Indiana Court of Appeals and Handgun Possession

[T.Lex]

To re-re-re-hash another point,



Am I free to leave officer?

Am I being detained?

At the risk of totally misreading your post (again), the problem is that you may be bound by the answer.

If the officer says, "You can leave at any time" and you don't, then it is more likely to be consensual.

If the officer says, "You cannot leave" then its probably going to be a LONG night. And after he (or she) says that, STFU.

 

[2A_Tom]

Well, please answer this question.

I stopped at Luke Oil to get lunch the other day; I grabbed a couple of Arizona® Teas, ordered chicken and got in line to pay. While I am standing there I hear from behind someone say “are you a police officer”? I didn’t move, then a little bit louder “are you a police officer”? So, I turned around and looked up a foot or so to look in the man’s eyes. I asked him “Why do you ask”? He pointed down at my hip. I asked, “And who are you”? He pulled out his credentials to show me that he was a Lake County deputy and said “You have to go outside and cover that up. I said “that is not the law, Sir”. He: “You cannot just walk into a business with your gun showing, I’m an officer and even I have to conceal when I am off duty”. I, “Sir according to Indiana Code 35-47…”. He: “You have to cover it up”. “No Sir. I don’t”.



He: “Do you have a Concealed Carry Permit”? I: “No Sir, I don’t, I have a License to Carry a Handgun”. He: “Let me see it”. I showed it to him and he handed it back.




He: “well anyway you have to cover it up”. I: “not according to IC 35-47…”. He: “I don’t know what this IC 35-47 that you keep throwing out but it doesn’t make any difference you have to cover it up”. (At some point he said that he had been on the Lake County department for 19 years. Really! and does not recognize a Code citation.) I said, “Call the State Police and ask them”.


He: “Do you want me to get uniformed officers out here, because if I do they will confiscate your pistol”? I: “Not unless they do it illegally”. He: “Do you want me to call for uniformed police”. I: “Yes, I do want you to call the State police and get them out here; they know the law and will tell you that you are wrong”.




Then I realized I didn’t start my recorder, reaching for my phone and I said, “Wait, where is my recorder? Oh, I left my phone in the truck. Let me get it”. I walked outside and got my recorder. I started to turn it on, and he said “This conversation is over, sit in your truck”. He sat down in his car and called someone on his cell phone.




I: “Am I under arrest”?


He: “No”.
I: “Am I free to go”?
He: “Sit in your truck”.




I: “Am I under arrest”?
He: “No”.
I: “Am I free to go”?
He: “Sit in your truck”.




I: “Am I under arrest”?
He: “No”.
I: “I have to get my food’.




At this I point walked back into the store, paid for my food, apologized to the cashier for the trouble and walked back outside.






When I got back outside I asked if I was free to go and he said loudly, “get out of here”. I thanked him and extended my hand, but he refused it. I asked his name, but he refused to give it to me. I realized afterwards that I should have demanded his name and badge number, but hindsight is 20/20.






All this time there was a man who had been watching and listening, as I went to get in my truck he told me that he knew I was right and he had stuck around as a witness. He was a lifetime NRA member, he also said that the officer had at one time had a pistol in his hand after he had gotten in his car, but unless my situational awareness was way off it was just a cell phone.






The deputy wasted 20 minutes of my 30 minute lunch.

Without a retainer, what should I have done?

 

[T.Lex]

Without a retainer, what should I have done?

To do what?

I mean, what would you have wanted to accomplish that you did not accomplish?

He told you to sit in your car. Eventually, you left your car contrary to his instructions, yet neither your nor his boots were jacked. (Which... ewwww.)

Problem solved.

You were probably being detained unconstitutionally (the OP case will probably resolve at least part of it). I'm not the guy to help with that lawsuit, but there are people out there who can.

Do you want affirmation or condemnation? If we can resolve the retainer issue, I can provide either.

 

[2A_Tom]

Sorry, just sayin', every detainee does not end up spending the night in lock-up.

That was a long time ago.

 

[ATM]

...
I: “Am I under arrest”?
He: “No”.
I: “Am I free to go”?
He: “Sit in your truck”.

I: “Am I under arrest”?
He: “No”.
I: “Am I free to go”?
He: “Sit in your truck”.

I: “Am I under arrest”?
He: “No”.
...

"Why am I being detained?" kills two birds with one stone.

Acceptable responses include, "You're not." as well as, "For xxxxxx purpose."

The first requires no follow up, no need to inquire further for his permission to leave.

The second may or may not warrant follow-up questions regarding the nature of the stated purpose for detainment.

 

[HoughMade]

To re-re-re-hash another point,


Am I free to leave officer?

Am I being detained?

