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Kirk Freeman
Grandmaster
1. I believe there would still be a mens rea requirement of carrying into a school function that came to you. You did not "know or intend" to be at a school function.
To use one of my favorite anaologies in criminal law:
"I was drunk in a bar. I was thrown into public." Tater Salad
The school function phrase still scares me as it is ill defined by the Court of Appeals as of yet. *Danger, Will Robinson!*
2. I would like to think any copper on the scene or enjoying his own blizzard, would hitch his thumb toward the road and tell you to clear out with Butterfinger blizzard still on his nose.
3. I would like to think that any Prosecuting Attorney would see that there was no criminal intent in a scenario such as this and decline prosecution.
4. The solution is to create an exception (the way to destroy a law is to riddle it with holes) for valid LTCH holders for school property. I think I did it in 12 words. It should still be on file at LSA.
To use one of my favorite anaologies in criminal law:
"I was drunk in a bar. I was thrown into public." Tater Salad
The school function phrase still scares me as it is ill defined by the Court of Appeals as of yet. *Danger, Will Robinson!*
2. I would like to think any copper on the scene or enjoying his own blizzard, would hitch his thumb toward the road and tell you to clear out with Butterfinger blizzard still on his nose.
3. I would like to think that any Prosecuting Attorney would see that there was no criminal intent in a scenario such as this and decline prosecution.
4. The solution is to create an exception (the way to destroy a law is to riddle it with holes) for valid LTCH holders for school property. I think I did it in 12 words. It should still be on file at LSA.
Respectfully disagree.
The above text in red is my addition. This would exempt LTCH holders from the restriction in or on school property, in or on property being used by a school for a school function, and/or on a school bus, just as it exempts LEOs.
Blessings,
Bill
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I think I may have duplicated your 12 words.
(in post #24, before this one)Curiosity: How did you arrive at the belief in #1 that mens rea would come in where the law does not make that an element of the crime?
Also, I'm guessing that since you said you would like to think what you said in #2 and #3, you're saying you don't put much faith in those being the case. What would induce the LEO or PA to that course of action, rather than "pursue all legal avenues"?
Thanks for jumping back in here, Kirk.
Blessings,
Bill
Without meaning to speak on KF's behalf, I think he is alluding to these laws (which are really the codification of a metric buttload of cases over the last couple hundred years):
IC 35-41-2-1
Voluntary conduct
Sec. 1. (a) A person commits an offense only if he voluntarily engages in conduct in violation of the statute defining the offense. However, a person who omits to perform an act commits an offense only if he has a statutory, common law, or contractual duty to perform the act.
(b) If possession of property constitutes any part of the prohibited conduct, it is a defense that the person who possessed the property was not aware of his possession for a time sufficient for him to have terminated his possession.
IC 35-41-2-2
Culpability
Sec. 2. (a) A person engages in conduct "intentionally" if, when he engages in the conduct, it is his conscious objective to do so.
(b) A person engages in conduct "knowingly" if, when he engages in the conduct, he is aware of a high probability that he is doing so.
(c) A person engages in conduct "recklessly" if he engages in the conduct in plain, conscious, and unjustifiable disregard of harm that might result and the disregard involves a substantial deviation from acceptable standards of conduct.
(d) Unless the statute defining the offense provides otherwise, if a kind of culpability is required for commission of an offense, it is required with respect to every material element of the prohibited conduct.
Now, of course, it isn't ever as simple as just what's written, but to be held criminally liable you have to commit an act with a certain awareness that you are committing the act. Not necessarily that it is illegal, just be aware of the elements. So, you don't have to know it is illegal to possess a gun on school property, you just have to know you have a gun, and know you are at a school.
In principle, that's how it is supposed to work. (There are some exceptions for some drug war offenses.)
IC 35-41-2-1
Voluntary conduct
Sec. 1. (a) A person commits an offense only if he voluntarily engages in conduct in violation of the statute defining the offense. However, a person who omits to perform an act commits an offense only if he has a statutory, common law, or contractual duty to perform the act.
(b) If possession of property constitutes any part of the prohibited conduct, it is a defense that the person who possessed the property was not aware of his possession for a time sufficient for him to have terminated his possession.
IC 35-41-2-2
Culpability
Sec. 2. (a) A person engages in conduct "intentionally" if, when he engages in the conduct, it is his conscious objective to do so.
(b) A person engages in conduct "knowingly" if, when he engages in the conduct, he is aware of a high probability that he is doing so.
