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TBO
07-17-2012, 07:26
http://www.chestertontribune.com/PoliceFireEmergency/two_charged_after_refusing_to_sh.htm

http://posttrib.suntimes.com/news/porter/13815181-418/armed-me-picking-up-trash-in-portage-alarm-driver.html

JAS104
07-17-2012, 07:40
I don't see why those kids would be like that.
That's just dumb.:dunno:

wprebeck
07-17-2012, 08:43
I don't see why those kids would be like that.
That's just dumb.:dunno:

You can't possibly be serious. The youngsters are likely members, or serious lurkers, of OC forums all over the web. Hope they enjoy their legal troubles. Wonder what their user names in here are?

tomcon
07-17-2012, 09:05
Obviously these two young men were up to no good, imagine somebody daring to pick up road side trash.

Not sure why they would not show their ID's, you can not carry off private property in Indiana without a License To Carry (LTC). I think Indiana repealed the statute that required you to show your LTC on demand, at least I can't find it on the ISP website.

"A charge of failure to aid a police officer." I guess it is true, they can always find something to charge you with.

jph02
07-17-2012, 09:17
Dudes! Here are your signs!

Indiana is not an open carry (http://www.opencarry.org/in.html) state so OC is just stupid. While Indiana law doesn't require showing a permit (http://www.handgunlaw.us/states/indiana.pdf) to a police officer, it references LEO authority to inspect the permit.
:shakehead:

RussP
07-17-2012, 09:22
Alright, before everyone gets all in a tiz and has a hissy-fit, from handgunlaw.us (http://www.handgunlaw.us/states/indiana.pdf):Q. Does Indiana statute require me to carry the handgun on my person concealed or
exposed?
A. Indiana law is silent on this issue; however, carrying an exposed weapon in public may alarm some people. Also, the right to carry a firearm may be restricted on private property and businesses by the owners. Be attentive for signs warning of restricted areas when carrying firearms into public places. If approached by law enforcement for official business such as traffic stops or complaint related inquiries, it is recommended that you tell the officer in a non-threatening manner that you are carrying a weapon or have a weapon in the vehicle and that you have a valid permit. A law enforcement officer does have the right to inspect the permit.
Note:I can find no reference in IN Law stating you must even carry your Permit. The FAQ from the IN St. Police states they do have the right to inspect your permit. Emphasis is mine.

As to the knife charge, I believe you can stick a fork in him. Again from handgunlaw.us - Knife Laws (http://www.handgunlaw.us/documents/USKnife.pdf):State - Indiana

Law Title/Chapt/Sec - 35-47-5-2.

Legal Yes/No - Y

Folder/Length - None

Short description from the law. - Only Switchblades and gravity knives are mentioned in Indiana Law as being illegal.

tomcon
07-17-2012, 09:23
Wrong State, Chesterton Tribune is located in Chesterton Indiana.

Indiana used to require showing your LTC. The charges seem to indicated that this statute was one of many that were repealed.

http://www.in.gov/legislative/ic/code/title35/ar47/

Dudes! Here are your signs!

South Carolina is not and open carry (http://www.opencarry.org/sc.html) state so OC is just stupid. And SC statute 23-31-215(k) requires showing your permit (http://www.handgunlaw.us/states/southcarolina.pdf) to a police officer.
:shakehead:

RussP
07-17-2012, 09:25
Dudes! Here are your signs!

Indiana is not an open carry (http://www.opencarry.org/in.html) state so OC is just stupid. While Indiana law doesn't require showing a permit (http://www.handgunlaw.us/states/indiana.pdf) to a police officer, it references LEO authority to inspect the permit.
:shakehead:Why are you citing South Carolina law when the incident is in Indiana?

tomcon beat me to it...

RussP
07-17-2012, 09:31
You can't possibly be serious. The youngsters are likely members, or serious lurkers, of OC forums all over the web. Hope they enjoy their legal troubles. Wonder what their user names in here are?On OCDO Mr. Mayberry of Portage is "Mayberryy". Open Carry Litter Pickup (http://forum.opencarry.org/forums/showthread.php?104739-Open-Carry-Litter-Pickup)

RyanNREMTP
07-17-2012, 09:34
Does Indiana allow a 19 year old to have a permit to carry?

rmodel65
07-17-2012, 09:46
this case will crumble like a house of cards...

tomcon
07-17-2012, 09:47
Yes, 18 is the minimum age to get your LTC.

Does Indiana allow a 19 year old to have a permit to carry?

tomcon
07-17-2012, 09:52
On OCDO Mr. Mayberry of Portage is "Mayberryy". Open Carry Litter Pickup (http://forum.opencarry.org/forums/showthread.php?104739-Open-Carry-Litter-Pickup)

I wonder if they would have officially "adopted" the clean-up of that stretch of the highway, if it would have made a difference.

Do you think the real story went something like this, " Litterbug throws trash out of vehicle, sees armed men picking up trash and fears "Litter-rage."

All joking aside, I hope they manage to get the charge of failure to aid a police officer dropped.

jph02
07-17-2012, 09:55
Wrong State, Chesterton Tribune is located in Chesterton Indiana...

Why are you citing South Carolina law when the incident is in Indiana?

tomcon beat me to it...
Caught that and fixed it while tomcon was posting and before yours showed up.

magiaaron
07-17-2012, 10:25
Right in my backyard. I've had a couple of kids in my gunshop that do that. I'm not against the idea of open carry, but, in a realistic world, this is the kind of crap that can happen to you. Should it happen? Nope. Will it? Not worth the risk for me, personally.

-magiaaron

RussP
07-17-2012, 10:48
Dudes! Here are your signs!

Indiana is not an open carry (http://www.opencarry.org/in.html) state so OC is just stupid. While Indiana law doesn't require showing a permit (http://www.handgunlaw.us/states/indiana.pdf) to a police officer, it references LEO authority to inspect the permit.
:shakehead:Caught that and fixed it while tomcon was posting and before yours showed up.What do you mean, "Indiana is not an open carry state..."? What makes it so?

