can't demand your papers.

Carrying a pistol does not rise to the standards of Terry. There has to be something else to get it to that level. Most officers use "officer safety" that doesn't hold water unless they can show a threat. This guy, along with all the YouTube video guys, knew the law better than the officers on the scene.

 

[Bunnykid68]

I appreciate the conversation. Again. I was only bothering the subject because we were getting a flood of calls stating no more than a man was walking down the street with a rifle.

We responded non emergent and no guns were drawn. A conversation took place. I will admit I am only a 1 year veteran at this point. There were a few officers with 10-15 years of experience doing most of the initial interacting.

They asked for ID. He declined. That issue was dropped. He was asked for his handgun license. He declined that as well. At that point he was asked to allow an Officer to disarm him until we could I'd him. He declined. Then he was disarmed. His guns were taken off his person and handed to another Officer who was standing away from the subject.

I don't think we enforced anything we weren't sure about. Being new and never dealing with this, I can admit I was foggy on the specifics. Other officers were not.

He refused to show LTCH, within the confines of the law as written, I have no problems with the way this stop went down.

 

[Bunnykid68]

Why does the man with the gun have to produce a LTCH? He hadn't violated any laws and the officers had no reasonable suspicion he was about to. They can't demand your papers.

Carrying a pistol does not rise to the standards of Terry. There has to be something else to get it to that level. Most officers use "officer safety" that doesn't hold water unless they can show a threat. This guy, along with all the YouTube video guys, knew the law better than the officers on the scene.

The idiot carrying the guns did not know the laws, officers are good to go on this one. Carrying a handgun is AGAINST THE LAW unless you have permission from the State.

 

[Exodus]

You can be asked to show your LTCH at anytime while carrying.

Edit: bunny beat me to it while I was catching up on the thread.

 

[Benny]

I appreciate the conversation. Again. I was only bothering the subject because we were getting a flood of calls stating no more than a man was walking down the street with a rifle.

We responded non emergent and no guns were drawn. A conversation took place. I will admit I am only a 1 year veteran at this point. There were a few officers with 10-15 years of experience doing most of the initial interacting.

They asked for ID. He declined. That issue was dropped. He was asked for his handgun license. He declined that as well. At that point he was asked to allow an Officer to disarm him until we could I'd him. He declined. Then he was disarmed. His guns were taken off his person and handed to another Officer who was standing away from the subject.

I don't think we enforced anything we weren't sure about. Being new and never dealing with this, I can admit I was foggy on the specifics. Other officers were not.

He declined to show his LTCH while he was OCing a pistol?

Well, since it's illegal to carry a handgun in Indiana and having an LTCH is what makes it legal, it sounds like you guys were more than patient with him.

Granted, I don't think you should stop everyone just for OCing (it's the main reason I CC), but since the stop was made he should have shown the LTCH.

 

[KJQ6945]

You can be asked to show your LTCH at anytime while carrying.

Edit: bunny beat me to it while I was catching up on the thread.

On what grounds can they demand a license? You cannot be detained unless they have reasonable suspicion at a minimum.

I provided a link earlier, but apparently no one has read it.

Chief's Counsel

Chief’s Counsel: Responding to Gun Possession Reports

By John M. Collins, Esq., General Counsel, Massachusetts Chiefs of Police Association, Shrewsbury, Massachusetts







ecause it is legal in most states to carry a handgun if properly licensed, a report that an individual possesses a handgun, without any additional information suggesting criminal activity, might not create reasonable suspicion that a crime is being or will be committed.1 Where simply carrying a handgun is not in itself illegal and does not constitute probable cause to arrest,2 it follows that carrying a handgun, in and of itself, does not furnish reasonable suspicion justifying a Terry stop. The same applies to persons in motor vehicles. An investigatory stop is only justified when the police have "a reasonable suspicion, based on specific, articulable facts and reasonable inferences there from," that the subject "had committed, was committing, or was about to commit a crime."3


Here's the link again.

Police Chief Magazine - View Article

An attorney for "Police Chief Magazine" says you can't be stopped just for carrying a handgun. Tell me how he is wrong.

 

[rockhopper46038]

Is that SOCOM Mike or SOCOM Ike, btw?

