Indiana Court of Appeals and Handgun Possession

[T.Lex]

So, I have my volume up all the way, and Rush is still quiet.

I don't know any of the attorneys.

Defendant going first, which is kinda awkward in this case because of the procedure.

 

[T.Lex]

Massa (former prosecutor, and a good one) with first question about whether cab driver's suspicion of robbery was part of the analysis.

[They let counsel get through the roadmap, even though he didn't really do all of it.]

David (another conservative) second question, following up.

Both appear to be questioning the state of the record; facts probably missing.

Rush (questioning the relevance of their questioning, sorta) asks about changing from consensual to non-consensual.
-- when officer tells to stand up.

Rucker - at what point was it consensual, or not at all?
-- whatever it was, once told to stand up, it became non-consensual

Rush - ok to ask if he has a gun?
-- may or may not.
(Not a great answer)

Slaughter (whom I respect)- seizure of what?
- defendant

Rucker - definition of consensual.

 

[T.Lex]

They seem to be baiting defendant's attorney into calling it non-consensual very early.

Rush - adopting dissent in Clark?
-- no

Rucker - still hung up on timing of non-consensual

Rush - level of intrusion with asking to stand up?
- high, in public place

Rush - RAS not required for consensual encounter; asking for sect. 11 analysis
- comes back to "seized" (doesn't give her what she asked for)

Massa - difference between asking or telling to stand?
- trial court said "directed" and deference to that

Massa - Rush interrupted (not cool)

Rush - ok to ask about a gun?
- still avoiding answering

Rucker - circumstances under which he was asked?
- yes

Rucker - asking for a breakdown of the facts to support non-consensual
- recites Clark facts (not providing analysis)
- emphasizes dissent

Rucker - assume Terry stop, wasn't there RAS - possession of handgun (<<<- dang, didn't expect it from him!)
- No

Rucker - totally framing statutory framework
- not having license is element of offense

Rucker - possession illegal
- no

Slaughter - holster provide RAS
- no

Slaughter - why not?
- no law against having unholstered gun

Massa - what are police supposed to do, Aurora reference
- if no RAS, then they can't do anything
- could have asked him to identify himself and run his information, then do Terry stop
(Can't help but think this was a missed opportunity.)

 

[T.Lex]

Counsel stammers more about the facts as found by trial court.

Rush - recites bunch of consensual stop cases that involve some coercion; App. Ct. doesn't seem to align
- this is different, Clark reference

Slaughter - directing someone to sit different than directing to stand?
- officer using authority to control activity

Counsel transitions to state argument that there's no 2A for felons.

[Court seems uninterested in this.]

State's turn.

 

[T.Lex]

WOW - DAVID doesn't even let her start! Gives her a hypothetical.

 

[T.Lex]

David apparently appendix carries.

 

[T.Lex]

David's scenario is this case.

She tries to bail by saying the hypo isn't these facts.

David says, I told you the facts.

She says "not technically illegal" to have an empty holster. David corrects her.

David - if I say "no" and the officer says "stand up" is that an investigative stop?
- if they ordered you to stand, then it is investigative (<---- DANG)

Rush - factual deference?!
- Yes, but if clearly erroneous

Slaughter - wtf? Probable cause affidavit says "told to stand up"
- Not admitted into evidence

Rucker - police report used to refresh recollection
- that was not the officer speaking

Rucker - detailing how she screwed the pooch by her analysis about support in the record
- err... err.... different testimony
- different officer emphasized "could you stand up for me"
- even if we accept the trial court findings (duh), RAS for investigatory detention
- laundry list of her facts

 

[T.Lex]

David - record does not reflect police talking to cab driver, no report of crime, populated place, no evidence that cabbie was not paid
- don't have additional facts about why cabbie was afraid
- "mishandled" handgun in the cab
- officer called cabbie, talked to him, reliable witness which can provide RAS
- defendant was nervous

Rucker - why is that RAS?
- fact that an officer is armed and in uniform doesn't convert questions into commands

Rucker - reasonable hoosier would think they could leave?
- Yes

Rucker - emphasizes normal people might not know that
- first question, conceded by defendant, was consensual - do you have a handgun

David - was that a concession? or it doesn't matter
- at the time of direction to stand, there was RAS
- defendant lies, which lends support to the fact that he isn't licensed

David - presumption of illegality?
- no, suspicion then confirmation when handgun is observed

David - case stronger if cabbie said that he was going to rob the cabbie?
- Yes, but that's an extra fact

David - if he hadn't said he was fearful, what then?
- Still RAS

David - seriously? (<--- ok, he didn't exactly say that, but implied it)
- would've been ok even without cabbie's info

 

[T.Lex]

David goes back to his hypothetical; officers can always order someone to stand up if they think they have a handgun?
- hemming and hawing, concerned citizen tip can be enough

David - just trying to understand, if someone sees a handgun police can approach
- yes, based on concerned citizen tip of handgun in public place, then RAS before approach
- conversation could dispel RAS, but at approach, there is RAS

David - is RAS position based on empirical data that people who carry have/do not have permits?
- no empirical data in record

 

[T.Lex]

DAG basically covers the ground that it is defendant's burden to show licensure.

