The Indiana Court of Appeals has upheld the validity of a 2022 state law barring individuals accused of a felony crime from carrying a handgun in public — even when the person hasn't yet been convicted of a felony.
The 3-0 ruling is the opposite of a May 19, 2023, decision by Lake Superior Judge John Sedia in a separate, but similar, case, where Sedia struck down as unconstitutional the public handgun carry prohibition for persons under indictment contained in House Enrolled Act 1296.
Sedia's decision currently is under mandatory review by the Indiana Supreme Court and a ruling is expected in coming months.
However, the individual accused of a felony in that case, Lake County Sheriff Oscar Martinez Jr., pleaded guilty to misdemeanor reckless driving in February, so the state's high court could choose to dismiss the case as moot since Martinez's ability to carry a handgun in public no longer is imperiled by the statute approved by the Republican-controlled General Assembly and Republican Gov. Eric Holcomb.
The Court of Appeals ruling centered on Arthur Moore, of Indianapolis, who was convicted last year in Marion County of unlawful carrying of a handgun, a class A misdemeanor, after police found a handgun on the driver's seat of a vehicle crashed by Moore while he was on pretrial release for three felonies: sexual battery; marijuana dealing; and maintaining a common nuisance, records show.
According to court records, Moore only challenged the handgun carry law as applied to him, not the law as a whole. Moore claimed that denying him the ability to carry a handgun in public while awaiting trial on felony charges violated his rights under the Second Amendment to the U.S. Constitution and Article 1, Section 32 of the Indiana Constitution.
Judge Dana Kenworthy, writing for a 3-0 appellate court panel, disagreed, in a 28-page opinion that traces back to the nation's founding the history of firearm regulations as applied to individuals accused of serious crimes.
Kenworthy noted many offenses now classified as felonies were punishable by death in America's early years, and pretrial release typically was not available to individuals potentially facing capital punishment.
Moreover, pretrial detention back then involved complete disarmament of the accused to ensure "the safety of the people should be preserved against the lawless depredations of atrocious offenders," Kenworthy said.
On that basis, Kenworthy declared Indiana's law passes federal constitutional muster because it "seeks to achieve the same protective function by temporarily disarming individuals accused of serious wrongdoing to reduce the risk he or she will harm the public, most prominently by misusing a handgun."
The law likewise is valid under the Indiana Constitution because "individuals have an identifiable private interest in not being harmed by gun violence committed by another who — there is probable cause to believe — engaged in violent or anti-social behavior," Kenworthy said.
In a concurring opinion, Appeals Judge Elizabeth Tavitas, a Lake County native, emphasized the need for probable cause to be established, as it was in Moore's case, before the ability of accused felons to carry a handgun in public is rescinded.
Otherwise, Tavitas said, a prosecutor could disarm a person merely by filing a felony criminal information, regardless of whether a judge has deemed the charge credible.
The appellate court ruling is likely to be submitted for review by the Indiana Supreme Court.
Under Indiana law, a person accused of a felony who is barred from carrying a handgun in public may still keep a handgun in their home, or carry in public any kind of rifle or long gun, including firearms like the AR-15 that previously were classified as assault weapons.
© Copyright 2024, nwitimes.com, Munster, IN