The officers couldn't know the future, but had he asked and they said "yes", they probably would have seen the gun when he stood up.

 

[2A_Tom]

I actually left his custody twice, to get my phone and to pay for my food. That is if I was in custody.

That could have been a charge in itself, if he had RAS.

 

[ArcadiaGP]

Today on WIBC

Court rules that it is illegal for police to stop and investigate people just for carrying guns | 93.1 WIBC

 

[2A_Tom]

Good find. I do hope it stands.

 

[Ddillard]

Its a shame it took two courts to come to the conclusion that rights were violated.

 

[Hawkeye]

Depends on if transfer is sought and/or accepted. The AG has 30 days to seek transfer.

Getting close to 30 days. Anyone watching for a appeal?

 

[Fargo]

Getting close to 30 days. Anyone watching for a appeal?

Yeah, I have been checking the CCS on mycase. No transfer petition showing yet. AG may not be seeking transfer, or may file right at 30.

The AG may be hesitant to seek transfer since the court basically found that the AG did not respond to the question certified in the interlocutory appeal. When the court certifies an issue for interloc, it is generally a bad idea to claim that issue isn't before the court and argue unrelated grounds.

 

[frenchiectfd2203]

I will keep checking back for a final decision. Very interesting for both sides.

 

[Vigilant]

School a layman, does 30 days have any bearing on anything?

 

[Fargo]

School a layman, does 30 days have any bearing on anything?

The appellate rules require a transfer petition to be filed no more than 30 days after the ruling it seeks to have reviewed. If memory serves, it is a hard deadline which cannot be extended. Simply put, if the Attorney General allows 30 days to elapse, he can't ask for Supreme Ct. review.

Transfer petitions are required by the appellate rules to have a good bit of substance to them so just because 3 weeks or so have elapsed doesn't mean the AG isn't filing one.

 

[Vigilant]

The appellate rules require a transfer petition to be filed no more than 30 days after the ruling it seeks to have reviewed. If memory serves, it is a hard deadline which cannot be extended. Simply put, if the Attorney General allows 30 days to elapse, he can't ask for Supreme Ct. review.

Transfer petitions are required by the appellate rules to have a good bit of substance to them so just because 3 weeks or so have elapsed doesn't mean the AG isn't filing one.

Thank you kind sir! Good info to have?

 

[T.Lex]

There is also a chance to ask for rehearing, which would delay it until the Ct. of Appeals addressed whatever is raised in rehearing. There were a couple things the Ct. of Appeals stretched a bit on, and the AG might address those.

Really more of a way to get more time.

Oh, and the basic rule is that the 30 days is a hard deadline. Unmovable.

One time, though, in 10 years of practicing in appeals, there was a private attorney well-known to the court who was able to file a Transfer Petition late. I couldn't believe it. The attorney did have compelling reasons, and it was the right answer, but it is the only time I've ever heard of that.

And the AG's office is one of the last to get that kind of treatment, I think.

 

[HoughMade]

...Transfer petitions are required by the appellate rules to have a good bit of substance to them so just because 3 weeks or so have elapsed doesn't mean the AG isn't filing one.

I have filed several. None more than 2 days early and most on the last day.

Since there is no additional briefing for the Supreme Court, the Petition to Transfer is your one chance to address what the Court of Appeals found...which can be involved if the CoA found you didn't preserve an issue.

 

[Fargo]

I have filed several. None more than 2 days early and most on the last day.

Since there is no additional briefing for the Supreme Court, the Petition to Transfer is your one chance to address what the Court of Appeals found...which can be involved if the CoA found you didn't preserve an issue.

I don't do appellate work, but I have a suspicion that when the Ct. Of Appeals apparently certifies the question:

whether a person’s possession of a handgun in a public place, without more, creates reasonable suspicionto detain the person for an investigatory stop.

The state shouldn't imply they are stupid for considering the question they certified:

Accordingly, the cases cited byDefendant and his argument thereupon, that the statutory framework of theIndiana carrying a handgun without being licensed statute does not permit officers to stop those in possession of a firearm to check for a license is not an issue before the Court.

 

[HoughMade]

I agree. The appellate courts try to get things right, but like all of us, from time to time they may focus on one thing while losing sight of another. There is still one opinion from the Ind. Sup. Ct. from 1999 that I can't believe never got corrected. To most, it won't mean much, but in my world it was glaring:

...Whether this constitutes a breach of the duty to warn can, on remand, be the subject of further motions for summary judgment or a trial on the merits.

The opening sentence to the next paragraph is then:

Having determined as a matter of law that Harris breached a duty to Raymond by the failure to warn her of the dangers associated with Vitek implants...

I know, it's "inside baseball", but anyone? Anyone? Bueller?