O2 Gun Group Blog

Many states around the country, like Virginia, have been making a push to implement stringent gun control measures that include, among other things, universal background checks, magazine capacity limits, and so-called "assault weapons" bans. These attempts to regulate firearms are nothing new, but the efforts to implement these sorts of laws and regulations has seemingly intensified in recent years.

In response to these intensified efforts to implement anti-gun, anti-freedom legislation by state governments, there has been a big movement to create "Second Amendment sanctuaries" in states and counties throughout the country. These Second Amendment sanctuaries are typically counties (or sometimes states) where there has been some kind of declaration or resolution that laws violating the Second Amendment will not be enforced. Virginia has been at the forefront of the Second Amendment sanctuary movement, where approximately 91 out of 95 counties have declared themselves to be Second Amendment sanctuaries. This sanctuary movement along with a recent rally in Richmond, Virginia, has added momentum to the Second Amendment sanctuary movement around the country, and sheriffs throughout Indiana are feeling pressure to respond.

In response to this pressure, there have been varying levels of commitment by sheriffs to protect individual rights, and it's useful to evaluate the various responses. In the end, many sheriffs find themselves trying to strike a balance between "enforcing the law" and "protecting individual rights." Let's explore the various approaches sheriffs have taken, and you can decide which approach is best.

First, there is the approach taken by Sheriff Freeman from Jennings County, Indiana. In response to a bill written by Indiana State Senator Greg Taylor that included a provision banning gun magazines with a capacity of more than 10 rounds of ammo, Sheriff Freeman authored a resolution that declares Jennings County a sanctuary county, and mayors in the county signed the paper pledging support. Freeman said if his deputies were to stop someone who didn't have a criminal background, who had a legal firearm that had a magazine deemed illegal by the proposed new law or any other, then that person would likely be told to go on his or her merry way.

Furthermore, Sheriff Freeman has said that he would not enforce any illegitimate law, which he calls an "Unlawful Act" and that these "Unlawful Acts" include:

any federal or state act, law, order, rule, or regulation which bans or effectively bans, registers or effectively registers, or limits the lawful use of firearms, firearm accessories, or ammunition (other than that which is already in place as of the date of adoption of this Resolution). Any such "Unlawful Act" is invalid in Jennings County; is specifically rejected by the voters of Jennings County; and shall be considered null, void, and of no effect in Jennings County...

Sheriff Freeman would not enforce the "law" because he considers this type of law a violation of our rights.

Another approach is one taken by Sheriff Goodin from Scott County, Indiana and also by Sheriff Robinson from Steuben County, Indiana. Each of these sheriffs published nearly identical statements that they called a "Proclamation." Each statement can be seen here and here. Aside from the fact that these statements are nearly identical except in font style, there are a couple of interesting provisions in each "Proclamation." The first is the provision that says:

BE IT FURTHER KNOWN, the Sheriff of Scott County, Indiana shall not enforce any law that has been determined by an appropriate court to violate either the Constitution of the United States of America or the Constitution of the State of Indiana…

This provision is essentially saying that the Sheriff of Scott County is not taking any position about the Constitutionality of any law. Rather, the Sheriff is deferring to an "appropriate court" to make a determination about the Constitutionality of a law. This is basically a non-statement, but it is important when read in conjunction with the following provision:

BE IT FURTHER KNOWN, the Sheriff of Scott County, Indiana guarantees the great people of Scott County, Indiana that the "Rule of Law" will be enforced and the ''rule of force, intimidation and fear will be diminished."

These two provisions, read in conjunction, seem to indicate that the Sheriff of Scott County, Indiana will enforce the law, no matter what the law is, as long as no court has said it is unconstitutional. As you will notice, the "Proclamation" from the Scott County sheriff and the Steuben County sheriff are identical. It's not clear who actually authored these proclamations, but they appear to have been authored with the intent to avoid taking a position on any specific law. For instance, would Sheriff Goodin or Sheriff Robinson enforce a ban on magazines that hold more than 10 rounds if an "appropriate court" had not previously determined such a law to be unconstitutional? It seems clear that Sheriff Freeman would not enforce such a law, but Sheriff Goodin and Sheriff Robinson would enforce this type of gun control law.

But this begs another question - what is the role of your local sheriff? Should they simply "enforce the law," protect your rights, or "keep the peace"?

Sheriff Mack, the former sheriff from Graham County, Arizona, draws a distinction that many sheriffs, unfortunately, don't understand — the distinction between a "peace officer" and a "law enforcement officer."

Mack explained that the role of the sheriff is not to "enforce the law," but rather to "secure these rights" outlined in the Declaration of Independence and the Constitution. This is an important distinction and one that more sheriffs need to understand. Greg Ellifritz, police officer and well-known trainer, also makes this point on his blog, where he says that police officers should use the law as a tool to help us accomplish the goal of keeping the peace. Cops who mindlessly "enforce the law" may or may not accomplish the goal of "keeping the peace." He goes on to say:

The best police officers in this country don't act like mindless automatons. Cops who robotically enforce every law on the books seldom accomplish anything useful besides generating measurable statistics to please a supervisor."Law Enforcement" shouldn't be the goal of a good police officer.In fact most officers would be far better off if "enforcing the law" became a much lower priority in their day-to-day patrol activities.

In considering the significance of the various approaches that sheriffs may take, it is useful to consider that sanctuary counties and towns are passing resolutions, which typically indicate that no funding will be used to enforce unconstitutional laws. These are just resolutions, not ordinances, and have no force of law. The primary impact of these resolutions is not a legal one and is merely symbolic. Thus, the only real barrier between the citizens of a certain locality and an unconstitutional law is the local sheriff.

County sheriffs, practically speaking, are the last line of defense in the battle for rights. Federal agencies do not have state powers, and due to the U.S. Constitution's structure of dual sovereignty, the feds have no authority to enforce state laws. Furthermore, based on the legal concept of anti-commandeering, states cannot be legally compelled to enforce federal laws. After your county sheriff, the only thing left protecting your rights is you and your loved ones. With that in mind, which kind of sheriff would you rather have on your side? Do you want one who simply enforces "the Rule of Law" or one who is serving the community to protect your rights and keep the peace?

