Open carrier wrongfully detained by police gets $21,000

[H.T.]

I am a Firefighter in Indy. Not to long ago we got called for a Assault. IMPD was on scene. The victem had been hit with a object by another person. While he and some friends were outside his home in a sub division. This was late at night. The individual who hit him lived in the same house. The victem stated that the BG had run in the house and then left in there car. The officer (a Young guy) asked the man if there were any weapons inside. The man replid that he had a 9mm pistol in his night stand. At this point the Officer asked if he had a permit...I didn't say anything I walked over to one of the older cops who I new and relayed this conversation...He said "Why the f*&@k would he ask that?" The older officer new the law and apparently this young Officer did not.

I don't think officers should just go detaining a person who open carries. First off a BG isn't going to OC. They want to keep it hidden so they don't draw attention to them selves.

You don't hear of many "Man with a Bat calls."

 

[Kirk Freeman]

One Adam Twelve, Men With Bats, Be Advised:

 

[printcraft]

One Adam Twelve, Men With Bats, Be Advised:

 

[MACHINEGUN]

He shouldn't have settled.. that just means they know they were in the wrong.. and he could have been awarded much more if he pursued it further.

 

[Indy317]

The man replid that he had a 9mm pistol in his night stand. At this point the Officer asked if he had a permit...I didn't say anything

I don't think officers should just go detaining a person who open carries. First off a BG isn't going to OC. They want to keep it hidden so they don't draw attention to them selves.

First off, the questions some officers ask might be to gain insight on what kind of people we are dealing with. In most cases, a person with a handgun is going to have a permit, unless it is some gun that sits up in a closet and has been sitting there for 20 years. My dad did this with an over-under he had. In a true ambush attack, that gun would have been worthless, as the time it would have taken to load, etc. wouldn't have been there. However, when someone says they keep a gun in a nightstand, then that is someone who likely is more engaged with firearms. I might ask about a permit to gauge what type of person my victim is. Depending on their answer, I would get a feeling for what type of person I am dealing with. The next question would be if the other people in the home are just as into guns, etc.. I can't fault the officer for asking a question since I don't know his rational for doing so.

Open carrying a handgun in Indiana is illegal, but there are exceptions. Those exceptions are not as widespread as people who are driving. As such, if officers get a call of a person carrying a handgun, open or concealed, right now no court has ruled that under Indiana law, there is no reasonable suspicion. As far as criminals wanting to keep their guns hidden, I agree, _but_ they could have done something which moved their shirt in a manner which makes it so the gun can be seen. Police in Indiana are at a disadvantage. If they don't do anything, even if they just go and look and confirm, and that carrier ends up not having a permit and ends up pulling that gun out and shooting someone, you can bet that a lawyer is going to be suing the cops for "failure to act." They will ask the cops "Can it be a crime to carry a handgun on your person in Indiana." The answer is "Yes." Until a court rules otherwise, I feel reasonable suspicion is there if an officer, or non anonymous witness, sees a person carrying a handgun. This is enough to stop the person, read them Miranda, get their identification, and check their permit status. Like I have said before, this is going to take a lawsuit (just like in this case) to make a ruling based on Indiana's much more encompassing handgun carry law.

He shouldn't have settled.. that just means they know they were in the wrong.. and he could have been awarded much more if he pursued it further.

He might have gotten $100K...maybe. Even with that, if he decided to pursue more, his lawyer may have quit, not wanting to risk getting paid nothing. Would you have funded his legal fees since you are 100% sure this would be a slam dunk case that paid out big money? A jury may have only given him $30K, and legal fees might be even higher when your paying by the hour instead of 1/3rd the settlement/verdict amount (or whatever the contract spells out). If I person wants big money, they are going to have to have the help of a an attorney.

 

[Joe Williams]

He shouldn't have settled.. that just means they know they were in the wrong.. and he could have been awarded much more if he pursued it further.

Money isn't necessarily the prime goal in such cases. He got what he wanted when the officers were stripped of their immunity, the courts held that he had the right to engage in legal activity without police harrassment, and gained a good deal of publicity for his political cause. The $21K is a nice bonus.