RussP
07-17-2012, 10:53
I wonder if they would have officially "adopted" the clean-up of that stretch of the highway, if it would have made a difference.Nope, a call to local PD saying, "We're going to be cleaning up a stretch of road on Sunday and we're going to be open carrying our sidearms. Just wanted to give you a heads up in case someone calls in."

What is so wrong about doing that?

cowboywannabe
07-17-2012, 11:07
Nope, a call to local PD saying, "We're going to be cleaning up a stretch of road on Sunday and we're going to be open carrying our sidearms. Just wanted to give you a heads up in case someone calls in."

What is so wrong about doing that?

that requires using your brain.

RussP
07-17-2012, 11:15
Nope, a call to local PD saying, "We're going to be cleaning up a stretch of road on Sunday and we're going to be open carrying our sidearms. Just wanted to give you a heads up in case someone calls in."

What is so wrong about doing that?that requires using your brain.I do believe it has been done before.

The illegal knife charge may be an issue not so easily resolved...

jph02
07-17-2012, 12:08
What do you mean, "Indiana is not an open carry state..."? What makes it so?
Per opencarry.org (http://www.opencarry.org/in.html), "Indiana is not a traditional open carry state." The same web site also says open carry with a permit is legal.

It might be a stretch, but refusal to produce a permit seems to give police probable cause to believe a crime is being committed. See IC 35-47-2-1, et. al. (http://www.in.gov/legislative/ic/code/title35/ar47/ch2.pdf) for specifics, including Sec. 24, which states "burden of proof is on the defendant". I suspect the charge of "failure to aid a police officer" will stick since they did eventually produce carry permits.

TBO
07-17-2012, 12:29
Nope, a call to local PD saying, "We're going to be cleaning up a stretch of road on Sunday and we're going to be open carrying our sidearms. Just wanted to give you a heads up in case someone calls in."

What is so wrong about doing that?

:goodpost:

Sent from my mind using Tapatalk 2

Gunnut 45/454
07-17-2012, 12:51
I have to agree -they will fine anything to charge you ! Again -why was the cop called- cause another anti-gun freak doesn't like law abide folks carrying! The officer should have Observed- not seeing any crime being commited -left! Caller should have been required to be at the site of call. If they didn't stay, trased the call down and file unlawful use of 911!:steamed:

RussP
07-17-2012, 12:58
You originally said...Dudes! Here are your signs!

Indiana is not an open carry (http://www.opencarry.org/in.html) state so OC is just stupid...You left out an important word: "traditional". Florida is not an open carry state. Texas is not an open carry state. They both prohibit open carry.

Indiana is an open carry state.Per opencarry.org (http://www.opencarry.org/in.html), "Indiana is not a traditional open carry state." The same web site also says open carry with a permit is legal.

Misty02
07-17-2012, 13:02
You originally said...You left out an important word: "traditional". Florida is not an open carry state. Texas is not an open carry state. They both prohibit open carry.

Indiana is an open carry state.

ahhhh... but even in Florida OC is legal under some specific circumstances. :)


.

RussP
07-17-2012, 13:47
ahhhh... but even in Florida OC is legal under some specific circumstances. :)


.You NEVER let me have any fun....:crying:

Misty02
07-17-2012, 15:22
You NEVER let me have any fun....:crying:


Oops.....:embarassed:


.

Bren
07-17-2012, 15:35
Wrong State, Chesterton Tribune is located in Chesterton Indiana.

Indiana used to require showing your LTC. The charges seem to indicated that this statute was one of many that were repealed.

http://www.in.gov/legislative/ic/code/title35/ar47/

Maybe, but if you're doing something that requires a permit and you refuse to show a permit, that is easily probable cause to believe you don't have one. That would have been good enough to arrest - even if the police found it after the arrest, you don't get "unarrested."

rvrctyrngr
07-17-2012, 16:35
You NEVER let me have any fun....:crying:

She's like that. :supergrin:

RyanNREMTP
07-17-2012, 17:26
Most likely if they had shown their permits and complied with PD they would have been sent on their merry way afterwards.

tomcon
07-17-2012, 17:55
Maybe, but if you're doing something that requires a permit and you refuse to show a permit, that is easily probable cause to believe you don't have one."

I agree completely and if asked I plan on producing my LTC as well as my Indiana ID.

The must carry permit and show on demand statutes were repealed in 1997 or 2000, I think. Not sure why the politicians did it this way, sure makes it easy to get confused.

steveksux
07-17-2012, 19:15
ahhhh... but even in Florida OC is legal under some specific circumstances. :)


.Could you elaborate? I thought I read someone spotting your concealed weapon could even put you in jeopardy there... and open carry was illegal... Its been a few years since I went there, so my research may have become outdated.

Randy

rmodel65
07-17-2012, 19:47
Could you elaborate? I thought I read someone spotting your concealed weapon could even put you in jeopardy there... and open carry was illegal... Its been a few years since I went there, so my research may have become outdated.

Randy



there are exemptions like hunting, fishing, camping, sport shooting etc and to and from any of those events...technically it would be legal to carry openly on say a motorcycle to a fishing event all the way to Miami etc

RussP
07-17-2012, 19:50
There are some who open carry all the time because they are always goin' fishin'.

RussP
07-17-2012, 19:53
Has anyone seen any discussions on other forums about this?

PettyOfficer
07-17-2012, 20:01
As a law abiding citizen, I support the officers' right to request you to show proof of legal carry and support the right of officers to request you show photo ID for any reason where there is probable cause.

As well, i believe that just saying "no you can't check my id or permit" is probable cause enough!

steveksux
07-17-2012, 20:45
There are some who open carry all the time because they are always goin' fishin'.:rofl:

I see what you did there.. :supergrin: I think some of those are not only in Florida... :whistling:

Randy

RussP
07-17-2012, 20:50
There are some who open carry all the time because they are always goin' fishin'.

:rofl:

I see what you did there.. :supergrin: I think some of those are not only in Florida... :whistling:

RandyWhy, Randy, whatever are you talking about???

Seriously, I had not even thought of that context. That's gooood!!