Please remember, sanctuaries are a measure of last resort, and although we generally support the Second Amendment sanctuary movement, we are much better off playing offense rather than defense with respect to our rights. An offensive approach to securing our rights involves taking action to influence state and federal legislators to enact or rescind laws in order to create a positive environment for our rights. Perhaps more importantly, we need to also increase our efforts to make sure we elect local, state, and national representatives who are pro-freedom. Imagine if all of the folks involved in the Second Amendment sanctuary movement had been this involved in preventing state and local governments from becoming anti-gun in the first place.

 The Media and the Government - the Only Place Where "Common Sense" Makes No Sense at All

You often hear the mainstream media outlets calling for "universal background checks" as a "common sense" solution to acts of violence committed with firearms. However, if one applies a bit of "common sense," the analysis does not lead to universal background checks as a viable solution. Let's see what the call for "universal background checks" actually implies.
As it currently stands, there are three ways that firearms are commonly transferred:

1. Individual purchase/transfer from Federal Firearm Licensed Dealer
   
2. Individual purchase/transfer from another individual
   
3. Black market / illegal transfers
   

When someone purchases a firearm from a licensed dealer, the purchaser goes through a background check, but the firearm is never "registered." When someone purchases a firearm from another individual, there is no background check and, similarly, no registration of the firearm. Because there is no registration in either scenario, whether there is a background check or not, the government has no way to link the purchase of a particular firearm to a particular person.

Indiana House Bill 1284

We have some very good news to report regarding Indiana self-defense and firearms law. Governor Holcomb signed HB 1284 into law on April 26, 2019 at the NRA Annual Meetings. In part, HB 1284 provides for civil immunity for the lawful use of force in the defense of the innocent persons. In other words, it provides immunity for a justified use of force after another person (a criminal) attempts to commit a forcible felony (serious violent felonies to include residential entry and burglary) or was attempting to cause unlawful serious bodily injury. The law also provides for the possibility of early dismissal of a civil lawsuit based upon the fact that the law indicates that a rebuttable presumption exists that use of force is justified if a defendant was not prosecuted for the use of force. Additionally, the new law requires a court to award reasonable attorney's fees and costs to a defendant when the justified use of force immunity is successfully raised. Hopefully, this law will end instances where criminals or their families sue victims of crime when the victim lawfully defends the innocent.

What this law does not do - It does not change when force is justified in self-defense or the defense of another innocent. Blood will not be running in the streets as a result of this law. As some critics might allege - this new law will make Indiana like the "wild west," they are misinformed — at best. Folks - it is still the case that, if you are not justified in using deadly force, and take another life, you will go to prison.

The new law permits a person who may otherwise legally possess a firearm, to possess a firearm in a church even if a school is co-located on the same property if the person possesses the firearm: (1) as an employee or volunteer of a house of worship located on the school property; or (2) while attending a worship service or religious ceremony conducted at a house of worship.

The new law increases the duration of a four-year handgun license to five years. It also provides that an individual may simultaneously hold both a five-year license and a lifetime license. Additionally, the law eliminates state fees for a new five year state license to carry a handgun beginning July 1, 2020, thus eliminating a fee to exercise a fundamental constitutional right, and now making it possible for some of the most vulnerable to more easily protect themselves without worrying about paying a fee to exercise a right. A background check is conducted when obtaining a five-year license. This license would then purportedly allow an FFL to sell a firearm without conducting the typical NICS check at the time a firearm is purchased during that five-year period.

Of interest, is the fact that the new law requires law enforcement, when processing an application for a handgun license, to check criminal history data banks, including the National Instant Criminal Background Check System (NICS), to determine whether possession of a firearm by an applicant would be a violation of law. One wonders if many in law enforcement who have opposed constitutional carry and support impediments to the exercise of a constitutional right to carry based upon the mantra of "safety," will decide that "safety" is not as important when the fees for licenses produce less revenue and more work is created to do the additional background checks mandated by the law? Time will tell. The new law also lowers the cost of lifetime licenses.

We owe a debt of gratitude to Representative Jim Lucas, Representative Ben Smaltz, and Attorney Guy Relford for writing and guiding this legislation to passage.

Despite the fact that Indiana has a reputation for being a relatively free state, Indiana enacted its "red flag law" in 2005. Our law is codified at I.C. 34-47-14 and is entitled "Proceedings for the Seizure and Retention of a Firearm." The law is commonly referred to as the "Jake Laird Law" as a result of the tragic death of Indianapolis police officer Jake Laird. Officer Laird was murdered by a man who had previously been detained and hospitalized pursuant to an emergency detention, and had a number of firearms removed from his home. However, after the man was released from the hospital, his firearms were returned to him as the police reportedly lacked any legal authority to keep the firearms. The man subsequently murdered Officer Laird, which lead the Indiana Legislature to pass its version of a "red flag law." It provides that firearms can be seized from a "dangerous" individual. A person is a "dangerous" individual if the person poses an imminent risk of personal injury to himself or to another individual. Although troubling, the law also indicates that under some circumstances a "dangerous" individual is someone who may present a risk of personal injury in the future. The use of the word "may" and "in the future" seems vague and contemplates deprivation of rights and property based upon some possible future event.

