The Indiana Supreme Court On Open Carry

BY Herschel Smith
6 months, 1 week ago

Guy Relford writing at WIBC.com:

On Monday, the Indiana Supreme Court issued its much-anticipated ruling in Thomas Pinner v. State, which addresses the issue of whether police officers may detain and question a person based only on a report that the individual has a gun.  In agreeing with the Indiana Court of Appeals’ decision handed down last August, the Supreme Court ruled that officers violated the Fourth Amendment’s protection against unreasonable searches and seizures when they detained and questioned Thomas Pinner after a taxi driver called 911 to report that Pinner had dropped a handgun when exiting a cab at a movie theater.

Under rules announced by the U.S. Supreme Court in the 1968 case of Terry v. Ohio, a police officer may briefly detain and question a person if the officer has a “reasonable articulable suspicion” that the person is engaged in criminal activity (or in the words of SCOTUS, “that criminal activity is afoot”).  If the officer also has a reasonable suspicion that the person “may be armed and dangerous,” the officer may conduct a brief pat-down of the person’s outer clothing to check for weapons.  Together, this process is called “stop and frisk” or a “Terry stop.”

Before the Indiana Supreme Court’s ruling on Monday, there has been a long-standing debate in Indiana.  On one side, many police officers and prosecutors have argued that a Terry stop is justified based on a report that a person is carrying a gun – or an officer’s own observation that the person has a handgun – because the officer has a “reasonable suspicion” that the person is carrying a handgun illegally until the officer confirms that the person has a handgun license.  On the other hand, defense attorneys and Second Amendment advocates have countered that the mere possession of a handgun, without some additional indication that such possession is illegal, does not justify the detention of the individual to investigate – much like police are not allowed to randomly stop vehicles to confirm that a motorist has a driver’s license.

In the opinion handed down last August by the Indiana Court of Appeals (and written by highly-regarded Judge Melissa May), Indiana resolved that issue for the time being by holding that “the mere possession of a handgun, which is legal, cannot produce reasonable suspicion to justify a Terry Stop.”  The court went on to state that “the State has not directed us to a reason why the police believed when they stopped Pinner that his possession of the gun was illegal, nor has the State asserted any other criminal activity was ‘afoot.’  Accordingly, we are constrained to hold the stop of Pinner was not supported by reasonable suspicion.”  Thus, without a basis to believe that Pinner was carrying a handgun without a license – or engaged in some other illegal activity – detaining Pinner to investigate his possession of a gun violated his rights under the Fourth Amendment.

In Monday’s opinion, the Supreme Court wholly agreed with Judge May’s analysis.  Specifically, the court ruled that a police officer, based only on a tip that a person possesses a handgun, may not detain that person to confirm that he has a license to carry …

[ … ]

Said the ruling:

“The United States Supreme Court has previously declared that law enforcement may not arbitrarily detain an individual to ensure compliance with licensing and registration laws without particularized facts supporting an inference of illegal conduct. See Prouse, 440 U.S. at 663 (‘hold[ing] that except in those situations in which 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’). In like fashion, we decline to endorse such behavior to ensure compliance with Indiana’s gun licensing laws.” 

This case is actually similar to the case of Nathanial Black decided by the Fourth Circuit.

Nathaniel Black was part of a group of men in Charlotte, North Carolina who local police officers suspected might be engaged in criminal activity. In particular, Officers suspected that after seeing one of the men openly carrying a firearm – which was legal in North Carolina – that there was most likely another firearm present. When police began frisking the men one by one, Mr. Black wished to leave, but was told he was not free to leave. Officers chased Mr. Black and discovered that he possessed a firearm; it was later discovered that he was a previously convicted felon. Mr. Black was charged with being a felon in possession of a firearm. Before the United States District Court for the Western District of North Carolina, Mr. Black moved to suppress the evidence against him. His suppression motion was denied, he entered a guilty plea preserving a right to appeal the denial of the suppression motion, and he was sentenced to fifteen (15) years imprisonment. The United States Court of Appeals for the Fourth Circuit, however, determined that the officers had improperly seized Mr. Black, suppressed the evidence against him, and vacated his sentence.

Like Indiana, North Carolina is an open carry state.  Simply openly carrying a gun isn’t grounds for detention.  It must be a so-called “Terry Stop,” and openly carrying a weapon, since it is entirely within the law, isn’t justifiable reason to detain an individual.