I thought maybe it was SOCO Mike, and he happened to be a fan of that dastardly poor substitute for good whiskey...

 

[KJQ6945]

He declined to show his LTCH while he was OCing a pistol?

Well, since it's illegal to carry a handgun in Indiana and having an LTCH is what makes it legal, it sounds like you guys were more than patient with him.

Granted, I don't think you should stop everyone just for OCing (it's the main reason I CC), but since the stop was made he should have shown the LTCH.

I'm looking for someone to prove me wrong.

It's illegal to drive on the road. Having a license makes it legal. The police can't stop you for driving a car just to see if you have a license. In order to make a traffic stop they need probable cause.

To be stopped while walking down the road they need reasonable suspicion to detain you and demand anything. Carrying a pistol is not reasonable suspicion. So why do you feel that you are required to provide a LTCH? If there is something I'm missing, I really want to know.

 

[Bunnykid68]

I'm looking for someone to prove me wrong.

It's illegal to drive on the road. Having a license makes it legal. The police can't stop you for driving a car just to see if you have a license. In order to make a traffic stop they need probable cause.

To be stopped while walking down the road they need reasonable suspicion to detain you and demand anything. Carrying a pistol is not reasonable suspicion. So why do you feel that you are required to provide a LTCH? If there is something I'm missing, I really want to know.

There is case law pertaining to the driving example you are using. Carrying a handgun is against the law according to Indiana Code, the LTCH is the exemption one must have to not be breaking that law.

 

[Socomike]

I thought maybe it was SOCO Mike, and he happened to be a fan of that dastardly poor substitute for good whiskey...

Haha it is SOCOM Mike. SOCOM for..well obviously SOCOM haha. Mike for my first name as you probably guessed. Although when I read it in my head I read it as SOCOM Ike.

I am enjoying the discussion on this. I feel like we did everything as right as we could. I am feeling more confident of my knowledge base as the discussion goes on. Cheers to everyone here for that.

 

[KJQ6945]

There is case law pertaining to the driving example you are using. Carrying a handgun is against the law according to Indiana Code, the LTCH is the exemption one must have to not be breaking that law.

Agreed.
But they still have to have reasonable suspicion to stop, or probable cause to arrest. They have to have something to demand your papers.

Hypothetical here.

Me and you are at Atterbury shooting. We have several SBR's and suppressors. DNR comes to the range and detains us until we provide tax papers. (Stamps)

They have to have some reasonable suspicion that we have or are about to commit a crime to detain us and demand anything. SBR's and suppressors are illegal in Indiana, unless you have a stamp. Are you required to produce it to anybody that demands to see it? The form 4 states you have to produce it at the request of the ATF, but that's even questionable. At what point does it become unreasonable search and seizure in your opinion?

 

[tyrajam]

On what grounds can they demand a license? You cannot be detained unless they have reasonable suspicion at a minimum.

I provided a link earlier, but apparently no one has read it.

Chief's Counsel

Chief’s Counsel: Responding to Gun Possession Reports

By John M. Collins, Esq., General Counsel, Massachusetts Chiefs of Police Association, Shrewsbury, Massachusetts







ecause it is legal in most states to carry a handgun if properly licensed, a report that an individual possesses a handgun, without any additional information suggesting criminal activity, might not create reasonable suspicion that a crime is being or will be committed.1 Where simply carrying a handgun is not in itself illegal and does not constitute probable cause to arrest,2 it follows that carrying a handgun, in and of itself, does not furnish reasonable suspicion justifying a Terry stop. The same applies to persons in motor vehicles. An investigatory stop is only justified when the police have "a reasonable suspicion, based on specific, articulable facts and reasonable inferences there from," that the subject "had committed, was committing, or was about to commit a crime."3


Here's the link again.

Police Chief Magazine - View Article

An attorney for "Police Chief Magazine" says you can't be stopped just for carrying a handgun. Tell me how he is wrong.

That is interesting, but it is one attorney's opinion. I would like to see that become the new norm, but right now all of the case law and court precedents have upheld that, as others have stated, you must show a LTCH in Indiana when asked by LEO. I highlighted the main part that helped me understand that this is not the IC but merely a legal OPINION.