The statute provides that firearms can be seized with a warrant, or in some circumstances, without a warrant. The warrant provision requires the warrant to be issued by a circuit or superior court with jurisdiction and based upon a sworn affidavit from a law enforcement officer that describes why the law enforcement officer believes the subject individual is dangerous and in possession of firearms. Many would argue that sufficient due process is lacking with respect to Indiana's "red flag law," and we would concur. However, there is a requirement that the court hold a hearing within 14 days from the seizure of firearms. The statute requires notification of the hearing to the individual from whom the firearms were seized and that the court must determine by clear and convincing evidence that it is appropriate to continue to violate the individual's rights and deprive him of his property.
Should you be presented with a warrant at your home that directs law enforcement to seize your firearms, you would have very few legal options, at that juncture, to address the situation. The time to argue the legal merits of a warrant is not at your front door when law enforcement is presenting the warrant. We would suggest that you respectfully request to review the warrant and read it thoroughly to ensure there are no errors in the warrant and to calmly point out obvious discrepancies. For instance, the police have been known to serve warrants at the wrong address. However, under no circumstances would we suggest endangering your safety or the safety of law enforcement as there will be ample time to address your grievances regarding the validity of the warrant and law enforcement conduct in the future. If your firearms are securely locked in a gun safe, it would be our suggestion to comply with the terms of the warrant, assuming the terms of the warrant require opening the safe, which will likely be the case. However, please make it very clear that your cooperation should not be construed as consent, but merely compliance with the orders of the court and law enforcement personnel. Police may threaten violence and a further loss of freedom should you not comply with the alleged lawful warrant. Furthermore, although it is unlikely, there could be consequences associated with refusing to open the safe in terms of potential criminal charges such as resisting. As an aside, we are aware of one case in Indiana in which law enforcement took the entire safe to a service station to gain entry. We suspect an acetylene torch was used to obtain brute force access to the contents of the safe.

The statute also provides for the warrantless seizure of a firearm by law enforcement. Arguably, the firearms could be legally seized during the normal course of law enforcement duties if the law enforcement officer could otherwise take the firearms. For instance, probable cause of a crime, voluntary relinquishing the firearm, seeing a firearm in plain view, or the ever present wild card of "exigent circumstances." Additionally, the police officer would also have to believe the individual to be "dangerous." In such circumstances, the police officer must file, under oath, a written statement with a court indicating the grounds for the belief that the person is dangerous, and then the court will make a determination whether the firearms should continue to be retained. The provision for warrantless confiscation is not intended to provide additional authority to search for weapons or otherwise enter any person's property. In other words, the law does not authorize a law enforcement officer to perform a warrantless search or seizure if a warrant would otherwise be required.

Once again, our statute has been in place since 2005, but with the murders at Parkland High School in February 2018, Indiana Governor Eric Holcomb sent out a letter to the leaders in the Indiana legislature discussing school safety issues in our state. Part of this letter directed the Indiana State Police Superintendent to provide a "red flag" educational curriculum to all law enforcement agencies in Indiana. Thus, the statute has become more prominent in terms of awareness in the law enforcement community. Although Indiana's law does provide for some due process, keep in mind the statute provides for the deprivation of a fundamental right based upon a subjective evaluation of law enforcement. Citizens can be initially stripped of their rights based upon the allegation that you may commit a crime in the future. You do have a right to a hearing within 14 days, although you and your attorney may want to delay that hearing depending on whether your attorney has sufficient time for preparation to contest the state's actions. Fortunately, at the hearing, you have the right to an attorney, the right to present evidence and witnesses, the right to cross-examine law enforcement, as well as, any witnesses that may have provided information that led to the confiscation - like an ex-spouse or disgruntled employee. Also, at the hearing the judge has to be convinced by "clear and convincing evidence" that the continued deprivation of rights should continue. Unfortunately, even if you are successful at a hearing, there is no provision for you to recoup your attorney fees in fighting the state. Furthermore, there are no penalties for false or unsubstantiated allegations that may have led to the seizure of your firearms.

Authored by: Mike Ooley

Although we do not believe you should have to pay a fee and ask permission to exercise a Constitutional right, we nonetheless suggest that folks obtain an Indiana License to Carry Handgun, if eligible. The Indiana State Police is the designated bureaucracy that processes the applications. You can apply online at: https://www.in.gov/isp/. Look for the section entitled "Firearms Licensing." 

We encourage folks to get the license, if eligible, even if you do not currently intend to carry a firearm. One reason is that you might change your mind about carrying in the future. If you already have the license, you will not have to wait for the application process to take place. Additionally, we suggest getting a license if your spouse or other family member has a license and carries a firearm. You might find yourself needing to take control of the firearm as a result of any number of possible scenarios, one of which would be a medical emergency.

What makes an Indiana resident eligible? Well . . . there are a number of qualifiers - (surprise . . . surprise . . .) one of which is paying a ransom (the state calls it a fee) to exercise your rights. Currently, the fee for a lifetime license should be $125 (includes a state and local government fee).  You must also have a "proper reason" to have the license. Luckily, Indiana is a "shall issue state," so this means you are "allowed" to have the license if it is for the defense of oneself or the State of Indiana. Another important eligibility factor is whether you are a "proper person" under Indiana law. Please review the following to understand the current definition of a "proper person" in Indiana:

IC 35-47-1-7

Sec. 7. "Proper person" means a person who:

(1) does not have a conviction for resisting law enforcement under IC 35-44.1-3-1 within five (5) years before the person applies for a license or permit under this chapter;

(2) does not have a conviction for a crime for which the person could have been sentenced for more than one (1) year;

(3) does not have a conviction for a crime of domestic violence (as defined in IC 35-31.5-2-78), unless a court has restored the person's right to possess a firearm under IC 35-47-4-7;

(4) is not prohibited by a court order from possessing a handgun;

(5) does not have a record of being an alcohol or drug abuser as defined in this chapter;

(6) does not have documented evidence which would give rise to a reasonable belief that the person has a propensity for violent or emotionally unstable conduct;

(7) does not make a false statement of material fact on the person's application;

(8) does not have a conviction for any crime involving an inability to safely handle a handgun;

(9) does not have a conviction for violation of the provisions of this article within five (5) years of the person's application;

(10) does not have an adjudication as a delinquent child for an act that would be a felony if committed by an adult, if the person applying for a license or permit under this chapter is less than twenty-three (23) years of age;

(11) has not been involuntarily committed, other than a temporary commitment for observation or evaluation, to a mental institution by a court, board, commission, or other lawful authority;

(12) has not been the subject of a:

(A) ninety (90) day commitment as a result of proceeding under IC 12-26-6; or

(B) regular commitment under IC 12-26-7; or

(13) has not been found by a court to be mentally incompetent, including being found:

(A) not guilty by reason of insanity;

(B) guilty but mentally ill; or

(C) incompetent to stand trial.