Rucker - at gun show, police see someone with handgun, is there RAS? (I think I recall now that Rucker has a Larry.)
- facts of this case do not require us to get there

Rucker - trying to tease out the limits of the position - fact of possession, without more, provides RAS
- provides RAS for investigatory detention to determine licensure

Rucker - just making sure, re-asking question, possession of handgun = suspicion of criminal activity
- statutory exceptions

Rucker - gun show not an exception
- NOT SURE!!! (wait, wut?)
- in this case, it was not an exception

Massa - does it matter that he lied?
- yes
- doesn't want to admit, so it contributes to RAS

 

[Woobie]

 

[T.Lex]

Massa - RAS when they have "strong info" that he had one
- yes

David - well, they knew he had it earlier in the evening, don't know the circumstances when the question was asked (using a lot of air quotes, looks silly)
- would be detained to verify licensure, then encounter is over
- Virgin Islands law (I actually knew a guy who went there to practice a few years, or Bermuda, can't remember)
- Wait - just said we aren't an "open carry state" but a "license state"

Rebuttal
Massa doesn't let him start, asks about RAS and lie
- no, not RAS, still no proof of ...

Massa - don't need proof
- not RAS, "particularized" basis
- with law, still don't have evidence of crime
- even with concerned citizen, still need assertion of illegality, that defendant didn't have a license

Massa - why would he lie?
- dunno, maybe like Justice David, didn't want to answer

Massa - doesn't that create need to investigate further?
- no

Rush - body language/nervousness issue
- doesn't matter, still need RAS

Rush - invites minimum fact to get to RAS
- that he did not have a license
- should've asked his name, run his info

David - let's back that train up, defendant says "no" to gun question, what can they do?
- ask his name
- ask for identification

David - plays out various details, once they find out he's not licensed
- that would be RAS

David - if dude tries to leave, would that be RAS?
- yeah, probably, can draw inference, but it didn't happen

Stammers through his closing ask.

Rush closes.

 

[T.Lex]

Well, immediate gut reaction - in a hope against hope kinda way - is that they'll get to the question we want answered. There's an unknown factor, though - if there's a group of justices that want possession to not be RAS, but they don't have the votes, then they'll look to avoid the question, or address it in dicta.

I could see David, Massa, and Rucker agreeing that - under the facts of THIS case - that the possession of the gun was not RAS. I could see unanimity on the question of whether the interaction became investigative when defendant was "directed" to stand. The guidance to police would be to not do that until you actually think there's RAS of a crime.

Pinner's PD came across as more reasonable than the DAG.

Need to digest some of it some more, but I could see the court affirming the App. Ct. on the basis that the stop was not consensual once defendant was directed to stand. Perhaps a concurrence by 2 justices that go further in saying that possession is not RAS and a partial dissent by 2 that says it is.

 

[Double T]

Thanks for the "transcript". Will be interesting to see what transpires.

 

[Woobie]

Thanks, T. Lex, fascinating stuff.

 

[HoughMade]

Well, immediate gut reaction - in a hope against hope kinda way - is that they'll get to the question we want answered. There's an unknown factor, though - if there's a group of justices that want possession to not be RAS, but they don't have the votes, then they'll look to avoid the question, or address it in dicta.

I could see David, Massa, and Rucker agreeing that - under the facts of THIS case - that the possession of the gun was not RAS. I could see unanimity on the question of whether the interaction became investigative when defendant was "directed" to stand. The guidance to police would be to not do that until you actually think there's RAS of a crime.

Pinner's PD came across as more reasonable than the DAG.

Need to digest some of it some more, but I could see the court affirming the App. Ct. on the basis that the stop was not consensual once defendant was directed to stand. Perhaps a concurrence by 2 justices that go further in saying that possession is not RAS and a partial dissent by 2 that says it is.

Please tell me someone is getting billed for this. I hate to see it being given away.....I guess it is Christmas, though.

 

[T.Lex]

Please tell me someone is getting billed for this. I hate to see it being given away.....I guess it is Christmas, though.

Watch for an article/commentary in at least 1 publication.

 

[HoughMade]

Watch for an article/commentary in at least 1 publication.

Res Gestae, The Indiana Lawyer or Handguns​?

 

[T.Lex]

Res Gestae, The Indiana Lawyer or Handguns​?

Keep going, this is good brainstorming.

 

[Libertarian01]

Well, immediate gut reaction - in a hope against hope kinda way - is that they'll get to the question we want answered. There's an unknown factor, though - if there's a group of justices that want possession to not be RAS, but they don't have the votes, then they'll look to avoid the question, or address it in dicta.

I could see David, Massa, and Rucker agreeing that - under the facts of THIS case - that the possession of the gun was not RAS. I could see unanimity on the question of whether the interaction became investigative when defendant was "directed" to stand. The guidance to police would be to not do that until you actually think there's RAS of a crime.

Pinner's PD came across as more reasonable than the DAG.

Need to digest some of it some more, but I could see the court affirming the App. Ct. on the basis that the stop was not consensual once defendant was directed to stand. Perhaps a concurrence by 2 justices that go further in saying that possession is not RAS and a partial dissent by 2 that says it is.

This ^^^ is what I find so fascinating about the law. That the simple fact that a person was directed to stand up carries a great deal of weight in a case regarding our right to keep & bear arms.

Thank you for the play by play and the nice poetry opening!

Regards and Merry Christmas,

Doug