 

[finity]

Open carrying a handgun in Indiana is illegal, but there are exceptions. Those exceptions are not as widespread as people who are driving. As such, if officers get a call of a person carrying a handgun, open or concealed, right now no court has ruled that under Indiana law, there is no reasonable suspicion. As far as criminals wanting to keep their guns hidden, I agree, _but_ they could have done something which moved their shirt in a manner which makes it so the gun can be seen. Police in Indiana are at a disadvantage. If they don't do anything, even if they just go and look and confirm, and that carrier ends up not having a permit and ends up pulling that gun out and shooting someone, you can bet that a lawyer is going to be suing the cops for "failure to act." They will ask the cops "Can it be a crime to carry a handgun on your person in Indiana." The answer is "Yes." Until a court rules otherwise, I feel reasonable suspicion is there if an officer, or non anonymous witness, sees a person carrying a handgun. This is enough to stop the person, read them Miranda, get their identification, and check their permit status. Like I have said before, this is going to take a lawsuit (just like in this case) to make a ruling based on Indiana's much more encompassing handgun carry law.

While I haven't found anything SPECIFIC to IN I submit the following:

1. A case in Federal District Court in GA that said that the open carrying of a firearm is not PC to stop someone.

http://www.freerepublic.com/focus/news/2300907/posts

Here is the looonngg ruling:

http://www.georgiacarry.com/county/paulding_carry/Doc%2031%20Order%20on%20MSJ.pdf

(the ONLY reason the police didn't get sued is because the court covered their rears with a made up immunity standard)

2. Another agreed order (settlement) from the same court in GA that basically said the same thing but there were no other circumstances - the guy was stopped & questioned (& his property seized) JUST for OC'ing.

http://www.georgiacarry.com/county/richmond_carry/Doc 11 Consent Order.pdf

3. And here, as referenced in the above case, the USSC stating that there is "no firearms exception to the 4th Amendment". I could be wrong but I think a USSC case is binding on IN.

529 US 266 Florida v. J. L. | Open Jurist

If these cases are not specific to IN enough for you they at least show that there is a trend toward doing the right thing where PC & guns are concerned.

It's sad we need these lawsuits to make the police do the right thing in the first place, though.

Oh & BTW, I think you probably know that the cops CAN'T BE SUED for "failure to act". The USSC has said that in at least a couple of cases. No need for you to worry about what will happen if you don't investigate a non-threatening MWAG call (or any other call for that matter).

 

[Indy317]

While I haven't found anything SPECIFIC to IN I submit the following:

http://www.georgiacarry.com/county/paulding_carry/Doc%2031%20Order%20on%20MSJ.pdf

In this case, the police really screwed up. GA outlaws, at least during this time, the concealed carrying of firearms. It is clear from witness statements that the gun was visible, because he had his shirt off. Indiana law is totally different, plus we are mostly discussing the detainment of an individual with reasonable suspicion, not a total false arrest.

The other GA case could have went either way. The guy settled, for not very much either. He was acting in a strange fashion (per three people) and had been asked to leave private property by an agent. I think it would have been nice to have a judge rule on this case. The officer checked the guys credentials, so he was legal in GA to have the gun (not really sure on GA law other than the above mention of CC in the other case). However, the deputy felt that given the number of people who had claimed the guy's behavior was odd, and an alleged odor of an alcoholic beverage, he was justified in taking the gun. Who knows how a judge would have ruled in this case. It could have been 100% either way, 70/30, or even 50/50.

3. And here, as referenced in the above case, the USSC stating that there is "no firearms exception to the 4th Amendment". I could be wrong but I think a USSC case is binding on IN.

529 US 266 Florida v. J. L. | Open Jurist

If these cases are not specific to IN enough for you they at least show that there is a trend toward doing the right thing where PC & guns are concerned.

Florida v. J. L. isn't really an open carry case at all. The whole "no firearms exception" is based upon an anonymous call about a guy alleged to have been carrying a gun. The officers arrived and saw a person matching the description, but no gun. The case is about what amount of information do officers need before a stop and frisk. The whole "no firearms exception" is based upon the argument that all the facts in this case still did not lead up to enough to warrant a stop and frisk.

Oh & BTW, I think you probably know that the cops CAN'T BE SUED for "failure to act". The USSC has said that in at least a couple of cases. No need for you to worry about what will happen if you don't investigate a non-threatening MWAG call (or any other call for that matter).