As added by P.L.311-1983, SEC.32. Amended by P.L.191-1984, SEC.1; P.L.148-1987, SEC.3; P.L.269-1995, SEC.5; P.L.49-2005, SEC.1; P.L.118-2007, SEC.34; P.L.127-2011, SEC.3; P.L.114-2012, SEC.139; P.L.126-2012, SEC.57.

If you have made it this far and are confident you have a "proper reason,", are a "proper person," and can pay the required fees, we would say you have an excellent chance of getting your license as long as you are not a "prohibited person" under federal law. You are probably not a prohibited person under federal law if you have purchased a gun recently via an FFL and otherwise meet the criteria above. If you are unsure and need further guidance regarding the definition of a "prohibited person", you can "Google" the following statute for more information: 18 USC § 922.

One word of caution, be sure to take your time when filling out the online application to make sure you thoroughly and accurately complete the form. We understand one of the most frequent reasons for denial is providing a misstatement in the application - especially regarding prior criminal history. Sometimes a factual error is simply due to a misunderstanding or forgetting about what happened 30 years ago. The bottom line - be accurate, honest and thorough. If you have doubts about how to answer a question, check with the ISP or an attorney.

Last point - if your request for a License to Carry Handgun is denied for some reason, there is an appeals process that you can request within a designated timeframe. The appeal might involve a hearing with an administrative law judge as your next step.

I hope this has helped you better understand the process. Please exercise your rights and apply. 

Authored by: Mike Ooley

First, let me say that every gun owner should always ensure that his/her firearms are always secured and are not accessible to unauthorized or untrained individuals - notice the emphasis on ALWAYS! Unfortunately, there are those, some that are even pro freedom and pro gun, who believe we should cede ground and get out of the way with respect to "safe storage laws." Many people accept the premise that the mere presence of firearms in the home poses a threat to the lives and safety of the children and adults in the home. Some would even accept the notion that firearms in the home pose a "severe" risk. Usually, the propaganda machines will also sling around the term "common sense" at the same time and that "safe storage laws" might "save one child". I would ask that you take a few moments to consider the points below before deciding to support, oppose or remain silent on this issue.

Many of us who believe in freedom and personal responsibility are reluctant to agree that criminalizing more conduct is a good idea but it can be difficult to articulate why laws such as the "safe storage laws" being proposed under legislation H.B. 1040 by Indiana Rep. Bartlett are a bad idea. However, if we do not speak up, laws of this nature will continue to be passed that will be ineffective in obtaining the goal of "safety" and will only serve to infringe upon the rights of law-abiding citizens and make politicians "feel good" because they have done "something". Please review the information below as you consider your position with respect to potentially allowing the legislature to criminalize your own conduct in your own home based upon how you store your own firearms and how you might need to use those firearms (which are tools) to combat crime directed at your own family by real felons.

1. From a policy standpoint, I do not see any conclusive proof that criminalizing more behavior in our society will produce fewer accidental gun deaths. It is likely that laws, such as the "safe storage law" being proposed, could do more harm than good by impairing the ability of law-abiding citizens to protect themselves. My son Alex and I have had the fortunate opportunity to meet and chat with Dr. John Lott. I can tell you that he is an incredibly thoughtful, intelligent, and informed person. Dr. Lott, who is generally thought of as a pro-gun economist, has studied and written on the subject of "safe storage laws." He addressed the topic in an article entitled "SAFE-STORAGE GUN LAWS: ACCIDENTAL DEATHS, SUICIDES, AND CRIME" written by John Lott and Jon Whitley (John R. Lott, Jr. and John E. Whitley, "Safe‐Storage Gun Laws: Accidental Deaths, Suicides, and Crime," The Journal of Law and Economics 44, no. S2 (October 2001): 659-689. It is available at https://doi.org/10.1086/338346 ). In the article he states: It is frequently assumed that safe-storage gun laws reduce accidental gun deaths and total suicides, while the possible impact on crime rates is ignored. We find no support that safe-storage laws reduce either juvenile accidental gun deaths or suicides. Instead, these storage requirements appear to impair people's ability to use guns defensively. Because accidental shooters also tend to be the ones most likely to violate the new law, safe-storage laws increase violent and property crimes against law-abiding citizens with no observable offsetting benefit in terms of reduced accidents or suicides.

2. We do not need to criminalize conduct for which the law already provides a remedy. Under current law, irresponsible storage of a firearm will likely result in a civil lawsuit against the responsible party if injury or death occurs to someone outside the household. If civil litigation is not enough, prosecutors also have possible criminal charges that might be pursued such as criminal recklessness. As an example, several months ago, a man was accused of bringing a loaded handgun into an IKEA store in Indiana and was charged with criminal recklessness after the gun purportedly came out of the man's pocket while he was seated on a couch in the store. A child subsequently found and fired the gun. Thankfully, no one was injured, but the man was charged.

3. It might seem repetitive, but I will also make the "slippery slope" argument — it is still very valid. "Safe storage laws" are another incremental government intrusion that will likely be ineffective. Too often, supporters of the law will try to justify even more intrusive laws under the pretense that the original law was only ineffective because it "did not go far enough." Unfortunately, we are often guilty of not opposing what appear to be seemingly harmless solutions from the state. However, by not opposing the state solution, we are tacitly endorsing the notion that state action is appropriate to solve a particular problem. When the state action does not produce the desired result, it will be because the state "did not go far enough" with "common sense legislation" - thus inviting ever more intrusive action (the slippery slope). As an example, remember when you could not be pulled over for a seatbelt violation? Now one can be pulled over for the violation because the original law "did not go far enough" in furthering the goals of the state. I wonder if a police officer has ever used the seatbelt law as a pretext to conduct a stop that would otherwise be illegal - that in turn led to a search that would have otherwise been illegal? Think about it – what if your ex-wife or ex-husband is unhappy with you and they decide to call the police to explain you have guns and they might not be stored properly. Subsequently, the police come to your door and you admit that your 17 year old, who has extensive firearms training, but is a "child" under Indiana law, does have the combination to your gun safe because you want him to have access to the firearm in the event it is needed on your rural homestead. Are you about to be defending a felony charge under the proposed statute?

