IC § 35-47-2-1 Carrying a handgun without being licensed; exceptions; person convicted of domestic battery
(a) Except as provided in subsections (b) and (c) and sections 2 through 2.1 of this chapter, 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.
(b) Except as provided in subsection (c), a person may carry a handgun without being licensed under this chapter to carry a handgun if:
(1) the person carries the handgun on or about the person’s body in or on property that is owned, leased, rented, or otherwise legally controlled by the person;
(2) the person carries the handgun on or about the person’s body while lawfully present in or on property that is owned, leased, rented, or otherwise legally controlled by another person, if the person:
(A) has the consent of the owner, renter, lessor, or person who legally controls the property to have the handgun on the premises;
(B) is attending a firearms related event on the property, including a gun show, firearms expo, gun owner’s club or convention, hunting club, shooting club, or training course; or
(C) is on the property to receive firearms related services, including the repair, maintenance, or modification of a firearm;
(3) the person carries the handgun in a vehicle that is owned, leased, rented, or otherwise legally controlled by the person, if the handgun is:
(B) not readily accessible; and
(C) secured in a case;
(4) the person carries the handgun while lawfully present in a vehicle that is owned, leased, rented, or otherwise legally controlled by another person, if the handgun is:
(B) not readily accessible; and
(C) secured in a case;
(5) the person carries the handgun:
(A) at a shooting range (as defined in IC 14-22-31.5-3);
(B) while attending a firearms instructional course; or
(C) while engaged in a legal hunting activity; or
(6) the person is permitted to carry a handgun without a license under section 2.1 of this chapter (persons protected by a protection order).
(d) This section may not be construed:
(1) to prohibit a person who owns, leases, rents, or otherwise legally controls private property from regulating or prohibiting the possession of firearms on the private property;
(2) to allow a person to adopt or enforce an ordinance, resolution, policy, or rule that:
(A) prohibits; or
(B) has the effect of prohibiting;
an employee of the person from possessing a firearm or ammunition that is locked in the trunk of the employee’s vehicle, kept in the glove compartment of the employee’s locked vehicle, or stored out of plain sight in the employee’s locked vehicle, unless the person’s adoption or enforcement of the ordinance, resolution, policy, or rule is allowed under IC 34-28-7-2(b); or
(3) to allow a person to adopt or enforce a law, statute, ordinance, resolution, policy, or rule that allows a person to possess or transport a firearm or ammunition if the person is prohibited from possessing or transporting the firearm or ammunition by state or federal law.
(e) A person who knowingly or intentionally violates this section commits a Class A misdemeanor. However, the offense is a Level 5 felony:
(1) if the offense is committed:
(A) on or in school property;
(B) within five hundred (500) feet of school property; or
(C) on a school bus; or
(2) if the person:
(A) has a prior conviction of any offense under:
(i) this section; or
(ii) section 22 of this chapter; or
(B) has been convicted of a felony within fifteen (15) years before the date of the offense.
(3) the commissioner of the department of correction or persons authorized by the commissioner in writing to carry firearms;
(4) judicial officers;
(5) law enforcement officers;
(6) members of the armed forces of the United States or of the national guard or organized reserves while they are on duty;
(7) regularly enrolled members of any organization duly authorized to purchase or receive such weapons from the United States or from this state who are at or are going to or from their place of assembly or target practice;
(8) employees of the United States duly authorized to carry handguns;
(9) employees of express companies when engaged in company business; or
(10) any person engaged in the business of manufacturing, repairing, or dealing in firearms or the agent or representative of any such person having in the person’s possession, using, or carrying a handgun in the usual or ordinary course of that business.
– There has been conversations the legislature about changing Indiana to a constitutional carry state, meaning that everyone could cary a handgun without a license unless they are legally restricted from doing so. However, this is still speculative.