The Indiana Supreme Court got this right.  I’ve argued similarly against the new open carry law in Texas, pointing out that “… licensed open carry in a state with no stop and identify statute for enforcement is a shooting-by-cop waiting to happen.  And I certainly don’t support empowering the police state any more by giving them a stop and identify statute.  That would be making something bad even worse.”  As stops must be Terry Stops, and since Texas has no stop and identify statute, and shouldn’t because they are unconstitutional (despite what the courts have said), LEOs in Texas are left with no direction concerning open carriers.

I don’t want LEOs in Texas to be given more direction, any more than I want that for LEOs in Indiana.  I advocate simple observation of God-given rights, and living by the covenant to which we are all obliged, i.e., the constitution.

Trackbacks & Pingbacks


Comments

  1. On May 11, 2017 at 7:47 am, Fred said:

    Good News.
    This is important.. because of people who hold down professional jobs have to fears detention or even arrest by LEO for using their rights its a big disincentive trying to explain that later on a job application..

    The more we get open carry accepted and people used to it the better.
    Thats why I support all open carry activists and I simply dont understand why so many people on their side belittle them.

    The left supports and positive spins even the most extreme crimes by their foot soldiers ( anti-fa) why are we so quick to belittle our own?
    You see that with comments on Open carry activists and the malheur occupiers.

  2. On May 12, 2017 at 10:02 am, Tommy said:

    There is a difference in Texas that matters in this discussion. The Texas Penal Code makes it a violation to carry a handgun. The License to Carry exempts the license holder from that section of the Penal Code. Thus, open carry in Texas is presumptively unlawful unless the person carrying the handgun has a license.

    For Constitutional carry, that portion of the Penal Code needs to be repealed, and the Texas legislature would rather tinker with the license requirement. That is the effect of the LEO lobby in Texas.

RSS feed for comments on this post. TrackBack URL

Leave a comment


You are currently reading "The Indiana Supreme Court On Open Carry", entry #17111 on The Captain's Journal.

This article is filed under the category(s) Firearms,Guns and was published May 10th, 2017 by Herschel Smith.

If you're interested in what else the The Captain's Journal has to say, you might try thumbing through the archives and visiting the main index, or; perhaps you would like to learn more about TCJ.

