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Thread: Refusal to identify self, provide handgun permit

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    Regular Member ICBM's Avatar
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    Post Refusal to identify self, provide handgun permit

    So, I was reading an article from 2010 which reports how the "IMPD said that in the current atmosphere, police need to check permits and a gun carrier's intentions."

    Article

    So I checked the state law on when you are required to provide ID...

    "IC 34-28-5-3.5
    Refusal to identify self
    Sec. 3.5. A person who knowingly or intentionally refuses to provide either the person's:
    (1) name, address, and date of birth; or
    (2) driver's license, if in the person's possession;
    to a law enforcement officer who has stopped the person for an infraction or ordinance violation commits a Class C misdemeanor."

    From what I understand, the police want to check peoples permits because its scaring the villagers. But you don't have to show them your permit or ID unless they detain you for "an infraction or ordinance violation."
    I also found a precedent of courts upholding our rights from arbitrary detention while OCing, because its the same if they stop you in a car and ask to see your DL just to see if you can legally drive.

    UNITED STATES v. BLACK

    So my question is, what is the most polite and quick response to an officer wanting to see your info without reasonable suspicion? Does anyone have any stories of police detaining them unjustifiably while OCing?

    Additionally, where would OCing be unlawful? I know its courthouses, k-12 schools, and during the annual state fair... but don't know much else. I recently learned guns on property owned by the USPS is illegal under federal law, this includes the parking lot if it is not shared with another business, not just inside the building.

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    I just say "hey, that's a probative question!"

    And say no more.

    Impolite? Who's being impolite? The people trying to put you in jail or you?

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    Campaign Veteran ATM's Avatar
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    Unfortunately, in Indiana, you may be presumed guilty of unlicensed handgun carry without any RAS and the burden of proving exception is placed upon the licensee.

    We really need to get IC 35-47-2-24(a) repealed, it's repulsive and ridiculous.

    On a more positive note, IMPD has recently distributed a policy instructing their officers that they are not to stop carriers for the mere purpose of checking license absent some other reason - but it's just a local policy.

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    First, audio or video recorder should be turned on.

    "Do you suspect me of committing a crime, officer?"

    -if his answer is "no" then you have nothing left to discuss.

    -if he says "yes, carrying a firearm without a license is a crime." then shut up and do what he says.

    -if he says "no" but says you must show him your license and relinquish your openly carried firearm (I hope you have another concealed as well) then tell him you don't consent to being searched or having your property seized. He will probably search you for your papers and seize your property anyway without probably cause/articulable suspicion of a crime being committed. If he does, ensure that he does it without your assistance or consent. When it's all over, get a lawyer and educate the officer and his employer through the legal system.

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    Quote Originally Posted by cce1302 View Post
    First, audio or video recorder should be turned on.

    "Do you suspect me of committing a crime, officer?"

    -if his answer is "no" then you have nothing left to discuss.

    -if he says "yes, carrying a firearm without a license is a crime." then shut up and do what he says.

    -if he says "no" but says you must show him your license and relinquish your openly carried firearm (I hope you have another concealed as well) then tell him you don't consent to being searched or having your property seized. He will probably search you for your papers and seize your property anyway without probably cause/articulable suspicion of a crime being committed. If he does, ensure that he does it without your assistance or consent. When it's all over, get a lawyer and educate the officer and his employer through the legal system.
    From my reading of the statue .. the cop has to tell you he has RAS...because you only need to tell him if he does...

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    Quote Originally Posted by davidmcbeth View Post
    From my reading of the statue .. the cop has to tell you he has RAS...because you only need to tell him if he does...
    I'm not sure how you could interpret that from the statute.


    Sec. 24. (a) In an information or indictment brought for the enforcement of any provision of this chapter, it is not necessary to negate any exemption specified under this chapter, or to allege the absence of a license required under this chapter. The burden of proof is on the defendant to prove that he is exempt under section 2 of this chapter, or that he has a license as required under this chapter.
    Would you care to explain your conclusion?

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    Regular Member Fallschirmjäger's Avatar
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    I see three possibilities:

    The officer can say "No." In which case there is no stopping or detention and therefor no need to identify.