4. And finally, this proposed law is probably unconstitutional. In the landmark case of Heller v. DC , the US Supreme Court held, among other things, that the Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. The US Supreme Court also found that the DC trigger-lock requirement (as applied to self-defense) violated the Second Amendment. By the way - I have had the opportunity to meet Dick Heller who was the plaintiff in Heller v DC. We owe him a tremendous debt of gratitude for his courage in being a part of that case - along with those that litigated the case, Alan Gottlieb, founder of the Second Amendment Foundation and Alan Gura, attorney with Gura PLLC.

We expect movement on HB 1040 (Safe Storage Law) in the Indiana legislature this year. Please make your informed opinions known to your legislator and encourage others to do the same. 

​Question:​  

An armed citizen justifiably shoots an assailant, then calls 9-1-1. From a legal defense viewpoint, what are the possible benefits and risks of treating the gunshot wound while waiting for the first responders?

Response:

You have just survived the moment you had hoped you would never experience. You had to use deadly force to defend yourself or another innocent person against a violent attack.

Should you provide first aid to the person that just attacked you? The decision is not one to be taken lightly as there are a number of practical and legal considerations. From a practical standpoint, it will probably not be prudent or safe to render aid, but in a scenario where the scene is secure, and you can safely administer first aid, what legal ramifications might there be? For more discussion regarding the practical considerations, check out Massad Ayoob's comments: https://www.youtube.com/watch?v=xRyhocMdJLM.

As is the case in most states, you have no legal duty to provide aid in Indiana (Ind. Code §34-30-12-1). However, some states do have an affirmative duty to provide aid. The duty may only require that you summon aid by calling 9-1-1. See, e.g., Minn. Stat. § 604A.01. This article has a breakdown of states that create an affirmative duty and states that do not: http://tmsnrt.rs/1Df3U7T.

If you decide it is safe and you are capable of rendering aid, most states have some type of "good Samaritan" law. These laws vary but generally provide civil immunity for someone who makes an error while rendering emergency medical care. That is, he or she cannot be held legally liable for damages in court. These statutes typically have three requirements:

- The aid must be given at the scene of the emergency,
- In good faith, and
- Gratuitously, without the expectation of monetary gain.

You will find those same three elements with slightly different wording in the Indiana "good Samaritan" statute which states:

"a person who comes upon the scene of an emergency or accident...or is summoned to the scene of an emergency or accident and, in good faith, gratuitously renders emergency care at the scene of the emergency or accident is immune from civil liability for any personal injury that results from: (1) any act or omission by the person in rendering the emergency care; or (2) any act or failure to act to provide or arrange for further medical treatment or care for the injured person; except for acts or omissions amounting to gross negligence or willful or wanton misconduct." (Ind. Code § 34-30-12-1) (emphasis added).

In regards to the exceptions noted in the statute, if the aid is rendered in a way that constitutes gross negligence or willful or wanton misconduct, then there will be no immunity. Gross negligence as it originally appeared, was very great negligence. It has been described as a failure to exercise even that care which a careless person would use. Most courts consider that "gross negligence" falls short of a reckless disregard of the consequences, and differs from ordinary negligence only in degree, and not in kind. W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 34, at 211–12 (5th ed. 1984).

Indiana has no case law interpreting the application of the good Samaritan statute to a self-defense scenario. As a matter of fact, there is not much case law anywhere. However, while Indiana has little guidance on the good Samaritan statute in the self-defense context, our best guess is that as long as you satisfy the elements of the good Samaritan law in Indiana, the courts are likely to treat the person who defended oneself in self defense like they would treat an innocent bystander, making you immune from civil liability if you decide to render aid in a way that is not grossly negligent.

Nonetheless, there are some other considerations, particularly from a criminal law standpoint that one must consider. For instance, how will rendering aid look to a jury? Will it help your case or hurt your case? On one hand, some jurors will see rendering aid as the morally correct course of action. On the other hand, some jurors may see your attempt to render first aid as a sign of guilt. They might think you are trying to save the perpetrator because of some mistake you made when you decided to shoot.

Another important aspect to consider from a legal perspective is the preservation of evidence. A potential negative implication from rendering aid is that you will have directly participated in changing or eliminating evidence at the scene such as body position, wound condition, clothing damage or alteration, weapon location, or any myriad of other pieces of evidence that might be critical to the investigation of your self-defense act. Although this will likely occur when professional medical help arrives, at least your motivations will not be attacked as you will not be a direct participant in altering the evidence.

Whatever the situation, you need to be able to articulate why you did what you did to your defense team so that they can educate authorities and potentially a jury. Please remember that the laws will vary depending upon your jurisdiction (refer to http://tmsnrt.rs/1Df3U7T). The key is to visualize these scenarios ahead of time so that you will be more prepared to respond if you have to act in self-defense.

Mike Ooley & Alex Ooley
Boehl Stopher & Graves
400 Pearl Street, Suite 204, New Albany, IN 47150
812-948-5053
This email address is being protected from spambots. You need JavaScript enabled to view it. / This email address is being protected from spambots. You need JavaScript enabled to view it.

The tragic murders and assaults at Parkland High School in Florida certainly shake our confidence in humanity in many ways. Although those of us who are advocates of what the Second Amendment stands for are often criticized for expressing condolences to the family and friends of the victims, we do, nonetheless, want to send our condolences. I can't imagine what they are going through.

Unfortunately, the emotional reaction many have to these events, are simply that - emotional responses. While I can understand the emotion, we must focus on rational thought. You can see the emotion in responses such as we have to do "something." That emotional plea for "something" is what can cause further harm.