(c) A person engages in conduct "recklessly" if he engages in the conduct in plain, conscious, and unjustifiable disregard of harm that might result and the disregard involves a substantial deviation from acceptable standards of conduct.
(d) Unless the statute defining the offense provides otherwise, if a kind of culpability is required for commission of an offense, it is required with respect to every material element of the prohibited conduct.
Now, of course, it isn't ever as simple as just what's written, but to be held criminally liable you have to commit an act with a certain awareness that you are committing the act. Not necessarily that it is illegal, just be aware of the elements. So, you don't have to know it is illegal to possess a gun on school property, you just have to know you have a gun, and know you are at a school.
In principle, that's how it is supposed to work.
(There are some exceptions for some drug war offenses.)
What is the reasoning for striking (3) ?
Why not leave it, maintaining the exception for non LTCH holders to drop off or pick up from a school while their otherwise legally transported firearms remain in the vehicle?
Why not leave it, maintaining the exception for non LTCH holders to drop off or pick up from a school while their otherwise legally transported firearms remain in the vehicle?
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My thinking was that it was no longer necessary, but you're correct, my friend. I'll re-edit that.
Thanks!
Bill
My bad. My reading comprehension failed me.
japartridge
Master
wow, so we can just write our reps/senators and demand that they re-introduce this bill?
Update: I received an email reply to my question to Mr. Bryan Ciyou on the question of the example of the McDonald's visit and a school bus with students pulling in and anyone carrying inside the restaurant breaking the law. He replied as follows: "This is a very conservative approach, which I get any attorney taking with the hot topic of guns and our zero tolerance policy. However, in Indiana, I think the controlling position is property owned, leased or rented for a school function. I do not think this would fall into this penal provision on those facts." That's good enough for me.
Agreed, my friend. I'm looking for the fights big enough to matter and small enough to win. One step at a time. The legislature wouldn't even go for that one enough to discuss it last session. I'm hopeful they'll discuss and pass it next session and then come back the following to expand the freedoms his law will open up.
Blessings,
Bill
Hmmm... perhaps a different tactic.
An amendment to IC 35-47-2-1 (the "CHWOL" statute) that might be something like:
(d) (The statute is not to be construed- )
4. To prevent any person who holds a valid license under this chapter from securing any such handgun in a locked vehicle on the premises of an otherwise prohibited area, regardless of their employment status.
Now, this serves several purposes:
- It can be touted as an extension of the guns-left-in-parking-lot law, because it is not specific to schools.
- On its face, it does NOT dilute the no-guns-on-school-property law, because it is not specific to schools.
- It is confusing as hell; when in doubt, obfuscate. I'm not *completely* sure what a court would do if the LTCH law says you can leave it secured in a vehicle, but the school law says you can't. But, it might be more palatable than changing the school law.
Not sure if this is a good idea or not - it is just a different idea to achieve a similar end.
An amendment to IC 35-47-2-1 (the "CHWOL" statute) that might be something like:
(d) (The statute is not to be construed- )
4. To prevent any person who holds a valid license under this chapter from securing any such handgun in a locked vehicle on the premises of an otherwise prohibited area, regardless of their employment status.
Now, this serves several purposes:
- It can be touted as an extension of the guns-left-in-parking-lot law, because it is not specific to schools.
- On its face, it does NOT dilute the no-guns-on-school-property law, because it is not specific to schools.
- It is confusing as hell; when in doubt, obfuscate. I'm not *completely* sure what a court would do if the LTCH law says you can leave it secured in a vehicle, but the school law says you can't. But, it might be more palatable than changing the school law.
Not sure if this is a good idea or not - it is just a different idea to achieve a similar end.
Kirk Freeman
Grandmaster
I respectfully disagree. We have the political capital for a front assault. Exempt LTCH holders from the school property ban.
Git R Done.That doesn't help if you want to protect yourself and your family in a church attached to a school or if you're in a school when something goes down. That's no better than the lady with her pistol locked in her car who watched her parents murdered in Lubby's in Kileen, Tx.
Fair enough - I absolutely agree that is the best result (or nearly so). But, someone once defined insanity as doing the same thing over and over again, but expecting a different result each time.
How many times do you want to try that before trying something different?
Personally, I'd say one more time. The next session is the short session, I believe. So, it'll be a narrow window. I doubt it'll get much further than the last time. If it doesn't at least get to committee, I'd say the next long session needs a different approach.
But that's just me.
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