    The officer can say nothing, in which case there is no reason to believe you have been stopped or detained and therefor no need to identify and every reason to believe it's merely a voluntary encounter where identification is unnecessary. I would not proceed past that point until it was positively stated what level of encounter the officer thought we were having.

    The officer can say 'Yes, I suspect of you of criminal activity" in which case there is a need to identify. At that point, unless Officer Friendly explains what crime he suspects and affords you an opportunity to dispel any alarm or immediate concern which would otherwise be warranted, don't explain anything. Only give answers that will clear your name and you can only do that when you understand the nature of the suspicion itself.

    Officer Friendly wants information that I have. The only question is what price he's willing to pay for something he cannot demand.

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    Regular Member ICBM's Avatar
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    Quote Originally Posted by ATM View Post
    Unfortunately, in Indiana, you may be presumed guilty of unlicensed handgun carry without any RAS and the burden of proving exception is placed upon the licensee.

    We really need to get IC 35-47-2-24(a) repealed, it's repulsive and ridiculous.

    On a more positive note, IMPD has recently distributed a policy instructing their officers that they are not to stop carriers for the mere purpose of checking license absent some other reason - but it's just a local policy.
    I've read section 24 (a) over a couple of times, And it states "In an information or indictment brought for the enforcement of any provision of this chapter, it is not necessary... to allege the absence of a license required under this chapter."

    It doesn't sound like it gives police reasonable suspicion simply for carrying a handgun, but that "in an information or indictment" an owner has the "burden of proof" for his exemption or license to carry.
    For example, if they find reasonable suspicion to detain a handgun carrier, then you must prove your right to possess.

    I don't think a law that places reasonable suspicion on handgun carriers for simply carrying in a permitting state, or a law requiring them to produce a license could be constitutional.

    Once again, I refer you to UNITED STATES v. BLACK
    that recently dealt with OCing and how that alone is not RAS...

    A section that stands out to me...

    "Third, it is undisputed that under the laws of North Carolina, which permit its residents to openly carry firearms, see generally N.C. Gen.Stat. §§ 14–415.10 to 14–415.23, Troupe's gun was legally possessed and displayed. The Government contends that because other laws prevent convicted felons from possessing guns, the officers could not know whether Troupe was lawfully in possession of the gun until they performed a records check. Additionally, the Government avers it would be “foolhardy” for the officers to “go about their business while allowing a stranger in their midst to possess a firearm.” We are not persuaded.Being a felon in possession of a firearm is not the default status. More importantly, where a state permits individuals to openly carry firearms, the exercise of this right, without more, cannot justify an investigatory detention. Permitting such a justification would eviscerate Fourth Amendment protections for lawfully armed individuals in those states. United States v. King, 990 F.2d 1552, 1559 (10th Cir.1993). Here, Troupe's lawful display of his lawfully possessed firearm cannot be the justification for Troupe's detention. See St. John v. McColley, 653 F.Supp.2d 1155, 1161 (D.N.M.2009) (finding no reasonable suspicion where the plaintiff arrived at a movie theater openly carrying a holstered handgun, an act which is legal in the State of New Mexico.) That the officer had never seen anyone in this particular division openly carry a weapon also fails to justify reasonable suspicion. From our understanding of the laws of North Carolina, its laws apply uniformly and without exception in every single division, and every part of the state. Thus, the officer's observation is irrational and fails to give rise to reasonable suspicion. To hold otherwise would be to give the judicial imprimatur to the dichotomy in the intrusion of constitutional protections."

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    Quote Originally Posted by ICBM View Post
    I've read section 24 (a) over a couple of times, And it states "In an information or indictment brought for the enforcement of any provision of this chapter, it is not necessary... to allege the absence of a license required under this chapter."

    It doesn't sound like it gives police reasonable suspicion simply for carrying a handgun, but that "in an information or indictment" an owner has the "burden of proof" for his exemption or license to carry.
    For example, if they find reasonable suspicion to detain a handgun carrier, then you must prove your right to possess.