It may or may not be called "failure to act," but cops can and have been sued for failing to do their job:

Tracey Thurman - Domestic Violence

Untitled Document

From this particularized pleading a pattern emerges that evidences deliberate indifference on the part of the police department to the complaints of the plaintiff Tracey Thurman and to its duty to protect her.

Accordingly, defendant City of Torrington's motion to dismiss the plaintiffs claims against it, on the ground that the plaintiffs failed to properly allege a custom or policy on the part of the municipality, is denied.

She ended up getting around $2,000,000.00, and yes it was a settlement, but the courts did find some officers guilty, as well as some officers totally cleared of any wrongdoing. Now there was a recent USSC case which did grant the police immunity, but it was because of Colorado state law.

FindLaw | Cases and Codes

It really doesn't matter though, as laws can change on a weekly, monthly, or yearly basis depending on what cases judges decide to hear.

 

[finity]

In this case, the police really screwed up. GA outlaws, at least during this time, the concealed carrying of firearms. It is clear from witness statements that the gun was visible, because he had his shirt off. Indiana law is totally different, plus we are mostly discussing the detainment of an individual with reasonable suspicion, not a total false arrest.

The other GA case could have went either way. The guy settled, for not very much either. He was acting in a strange fashion (per three people) and had been asked to leave private property by an agent. I think it would have been nice to have a judge rule on this case. The officer checked the guys credentials, so he was legal in GA to have the gun (not really sure on GA law other than the above mention of CC in the other case). However, the deputy felt that given the number of people who had claimed the guy's behavior was odd, and an alleged odor of an alcoholic beverage, he was justified in taking the gun. Who knows how a judge would have ruled in this case. It could have been 100% either way, 70/30, or even 50/50.



Florida v. J. L. isn't really an open carry case at all. The whole "no firearms exception" is based upon an anonymous call about a guy alleged to have been carrying a gun. The officers arrived and saw a person matching the description, but no gun. The case is about what amount of information do officers need before a stop and frisk. The whole "no firearms exception" is based upon the argument that all the facts in this case still did not lead up to enough to warrant a stop and frisk.

GA law doesn't outlaw CC, only CC without a license.

My point in using the GA cases & the second one referencing the SCOTUS case is that there is not a concensus that the carrying of an exposed gun WITHOUT ANY OTHER INDICATIONS OF A CRIME is PC to stop someone.

From the second case above:

The Supreme Court has instructed, however, that in "cases in which the officer's authority to make the initial stop is at issue," there is no automatic "firearms exception" to the Fourth Amendment and ​

​

Terry v. Ohio, 392 U.S. 1 (1968). See
Florida v. I. L., 529 U.S. 266, 120 S. Ct. 1375 (2000). The present case presents the situation of whether the officer had authority to make the initial stop, and, therefore, the propriety of the initial stop must be examined under the standards of Terry.

Although the Eleventh Circuit has given no instruction on this particular issue, district courts in other circuits have addressed this issue, and the cases are instructive. In United States v. Dudley, 854 F.Supp. 570, 580 (S.D.Ind.1994), the court held that a radio call alerting police to the presence of two people in a vehicle with firearms did not provide reasonable suspicion of a crime justifying the stop, because possession of firearms is not, generally speaking, a crime. The court discussed in more detail the issues of firearms licensing and whether possession of the firearm itself was a crime:
​

[Officer] Martin's impetus to investigate the Dudleys was a radio call alerting him to the presence of two people at the truckstop in possession of some guns. Of course the possession of firearms is not, generally speaking, a crime unless you happen to be a convicted felon, the firearms are otherwise illegal, or you are not licensed to possess the gun. Martin, presumably not clairvoyant, could not have known, and did not know, the Dudleys and their guns met all three of these criteria. In fact he testified he had absolutely no knowledge, or suspicion, that the Dudleys were engaged in any criminal activity until he discovered the first sawedoff shotgun. A telephone report of citizens possessing guns or merely engaging in "suspicious" activity, standing alone, cannot amount to reasonable suspicion of crime.

