Do I have your attention? As a father of 3 children under the age of 18 and a criminal defense attorney for longer than any of them have been alive, please allow me to explain that this notion is not “crazy” either as legal advice or parental advice. First of all, I am not suggesting that every young adult should possess or carry a firearm. To the contrary, only responsible gun-owners should own, possess or carry firearms. I merely want your child to have permission from the State of Indiana to do so. Here is why:
Imagine This Scenario:
Your 18-year old high school senior drives to an event in a car with a group of friends. On the way there, a not-so-bright friend (you know the one), excitedly wants to show your child a handgun that they recently acquired and puts it in your child’s lap.
Your child exclaims “What the #$@%*?” and hands the gun back to the friend. In the commotion, the slight swerve of the steering wheel attracts the attention of a passing law enforcement officer. Suspecting signs of intoxication, law enforcement pulls your child’s vehicle over.
The officer approaches the vehicle and notices the butt of the weapon sticking out from where the not-so-bright friend is hiding it. Multiple police cars are called to the scene and the vehicle occupants are removed, possibly at gunpoint.
Your child professes, “It is not my gun”. But officers ask more probing questions: “Did you know it was in the car?” “Are your fingerprints/DNA on the gun?” Suddenly, your child realizes that his or her protests are falling on deaf ears.
Officers search state records and find that no one in the vehicle has a permit to carry a handgun. All are arrested for Carrying a Handgun without a License, a Class A misdemeanor in Indiana.
Your child is looking at a booking process, bond fees, court dates, and attorney fees. If the attorney is not successful in getting the charge dismissed against your child, they are looking at court costs, probation fees, and a possible period of incarceration.
HOW COULD THIS HAPPEN?
Your child was right that he/she didn’t own the gun. But that fact is immaterial. The issue is possession, not ownership.
Contraband can be possessed solely or jointly. Possession can be “actual” or “constructive”.
Actual Possession is an easy concept to understand. If the person has direct physical control over an item—it is in their hand, in their pocket, or as my clients like to say, it is “on them.” This is actual possession and it doesn’t matter who the owner of the item is.
Constructive Possession is a little more difficult to understand. Indiana pattern jury instructions on constructive possession read, “A person, although not in actual possession, knowingly has both the power and the intention at a given time to exercise control over a thing, either directly or through another person or persons, is in constructive possession of it.”
Since neither the prosecutor nor law enforcement are mind readers, intent has to be developed through surrounding facts and inferences.
- Who owned the vehicle it was found in?
- Can fingerprints or DNA be found on the weapon?
- Can a magazine, holster, ammunition, or other accessory be attributed to any person?
- Were there any incriminating statements?
While this list is not exhaustive, you have probably already identified the vehicle ownership and the fact that your child handled the gun in passing it back as facts that are not in your child’s favor.
These unfavorable facts would be used by the prosecutor to show your child had constructive possession of the gun even though he/she did not own the gun.
WHAT IS THE IMPACT OF GUN CHARGES IN INDIANA?
Indiana Code 35-47-2-1 reads in pertinent part: “. . . a person shall not carry a handgun in any vehicle or on or about the person’s body without being licensed under this chapter to carry a handgun . . . A person who knowingly or intentionally violates this section commits a Class A misdemeanor.
However, the offense is a Level 5 felony if
- the offense is committed (A) on or in school property; (B) within five hundred feet of school property; or on a school bus or
- if the person has a prior conviction of any offense under (i) this section; or section 22 of this chapter or (B) has been convicted of a felony within fifteen (15) years before the date of the offense”.
A class A misdemeanor carries a potential penalty of 0-365 days in jail with a fine up to $5000. Those convicted under I.C. 35-47-2-1 also face a mandatory statutory fine for the “safe school fund” in an amount between $200-$1000.
While the statute also defines exceptions of who is required to have a license and where, none of those exceptions would apply to the scenario above.
Further, if the scenario occurred within 500ft of the school, your child would face a Level 5 Felony. The potential penalty for a level 5 felony ranges between 1-6 years in the Indiana Department of Corrections and a fine up to $10,000.
Further, unlike a level 6 felony, a Level 5 Felony conviction cannot be reduced to a misdemeanor. The Felony conviction under these circumstances would be tragic and additionally, it would prevent any future lawful gun ownership.
HOW YOU COULD HAVE AVOIDED THIS WITH A LIFETIME GUN PERMIT?
While a criminal action might still be rightfully pursued against the “not-so-bright friend”, your child won’t likely be charged with Carrying a Handgun without a license if they simply had a license.
The steps to apply for a new Indiana License to Carry a Handgun can be found on the website run by the Indiana State police.
- The first step is to Complete a Handgun License Application online at the Indiana State Police Handgun Licensing Portal.
- Next, you need to schedule an appointment to submit your fingerprints electronically at a location convenient to you (also available through the website).
- Finally, you would need to complete local law enforcement agency processing within 90 days.
The application will be sent to the Indiana State Police for final review. If approved, the license will be mailed to your home of record. If rejected, you will also receive notice via mail with instructions on how to appeal the rejection.
Effective July 1st, 2020, citizens could obtain a 5-year permit for free and a lifetime permit would cost $75.
I always advised my clients to splurge on the lifetime permit because the law is unforgiving if the license is expired even by a couple of days.
However, after July 1st, 2021, the fees for lifetime gun permits are now also exempt pursuant to Indiana Code § 35-47-2-4. Therefore, the decision to request a lifetime permit is a no-brainer.
COULD YOUR GUN PRIVILEGES BE DENIED OR REVOKED?
In short, yes. An application can and likely will be denied if everything is not properly completed or if the local police believe that the applicant is a danger to the community.
In either case, you should consult with an attorney experienced with Indiana gun rights law. It might be a matter of amending the application by submitting an affidavit or it could be as complex as requesting a hearing in front of an administrative law judge.
Even if a person receives a lifetime permit, that privilege is not absolute. A felony conviction, misuse of firearms, or mental health issues are just a few reasons why the State of Indiana might revoke a citizen’s permit.
Again, if this happens, you should consult with an attorney. For instance, it may be possible to expunge a felony conviction or reduce it to a misdemeanor.
DOESN’T THIS ADVICE APPLY TO ALL ADULTS- NOT JUST 18-YEAR-OLDS?
Absolutely. This article was written to grab the reader’s attention. However, the advice applies to every adult. Since the application fee for a lifetime permit has been waived, it makes complete sense for anyone who qualifies to obtain a lifetime carry permit even if they don’t own a firearm or never intend to.
Having a permit provides a person an extra layer of protection from criminal charges in case they find themselves in actual or constructive possession of a firearm.
Besides, we all know those “not-so-bright friends” at any age.
David M. Seiter, is a criminal defense attorney in Indiana with more than two decades of experience as a lawyer and three years as a judicial officer in the Marion County courts. He is an adjunct professor at IUPUI where he teaches “Substantive Criminal Law”. He practices with the law firm of Riley Cate, LLC and can be reached at (317) 588-2866.