Let's look at a few issues regarding these so called "school shootings." First, I noticed reporting that have exaggerated the number of "school shootings" this year. Any murder in a school is horrible, but let's not equate school shootings with murders in school or even mass murders in schools. I believe Everytown for Gun Safety, supported by Michael Bloomberg with its decidedly anti-freedom and anti-gun stances, is the source for this misinformation. That group defines a school shooting as "any time a firearm discharges a live round inside a school building or on a school campus or grounds." This definition includes a 31-year-old man that killed himself in a school parking lot. At the time of suicide, there were no teachers or students at the school as the school had been closed for 7 months. This also includes a situation that occurred in Indiana in which a school employee arrived at work in the morning, and while attempting to lock his handgun in his car's glove compartment, he unintentionally discharged his gun. It also included another incident in which a 24-year-old entered a beauty college and shot a 29-year-old and 20-year-old, before shooting and killing himself. The perpetrator was reportedly upset after one of the victims refused to date him. For more information ​see school-shootings.

What does all this mean? Please be skeptical about becoming so frightened that you cave to the emotional plea to do "something." The chances of any particular child being a victim of a "mass murder" in a school are probably less likely than they are to die from a lightning strike. Our children are certainly more likely to die in an auto or bus crash going to or from school. If you want to "do something" - buy and learn to use a tourniquet for that much more real possibility. While any incident involving the death or serious injury to a child is very unfortunate and tragic, we must keep a proper perspective grounded in fact and not react with bad policy and in ways that traumatize our children with fear of a mass casualty event. We do not generally have data at our fingertips to help us make accurate estimates about the likelihood of certain events like mass murders at school. However, we have our memory. Although, I'm certainly no psychologist, I understand that the more often we hear about certain events, the more likely our mind is to conclude that the particular event is likely to occur. I understand psychologists refer to this as availability heuristic. I would encourage you to "Google" this for more information. What is my point? Be on guard to the barrage of news coverage regarding "school shootings" that relentlessly reinforces your memory about the event so you will succumb to the drumbeat of "do something." Essentially, the media is trying to take advantage of the availability heuristic to make an unlikely event seem likely. An article from Psychology Today by Joshua D Foster indicated:

"As this relates to the recent mass murders, it is likely that people will become, at least for a time, more fearful that they or someone they know will be the victims of the next shooting incident. Politicians, whose jobs depend upon being in tune with the concerns of their constituents, and who are likely themselves to overestimate the likelihood of the next mass murderer coming to their towns, will probably introduce heavy-handed policies, . . . While these interventions will likely have little to no effect on future occurrences of mass murder, they will make people feel like something is being done to protect them from the boogeyman that now seems certain to live in their neighborhood." See ​Mass Murder is Nothing to Fear.

So, take a deep breath, and really reflect before you support the "we have to do something" mantra. If we have to do something, we should probably focus on what we can do to reverse the effects associated with broken families, violence in video games, social media, and the media. But, if you really want to do something that might help, listen to plans like the one advocated by Polk County Florida Sheriff Grady Judd. His official Facebook page indicates he was interviewed by several local media outlets about active assailant threats on a school campus. Sheriff Judd provided information about the Sheriff's Sentinel Program already established at Southeastern University since 2017. The Sentinel program creates special deputies who are selected by the University and screened by PCSO staff, including criminal background checks, drug testing, and a psychological evaluation. The Sentinels are appointed by the Sheriff as volunteer "Special Deputies" for the limited purpose of providing security on Southeastern University's campus during an active assailant incident. Special Deputy Sheriffs in the Sentinel Program are required to successfully complete training with the Polk County Sheriff's Office Training Section prior to his or her appointment, which will consist of 132 hours of comprehensive active assailant, firearm safety, and proficiency training. They are authorized to carry approved firearms concealed on campus. The firearms are specifically purchased and issued for the sole purpose of the Sentinel Program.

I'm not sure I would support all the details of Sheriff Judd's program, but it is certainly a good start. When an active murder situation begins to unfold in a school, we call 911 to get someone who we hope is competent with a gun to the school to stop the threat. Why do we have to wait several extra minutes for someone in an official polyester uniform to arrive with the gun while children are killed. I have never understood why it matters who responds with the gun - as long as the response with the firearm is a highly trained response. I can only imagine how the Parkland incident may have turned out differently if one of the brave coaches that purportedly shielded the students had a gun and was trained. I would also suggest these cowards that go into these "gun free zones" to murder children would pick another venue if they realized there were trained teachers, staff, or administrators prepared to protect the students. It seems obvious these mass murderers cease their attack when confronted with armed opposition. So - if you believe "we must do something"- at least make it rational and avoid the self-deception that purported gun-free zones or an "assault weapons" ban will serve as a solution. Almost all mass killings occur in gun-free zones, and the "assault weapons" ban has already been tried by President Clinton. The ban was ​entirely ineffective and expired in 2004:

"Since the federal ban expired in September 2004, murder and overall violent-crime rates have actually fallen. In 2003, the last full year before the law expired, the U.S. murder rate was 5.7 per 100,000 people. By 2014, the murder rate had fallen to 4.5 per 100,000 people. In none of the years since the ban ended has the murder rate been higher than it was in 2003. The average murder rate during the 10 years of the ban was 6.7 per 100,000 people and in the 10 years after it was 5.1."

More gun-free zones or "assault weapons" bans might make some people feel better, and the politicians will capitalize on the vulnerability that many people feel to convince voters to vote for them to "do something" at the next election. Acting on this emotion will be for naught. It will result in failed policies, many of which have already been tried, and it will certainly result in a loss of freedom – the freedom that many innocent people exercise to protect themselves and their loved ones. So, once again, let's not act on emotion. Let's act in accordance with reason and take steps similar to those offered by Sheriff Judd. 

Most of us who possess a license to carry a handgun in the State of Indiana understand that, to a very large extent, we are prohibited from having a firearm in or on school property. This includes, but is not limited to, school buildings, school buses and school parking lots. We do have a statute that allows the carrying of firearms by persons permitted to possess firearms who are transporting a person to or from school or to a school function as long as the possession is limited to possessing the firearm in a motor vehicle, and/ or storing the firearm on school property if locked securely and out of sight. There are exceptions for law enforcement officers, school resource officers, and for situations in which the school board has authorized individuals to posses a firearm on school property. It is safe to say that possession of a firearm, even by someone licensed to carry a handgun, is extremely restrictive on school property. 