I am referring to the gentleman I believe is on OCDO who is retired, carries his gear around all the time, open carries, and where he lives, there's always a fishing hole nearby.

IndyGunFreak
07-18-2012, 01:06
Has anyone seen any discussions on other forums about this?

http://ingunowners.com/forums/carry_issues_and_self_defense/224645-2_ltch_holders_arrested.html

That's about the most extensive discussion I've saw. I'm surprised OCF.org isn't foaming at the mouth for protests, etc..

Bottom line, the guy who didn't have the switchblade, will probably get charges dismissed and a good lesson. The guy w/ the switchblade, is in for a ride. I can't believe an open carrier would be THAT ignorant of Indiana law.

IGF

tomcon
07-18-2012, 01:44
See http://www.in.gov/legislative/ic/code/title35/ar47/ch2.pdf]IC 35-47-2-1, et. al.[/B] ([B) for specifics, including Sec. 24, which states "burden of proof is on the defendant".

That should be the relevant statute.

Misty02
07-18-2012, 04:57
Maybe, but if you're doing something that requires a permit and you refuse to show a permit, that is easily probable cause to believe you don't have one. That would have been good enough to arrest - even if the police found it after the arrest, you don't get "unarrested."

Not to imply that I agree with this situation; however, driving (which is not considered a right) requires a license. Can a person be stopped for no reason and asked to show a driverís license? Does it usually require the person have violated some traffic law or that it be some sort of check point (such as DUI)?

.

Misty02
07-18-2012, 04:59
She's like that. :supergrin:

:rofl::rofl:Sure, gang up on me to make me the bad guy, as if I donít get enough of that at home and at the office.

.

Bren
07-18-2012, 05:05
I agree completely and if asked I plan on producing my LTC as well as my Indiana ID.

The must carry permit and show on demand statutes were repealed in 1997 or 2000, I think. Not sure why the politicians did it this way, sure makes it easy to get confused.

I agree - repealing that statute doesn't make sense, but Indiana politicians have passed several laws lately that don't do much to help people. That change makes them think they don't have to show a permit, unless they are smart enough to figure out that, without the permit, they are subject to arrest for the gun. It's not unlike the one about shooting the police illegally entering your home - it doesn't mention that the police will kill you in response or that there is only about a .0001% chance you are right about the law.

Bren
07-18-2012, 05:10
Not to imply that I agree with this situation; however, driving (which is not considered a right) requires a license. Can a person be stopped for no reason and asked to show a driver’s license? Does it usually require the person have violated some traffic law or that it be some sort of check point (such as DUI)?

.

They can't be stopped for no reason - neither could the guys in this article, so you may be on to something there, if they were detained in some way without more cause than carrying the gun. The police would need reasonable suspicion of something criminal to stop them, or elese it could have been consensual, as in just stopping to ask you some questions while your standing in your front yard.

Misty02
07-18-2012, 05:24
Could you elaborate? I thought I read someone spotting your concealed weapon could even put you in jeopardy there... and open carry was illegal... Its been a few years since I went there, so my research may have become outdated.

Randy

Open carry is perfectly legal for us while going to, being at, or coming back from fishing, the range, camping and hunting. We can also OC in our home or business. Of course, that doesnít translate into always being able to do something legal without some sort of harassment if youíve tampered with the sensitivities and fear of others.

A gentleman in the FL forum, who is retired, goes fishing and shooting on his motorcycle while OC all the time. He has had no issues other than a brief stop by an officer that new the law well but was responding to the complaint of another person who was alarmed by the sight of an openly carried firearm. It was a very brief and amicable stop.

One of our boys ended up in handcuffs during a camping trip because the grip of his .357 magnum Ruger 6Ē revolver became exposed (that wasn't what originally drew the officers to them though). The entire thing was hysterical (for us, at least). Perfectly legal, even if he had OC on purpose. Nonetheless, I would have let him sit the night in jail, had he been taken in, for not planning appropriately and overdoing things.

If you have the time and want a laugh, here is the link: http://www.glocktalk.com/forums/showpost.php?p=18952938&postcount=172 (http://www.glocktalk.com/forums/showpost.php?p=18952938&postcount=172) :)

.

Misty02
07-18-2012, 05:43
They can't be stopped for no reason - neither could the guys in this article, so you may be on to something there, if they were detained in some way without more cause than carrying the gun. The police would need reasonable suspicion of something criminal to stop them, or elese it could have been consensual, as in just stopping to ask you some questions while your standing in your front yard.

Which could be the case, who knows?

It seems that in Indiana, unlike Florida, you aren’t required to produce the carry license upon demand by a LEO. Perhaps there is more to the story than what is stated in the article, perhaps not.

If at the end of the day it is determined they shouldn’t have been stopped at all, would the switchblade charge stand?



ETA: That is, assuming the search that yielded the switchblade wasn’t consensual, of course.

.

Bren
07-18-2012, 06:31
[FONT=Verdana]If at the end of the day it is determined they shouldnít have been stopped at all, would the switchblade charge stand?


Probably not. If it was a search incident to arrest then an illegal arrest would make an illegal search. The particular charge they used sounded a little questionable to me as well - I can't find where Indiana even has a "failure to aid a police officer" statute (Ohio does, but it wouldn't fit this situation). This was in Indiana, wasn't it?

jph02
07-18-2012, 06:59
They can't be stopped for no reason - neither could the guys in this article, so you may be on to something there, if they were detained in some way without more cause than carrying the gun. The police would need reasonable suspicion of something criminal to stop them, or elese it could have been consensual, as in just stopping to ask you some questions while your standing in your front yard.

Which could be the case, who knows?

It seems that in Indiana, unlike Florida, you arenít required to produce the carry license upon demand by a LEO. Perhaps there is more to the story than what is stated in the article, perhaps not.

If at the end of the day it is determined they shouldnít have been stopped at all, would the switchblade charge stand?



ETA: That is, assuming the search that yielded the switchblade wasnít consensual, of course.

.
There is always more to the story than what the press publishes, IMHO. According to the articles, however, they were stopped because someone called them in. That gives police probable cause to stop them.