    I don't think a law that places reasonable suspicion on handgun carriers for simply carrying in a permitting state, or a law requiring them to produce a license could be constitutional.
    Sorry, but IC 35-47-2-1(a) clearly makes unlicensed carry of a handgun illegal:

    ...a person shall not carry a handgun in any vehicle or on or about the person's body without being licensed under this chapter to carry a handgun.
    then, IC 35-47-2-24(a) removes any burden of RAS (beyond the mere awareness that you are carrying a handgun) to enforce the prohibition of section 1 (a) and the burden is placed upon the carrier to prove they are licensed (or meet one of the other exceptions).

    The officer does not need to suspect that you're not licensed, he doesn't need to suspect that don't meet another exception, he only needs to suspect that you are carrying a handgun in Indiana, which is a crime.

    I don't like either of these laws, they are in conflict with both the U.S. and Indiana constitutions, yet there they are until we can get them tossed.


    Once again, I refer you to UNITED STATES v. BLACK
    that recently dealt with OCing and how that alone is not RAS...
    1) Well, it wouldn't be RAS of a crime in NC as open carry is not a crime and does not require a license/permit there (the way it is in most states).
    Unlicensed handgun carry by any method is a crime in Indiana and requires an exception. See the difference?

    2) Indiana is in a different circuit, so even if the nature of the ruling did apply (which it doesn't), it would still not hold precedent here.

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    Regular Member ICBM's Avatar
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    I still don't agree it is illegal to refuse to provide your LCH and/or ID without breaking the law somehow or creating reasonable suspicion,
    because even if state statute says they can stop you and tell you to produce papers, the act is unconstitutional.
    The 4th amendment prevents police from arbitrarily stopping you, which is what they are doing when they stop you for a legal action.

    To restate the US Supreme Court ruling I posted above, "Being a felon in possession of a firearm is not the default status.
    More importantly, where a state permits individuals to openly carry firearms, the exercise of this right, without more, cannot justify an investigatory detention."
    As you might know, SCOTUS rulings and the constitution overrule state law.

    It would be the same if the pulled you over in your car just to check your Drivers License, without doing anything unlawful.
    Its illegal to drive a motor vehicle without a license, just the same carrying a handgun without a license is illegal.
    But without knowing the license status of a person beforehand, the stop is unjustified.

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    Quote Originally Posted by ICBM View Post
    I still don't agree it is illegal to refuse to provide your LCH and/or ID without breaking the law somehow or creating reasonable suspicion,
    Neither would I, nor would I propose such to be the case. It's not illegal to refuse to provide your papers, it's illegal to carry the handgun.

    ...because even if state statute says they can stop you and tell you to produce papers, the act is unconstitutional.
    State statute says they can arrest you for carrying the handgun, not for refusing to show papers or otherwise prove your legal exception to the crime. It's only your burden to prove exception if you wish to avoid being arrested for carrying the handgun, it certainly is not illegal to decline doing so.

    The 4th amendment prevents police from arbitrarily stopping you, which is what they are doing when they stop you for a legal action.
    I wish it were a legal action - I wish that right was not infringed - however, Indiana made it illegal to carry a handgun.

    To restate the US Supreme Court ruling I posted above, "Being a felon in possession of a firearm is not the default status.
    But in Indiana, carrying a handgun is the crime and the default status of anyone carrying a handgun.

    In your stated example, although an unknown element may make the act of possession a crime, that element may not be assumed as the default.

    But, in our example, although an unknown element may provide exception to the crime, that element need not be assumed as the default.

    Again, do you see the difference?


    More importantly, where a state permits individuals to openly carry firearms, the exercise of this right, without more, cannot justify an investigatory detention."
    But Indiana does not respect the right, they made it illegal to carry handguns and apply licensure as an exception.

    As you might know, SCOTUS rulings and the constitution overrule state law.
    I think perhaps you've mistaken the U.S. Court of Appeals, 4th Circuit with SCOTUS.

    I also believe that if, in practice, the constitution overruled state law, carrying a handgun would not be illegal here or in any other state.

    It would be the same if the pulled you over in your car just to check your Drivers License, without doing anything unlawful.
    Its illegal to drive a motor vehicle without a license, just the same carrying a handgun without a license is illegal.
    But without knowing the license status of a person beforehand, the stop is unjustified.
    It's only the same in principle and, on that singular basis, I would wholeheartedly agree. Yet principle is not binding under our current system of justice, only law is. Though SCOTUS did actually rule on this topic regarding vehicle licensure, that precedent is considered to be specific rather than generally instructive or binding.