– Case Law
– Defendant’s constitutionality challenge to Ind. Code §§ 35-47-2-1 and 35-47-2-24 failed where case law established that it was not unconstitutional for a statute to impose the burden of proof upon a defendant for proof of an issue where the issue was not an element of the crime, and proof of the presence of a license to carry a handgun was an exemption or exception to, and not an element of, the crime of carrying a handgun without a license. Pittman v. State, ? NE.2d ?, (Ind. App. 2015).
Trial court erred in granting defendant’s motion to dismiss charges for carrying a gun without a license on school property because the State was not required to prove that the gun was in operable condition to support the charges; accordingly, the fact that the gun was an antique handgun in inoperable condition was of no significance as the gun met the statutory definition of a firearm in that it was designed to expel projectiles by means of an explosion. State v. Gibbs, 769 N.E.2d 594, (Ind. Ct. App. 2002).
– The burden placed on a defendant by IC 35-47-2-24 to prove he has a license or is otherwise exempt from prosecution under this section does not unconstitutionally infringe on a person’s right to keep and bear arms as granted by Ind. Const., Art. 1, § 32. Lewis v. State, 484 N.E.2d 77 (Ind. Ct. App. 1985).
– When referring to the carrying of a handgun on or about one’s person, as distinguished from carrying a handgun in a vehicle, this section proscribes having on one’s person an unlicensed handgun. Conviction of the offense does not require proof that the weapon was conveyed or transported from one place to another. McAnalley v. State, 514 N.E.2d 831 (Ind. 1987).
– While mere presence in a vehicle with multiple riders and multiple weapons is not sufficient to establish a violation under this section, a driver, or passenger who has a gun at his feet in plain view, and without a license for carrying the gun, may be convicted of carrying a gun. Henderson v. State, 715 N.E.2d 833 (Ind. 1999).
– This section does not speak in terms of possessing a handgun but rather in terms of carrying a handgun, and the undisputed fact that the weapons were found in a vehicle in defendant’s rented storage facility was, as a matter of law, insufficient to support the inference that defendant at one time carried or will carry the weapons on his person or in a vehicle; therefore, the handguns were not subject to forfeiture under IC 35-33-5-5. Seel v. State, 739 N.E.2d 170 (Ind. App. 2000).
– Evidence that defendant took the handgun out of the car, moved it toward the officer, and then continued to hold the handgun in his hand during the time that he was struggling with the officer was sufficient to prove beyond a reasonable doubt that defendant did carry the handgun on his person in a place that was not his dwelling, property, or fixed place of business as required for a conviction for carrying a handgun without a license. Sowell v. State, 784 N.E.2d 980 (Ind. App. 2003).
– A passenger in a motor vehicle had primary control over an automatic pistol lying between his feet and was in the best position to gain actual control of the weapon, as he easily could have reached it, while it would have been difficult, if not impossible, for the driver to reach. It could be inferred, therefore, that he had the requisite knowledge and control, i.e., that he had “constructive possession” of the pistol. Taylor v. State, 482 N.E.2d 259 (Ind. 1985).
– Constructive possession of a handgun is not sufficient to sustain a conviction for carrying a handgun without a license. Walker v. State, 631 N.E.2d 1 (Ind. App. 1994).
– Where defendant was a passenger in a car stopped for leaving parking lot without lights on, gun was under defendant’s seat where it could not be seen, and there was no evidence that defendant had been seen carrying gun shortly before being stopped, constructive possession of gun could not be inferred. D.C.C. v. State, 695 N.E.2d 1015 (Ind. App. 1998).
– Other than defendant juvenile’s proximity to a gun, there was no other evidence to suggest that defendant had the capability to maintain control and dominion of the gun; accordingly, since the evidence was insufficient to prove that defendant constructively possessed the handgun, defendant was improperly adjudicated a delinquent child for violating IC 35-47-2-1. E.D. v. State , 905 N.E.2d 505 (Ind. App. 2009).