IN law requires a license to carry, and burden of proof is on the defendant. Although the law does not require them to carry their permits, refusal to show them gives police reasonable suspicion a crime may be in progress. "Failure to aid a police officer" is a charge that's likely to stick, in my opinion.

If the charge been no permit to carry, they would have had to dismiss and even expunge any arrest record as soon as proof of licensure was made. With the failure to aid a police officer charge, the search incidental to arrest that yielded the knife in possession of young Mr. Alamo is permissable and the evidence admissable.

Here's the real rub, if you ask me. Had these young men just showed their permits, the cop likely would have said "have a nice day" and they probably would have. Instead, they wanted to prove their rights so at least one of them is likely to get a conviction, albeit the knife possession is a misdemeanor (http://www.in.gov/legislative/ic/code/title35/ar47/ch5.html). They intended from the start to be smartasses and they got a prize for it. :shakehead:

On a side note regarding vehicle stops, there are so many intricacies in the vehicle code (in any state) that all a cop has to do is follow you long enough and you're going to commit some type of violation or s/he'll notice some form of equipment violation.

Caveat: I am not a lawyer, I do not play one on TV, and I did not sleep at a Holiday Inn Express last night. It's just my opinion based on the circumstances as we know them.

jph02
07-18-2012, 07:11
Probably not. If it was a search incident to arrest then an illegal arrest would make an illegal search. The particular charge they used sounded a little questionable to me as well - I can't find where Indiana even has a "failure to aid a police officer" statute (Ohio does, but it wouldn't fit this situation). This was in Indiana, wasn't it?

Portage city code Sec. 78-7, Compliance with police, fire officer (http://search.municode.com/html/12707/level3/MUCO_CH78TRVE_ARTIINGE.html):No person shall willfully fail or refuse to comply with any lawful order or direction of a police officer or fire department officer, when such fire department officer is in uniform.

rvrctyrngr
07-18-2012, 07:51
Why, Randy, whatever are you talking about???

Seriously, I had not even thought of that context. That's gooood!!

I am referring to the gentleman I believe is on OCDO who is retired, carries his gear around all the time, open carries, and where he lives, there's always a fishing hole nearby.

That's because he REALLY goes fishing or shooting almost every day. If he's not going to/from one of those activities, he covers up like the rest of us. He doesn't just carry gear so he can OC. He isn't dumb. He uses our goofy laws to his advantage, but he follows the letter and spirit of them.

I think he's a member here, too. ADulay.

rmodel65
07-18-2012, 07:54
Portage city code Sec. 78-7, Compliance with police, fire officer (http://search.municode.com/html/12707/level3/MUCO_CH78TRVE_ARTIINGE.html):

No person shall willfully fail or refuse to comply with any lawful order or direction of a police officer or fire department officer, when such fire department officer is in uniform.


we will see if said demand is lawful or not..

A6Gator
07-18-2012, 08:01
According to the articles, however, they were stopped because someone called them in. That gives police probable cause to stop them.

Thanks for pointing that out. The "all cops are JBTs" crowd won't pick up that subtlety.

Bren
07-18-2012, 11:07
Portage city code Sec. 78-7, Compliance with police, fire officer (http://search.municode.com/html/12707/level3/MUCO_CH78TRVE_ARTIINGE.html):

That's pretty weak. If I was defending them in a lawsuit, I'd have no problem with the stop based on citizen complaint(s) (which I have actually defended on very similar facts) but I'd worry about the arrest. A better charge would have been to charge them with carrying without a permit and leave that charge even after the permit is found. The police only need probable cause at the time of arrest - if it is later disproven, that doesn't make the arrest invalid. In this case, I'm betting they thought finding the permits, subsequent to the arrest, killed that charge, so they needed another one - not a good legal choice.

Misty02
07-18-2012, 13:08
As a law abiding citizen, I support the officers' right to request you to show proof of legal carry and support the right of officers to request you show photo ID for any reason where there is probable cause.

As well, i believe that just saying "no you can't check my id or permit" is probable cause enough!

I also support that right, the one where they “request”. If there is any suspicion of illegal activity then they have the right to “demand”. Merely stating “I won’t show you my ID” or “you can’t search my house/vehicle” does not constitute probable cause to demand either. I’m as officer friendly as they come but we still have rights. Whether or not I exercise them is my choice.

An officer can stop and talk to me any time he/she wishes, they can ask as many questions as they wish. I’ll likely answer most, if not all. If asked for ID the odds are extremely high (almost certain) that I’ll provide it; nonetheless, I’m aware it is my choice, its being done out of courtesy and to expedite the consensual exchange.

.

rmodel65
07-18-2012, 16:10
That's pretty weak. If I was defending them in a lawsuit, I'd have no problem with the stop based on citizen complaint(s) (which I have actually defended on very similar facts) but I'd worry about the arrest. A better charge would have been to charge them with carrying without a permit and leave that charge even after the permit is found. The police only need probable cause at the time of arrest - if it is later disproven, that doesn't make the arrest invalid. In this case, I'm betting they thought finding the permits, subsequent to the arrest, killed that charge, so they needed another one - not a good legal choice.



I don't think that would be a valid arrest either once their affirmative defense is presented..granted i dont know what federal district youre in but this would certainly be persuasive


Williams v. Sirmon, 307 Fed.Appx. 354 (11th Cir. 2009).


"That is, if an officer has knowledge of facts and circumstances which establish an affirmative defense, he or she lacks probable cause to arrest, even when the facts and circumstances establish that the person meets all the elements of the crime."


If you lack PC then it certainly would be able to be sued over later

Bren
07-18-2012, 18:19
I don't think that would be a valid arrest either once their affirmative defense is presented..granted i dont know what federal district youre in but this would certainly be persuasive


Williams v. Sirmon, 307 Fed.Appx. 354 (11th Cir. 2009).