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    stay safe,
    "He'll regret it to his dying day....if ever he lives that long."----The Quiet Man

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    Quote Originally Posted by skidmark View Post
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    stay safe,
    He started the thread, I just assume he took 10 months off to consider and digest the magnitude of my brilliant points.

    Alas, perhaps more time was needed.

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    dog gone it skid, where did you find that great caricature of grape with his hands spread out over the vast ocdo waste lands with you arising to assist in his overseeing the mortal's forum activities...and the shards of light was that indicative of the blast from cannon 'the truth' is seeking?

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    Quote Originally Posted by solus View Post
    dog gone it skid, where did you find that great caricature of grape with his hands spread out over the vast ocdo waste lands with you arising to assist in his overseeing the mortal's forum activities...and the shards of light was that indicative of the blast from cannon 'the truth' is seeking?

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    Quote Originally Posted by ATM View Post
    He started the thread, I just assume he took 10 months off to consider and digest the magnitude of my brilliant points.

    Alas, perhaps more time was needed.
    More like got bored with the dead Indiana section on the forum, and the counterpoints on this tread were getting stale so I didn't reply. Yes I confused the Court of Appeals with SCOTUS.
    Does anyone have any info on past court precedents of police successfully getting a guilty verdict for someone not providing a license, without reasonable suspicion?
    The only thing I could find relevant is USA v. Black.

    Quote Originally Posted by ATM View Post
    2) Indiana is in a different circuit, so even if the nature of the ruling did apply (which it doesn't), it would still not hold precedent here.
    Yes, the nature of the ruling would apply directly to this situation, its an exact scenario of having a legally owned and open carried handgun with a license, simply in another state and circuit.
    It is non-biding, and only a persuasive authority, yes, but that precedent is going to be the centerpiece of the briefing and argument in front of the District Judge, and would be the centerpiece of any appellate review of his own decision. The District Judge will (and as a practical matter, must) pay incredibly careful attention to the decision, and present a very well-reasoned argument if he doesn't follow it. If he doesn't follow it, chances are it will be because he finds a material distinction in the facts, applicable state law, etc., rather than outright saying, "the Seventh Circuit got it wrong, and so I'm going to make new and different law." In other words, while undoubtedly true the precedent is not binding, the influence of the decision is going to be only a little bit less than if it were a binding decision from his own Circuit Court.

    Also, some decisions by other COAs have greater persuasive value than others--if the COA is examining a constitutional question (ie, the decision is about the 4th Amendment or something), if the COA is close in geography, if the law in that circuit developed in a similar way to your circuit, if the state issue that the COA is deciding is similar to how your state is set up (ie, similar laws or state constitutional provisions).
    Last edited by ICBM; 04-12-2015 at 12:09 AM.

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    Quote Originally Posted by ICBM View Post
    ...Does anyone have any info on past court precedents of police successfully getting a guilty verdict for someone not providing a license, without reasonable suspicion?
    Your request is illogical - not providing a license is not illegal, there's nothing to suspect here.
    How could they possibly get a guilty verdict for something that's not illegal?
    No law exists to charge them with for declining to prove their exception.

    One could only be charged with carrying a handgun, prohibited here in Indiana but not necessarily so in NC (carrying openly there is not prohibited).


    ...Yes, the nature of the ruling would apply directly to this situation, its an exact scenario of having a legally owned and open carried handgun with a license, simply in another state and circuit...
    Still wrong.

    I'll try explaining this another way before I give up and you can believe whatever you like:

    One of these things is not like the others, see if you can find the thing that is not the exact scenario as all the others

    open carry of a handgun in NC = unprohibited (This is the scenario the Black case involved.) <----pick me!

    concealment of a handgun in NC = prohibited, carrier may or may not meet an exception as required by law.
    open carry of a handgun in IN = prohibited, carrier may or may not meet an exception as required by law.
    concealment of a handgun in IN = prohibited, carrier may or may not meet an exception as required by law.

    All the others are similar to each other, but one stands apart - it is uniquely ...different.
    Last edited by Grapeshot; 04-12-2015 at 01:10 PM. Reason: Rule #19, exception

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