Please help settle an argument

[BehindBlueI's]

I'm sorry Blue, but you're wrong.

Its quite possible. Case law can be argued many ways, its why lawyers have libraries and paralegals to sort through them. The maddening thing is I may be considered right today but wrong tomorrow, or vice versa. Its the system we labor under. Even judges disagree on what the law says, so we get dissenting opinions as well as concurring opinions, meaning they agree but for a different reason.

Washington V Indiana (I assume you mean the 2010 one, not the 2008 about the moped) is an interesting one, and supports your position. I tend to agree with the Judge May's concurring opinion, though, as it is inline with AZ V Gant. I see that this is an appeals court case, but I don't see the Indiana Supreme court ruling on it. I wonder if the state didn't appeal or if ISC denied to hear it.

 

[griffin]

He is completely set on the fact that if someone is pulled over with a handgun, it's completely fine for the officer to run the serial numbers on the gun.

He's in high school and already has the JBT mentality. Nice.

 

[Hammerhead]

Reading through Richardson, they quote Washington (yes Melvin Washington, about the car search) as one of the reasons they tossed the search in Richardson and upheld that officer safety isn't justification to further the fishing expedition when the subject is being cooperative.

BTW, you're not the first LEO who has gotten caught up in the "Richardson is about the seat belt law limitations" here. That's why that paragraph I quotes is so important. They make it clear that yes, the officer in that case overstepped her bounds, but in the future the LTCH, once verified valid, ends the conversation.

 

[BehindBlueI's]

Well, I have to go to the prosecutor this morning to screen a robbery case, I'll run all this by them and see what they say.

 

[BehindBlueI's]

BTW, you're not the first LEO who has gotten caught up in the "Richardson is about the seat belt law limitations" here. That's why that paragraph I quotes is so important. They make it clear that yes, the officer in that case overstepped her bounds, but in the future the LTCH, once verified valid, ends the conversation.

Richardson IS solely about seat belt limitations. The "Background" and "Discussion" portion of a case brief do not set precedent, they explain why the court ruled as it did. I know its been many years since I took procedural law, etc. at U of L, but I'm pretty sure I remember how to read case law.

Unless state briefs are radically different than federal, the holding is what sets precedent, and the case is clear that Richardson is about "The trial court concluded that this inquiry went beyond that authorized by Indiana‟s Seatbelt Enforcement Act. We agree with the trial court‟s determination" and not a broader ruling.

That doesn't mean your wrong, it just means Richardson isn't what you should be hanging your hat on as the court gave a pretty narrow holding on that case.

Washington is the only one giving me pause, as that changes the rules set by Gant, and Gant changed the rules as established prior to 2009.

Anyway, I'll see what our prosecutor has to say and I'll report back.

 

[BehindBlueI's]

I spoke with two major felony screening prosecutors. Both agreed with me, there was nothing to prohibit the weapon being taken for the length of a traffic stop, with special considerations given for seat belt only stops.

I brought up Washington, as that's the one what was making me question my understanding. They said that an appeals court case doesn't make "ruling law" and since it hadn't gone to the Indiana Supreme Court it was not a barrier. I have to admit I am parroting what they said, as I'm not familiar with the term "ruling law".

These are prosecutors who have decades of experience trying major felonies and now screen cases for possible faults, violations of case law, etc and making the decision to file or not file. One is a Harvard graduate. They understand how to read case law and they know the rules. That doesn't mean they are right, of course, like I said reasonable minds can and do differ, even on the bench, but it means their opinion should be given weight based on education and experience.

 

[indytechnerd]

So, BehindBlueI's, you've stated that you can run the serial on my piece , as long as you don't do any further manipulation to the weapon. Here's a scenario: You stop me for the famed 'license plate light out'. I comply, you've got me, it's out and I forgot to get bulbs this weekend at Walmart.

In the course of our discussion, my little pink paper comes up, and you ask if I'm currently armed. Since our conversation has thus far been amiable, I answer in the affirmative, rather than not answering, indicating a G22 on my hip. We're all getting along smashingly, but you request, in the interest of safety, that I let you hang onto my G22 until we're done talking.

Now, I'm not getting the JBT vibe from you, so I SLOWLY reach down to my hip, slide the Blackhawk Serpa paddle holster from my belt, and hand you a holstered G22, with TLR-1 light, and Lone Wolf match grade replacement barrel.

Are you still good to go for running the weapon's serial?

What if the light is not present?

 

[SideArmed]

I spoke with two major felony screening prosecutors. Both agreed with me, there was nothing to prohibit the weapon being taken for the length of a traffic stop, with special considerations given for seat belt only stops.