Is responding to a suspicious person call enough to initiate a Terry stop?

It is not a Terry stop

Why is this sort of thing not taught while you are in the academy?

For people who think an officer should know every law out there, that's just ridiculously unrealistic. My sister passed the bar and became an attorney a few years ago. She went through law school. When I asked her some questions a few years ago about a legal question I had, she quoted some case law and told me she could find out, but that her specialty was family law.

Lawyers don't even know all of the laws by a long shot, they specialize in areas and know how to find answers. I think an officer that does that patiently and honestly is hitting the goal.

10+ calls in a few minutes at 1:30am???

I have a feeling if this actually happened as posted (it IS the internet, no offense OP) we'll be seeing the guy's hidden camera footage on YouTube tomorrow.

Ding Ding! Whether this guy was walking down the street with a rifle or a gstring on, I can't think of any reason other than to draw attention to himself. Probably watched a few too many youtube "citizen vs. cop" clips and thought he was going to be a star.

 

[Benny]

Agreed.
But they still have to have reasonable suspicion to stop, or probable cause to arrest. They have to have something to demand your papers.

Hypothetical here.

Me and you are at Atterbury shooting. We have several SBR's and suppressors. DNR comes to the range and detains us until we provide tax papers. (Stamps)

They have to have some reasonable suspicion that we have or are about to commit a crime to detain us and demand anything. SBR's and suppressors are illegal in Indiana, unless you have a stamp. Are you required to produce it to anybody that demands to see it? The form 4 states you have to produce it at the request of the ATF, but that's even questionable. At what point does it become unreasonable search and seizure in your opinion?

Well, your first mistake is even asking for that jackwagon's opinion.

It's a shame that "unreasonable" is left up to interpretation/opinion, but in Indiana (for the search part), you must present your LTCH if an officer sees you carrying. I don't like it anymore than you do, but that's just the way it is.

However, once your LTCH is presented the "search" should end and seizure is "unreasonable."

If I present my LTCH and an officer takes my gun for "officer safety," I'll be requiring a receipt for it, because I'm not taking it back. Even if it just teaches one officer a lesson on the law, it'd be worth my inconvenience of having to go retrieve it from the station.

 

[Scutter01]

For people who think an officer should know every law out there, that's just ridiculously unrealistic.

No one here said anything like that. I said that I'm tired of hearing the excuse that "there are too many laws to know any of them", and advocated continuous personal training during off-hours. That is NOT AT ALL the same thing as expecting all officers to know every law.

Socomike did exactly what I expect him (and any professional, LEO or otherwise) to do. He didn't know, so he sought out more information instead of inventing laws to enforce.

 

[Socomike]

No one here said anything like that. I said that I'm tired of hearing the excuse that "there are too many laws to know any of them", and advocated continuous personal training during off-hours. That is NOT AT ALL the same thing as expecting all officers to know every law.

Socomike did exactly what I expect him (and any professional, LEO or otherwise) to do. He didn't know, so he sought out more information instead of inventing laws to enforce.

I know this post was not directed at me, but I will say that I misunderstood your first post, in that I thought you said "there are to many laws to know all of them" implying that we should know all of them.

Glad thats cleared up and I know you are not completely unreasonable haha.

 

[stephen87]

I'm looking for someone to prove me wrong.

It's illegal to drive on the road. Having a license makes it legal. The police can't stop you for driving a car just to see if you have a license. In order to make a traffic stop they need probable cause.

To be stopped while walking down the road they need reasonable suspicion to detain you and demand anything. Carrying a pistol is not reasonable suspicion. So why do you feel that you are required to provide a LTCH? If there is something I'm missing, I really want to know.

Here is your proof.

IC 35-47-2-1

Carrying a handgun without being licensed; exceptions; person convicted of domestic battery
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.


IC 35-47-2-23
Violations; classes of misdemeanors and felonies
Sec. 23. (a) A person who violates section 3, 4, 5, 14, 15, or 16 of this chapter commits a Class B misdemeanor.
(b) A person who violates section 7, 17, or 18 of this chapter commits a Class C felony.
(c) A person who violates section 1 of this chapter commits a Class A misdemeanor. However, the offense is a Class C felony:
(1) if the offense is committed:
(A) on or in school property;
(B) within one thousand (1,000) feet of school property; or
(C) on a school bus; or
(2) if the person:
(A) has a prior conviction of any offense under:
(i) this subsection; or
(ii) subsection (d); or
(B) has been convicted of a felony within fifteen (15) years before the date of the offense.

