4 replies to this topic

[Euler]

The cert was denied by the US Supreme Court last Monday, but the lower court (8th Circuit Court) made a ruling worth noting.

Temarco Pope was at a hotel party with several known gang members in Iowa. The hotel called police to break up the party. The police observed Pope put a gun in his waistband. They cuffed him and searched him (in that order), seizing the gun. Afterward police asked him if he had a concealed carry permit, which he said he did not. Pope contested that the search was illegal, because the police did not determine his possession was illegal until after they searched him, thus they didn't have suspicion of a crime until after the search.

The 8th Circuit Court of Appeals held that, because having a valid permit is an affirmative defense, law enforcement may presume that any carry is illegal.

I think what the police should have done is to ask him for ID, to check whether he had a CCL, then to arrest him (since they already knew he had a gun), although that's not my question.

Setting aside the 2nd Amendment issue for a moment, if concealed carriers are required to disclose, upon questioning, that they have a weapon, and if carry is presumptively criminal, even with a license, isn't the requirement to disclose a 5th Amendment violation?

So either the requirement to disclose is unconstitutional or the presumption that carry is criminal is unconstitutional. Personally I'd go with the presumption that carry is criminal being unconstitutional.

I seem to recall a similar case in Chicago getting tossed because the police didn't first determine that the known possessor was unlicensed.

[Flynn]

I like your argument on the 5th, it can't be both ways.

[gunuser17]

Exact opposite outcome in the Indiana State Supreme Court:  https://reason.com/2...stify-detentio/

[ChicagoRonin70]

Exact opposite outcome in the Indiana State Supreme Court:  https://reason.com/2...stify-detentio/

 

So, how do these two completely opposing rulings figure in advancing intelligent action and respect for the Constitution, by way of judicial action? Is the state-level decision in Indiana not relevant to the Federal jurisdiction in the Pope case?

 

More important, how can this be used to force the issue to make this kind of cake having/eating be punished?

[Euler]

The 8th Federal Circuit is Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota. Indiana is in the 7th Circuit.

It's a circuit split, sort of. The right case with the right argument could get it to the Supreme Court. Maybe the SC could rule that carry (assuming there's some state law that allows it) is presumptively legal. That's a pile of maybes.