On November 23, 2022, Sheriff Martinez of Lake County, Indiana, filed a lawsuit challenging the constitutionality of the new state Constitutional Carry law, HEA 1296, as it banned people who are under indictment from carrying handguns.
From kpvi.com:
The county's chief law enforcement officer filed a lawsuit Wednesday asking a judge to declare unconstitutional a portion of a new Indiana statute barring individuals under indictment from carrying a handgun in public.
House Enrolled Act 1296, which eliminated the need for Hoosiers 18 and older to obtain a state permit to carry a handgun in public beginning July 1, prohibits Martinez from doing the same because Martinez was indicted in January on a felony charge of resisting law enforcement and misdemeanor reckless driving.
HEA 1296 was signed by Governor Holcomb on March 21, 2022. As a way to overcome hostility by some in law enforcement, the bill mirrored several federal definitions of who are prohibited from possessing and carrying firearms.
In addition to citing federal law, HEA 1296 added those definitions and prohibitions directly into Indiana statutes.
Those included a ban on the legal ability to conceal, carry, or transport a handgun for those who are under indictment for a felony. From indy.gov:
8) Under indictment for a felony
“Indictment” means any formal accusation of a crime made by a
prosecuting attorney in any court for a crime punishable by a term of
imprisonment which could exceed one (1) year.
Indiana's Lake County Sheriff, is under felony indictment for resisting a law enforcement officer and reckless driving. From kpvi.com:
Martinez is accused of failing to stop while driving an unmarked,
county-owned Jeep TrackHawk at 96 mph in a 45-mph zone in what police
described as a "completely reckless" manner on Main Street in Crown
Point and Taft Street and U.S. 30 in Merrillville in September 2021 as
two Crown Point police officers chased him with their lights and sirens
activated.
Sherriff Martinez has plead not guilty to all charges. The charges carry a penalty of up to two and a half years in prison. Martinez would be ejected from his post as sheriff. This gives ample motivation to fight the charges vigorously.
Under the Heller, McDonald, Caetano, and Bruen decisions by the U.S. Supreme Court, the lawsuit has a reasonable chance of success, even though the matter concerns Indiana state law and the Indiana Constitution.
The Indiana Constitution is slightly more protective than the wording of the Second Amendment. From the Indiana Constitution:
Section 32. The people shall have a right to bear arms, for the defense of themselves and the State.
Under the Bruen decision, as reinforcing the previous Heller decision, for a law to be allowed to infringe on the right to keep and bear arms, it has to have a longstanding and widespread use in the law at the time the Constitution was ratified.
Indiana's Constitution was reformulated and ratified in 1851.
There is no long standing law which allows the government to ban exercise of a Constitutional right, merely because a person is under indictment, without ever being convicted of a crime.
The logic is stated by Judge Counts in US v. Qiroz:
Although not exhaustive, the Court’s historical survey finds little evidence that §922(n)—which prohibits those under felony indictment from obtaining a firearm—aligns with this Nation’s historical tradition. As a result, this Court holds that § 922(n) is unconstitutional. 119
It is therefore ORDERED that Defendant’s Motion to Reconsider is GRANTED.(Docs. 73and 74). The indictment is DISMISSED.
The logic is even more relevant to Bruen in Sheriff Martinez' case. His case is a direct challenge to a ban on the carry of handguns, which was the subject matter of Bruen.
Opinion:
Sheriff Martinez has a good chance of prevailing in court on the handgun carry ban.
His chances on the other charges are unknown.
©2022 by Dean Weingarten: Permission to share is granted when this notice and link are included.
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