If you lack PC then it certainly would be able to be sued over later

Yes, but these guys refused to show the permit before arrest, as I understood it. If it was found AFTER arrest, they have already been arrested and that defense is irrelevant until they see a judge. Once arrested, they have no actual authority to "unarrest" them and learning about a defense that wasn't mentioned prior to arest makes no difference.

rmodel65
07-18-2012, 22:46
I disagree once he found their affirmative defense he instantly lacked probable cause to keep going(he had it to that instant point but i think to go further would be 100% actionable in a civil suit)...now say i was in Florida carrying on my Georgia Firearms license(i have the old card) if i had to show it then they would probably think it was a fake(looks like a child made it) then it would be a different situation.(in fact florida courts ruled that recently so i always make sure to carry my FL CCW when going 30 mins south of my house)

rmodel65
07-18-2012, 22:50
link to the opinion (http://www.ca11.uscourts.gov/unpub/ops/200813218.pdf)

SgtScott31
07-18-2012, 23:52
It appears the law in IN is similar to ours in TN. Possessing a Handgun Carry Permit (HCP) here in TN is simply a defense to unlawful carry (TCA 39-17-1307). Obviously if you're carrying without a permit then you're carrying illegally. An officer observing someone who is carrying whether openly or concealed here (doesn't matter which) has a right to verify that the person is carrying lawfully. If the person refuses to show a permit, then the officer can make an arrest at his discretion. Should the carrier have a permit, then he can present that as a defense to the charge later in court. Should the holder resist in any way during the interaction, we also have a "Resist stop, frisk, halt" charge similar to other state's obstruction statutes. TN's HCP law also allows LEOs to disarm a permit holder when he reasonably believes it's necessary for the safety of himself, the holder, and/or others.

Can the OP in this case sue afterwards if the criminal charge is dismissed? sure. Is it winnable? highly unlikely.

One must realize that a government agent/entity is protected by Government Tort Liability laws/acts (aka qualified immunity). Unless that officer's actions (during the course of his duties) were gross, malicious, reckless, etc, the lawsuit will likely get dismissed in a pre-trial stage (such as summary judgment). You would basically have to prove that the officer in this case was acting maliciously/recklessly when he arrested the person for refusing to show an ID to verify that they were legally carrying a gun. In my opinion, it's not going to happen. So many people think that it's so easy to sue a city/county/LE agency. Whether state suit or federal action (1983 civil rights violation), it is a VERY hard burden to prove and win. You can sue for anything. Being successful is a different story.

SgtScott31
07-19-2012, 00:03
link to the opinion (http://www.ca11.uscourts.gov/unpub/ops/200813218.pdf)

All this opinion shows is that there were facts in question to dismiss a summary judgment claim. Did this case go to trial or was there a settlement?

I stand by my original post. If IN's law is similar to ours in TN, they can file a lawsuit all day long, but it won't go anywhere. The officers acted reasonable at the time of the arrest. If IN requires a permit to legally carry and they refused to show it, then the officer can reasonably assume they were not carrying lawfully. Arrest and allow them to provide a defense in court. If they had to physically disarm, restrain and locate a permit, I can easily understand the other obstruction charge.

miruss
07-19-2012, 13:39
Heres a case from mich of a kid charged with carrying a rifle downtown got off on all charges . If open carry is legal in ind these kids get off.

http://www.mlive.com/news/detroit/index.ssf/2012/07/troy_teen_acquitted_of_charges.html

tomcon
07-19-2012, 21:13
Heres a case from mich of a kid charged with carrying a rifle downtown got off on all charges . If open carry is legal in ind these kids get off.

http://www.mlive.com/news/detroit/index.ssf/2012/07/troy_teen_acquitted_of_charges.html

Open carry is only legal with a LTC (permit), which both had in their possession, they were charged with "Failure to aid a police officer."

tomcon
07-19-2012, 21:42
Nope, a call to local PD saying, "We're going to be cleaning up a stretch of road on Sunday and we're going to be open carrying our sidearms. Just wanted to give you a heads up in case someone calls in."

What is so wrong about doing that?

What I was thinking of is actually state sanctioned and would require a long term commitment.

Adopt-A-Highway Program

http://www.in.gov/indot/2598.htm

rmodel65
07-20-2012, 02:15
Open carry is only legal with a LTC (permit), which both had in their possession, their were charged with "Failure to aid a police officer."



If they werent licensed them they have to aid the officer in helping to gather evidence against them??

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Bren
07-20-2012, 05:07
I disagree once he found their affirmative defense he instantly lacked probable cause to keep going(he had it to that instant point but i think to go further would be 100% actionable in a civil suit)...now say i was in Florida carrying on my Georgia Firearms license(i have the old card) if i had to show it then they would probably think it was a fake(looks like a child made it) then it would be a different situation.(in fact florida courts ruled that recently so i always make sure to carry my FL CCW when going 30 mins south of my house)

There was no "keep going" if they had already been arrested.

What I'm saying is:
1. The refuse to show CCW.
2. They are arrested.
3. They are searched (since that has to come AFTER arest).
4. CCW is found.
5. They go to jail because 2 came before 3 and a police officer can't unarrest an arrested person, strictly speaking. “[O]nce the arrest has been properly effected, it is the magistrate and not the policeman who should decide whether probable cause has dissipated to such an extent following arrest that the suspect should be released.” Thompson v. Olson, 798 F.2d 552, 556 (1st Cir.1986).


If they had probable cause when the guy was arrested, that's the point when it mattered. However, I could see releasing the guy and saying "it was really a Terry stop" up until that point.

Misty02
07-20-2012, 05:58
The more I learn, the less I know. The law is far more complicated than I ever imagined.

:dunno:

.

jmchaney
07-20-2012, 06:30
Not to imply that I agree with this situation; however, driving (which is not considered a right) requires a license. Can a person be stopped for no reason and asked to show a driverís license? Does it usually require the person have violated some traffic law or that it be some sort of check point (such as DUI)?

.

If someone calls in and reports that he is driving erratically, he will certainly be stopped.

RussP
07-20-2012, 06:44
The more I learn, the less I know. The law is far more complicated than I ever imagined.

