The Gun Guy
Gun Guy: Police May Not Detain Armed Hoosiers to Check for Handgun License
On Tuesday, the Indiana Supreme Court issued its much-anticipated ruling in Thomas Pinner v. State, which addresses the issue of whether police officers may detain and question a person based only on a report that the individual has a gun. In agreeing with the Indiana Court of Appeals' decision handed down last August, the Supreme Court ruled that officers violated the Fourth Amendment's protection against unreasonable searches and seizures when they detained and questioned Thomas Pinner after a taxi driver called 911 to report that Pinner had dropped a handgun when exiting a cab at a movie theater.
Under rules announced by the U.S. Supreme Court in the 1968 case of Terry v. Ohio, a police officer may briefly detain and question a person if the officer has a "reasonable articulable suspicion" that the person is engaged in criminal activity (or in the words of SCOTUS, "that criminal activity is afoot"). If the officer also has a reasonable suspicion that the person "may be armed and dangerous," the officer may conduct a brief pat-down of the person's outer clothing to check for weapons. Together, this process is called "stop and frisk" or a "Terry stop."
Before the Indiana Supreme Court's ruling, there has been a long-standing debate in Indiana. On one side, many police officers and prosecutors have argued that a Terry stop is justified based on a report that a person is carrying a gun - or an officer's own observation that the person has a handgun - because the officer has a "reasonable suspicion" that the person is carrying a handgun illegally until the officer confirms that the person has a handgun license. On the other hand, defense attorneys and Second Amendment advocates have countered that the mere possession of a handgun, without some additional indication that such possession is illegal, does not justify the detention of the individual to investigate - much like police are not allowed to randomly stop vehicles to confirm that motorists have drivers' licenses.
In the opinion handed down last August by the Indiana Court of Appeals (and written by highly-regarded Judge Melissa May), Indiana resolved that issue for the time being by holding that "the mere possession of a handgun, which is legal, cannot produce reasonable suspicion to justify a Terry Stop." The court went on to state that "the State has not directed us to a reason why the police believed when they stopped Pinner that his possession of the gun was illegal, nor has the State asserted any other criminal activity was ‘afoot.’ Accordingly, we are constrained to hold the stop of Pinner was not supported by reasonable suspicion." Thus, without a basis to believe that Pinner was carrying a handgun without a license - or engaged in some other illegal activity - detaining Pinner to investigate his possession of a gun violated his rights under the Fourth Amendment.
In Tuesday's opinion, the Supreme Court wholly agreed with Judge May's analysis. Specifically, the court ruled that a police officer, acting only on a tip that a person possesses a handgun, may not detain that person to confirm that he has a license to carry:
"The United States Supreme Court has previously declared that law enforcement may not arbitrarily detain an individual to ensure compliance with licensing and registration laws without particularized facts supporting an inference of illegal conduct. See Prouse, 440 U.S. at 663 ('hold[ing] that except in those situations in which there is at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law, stopping an automobile and detaining the driver in order to check his driver’s license and the registration of the automobile are unreasonable under the Fourth Amendment'). In like fashion, we decline to endorse such behavior to ensure compliance with Indiana’s gun licensing laws."
In holding that police officers may not detain a person to determine if he possesses a handgun license, the Supreme Court not only ended a long-standing debate, it completely destroyed one of the central arguments against Constitutional Carry in Indiana. Proponents of Constitutional Carry, which would end the requirement that law-abiding citizens obtain a License to Carry Handgun in order to possess a handgun in public or in a vehicle in Indiana, argue that both the U.S. Constitution (through the Second Amendment) and the Indiana Constitution (through Article 1, Section 32) guarantee the right to bear arms. As a result, law-abiding Indiana residents should not have to pay a fee to the State and undergo a separate background check to prove that they are eligible to exercise a Constitutionally-protected right. Constitutional Carry recognizes that no additional license or permit should be required if it is otherwise lawful for a person to possess a firearm under both Indiana and federal law.
In their opposition to Constitutional Carry, some law enforcement officials (including the Indiana Sheriff's Association) have argued that the removal of Indiana's handgun licensing requirement would inhibit police officers' ability to investigate the legality of a person's possession of a gun. In the words of the ISA, Constitutional Carry "would negatively impact efforts to investigate individuals and determine if they are armed or not." However, this argument has now totally evaporated, as the Supreme Court has ruled unequivocally that police officers may not "investigate individuals" by detaining them for questioning or conducting a "stop and frisk" based only on a report that the person is in possession of a firearm. As a result, it is hard to imagine a situation where Indiana's current licensing requirement would empower officers "to investigate individuals to determine if they are armed or not" - absent a separate basis to believe a person is engaged in criminal activity, which would then justify a Terry stop in any event.
The Supreme Court's ruling should also greatly reduce - or eliminate altogether - a practice advocated by gun control groups often called "swatting." As recommended by the Coalition to Stop Gun Violence, "if you see someone carrying a firearm in public - openly or concealed - and you have ANY doubts about their intent, call 911 immediately and ask police to come to the scene." Although police officers may still likely respond to investigate a "man with a gun" call after the Supreme Court's ruling in Pinner, absent a reasonable basis to believe a person is engaged in criminal activity, those officers are now prevented by the Fourth Amendment from detaining the armed citizen to investigate.
In sum, the Supreme Court's ruling constitutes a clear victory for the Constitutional rights of Indiana gun owners and provides needed clarity on the subject of law enforcement personnel's interactions with armed Hoosiers. The decision also greatly enhances the arguments in favor of Constitutional Carry - by completely eradicating one of the most vigorously asserted arguments against it.
Guy A. Relford
Guy A. Relford is a Second Amendment attorney in Carmel, Indiana. He is also the owner and chief instructor of Tactical Firearms Training, LLC in Indianapolis and the author of “Gun Safety & Cleaning for Dummies” (Wiley & Sons Publications, 2012). He hosts “The Gun Guy with Guy Relford” on WIBC radio in Indianapolis.