Guy Relford writing at WIBC.com:

On Monday, 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 on Monday, 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 a motorist has a driver’s license.

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 Monday’s opinion, the Supreme Court wholly agreed with Judge May’s analysis.  Specifically, the court ruled that a police officer, based only on a tip that a person possesses a handgun, may not detain that person to confirm that he has a license to carry …

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Said the ruling:

“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.” 

This case is actually similar to the case of Nathanial Black decided by the Fourth Circuit.

Nathaniel Black was part of a group of men in Charlotte, North Carolina who local police officers suspected might be engaged in criminal activity. In particular, Officers suspected that after seeing one of the men openly carrying a firearm – which was legal in North Carolina – that there was most likely another firearm present. When police began frisking the men one by one, Mr. Black wished to leave, but was told he was not free to leave. Officers chased Mr. Black and discovered that he possessed a firearm; it was later discovered that he was a previously convicted felon. Mr. Black was charged with being a felon in possession of a firearm. Before the United States District Court for the Western District of North Carolina, Mr. Black moved to suppress the evidence against him. His suppression motion was denied, he entered a guilty plea preserving a right to appeal the denial of the suppression motion, and he was sentenced to fifteen (15) years imprisonment. The United States Court of Appeals for the Fourth Circuit, however, determined that the officers had improperly seized Mr. Black, suppressed the evidence against him, and vacated his sentence.

Like Indiana, North Carolina is an open carry state.  Simply openly carrying a gun isn’t grounds for detention.  It must be a so-called “Terry Stop,” and openly carrying a weapon, since it is entirely within the law, isn’t justifiable reason to detain an individual.

The Indiana Supreme Court got this right.  I’ve argued similarly against the new open carry law in Texas, pointing out that “… licensed open carry in a state with no stop and identify statute for enforcement is a shooting-by-cop waiting to happen.  And I certainly don’t support empowering the police state any more by giving them a stop and identify statute.  That would be making something bad even worse.”  As stops must be Terry Stops, and since Texas has no stop and identify statute, and shouldn’t because they are unconstitutional (despite what the courts have said), LEOs in Texas are left with no direction concerning open carriers.

I don’t want LEOs in Texas to be given more direction, any more than I want that for LEOs in Indiana.  I advocate simple observation of God-given rights, and living by the covenant to which we are all obliged, i.e., the constitution.