Sheriff Files Lawsuit Over Ban on Right to Carry Under Indictment Unconstitutional

Sheriff Files Lawsuit Over Ban on Right to Carry Under Indictment Unconstitutional
Sheriff Files Lawsuit Over Ban on Right to Carry Under Indictment Unconstitutional

U.S.A.-(AmmoLand.com)- 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 pleaded 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 that allows the government to ban the 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.


About Dean Weingarten:

Dean Weingarten has been a peace officer, a military officer, was on the University of Wisconsin Pistol Team for four years, and was first certified to teach firearms safety in 1973. He taught the Arizona concealed carry course for fifteen years until the goal of Constitutional Carry was attained. He has degrees in meteorology and mining engineering, and retired from the Department of Defense after a 30 year career in Army Research, Development, Testing, and Evaluation.

Dean Weingarten

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Montana454Casull

Innocent until proven guilty and no rights shall be removed until found guilty . Thats how our constitution works .

Henry Bowman

The tyrants at both state and federal levels hate the Constitution and do violence to it daily. We The People need to enforce the supreme law of the land and physically remove those who would subjugate us!

TexDad

Regardless of the charges that he should or should not be found guilty of, he’s right. Depriving him of his RKBA for being accused of a crime is presumed guilt and a violation of his right to due process.

swmft

on his way to coffee shop no doubt, kidding aside even police need to abide by the law

truckdaddy

Why did Lake County even have a TrackHawk?

3l120

Because the sheriff wanted one. Be interesting to see the outcome in court. Once the lights and siren go on, you are trouble, sheriff or not. Wonder if he was arrested? Felony resisting is some serious s..t.

Sisu

Much is wrong with the situation presented … First, Sheriff Martinez should no longer be the Sheriff; or the two officers who stopped him should be terminated for filing a false police report. Regardless, based on the presentation here, the suit is proper. … A fundamental failing in legislation throughout this country is the abandonment of the precept: “innocent until proven guilty”. If one is punished, denied their rights, as a consequence of “an indictment” then the “indictment” is a de facto, preliminary “conviction” and “sentence”. Additionally, the article without intent highlights another gross undermining for respect for the law:… Read more »

3l120

Being arrested for a felony makes it a felony. He would have had to commit certain actions to be so charged, especially in light of his job title.

Henry Bowman

Holcomb is a RINO POS (just like Judas Pence) and the unconstitutional portion of the carry law was inserted by Demorats in the statehouse. Martinez has every right to sue – and win his case – because an accusation is not a conviction!

Stag

Yet another “constitutional carry” law with infringements. Why do people still have such a difficult time understanding that not a single state has constitutional carry? They all still infringe on your rights in some form. These laws are “permitless carry” at best and we shouldn’t rest until our entire nation is a true constitutional carry nation as is intended.

Arny

Damn being a Sheriff must pay well. These Trackhawks have the Hellcat Hemi engine.Sporting 707 HP so they claim. And sell for $60,000.00 to over $130,000.00. And now a lawsuit. Does this guy have a side gig going on also ? Like extortion or drug dealing. lol
https://carsauthority.com/2023-jeep-trackhawk/
https://www.truecar.com/used-cars-for-sale/listings/jeep/grand-cherokee/body-suv/?trim=trackhawk

Boomer

This is exactly the reason why people hate cops. he didn’t file this lawsuit to protect some citizen, he did it to save his own butt and his Judgment involved of him going that speed is ridiculous at the least and I’m quite sure he would have had to have been drunk on top of it all. When a guy has that much power and thinks he’s invincible and does things that’s stupid it’s time for him to go I’m sure this isn’t his first rodeo he’s probably got a long list of crap like that

3l120

You hate cops because the Sheriff was arrested and charged? He is running for office and elected by the people, for what that is worth. It seems to me that this incident would suggest. that LE is doing what it is supposed to do.

Stag

Yeah, I’m willing to bet this is just the first time he’s been challenged or caught. Funny how they’re fine with violating constitutional rights until it’s their rights being violated.