With particular interest is what the meaning of "school property" is when examining various institutions and organizations. Under Indiana statute (I.C. 35-31.5-2-285) school property means the following:

(1) A building or other structure owned or rented by:

(A) a school corporation;

(B) an entity that is required to be licensed under IC 12-17.2or IC 31-27;

(C) a private school that is not supported and maintained by funds realized from the imposition of a tax on property, income, or sales; or

(D) a federal, state, local, or nonprofit program or service operated to serve, assist, or otherwise benefit children who are at least three (3) years of age and not yet enrolled in kindergarten, including the following:

(i) A Head Start program under 42 U.S.C. 9831 et seq.

(ii) A special education preschool program.

(iii) A developmental child care program for preschool children.

(2) The grounds adjacent to and owned or rented in common with a building or other structure described in subdivision (1). As added by P.L.114-2012, SEC.67.

Why is this definition of interest for the person that has a license to carry a handgun if he or she seldom travels to what is conventional known as a "school?" The answer to that is you may be going to a "school" and you don't realize it when you go to church on Sunday morning - or at any other time. Although there are generally no restrictions regarding carrying a firearm to church in Indiana, unless the particular church prohibits the carrying of a firearm, the church where you attend worship services could be considered "school property." It is certainly possible that a church could be classified as a school under the preceding statute, and you are committing a class 6 felony. This can be the case if a school is being operated on church property and the operation of the school is one that has to be licensed under Indiana statute. The bottom line - you have to be very careful when attending church services as you could, in fact, be violating our statutes and committing a class 6 felony if your church could be classified as "school property." 

Rob Pincus wrote a good article about the current debate taking place after the massacre in Las Vegas. The NRA issued a statement giving up ground on bump-stocks in order to get something else in return. What I fear is that we will start the slippery-slope and get nothing in return. Rob Pincus put it nicely:

To open up a negotiation on restricting "bump stocks" or any other accessory or type of gun is to accept that some level of infringement is not only acceptable, but that gun owners will be complicit in its establishment. "Shall not be Infringed" is the starting point… the basis for all the arguments and the reason for discussions on gun rights. Give that up and we conceptually give up the Constitutional Basis for anything else we decide we actually want to keep or fight for.

This is not an easy issue, but I tend to agree with Rob Pincus on this one.

This article is right. Most of the discussion after a tragic event is about merely fixing symptoms of a bigger underlying problem — a moral problem.

There was a joint committee meeting to discuss constitutional carry on August 22nd. If you weren't able to watch it, you can watch the recorded video on the Indiana General Assembly website. 

Guy Relford and others do a great job arguing for constitutional carry. You have to select the August 22nd meeting from the dropdown menu when you get to the Indiana General Assembly website. 

http://iga.in.gov/information/archives/2017/video/committee_judiciary_and_public_policy/

If you are not aware, the Indiana Joint Committee on Judiciary and Public Policy has begun a summer study on constitutional carry. What is "constitutional carry?" It is a return to governance in accord with the Indiana and US Constitutions.

Sec 32 of the Indiana Constitution provides "The people shall have a right to bear arms, for the defense of themselves and the State." If the legislation is passed in the Indiana general assembly, recognizing the plain meaning of our state constitution, the requirement for law-abiding adults to obtain a permit in order to lawfully carry would be eliminated. The current permitting system would be optional for those who desire to obtain a permit for the purposes of carry in other states that recognize an Indiana license to carry a handgun.

Please keep in mind that constitutional carry would not change the definition of who a proper person is in terms of who can legally possess a firearm. Constitutional carry would eliminate the requirement that law-abiding citizens ask permission from the state, have a background check, and pay a fee to exercise a constitutional right. Although I may be subject to confirmation bias, I watched the first hearing on August 22nd and would say that Representative Lucas and Guy Relford, amongst others, did an exceptional job advocating for constitutional carry. The hearing was approximately 5 hours long and presented a picture that was clear that constitutional carry legislation should be supported.

Look out for more information in the coming days regarding the issue. If you have an interest in attending or watching the next study hearing, you can find more information here:

http://iga.in.gov/…/…/committees/judiciary_and_public_policy

or here: https://www.nraila.org/…/indiana-summer-study-on-constituti…

Also, I would suggest following Representative Lucas and Attorney Guy Relford:

https://www.facebook.com/Jim-Lucas-for-State-Representativ…/

https://www.facebook.com/gunguyWIBC/ 

The Armed Citizen's Legal Defense Network (ACLDN) just released their attorney question of the month. The question is, "Would the armed citizen likely face criminal charges for the collateral damage, and/or incur civil liability for that stray bullet?"

Our response is below, and you can also see it at the ACLDN's website along with responses from others.

Even with no criminal prosecution of a citizen for a self-defense shooting, that would not preclude a civil action against the citizen by a purportedly innocent bystander. Given the understandable focus on potential criminal prosecution and the citizen's loss of freedom, the issue of civil liability is sometimes overlooked. In a civil case, the party bringing the suit (the plaintiff) will focus on attempting to recover monetary damages from the citizen who used deadly force in self-defense. 

Although I understand some states have varying forms of self-defense immunity statutes that provide a defined process within the criminal procedure context that might entitle the citizen to immunity from criminal prosecution and from civil liability, Indiana has no such statute that would be characterized as a self-defense immunity statute. Indiana Code 35-41-3-2, entitled "Use of Force to Protect Person or Property," would apply. The Indiana statute is replete with the use of the term "reasonable force" and "what the person reasonably believes." The statute states specifically that "[n]o person in this state shall be placed in legal jeopardy of any kind whatsoever for protecting the person or a third person by reasonable means necessary." 

Hence, although there are few cases analyzing our statute from the perspective of civil liability, it would seem safe to conclude that for a plaintiff to prevail in a civil case, they would have to prove that the person acting in self-defense did not act reasonably. Unlike a criminal case requiring proof beyond a reasonable doubt, the plaintiff would simply have to prove, by a preponderance of evidence, that the armed citizen did not act reasonably. 