:dunno:

.Are you saying that instead of being either black or white, that in the real world there are many, many shades of gray? :supergrin:

RussP
07-20-2012, 07:10
If they werent licensed them they have to aid the officer in helping to gather evidence against them??No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.If I use the words I want to to describe your post, I'd have to give myself multiple infractions. :faint:

Possessing and presenting upon demand the document required by law to carry is an affirmative defense against the charge of illegal carry.

Possessing and failing to present, the presentation upon demand being required by law, is a violation.

Following the law, presenting the document, is exactly opposite of incriminating oneself.

Failing to present the required document for inspection upon demand creates reasonable suspicion that a crime has been committed and is in fact ongoing at the moment the demand and refusal occur.

If you understand differently, please provide your basis for doing so.

Providing exculpatory evidence is not incriminating.

Sendarr
07-20-2012, 07:53
Could you elaborate? I thought I read someone spotting your concealed weapon could even put you in jeopardy there... and open carry was illegal... Its been a few years since I went there, so my research may have become outdated.

Randy

SB 234 basically says "Firearms; Provides that a person who is licensed to carry a concealed firearm is not in violation of law if the firearm is briefly and openly displayed under certain circumstances."

Others have already covered the "and open carry was illegal" part. :cool:

tomcon
07-20-2012, 08:13
The more I learn, the less I know. The law is far more complicated than I ever imagined.

:dunno:

.

It really is not that complicated, if you must have a permit to carry be prepared to show it. If you plan on staging a confrontation over your rights, get sound legal advice first.

And if you think it is funny to jack an officer around be prepared for a ride. There are literally thousands of obscure laws on the books.

Seriously, your posts show a very good understanding of the laws and of common sense.

tomcon
07-20-2012, 08:19
If they werent licensed them they have to aid the officer in helping to gather evidence against them??

It could have been something as simple as, "What is your friends name?"
If you do not answer, "Failure to aid a police officer."

packsaddle
07-20-2012, 08:25
If someone calls in and reports that he is driving erratically, he will certainly be stopped.

not necessarily.

SgtScott31
07-20-2012, 14:00
If they werent licensed them they have to aid the officer in helping to gather evidence against them??

#1 - You're taking the terminology out of context. The law is basically an obstruction statute. If you prevent the officer from carrying out lawful duties then you're obstructing. The officer attempted to verify someone was carrying a gun legally and they refused to comply.

#2 - The quote you gave is not applicable here. The right against self-incrimination is in later stages of criminal prosecution. 5th and 6th Amendment protections are not required during an investigative detention. Heck they're not even applicable during an arrest unless I begin asking you questions that could illicit an incriminating response. People think that just because police contact (or an arrest) is made Miranda is required or they have the right to an attorney. Not the case at all. In all of the arrests I have made over 10 years I can maybe count on one hand the amount of times I have read Miranda.

rmodel65
07-20-2012, 14:47
i never said miranda was a requirement...but you always have the right to remain silent always

JuneyBooney
07-20-2012, 21:35
Alright, before everyone gets all in a tiz and has a hissy-fit, from handgunlaw.us (http://www.handgunlaw.us/states/indiana.pdf):Emphasis is mine.

As to the knife charge, I believe you can stick a fork in him. Again from handgunlaw.us - Knife Laws (http://www.handgunlaw.us/documents/USKnife.pdf):


they will probably get scolded and trained in proper decorum and let go. Good researching Russ.

Misty02
07-21-2012, 05:00
Are you saying that instead of being either black or white, that in the real world there are many, many shades of gray? :supergrin:

Iíve always known about it not being black and white , but I had not counted on the many shades of gray that actually exist and the itsy bitsy nuances that can shift it from one shade to another.

.

Misty02
07-21-2012, 05:09
It really is not that complicated, if you must have a permit to carry be prepared to show it. If you plan on staging a confrontation over your rights, get sound legal advice first.

And if you think it is funny to jack an officer around be prepared for a ride. There are literally thousands of obscure laws on the books.

Seriously, your posts show a very good understanding of the laws and of common sense.

I was referring to Brenís post #64 coupled with the police/law classes Iím taking, not necessarily about this particular case itself. I had the gist of it, but the intricate details and up to which point there is officer discretion involved, which is such a thin and nearly indistinguishable line, are draining what little brain cells I had left.

.

tomcon
07-21-2012, 07:41
I was referring to Brenís post #64 coupled with the police/law classes Iím taking, not necessarily about this particular case itself. I had the gist of it, but the intricate details and up to which point there is officer discretion involved, which is such a thin and nearly indistinguishable line, are draining what little brain cells I had left.

.

I meant your posts on other threads in general not necessarily this specific thread.

Indiana politicians seem to go out of their way to make everything as complicated as possible.

Misty02
07-21-2012, 10:42
I meant your posts on other threads in general not necessarily this specific thread.

Indiana politicians seem to go out of their way to make everything as complicated as possible.


Oh..... thank you! :embarassed:

.

Prometheus77
09-11-2012, 21:57
Heres a case from mich of a kid charged with carrying a rifle downtown got off on all charges . If open carry is legal in ind these kids get off.

http://www.mlive.com/news/detroit/index.ssf/2012/07/troy_teen_acquitted_of_charges.html

Open carry of a long arm doesn't require a license or permit in Indiana.

You can walk up and down the street all day long OC'ing an AK-47 and refuse to hand over a LTCH. It isn't required. I'm sure they could trump something up to require you to ID yourself, such as jaywalking.

In this case the gentleman had to show a LTCH because they were carrying handguns.

The officers initially took them into custody for illegal carry of a handgun. Once they found the LTCH's, they called the Porter Co DA's office to see what they could charge them with, since their ego's had apparently been bruised.

The prosecutor searched and search and ultimately settled on "failure to aid an officer". Talk about reaching!

Just to clarify in Indiana LTCH stands for License to Carry a Handgun.

There is no permit, nor is it concealed or does it cover weapons or firearms. It is, exactly what it is named: License to Carry a Handgun.

It is a VERY important distinction because every state is different and not all licenses or permits are created equal.