(d) A person who violates section 22 of this chapter commits a Class A misdemeanor. However, the offense is a Class D felony if the person has a prior conviction of any offense under this subsection or subsection (c), or if the person has been convicted of a felony within fifteen (15) years before the date of the offense.

As was stated, Delaware v Prouse, says

Except where there is at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law, stopping an automobile and detaining the driver in order to check his driver's license and the registration of the automobile are unreasonable under the Fourth Amendment.

As you see it states that the vehicle or occupant must be subject to seizure for VIOLATION OF LAW, that covers the fact that you are breaking the law by carrying a handgun without a license until you prove otherwise. Burden of proof is on you, not the officer. They may arrest you for carrying without a license, I realize that you are going to say "well they can arrest you for driving without a license," but the Supreme Court of the United States has decided that they cannot stop you to check for your driver's license. Until SCOTUS rules otherwise, with the handgun example, and officer may still stop a person carrying a handgun.

 

[KJQ6945]

Here is your proof.



As was stated, Delaware v Prouse, says



As you see it states that the vehicle or occupant must be subject to seizure for VIOLATION OF LAW, that covers the fact that you are breaking the law by carrying a handgun without a license until you prove otherwise. Burden of proof is on you, not the officer. They may arrest you for carrying without a license, I realize that you are going to say "well they can arrest you for driving without a license," but the Supreme Court of the United States has decided that they cannot stop you to check for your driver's license. Until SCOTUS rules otherwise, with the handgun example, and officer may still stop a person carrying a handgun.

That proves nothing. We both know it is illegal to carry without a license, just as it is illegal to drive without one. Everyone seems to believe that if a LEO asks you for a LTCH because he can tell you are armed, that you are required to produce it. There is no law.

Socomike got sent on a man with a gun call. When the dispatcher took the call they should have asked "what's the guy doing with the gun". If the caller said he's pointing it at people, the police can stop the individual and detain. If the caller stated that he's just walking down the side walk, but he has a gun on his hip, they can initiate a consensual encounter. They have to have reasonable suspicion per Terry. Carrying a pistol is not reasonable suspicion to believe that the man is unlicensed.

From Commonwealth v Couture

The mere possession of a handgun was not sufficient to give rise to a reasonable suspicion that the defendant was illegally carrying that gun, and the stop was therefore improper under Fourth Amendment principles


http://scholar.google.com/scholar_c...nwealth+v.+couture&hl=en&as_sdt=2,15&as_vis=1

 

[stephen87]

That proves nothing. We both know it is illegal to carry without a license, just as it is illegal to drive without one. Everyone seems to believe that if a LEO asks you for a LTCH because he can tell you are armed, that you are required to produce it. There is no law.

Socomike got sent on a man with a gun call. When the dispatcher took the call they should have asked "what's the guy doing with the gun". If the caller said he's pointing it at people, the police can stop the individual and detain. If the caller stated that he's just walking down the side walk, but he has a gun on his hip, they can initiate a consensual encounter. They have to have reasonable suspicion per Terry. Carrying a pistol is not reasonable suspicion to believe that the man is unlicensed.

From Commonwealth v Couture

The mere possession of a handgun was not sufficient to give rise to a reasonable suspicion that the defendant was illegally carrying that gun, and the stop was therefore improper under Fourth Amendment principles


http://scholar.google.com/scholar_c...nwealth+v.+couture&hl=en&as_sdt=2,15&as_vis=1

So what do you do when stopped for carrying a handgun? You can ignore them, but you'll most likely be arrested. Again, you do NOT have to produce a LTCH but burden of proof is on YOU to show that you are legal.

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
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.

The problem with the case you posted is that, it's from another state. Massachusetts law does not apply to Indiana. Massachusetts Supreme Court has different ideas than Indiana Supreme Court. I don't believe there has been an Indiana test case, but you're more than welcome to be the cool kid at the table.