– A motel room was not the defendant’s dwelling where there was no evidence that he intended to eat or sleep in the room or that he registered or paid for the room. Winters v. State, 719 N.E.2d 1279 (Ind. Ct. App. 1999).
– For purposes of IC 35-47-2-1, a dwelling does not include the common areas serving a person’s apartment; defendant’s possession of a loaded handgun in the hallway outside his apartment was a violation of this section. Robertson v. State, 765 N.E.2d 138 (Ind. 2002).
– Where pistol was found in tackle box in trunk of defendant’s car parked in front of his residence but there was no evidence that pistol had been or was about to be transported, trial court properly directed verdict in favor of defendant because of insufficient evidence on the element “carry.” State v. Cox, 297 N.E.2d 920 (Ind. App. 1973).
– Where a passenger in a car knew a gun owned and licensed by the driver was at his feet, the evidence was insufficient to sustain a conviction for carrying a handgun where there was no evidence of any movement or action to suggest that the passenger exercised dominion. Jones v. State, 881 N.E.2d 1095 (Ind. Ct. App. 2008).
– There was insufficient evidence to support defendant’s IC 35-47-2-1 conviction where: (1) defendant did not have direct physical control over a handgun found in a car, which was owned and had been driven that evening by defendant’s cousin; (2) there was no evidence that the clothes upon which the gun was found were defendant’s; (3) the mere fact defendant was alone in the car when police found the gun did not establish that defendant possessed it; (4) although the gun was in the middle of the back seat, and defendant had reclined defendant’s seat, possession of a gun found in the rear of a vehicle is not imputed to a person in the front passenger seat; and (5) defendant evidenced no awareness of the gun when approached by police, made no furtive gestures, and made no incriminating statements. Henderson v. State, 715 N.E.2d 833 (Ind. 1999).
– Even when the pistol was not introduced as evidence, the testimony that the defendant was carrying the pistol in a place not his abode or business and that defendant did not have a license was sufficient evidence to sustain a conviction of carrying a pistol without a license. Wilson v. State, 330 N.E.2d 356, (Ind. App. 1975).
– Even when a gun is not introduced as evidence, the testimony of an eyewitness that the defendant was carrying a pistol in a place other than his dwelling or business and testimony that the defendant did not have a license to carry a handgun on that date is sufficient to sustain a conviction for carrying a handgun without a license. Youngblood v. State, 515 N.E.2d 522 (Ind. 1987).
– Defendant need not be found to have been carrying pistol on or about his person in order to be found in violation of former IC 35-23-4.1-3, where he was driver of vehicle in which pistol was found underneath driver’s seat. Klopfenstein v. State, 439 N.E.2d 1181 (Ind. App. 1982).
– Evidence that defendant was driving car and knew there was handgun in car was sufficient to convict defendant of carrying handgun without license. Thurman v. State, 793 N.E.2d 318, (Ind. App. 2003).
– In establishing the elements of the offense of carrying a pistol away from home or place of business without a license, the prosecution did not have to negate the exception of transporting from place of purchase while unloaded and in secure wrapper. Gray v. State, 305 N.E.2d 886 (Ind. App. 1974).
– Where defendant was handed a gun by person in whose car she was riding, and she accepted the gun because she was afraid of that person, she knowingly accepted possession of the gun and had voluntary possession thereof, and her conviction was proper. Nichols v. State, 683 N.E.2d 1358 (Ind. App. 1997).
– Proof that a defendant does not possess a license to carry a handgun is not an element of the statute. Proof that the defendant had a license is an exception to the offense, and the burden is on him to prove he possessed a valid license. License acquired after being cited for carrying a handgun without a license is not a “valid license” sufficient to require that the charge be dismissed pursuant to IC 35-47-2-24(b). Washington v. State, 517 N.E.2d 77 (Ind. 1987).
– Under prior law the phrase “the place of abode” did not include public streets or alleys regardless of who owned the lands on which the streets or alleys were situated. Dunbar v. State, 319 N.E.2d 630, (Ind. App. 1974).
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