Case law interpreting the Indiana statute seems to contemplate that a person acting in self-defense, as described in the hypothetical, should not be placed in any sort of legal jeopardy, to include payment of civil damages, if the citizen was protecting himself or another innocent person by reasonable means from an immediate threat of death or grave bodily harm. Obviously, what is reasonable and what is not reasonable is subject to a great deal of interpretation, and the question would likely be answered by a jury. Ultimately, although the burden of proof would be on the plaintiff, it would be helpful for the citizen to be able to articulate why he acted as he did under the circumstances to assist a potential jury in concluding that his actions were reasonable and proportional to the threat presented to him and that he acted as a reasonably prudent person would act in a similar situation. In addition to a MAG 40 class taught by Massad Ayoob, an ACLDN membership and the DVDs provided to Network members furnish a wealth of educational information that may help one articulate why your actions were reasonable and prudent.  

Learn how to safely handle a handgun and the fundamentals associated with the safe use and storage of a firearm. Seminar also includes information about different types of handguns, how they function and things to consider when making a purchase. (Registration is required).

Registration Fee - $10.00 (To be donated to The Second Amendment Foundation and the National Wild Turkey Federation) 

Stop by to talk to an Orion Arms associate or call 812-284-4867 to register. 

Available Dates: 

Saturday, August 19th 10:00 am – 11:30 am 

Saturday, September 9th 10:00 am – 11:30 am 

(There will be additional time allotted for questions following each seminar). 

Location: All seminars will take place at Orion Arms located at 3300 Industrial Parkway Jeffersonville, Indiana. Seminar will be conducted by certified firearms instructors Mike Ooley, attorney, Alex Ooley, Doris Ooley and/or Ryan Ooley of O2 Gun Group, LLC. You can find more information about the instructors and other courses offered by O2 Gun Group, LLC at www.o2gungroup.com. For additional questions and/or registration, stop by Orion Arms or call 812-284-4867.

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 Check out our response to this question below or over at the Armed Citizens Legal Defense Network, along with responses from a few other folks:  https://armedcitizensnetwork.org/june-2017-attorney-question

You have just survived the moment you had hoped you would never experience. You had to use deadly force to defend yourself or another innocent person against a violent attack.

Should you provide first aid to the person that just attacked you? The decision is not one to be taken lightly as there are a number of practical and legal considerations. From a practical standpoint, it will probably not be prudent or safe to render aid, but in a scenario where the scene is secure, and you can safely administer first aid, what legal ramifications might there be? For more discussion regarding the practical considerations, check out Massad Ayoob's comments: https://www.youtube.com/watch?v=xRyhocMdJLM.

As is the case in most states, you have no legal duty to provide aid in Indiana (Ind. Code §34-30-12-1). However, some states do have an affirmative duty to provide aid. The duty may only require that you summon aid by calling 9-1-1. See, e.g., Minn. Stat. § 604A.01. This article has a breakdown of states that create an affirmative duty and states that do not: http://tmsnrt.rs/1Df3U7T.

If you decide it is safe and you are capable of rendering aid, most states have some type of "good Samaritan" law. These laws vary but generally provide civil immunity for someone who makes an error while rendering emergency medical care. That is, he or she cannot be held legally liable for damages in court. These statutes typically have three requirements:
- The aid must be given at the scene of the emergency,
- In good faith, and
- Gratuitously, without the expectation of monetary gain.

You will find those same three elements with slightly different wording in the Indiana "good Samaritan" statute which states:
"a person who comes upon the scene of an emergency or accident...or is summoned to the scene of an emergency or accident and, in good faith, gratuitously renders emergency care at the scene of the emergency or accident is immune from civil liability for any personal injury that results from: (1) any act or omission by the person in rendering the emergency care; or (2) any act or failure to act to provide or arrange for further medical treatment or care for the injured person; except for acts or omissions amounting to gross negligence or willful or wanton misconduct." (Ind. Code § 34-30-12-1) (emphasis added).

In regards to the exceptions noted in the statute, if the aid is rendered in a way that constitutes gross negligence or willful or wanton misconduct, then there will be no immunity. Gross negligence as it originally appeared, was very great negligence. It has been described as a failure to exercise even that care which a careless person would use. Most courts consider that "gross negligence" falls short of a reckless disregard of the consequences, and differs from ordinary negligence only in degree, and not in kind. W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 34, at 211–12 (5th ed. 1984).

Indiana has no case law interpreting the application of the good Samaritan statute to a self-defense scenario. As a matter of fact, there is not much case law anywhere. However, while Indiana has little guidance on the good Samaritan statute in the self-defense context, our best guess is that as long as you satisfy the elements of the good Samaritan law in Indiana, the courts are likely to treat the person who defended oneself in self defense like they would treat an innocent bystander, making you immune from civil liability if you decide to render aid in a way that is not grossly negligent.

Nonetheless, there are some other considerations, particularly from a criminal law standpoint that one must consider. For instance, how will rendering aid look to a jury? Will it help your case or hurt your case? On one hand, some jurors will see rendering aid as the morally correct course of action. On the other hand, some jurors may see your attempt to render first aid as a sign of guilt. They might think you are trying to save the perpetrator because of some mistake you made when you decided to shoot.

Another important aspect to consider from a legal perspective is the preservation of evidence. A potential negative implication from rendering aid is that you will have directly participated in changing or eliminating evidence at the scene such as body position, wound condition, clothing damage or alteration, weapon location, or any myriad of other pieces of evidence that might be critical to the investigation of your self-defense act. Although this will likely occur when professional medical help arrives, at least your motivations will not be attacked as you will not be a direct participant in altering the evidence.

Whatever the situation, you need to be able to articulate why you did what you did to your defense team so that they can educate authorities and potentially a jury. Please remember that the laws will vary depending upon your jurisdiction (refer to http://tmsnrt.rs/1Df3U7T). The key is to visualize these scenarios ahead of time so that you will be more prepared to respond if you have to act in self defense.