In this case, these two guys probably watched a bunch of youtube video and read postings online and got arrested because they thought Indiana was like AZ, VT, AL, WY, PA, OR, <insert half a dozen other states here>....

Verbiage matters when dealing with matters of the law.

Which BTW this law is B.S. it's time for Indiana to move into the 21st century and treat handguns like rifles and shotguns.

JW1178
09-11-2012, 22:51
Play stupid games, win stupid prizes. There is a right way to do things and a wrong way.

They should have did as requested and then spoke to higher authority about it afterwards.

Making a stand lime they did, what does it accomplish? What's the big deal, let the LEOs see the permit, go on your way.

ranger1968
09-11-2012, 23:01
ahhhh... but even in Florida OC is legal under some specific circumstances. :)


.

VERY specific circumstances; and picking up trash on the side of the road isn't one of them.

jph02
09-12-2012, 06:15
Play stupid games, win stupid prizes. There is a right way to do things and a wrong way.

They should have did as requested and then spoke to higher authority about it afterwards.

Making a stand lime they did, what does it accomplish? What's the big deal, let the LEOs see the permit, go on your way.
I think they got exactly what they were looking for. IN does not require you to carry your LTCH or present it upon request, although law enforcement has authority to inspect it. Figure that one out. The fact these tools had their LTCHs with them tells me they wanted to push the envelope. What they didn't realize is the envelope had a bill in it for them and they deserve it, IMHO.

Schlitz
09-12-2012, 08:09
These guys were cleaning up trash for their community while exercising what is supposed to be a right in their country. Maybe they didn't want to show their papers to the cops because they weren't doing anything wrong. What is so criminal in nature about picking up trash while being armed?

In summation, this two guys made a big mistake. They made the mistake of thinking they lived in a free country- they don't.

As a law abiding citizen, I support the officers' right to request you to show proof of legal carry and support the right of officers to request you show photo ID for any reason where there is probable cause.

As well, i believe that just saying "no you can't check my id or permit" is probable cause enough!
What a good little citizen you are. Someone get this guy a "citizen of the month" sash to wear around town.

What happen to the thriving spirit of free men? That **** is dead now huh? "WELL I SUPPORT THE OFFICERS' RIGHT TO REQUEST YOU SHOW HIM PROOF YOU'RE LEGAL!!!" WHAT!? What happened to being innocent until proven guilty? Wtf happened? Why would anyone support that?

And when did police officers get rights to violate our rights? Their authority is granted to them by the people to protect the people's rights. Wtf happened?

Can we get some more government in here? I don't think we have enough. We need a law for this that that that and this.

Schlitz
09-12-2012, 08:13
And wtf is with the knife charge? He was carrying a knife while cleaning up trash for his community? ARREST THAT MAN.

I don't know about you, but I feel safer knowing these thugs are off the street for having a knife while cleaning trash for the community. A big thanks to the arresting officers for standing up to these criminals who think they can carry knives while cleaning our streets. Forget responding to rapes and robberies, there are 19 year olds carrying knives in the privacy of their pockets while cleaning trash off the side of our roads!

RussP
09-12-2012, 10:28
And wtf is with the knife charge? He was carrying a knife while cleaning up trash for his community? ARREST THAT MAN.

I don't know about you, but I feel safer knowing these thugs are off the street for having a knife while cleaning trash for the community. A big thanks to the arresting officers for standing up to these criminals who think they can carry knives while cleaning our streets. Forget responding to rapes and robberies, there are 19 year olds carrying knives in the privacy of their pockets while cleaning trash off the side of our roads!Schlitz, you are going off topic. If you want to discuss your disdain for law enforcement, please do so in the appropriate forum, please. :impatient:

RussP
09-12-2012, 12:38
And wtf is with the knife charge? He was carrying a knife while cleaning up trash for his community? ARREST THAT MAN.Schlitz, you might want to check, well, did you research Indiana's law on carrying automatic knives before you asked that question? IC 35-47-5-2

Knife with blade that opens automatically or may be propelled
Sec. 2. It is a Class B misdemeanor for a person to manufacture, possess, display, offer, sell, lend, give away, or purchase any knife with a blade that:
(1) opens automatically; or
(2) may be propelled;
by hand pressure applied to a button, device containing gas, spring, or other device in the handle of the knife.
As added by P.L.311-1983, SEC.32. Amended by P.L.70-2000,
SEC.2.Guess you didn't...

jbglock
09-12-2012, 14:08
Even if not required what does it hurt to provide ID to the officer in a situation like this? I see a few rebels without a clue/cause in this thread talking these two idiots up as great heroes and would love to hear their views.

jbglock
09-12-2012, 14:27
I was referring to Brenís post #64 coupled with the police/law classes Iím taking, not necessarily about this particular case itself. I had the gist of it, but the intricate details and up to which point there is officer discretion involved, which is such a thin and nearly indistinguishable line, are draining what little brain cells I had left.

.

Officer discretion can be (hypothetical example):

Complaint is called in of two armed w/m in the area. What did they do wrong? Nothing but a citizen has called in a complaint and you are dispatched so you have to go check it out. (Notice to those without a clue, if a rape or robbery call is also in the works this takes a back seat. Police have more sense than you do obviously if you think they'll put a rape or robbery call behind something like this.)

You go to the area and see the two w/m subjects as described open carrying their firearms. No big deal. You go to talk to them and one of two things happen...
1. They are friendly like you are. You explain why you are there. They do the same. You tell them they are doing nothing wrong but don't be surprised if another officer talks to them again later as people in the area aren't used to the sight of two w/m's open carrying and will probably make some bogus call again.
2. They immediately get an attitude. You try to defuse things by being friendly/sympathetic but these are obviously idiots with something to prove. Well guess what. The wheels start turning. Since this isn't going to be friendly let's ID them and move on. It's not like you aren't justified. High crime area, two openly armed subjects, openly hostile toward the police, with some "story" about picking up trash that just doesn't seem right considering the circumstances and their general demeanor. (Big clue for some of you but people do lie to the police at times.) Well now they refuse to show ID and refuse to comply with showing a permit (if required). Now it is time to use that discretion the other way.