I brought up Washington, as that's the one what was making me question my understanding. They said that an appeals court case doesn't make "ruling law" and since it hadn't gone to the Indiana Supreme Court it was not a barrier. I have to admit I am parroting what they said, as I'm not familiar with the term "ruling law".

These are prosecutors who have decades of experience trying major felonies and now screen cases for possible faults, violations of case law, etc and making the decision to file or not file. One is a Harvard graduate. They understand how to read case law and they know the rules. That doesn't mean they are right, of course, like I said reasonable minds can and do differ, even on the bench, but it means their opinion should be given weight based on education and experience.

Ok, given this information. Would it be fair for me as a citizen if my firearm is seized during a traffic stop (Failure to signal a turn, for example) to then state to the officer that if they feel the need to disarm me that I would like the firearm tagged and entered to evidence as per IC 35-47-14-3? I ask this because if he is siezing the firearm for "Officer Safety" then apparently I am dangerous. yes/no?

 

[T.Lex]

I spoke with two major felony screening prosecutors. Both agreed with me, there was nothing to prohibit the weapon being taken for the length of a traffic stop, with special considerations given for seat belt only stops.

I brought up Washington, as that's the one what was making me question my understanding. They said that an appeals court case doesn't make "ruling law" and since it hadn't gone to the Indiana Supreme Court it was not a barrier. I have to admit I am parroting what they said, as I'm not familiar with the term "ruling law".

These are prosecutors who have decades of experience trying major felonies and now screen cases for possible faults, violations of case law, etc and making the decision to file or not file. One is a Harvard graduate. They understand how to read case law and they know the rules. That doesn't mean they are right, of course, like I said reasonable minds can and do differ, even on the bench, but it means their opinion should be given weight based on education and experience.

I think someone (you or them) must have misunderstood something. Particularly about the Washington case. I'm also interested in what county has a Harvard grad doing felony screening, but that's just curiosity.

The appeals court ruling IS the law of the land until overturned or modified by Indiana Supreme Court (or US Supreme Court) decision.

Unless there is some other reason for articulable suspicion, once a handgun-possessor presents an LTCH, any search must stop. The traffic stop doesn't necessarily need to end, but no more searching.

Now, whether an officer should take possession of the gun may be an open question. I don't think any cases have directly addressed that. If I were to advise LEOs on it, though I think I'd start with questions like this:
I know you are familiar with firearms, but are you sufficiently familiar with every single firearm in existence? If not, should you really be handling a firearm if you aren't familiar with it? Also, can you immediately recognize if a firearm is in good repair, or might malfunction while you are handling it?

Personally, a "don't go for yours, I won't go for mine" attitude is healthier and less likely to result in some kind of liability.

Just MHO.

I'm dead-on certain about the appellate court thing, though, as a practitioner.

 

[BehindBlueI's]

I freely admit I may be wrong. Judges get it wrong, that's why there are appeals, so there's little risk of me being right all the time when it comes to case law.

That said, I've given the best opinion I can and the reasoning behind it. I've followed up with folks more knowledgeable and experienced than me. I won't endlessly rehash what I've already said about case law, IC codes etc. I have nothing further to add that would be constructive, as I have hit the limits of my knowledge. I won't pretend to know more than I do. If experts that I trust tell me that this is the way it is, I believe them, because that's why we have experts we trust. You will have to make your own decisions about who's opinion you'll trust, and how far you'll trust them.

 

[Hammerhead]

I agree that Richardson's case, specific to that person and how it affected him, was based solely on the seatbelt stop. She shouldn't have gone fishing further, and he shouldn't have taken it to fisticuffs, but she overstepped the bounds of a seat belt stop based upon that law.

However, that line about a valid LTCH being presented ending further inquiry into firearms is very important to how LEOs are to handle interactions with calm, cooperative subjects, citing Melvin Washington. Melvin Washington and Richardson now set precedents, which unless overturned by a higher court, stands as case law.

The quartet of Washington, Richardson, Terry, and 35-47-14-3 make for some pretty good protections for legal firearms carriers in this state. Being calm, cool, collected, presenting your LTCH, and keeping your mouth shut in official interactions are going to make it hard for an officer to overcome all four of those.

As far as how the court writes its decisions, if it weren't acceptable to base legal protections on the background and discussion portions, then case law wouldn't cite previous background and discussion portions of cases in new decisions. They don't only use the conclusion portion to decide if previous case law is valid. The whole document is the court's decision.

I freely admit that IANAL, and I do not do this for a living. I also admit that the criminal justice system moves in ways I do not fully understand. However, I can read laws, case law, and related decisions to gauge what I see as being protections for myself and my fellow citizens. I will happily change my view if presented with better or further evidence.

When seven different defense attorneys agree with me, I tend to think I'm on the right track.