26th MEU (10)
Abu Muqawama (12)
ACOG (2)
ACOGs (1)
Afghan National Army (36)
Afghan National Police (17)
Afghanistan (679)
Afghanistan SOFA (4)
Agriculture in COIN (3)
AGW (1)
Air Force (31)
Air Power (9)
al Qaeda (83)
Ali al-Sistani (1)
America (10)
Ammunition (32)
Animals in War (4)
Ansar al Sunna (15)
Anthropology (3)
Antonin Scalia (1)
AR-15s (106)
Arghandab River Valley (1)
Arlington Cemetery (2)
Army (57)
Assassinations (2)
Assault Weapon Ban (26)
Australian Army (5)
Azerbaijan (4)
Backpacking (2)
Badr Organization (8)
Baitullah Mehsud (21)
Basra (17)
BATFE (56)
Battle of Bari Alai (2)
Battle of Wanat (17)
Battle Space Weight (3)
Bin Laden (7)
Blogroll (2)
Blogs (7)
Body Armor (17)
Books (3)
Border War (7)
Brady Campaign (1)
Britain (28)
British Army (35)
Camping (4)
Canada (2)
Castle Doctrine (1)
Caucasus (6)
CENTCOM (7)
Center For a New American Security (8)
Charity (3)
China (10)
Christmas (8)
CIA (25)
Civilian National Security Force (3)
Col. Gian Gentile (9)
Combat Outposts (3)
Combat Video (2)
Concerned Citizens (6)
Constabulary Actions (3)
Coolness Factor (2)
COP Keating (4)
Corruption in COIN (4)
Council on Foreign Relations (1)
Counterinsurgency (215)
DADT (2)
David Rohde (1)
Defense Contractors (2)
Department of Defense (132)
Department of Homeland Security (17)
Disaster Preparedness (3)
Distributed Operations (5)
Dogs (6)
Donald Trump (1)
Drone Campaign (3)
EFV (3)
Egypt (12)
El Salvador (1)
Embassy Security (1)
Enemy Spotters (1)
Expeditionary Warfare (17)
F-22 (2)
F-35 (1)
Fallujah (17)
Far East (3)
Fathers and Sons (1)
Favorite (1)
Fazlullah (3)
FBI (15)
Featured (177)
Federal Firearms Laws (18)
Financing the Taliban (2)
Firearms (726)
Football (1)
Force Projection (35)
Force Protection (4)
Force Transformation (1)
Foreign Policy (27)
Fukushima Reactor Accident (6)
Ganjgal (1)
Garmsir (1)
general (14)
General Amos (1)
General James Mattis (1)
General McChrystal (41)
General McKiernan (6)
General Rodriguez (3)
General Suleimani (7)
Georgia (19)
GITMO (2)
Google (1)
Gulbuddin Hekmatyar (1)
Gun Control (574)
Guns (1,222)
Guns In National Parks (3)
Haditha Roundup (10)
Haiti (2)
HAMAS (7)
Haqqani Network (9)
Hate Mail (7)
Hekmatyar (1)
Heroism (4)
Hezbollah (12)
High Capacity Magazines (11)
High Value Targets (9)
Homecoming (1)
Homeland Security (1)
Horses (1)
Humor (13)
ICOS (1)
IEDs (7)
Immigration (59)
India (10)
Infantry (4)
Information Warfare (2)
Infrastructure (2)
Intelligence (23)
Intelligence Bulletin (6)
Iran (169)
Iraq (378)
Iraq SOFA (23)
Islamic Facism (51)
Islamists (77)
Israel (18)
Jaish al Mahdi (21)
Jalalabad (1)
Japan (2)
Jihadists (80)
John Nagl (5)
Joint Intelligence Centers (1)
JRTN (1)
Kabul (1)
Kajaki Dam (1)
Kamdesh (9)
Kandahar (12)
Karachi (7)
Kashmir (2)
Khost Province (1)
Khyber (11)
Knife Blogging (3)
Korea (4)
Korengal Valley (3)
Kunar Province (20)
Kurdistan (3)
Language in COIN (5)
Language in Statecraft (1)
Language Interpreters (2)
Lashkar-e-Taiba (2)
Law Enforcement (3)
Lawfare (6)
Leadership (5)
Lebanon (6)
Leon Panetta (2)
Let Them Fight (2)
Libya (14)
Lines of Effort (3)
Littoral Combat (8)
Logistics (50)
Long Guns (1)
Lt. Col. Allen West (2)
Marine Corps (246)
Marines in Bakwa (1)
Marines in Helmand (67)
Marjah (4)
MEDEVAC (2)
Media (37)
Memorial Day (3)
Mexican Cartels (24)
Mexico (30)
Michael Yon (5)
Micromanaging the Military (7)
Middle East (1)
Military Blogging (26)
Military Contractors (4)
Military Equipment (24)
Militia (5)
Mitt Romney (3)
Monetary Policy (1)
Moqtada al Sadr (2)
Mosul (4)
Mountains (21)
MRAPs (1)
Mullah Baradar (1)
Mullah Fazlullah (1)
Mullah Omar (3)
Musa Qala (4)
Music (16)
Muslim Brotherhood (6)
Nation Building (2)
National Internet IDs (1)
National Rifle Association (19)
NATO (15)
Navy (21)
Navy Corpsman (1)
NCOs (3)
News (1)
NGOs (2)
Nicholas Schmidle (2)
Now Zad (19)
NSA (3)
NSA James L. Jones (6)
Nuclear (55)
Nuristan (8)
Obama Administration (218)
Offshore Balancing (1)
Operation Alljah (7)
Operation Khanjar (14)
Ossetia (7)
Pakistan (165)
Paktya Province (1)
Palestine (5)
Patriotism (6)
Patrolling (1)
Pech River Valley (11)
Personal (38)
Petraeus (14)
Pictures (1)
Piracy (13)
Pistol (2)
Pizzagate (21)
Police (277)
Police in COIN (3)
Policy (15)
Politics (339)
Poppy (2)
PPEs (1)
Prisons in Counterinsurgency (12)
Project Gunrunner (20)
PRTs (1)
Qatar (1)
Quadrennial Defense Review (2)
Quds Force (13)
Quetta Shura (1)
RAND (3)
Recommended Reading (14)
Refueling Tanker (1)
Religion (127)
Religion and Insurgency (19)
Reuters (1)
Rick Perry (4)
Rifles (1)
Roads (4)
Rolling Stone (1)
Ron Paul (1)
ROTC (1)
Rules of Engagement (75)
Rumsfeld (1)
Russia (29)
Sabbatical (1)
Sangin (1)
Saqlawiyah (1)
Satellite Patrols (2)
Saudi Arabia (4)
Scenes from Iraq (1)
Second Amendment (205)
Second Amendment Quick Hits (2)
Secretary Gates (9)
Sharia Law (3)
Shura Ittehad-ul-Mujahiden (1)
SIIC (2)
Sirajuddin Haqqani (1)
Small Wars (72)
Snipers (9)
Sniveling Lackeys (2)
Soft Power (4)
Somalia (8)
Sons of Afghanistan (1)
Sons of Iraq (2)
Special Forces (25)
Squad Rushes (1)
State Department (19)
Statistics (1)
Sunni Insurgency (10)
Support to Infantry Ratio (1)
Supreme Court (3)
Survival (16)
SWAT Raids (53)
Syria (38)
Tactical Drills (1)
Tactical Gear (2)
Taliban (167)
Taliban Massing of Forces (4)
Tarmiyah (1)
TBI (1)
Technology (16)
Tehrik-i-Taliban (78)
Terrain in Combat (1)
Terrorism (92)
Thanksgiving (6)
The Anbar Narrative (23)
The Art of War (5)
The Fallen (1)
The Long War (20)
The Surge (3)
The Wounded (13)
Thomas Barnett (1)
Transnational Insurgencies (5)
Tribes (5)
TSA (14)
TSA Ineptitude (11)
TTPs (1)
U.S. Border Patrol (5)
U.S. Border Security (14)
U.S. Sovereignty (17)
UAVs (2)
UBL (4)
Ukraine (3)
Uncategorized (45)
Universal Background Check (3)
Unrestricted Warfare (4)
USS Iwo Jima (2)
USS San Antonio (1)
Uzbekistan (1)
V-22 Osprey (4)
Veterans (2)
Vietnam (1)
War & Warfare (212)
War & Warfare (40)
War Movies (3)
War Reporting (18)
Wardak Province (1)
Warriors (6)
Waziristan (1)
Weapons and Tactics (58)
West Point (1)
Winter Operations (1)
Women in Combat (19)
WTF? (1)
Yemen (1)