Blast me all you want but this is real life I'm talking about. If you were a cop and you were dealing with someone that was polite and respectful you'd use your discretion and take it easy on them right up to a warning even if they had made a minor violation of law. If they were the opposite then you'd charge them with any violation even if it were minor. Arm chair patrol all you want but that is how things happen.

Ever know people that get pulled over by the police a lot but never seem to get citations? Same for people that always get citations with multiple charges every time? Think about it.

RussP
09-12-2012, 15:06
Officer discretion can be (hypothetical example):...Great post.

Gary Slider
09-12-2012, 16:22
jph02,

Thanks for the Statute about Presenting license if charged etc. I am adding that to the Indiana page at www.handgunlaw..us Thank you for the info. It will show up Friday.

wprebeck
09-12-2012, 18:33
Leonard, is that you? Because there surely aren't two people this rabidly.....I'll leave out any adjectives for Russ's sake.

RussP
09-12-2012, 19:10
jph02,

Thanks for the Statute about Presenting license if charged etc. I am adding that to the Indiana page at www.handgunlaw..us Thank you for the info. It will show up Friday.Thank you, Gary, for participating here in CI.

:thumbsup:

jbglock
09-12-2012, 19:19
...

1. Knives. In my state it is illegal to own an automatic knife unless you are law enforcement, military, or have a disability that limits the use of one arm or hand. How often do you think it actually gets charged though? I've charged and arrested literally thousands of people and although I've run into automatic knives I've never even bothered to look up the exact statute to charge this. It is the law but it's not the priority of most patrol officers. For it to actually get charged they must have really been jerks towards the officer involved. No different than my states law on failure to carry or sign the assigned registration card to the vehicle in the vehicle. For me to have charged someone with that you just know they were being pure jerks. Some even call charges like this "contempt of cop". Is it wrong? Nope. It's the law and part of an officer's discretion.
2. Picking up trash as a crime. I guess that isn't a crime. Of course we are assuming that is what they were doing. I wasn't there. Were you? I'm sure their version of the encounter is much different than the charging officers which won't come out unless he has to testify about it in court. Unlike the public a leo doesn't have the right to whine about how he is treated by the scum he deals with on a daily basis.
3. Our rights. I see your point. There are times where you might feel that the demand for your ID is not justified. You had just better hope that it doesn't conflict with actual law. For example, if I am needing to ID you in the course of an investigation then I can require you to ID yourself either with your state issued DL or ID card or by name and date of birth. No I can't just stop random people and demand ID. That is not legal. But let's just say I'm investigating a report of two w/m subjects in an area openly armed menacing the public then I can demand ID. You can refuse feeling it is a BS reason but in my state you would be guilty of resist, delay, or obstruct a public officer. I would tell you once why I am justified in demanding you ID yourself and what you will be charged with if you continue to refuse. Refuse again and you are now arrested. I'm not sure how it works in other states but it can't be that much different. To the point we don't know what the officer was told or was reported by that citizen.

Bruce M
09-12-2012, 19:31
People have died to protect our nation and our way of life. And all too often criminals, felons cause unrest, finanancial and emotional loss, and unstability in neighborhoods. And to more than a few of us reduction in crime is a reasonable trade off for a minor temporary intrusion and really isn't compromising our rights, causing the Second Amendment to crumble, placing within a few days of quartering soldiers in our homes, or endangering the fate of western civilization. And our courts often take into account the rights of victims of crimes and people who live in unstable neighborhoods and balance them with other rights. Its why some oddly do not see a major Constitutional affront to being asked to present the carry permit.

SgtScott31
09-12-2012, 20:21
Schlitz, you are going off topic. If you want to discuss your disdain for law enforcement, please do so in the appropriate forum, please. :impatient:

Are you surprised?

Schlitz
09-12-2012, 20:35
1. Knives. In my state it is illegal to own an automatic knife unless you are law enforcement, military, or have a disability that limits the use of one arm or hand. How often do you think it actually gets charged though? I've charged and arrested literally thousands of people and although I've run into automatic knives I've never even bothered to look up the exact statute to charge this. It is the law but it's not the priority of most patrol officers. For it to actually get charged they must have really been jerks towards the officer involved.
So 2 people can be committing the same exact crime and you'll charge one and let the other go based off of who kissed butt and who was a jerk about being stopped? That sounds fair.

TBH, if I'm ever stopped over what I feel is BS "cooperative" is what I won't be. I'm an American. If Americans were always 'cooperative' when they felt violated the entire country would be referred to as "New England" right now.

I don't blame these guys for refusing to show ID and neither should any red blooded American.

And to more than a few of us reduction in crime is a reasonable trade off for a minor temporary intrusion and really isn't compromising our rights,

A wise man named Benjamin Franklin is commonly cited as saying something along the lines of, "Those who would give up liberty for safety are deserving of neither." Norman Peale said something similar when he said, "Americans used to roar like lions for liberty; now we bleat like sheep for security." Just chew on it for a while.

You can refuse feeling it is a BS reason but in my state you would be guilty of resist, delay, or obstruct a public officer.R.I.P. 4th Amendment to the United States Constitution

Now you have to be a cop, lawyer, or judge to know when your rights are being violated. Anyone who feels violated and refuses to cooperate will be arrested and charged, like these young men in the articles listed in thread's initial post #1.<♩♪start Lee Greenwoods "proud to be an american, where at least I know I'm freeeeeeee :patriot:♩ ♪>

The right against self-incrimination is in later stages of criminal prosecution. 5th and 6th Amendment protections are not required during an investigative detention.
And once you say something incriminating you're arrested and charged... So I urge you not to listen to this guy and always keep the 5th Amendment in your pocket. Lot's of good Americans died and served so you'd have that right during any stage of a criminal prosecution (even initial contact), so don't let any employee of a government tell you otherwise.

Are you surprised?Everything I have posted is 100% relevant to the thread's topic and related links.

Like I said earlier, the only thing these guys did wrong is they made the mistake of thinking they lived in a free country - they don't.