The court further noted that "if the stop itself is unlawful, neither​

​

​

​

Terry nor Michigan v.Long authorizes the police to search the suspects or the suspect's vehicle for weapons, even if the officers reasonably fear for their safety."​

I think that this is EXACTLY referencing what you're talking about. They used the "no firearms exception" language of the SCOTUS to come to their conclusion.​

It may or may not be called "failure to act," but cops can and have been sued for failing to do their job:

Tracey Thurman - Domestic Violence

Untitled Document

From this particularized pleading a pattern emerges that evidences deliberate indifference on the part of the police department to the complaints of the plaintiff Tracey Thurman and to its duty to protect her.

Accordingly, defendant City of Torrington's motion to dismiss the plaintiffs claims against it, on the ground that the plaintiffs failed to properly allege a custom or policy on the part of the municipality, is denied.

She ended up getting around $2,000,000.00, and yes it was a settlement, but the courts did find some officers guilty, as well as some officers totally cleared of any wrongdoing. Now there was a recent USSC case which did grant the police immunity, but it was because of Colorado state law.

FindLaw | Cases and Codes

It really doesn't matter though, as laws can change on a weekly, monthly, or yearly basis depending on what cases judges decide to hear.

This a really old case that was heard by state courts. The SCOTUS case (Gonzales vs. Castle Rock, 2005) is much more recent & is binding all states.

 

[aikidoka]

Open carrying a handgun in Indiana is illegal, but there are exceptions.

The Indiana State Police website says the law is silent on the manner of carry. Where do you get that it is illegal to OC in Indiana?

 

[ATM]

The Indiana State Police website says the law is silent on the manner of carry. Where do you get that it is illegal to OC in Indiana?

I think his point was that any method of carry is illegal without the exception that your LTCH provides.

 

[Kirk Freeman]

aik, I think Indy means without the pink card.

 

[Indy317]

The Indiana State Police website says the law is silent on the manner of carry. Where do you get that it is illegal to OC in Indiana?

In Indiana, it is illegal to "carry a handgun in any vehicle or on or about the person's body, except in the person's dwelling, on the person's property or fixed place of business..." The way folks make this act legal is to get a license and/or be a member of one of the excepted groups. The cases we are seeing are states which outlaw _concealed carry_, not open carry. Indiana law encompasses both concealed and open carry, and even car carry in all but a few instances.

Indiana Code 35-47-2

IC 35-47-2-1 Carrying a handgun without a license or by person convicted of domestic battery
Sec. 1. (a) Except as provided in subsection (b) and section 2 of this chapter, a person shall not carry a handgun in any vehicle or on or about the person's body, except in the person's dwelling, on the person's property or fixed place of business, without a license issued under this chapter being in the person's possession.
(b) 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 in any vehicle or on or about the person's body in the person's dwelling or on the person's property or fixed place of business.

IC 35-47-2-2 Excepted persons
Sec. 2. Section 1 of this chapter does not apply to:
(1) marshals;
(2) sheriffs;
(3) the commissioner of the department of correction or persons authorized by him in writing to carry firearms;
(4) judicial officers;
(5) law enforcement officers;
(6) members of the armed forces of the United States or of the national guard or organized reserves while they are on duty;
(7) regularly enrolled members of any organization duly authorized to purchase or receive such weapons from the United States or from this state who are at or are going to or from their place of assembly or target practice;
(8) employees of the United States duly authorized to carry handguns;
(9) employees of express companies when engaged in company business;
(10) any person engaged in the business of manufacturing, repairing, or dealing in firearms or the agent or representative of any such person having in his possession, using, or carrying a handgun in the usual or ordinary course of that business; or
(11) any person while carrying a handgun unloaded and in a secure wrapper from the place of purchase to his dwelling or fixed place of business, or to a place of repair or back to his dwelling or fixed place of business, or in moving from one dwelling or business to another.

I think his point was that any method of carry is illegal without the exception that your LTCH provides.

aik, I think Indy means without the pink card.

Yes. This is what I mean. Things are up in the air till Kirk Freeman gets a $10K retainer from someone to make an argument before the courts if there is reasonable suspicion to stop a person based solely on the fact they were open carrying in Indiana!!!

The argument would likely be if the police can't just randomly stop people who are driving to check to make sure they have a driver's license, then they shouldn't be able to randomly stop people carrying handguns (in any fashion really) just so they can check for a LTCH.

 

[aikidoka]

I think his point was that any method of carry is illegal without the exception that your LTCH provides.

Ah, my bad, sorry about that.