November 2017
October 2017
September 2017
August 2017
July 2017
June 2017
May 2017
April 2017
March 2017
February 2017
January 2017
December 2016
November 2016
October 2016
September 2016
August 2016
July 2016
June 2016
May 2016
April 2016
March 2016
February 2016
January 2016
December 2015
November 2015
October 2015
September 2015
August 2015
July 2015
June 2015
May 2015
April 2015
March 2015
February 2015
January 2015
December 2014
November 2014
October 2014
September 2014
August 2014
July 2014
June 2014
May 2014
April 2014
March 2014
February 2014
January 2014
December 2013
November 2013
October 2013
September 2013
August 2013
July 2013
June 2013
May 2013
April 2013
March 2013
February 2013
January 2013
December 2012
November 2012
October 2012
September 2012
August 2012
July 2012
June 2012
May 2012
April 2012
March 2012
February 2012
January 2012
December 2011
November 2011
October 2011
September 2011
August 2011
July 2011
June 2011
May 2011
April 2011
March 2011
February 2011
January 2011
December 2010
November 2010
October 2010
September 2010
August 2010
July 2010
June 2010
May 2010
April 2010
March 2010
February 2010
January 2010
December 2009
November 2009
October 2009
September 2009
August 2009
July 2009
June 2009
May 2009
April 2009
March 2009
February 2009
January 2009
December 2008
November 2008
October 2008
September 2008
August 2008
July 2008
June 2008
May 2008
April 2008
March 2008
February 2008
January 2008
December 2007
November 2007
October 2007
September 2007
August 2007
July 2007
June 2007
May 2007
April 2007
March 2007
February 2007
January 2007
December 2006
November 2006
October 2006
September 2006
August 2006
July 2006
June 2006
May 2006

about · archives · contact · register

Copyright © 2006-2017 Captain's Journal. All rights reserved.