*1 controls this case. A pursuit in hot citizen of “demon rum” must pull
do more than the side road to
escape intoxication statute. is not a case in
This which defendant
parked his private country vehicle in a lane.
Construing the evidence most favorable to judgment, private he was not in could distinguished pub- from the roadside,
lic yard as the front of a
private residence.
See
Tincher
21 Ind.App.
Obviously I would attribute to “public place”
term the narrow construction majority.
embraced Indiana case
law does not demand such narrow con-
struction and am not persuaded
majority’s jurisdic- citation to cases other
tions.
So I would affirm the conviction.
Joseph SCHUBERT, Jr., L.
Petitioner-Appellant, DeBARD, Superintendent,
Robert L. Department,
Indiana State Police
Respondent-Appellee.
No. 3-177A10. Joseph Bend, Bradley, peti- D. South tioner-appellant. Indiana, Court of Appeals Third District. Sendak, Theodore Atty. Gen., L. Jack R. O’Neill, Gen., Deputy Atty. Indianapolis, Jan. respondent-appellee. Rehearing 27, 1980. Denied March
GARRARD, Presiding Judge. Appellant, Joseph Schubert, L. applied to IC 35-23-4.1-5 for a license to handgun. When timely petition denied filed a for admin- hearing istrative review. A IC 4-22-1-24. Indiana State Police found that Schubert “did not reason” have a to be li- permit. censed and denied the The trial superintendent, court sustained the and this appeal follows.1 seq. et 4-22-1-14 1. See IC *2 during investiga-
The evidence viewed the course of the disclosed that June appellant applied tion, permit carry including employers for a to a former and the handgun self-protection. for previ- He had sheriff who both created and revoked his commission, ously permits. deputy appellant held such His most recent sheriff’s felt expired July one problems.” 1973. He had carried a had “mental handgun engaged part-time when em- 4.1-5, licensing IC 35-23— ployment security the nature of work. provides part, in salient He special police also had held a commission “(a) person desiring A a license to City from the Wayne of Port and a St. apply a to the chief Joseph’s County Deputy commis- Sheriff’s police corresponding police or officer sion. Both commissions had been revoked municipality of the in which he resides. prior application to his for the license. officer, municipality If that has no such Schubert offered as evidence of the need applicant or if the does not reside in a to himself two items he had re- municipality, apply to the he shall sheriff ceived in copy the mail in 1975. One was a resides, county in which he picture pig appellant’s of a of a name application The officer to whom the letter, written above it. The other was a investigation made shall conduct an into Assassinater’s,” signed “The demanding applicant’s verify records official “Pig, you or are dead.” No $1250 method thereby applicant’s rep- specified. of payment Appel- utation, verify and shall in addition for lant he suspected might his brother accuracy the information contained in the However, have sent the letters. he did not application, and shall forward this infor- discuss the matter with his brother nor mation with his recommendation report police. it to the He also testified approval disapproval ... to that while photographing the house where superintendent who make what- lived, his mother in connection with “se- investigation ever further he deems nec- Department addition, cret” work for the essary. U.S. disapprov- whenever Treasury, recommended, his brother ordered him out of al is officer whom the area and fired a rifle at the van provide is made shall riding. notify which he was He did applicant and the prosecutor’s reasons, complete specific office about the inci- writing, dent, charges brought. but no were disapproval. He for the recommendation of appears claims that as a result of these incidents he it carry gun fears for his life and needs to a has a protect himself. carrying char- acter proper person A report summarizing background in- licensed, to be he shall issue to so vestigation appellant made of when ap- he either or an unlimit- plied private for a detective’s license in 1971 carry any handgun ed license to or hand- objection. was admitted without That re- guns lawfully possessed by applicant. port appellant concluded that awas “chron- . A license to ic suffering “gigantic police liar” from a any person shall not issued be complex.” report, testimony as well as felony been convicted violation of of a officer at the hearing, indicated chapter or who has been convicted of occasion, that on when he had been licensed violence, a crime of as defined in this gun, appellant had carried and chapter, in this State displayed his pistol inappropriate at times added) country.” (emphasis require which did not the use of a personal safety expedite or to Establishing licensing proce the duties of such a Moreover, his employment. although sever- handguns dure for is not violative of the al jobs might he had broadly guaranteed by arms as work, they appear characterized as Second Amendment or Art. 32 of the Sec. to have generally directing involved traffic Indiana Constitution. Matthews v. in parking lots. Several of those inter- contends, however, In- Debates in Indiana Convention at
diana
affords him the
Constitution
Thus,
bear arms for his own defense.
We think
clear
that our constitu
urges
properly
that where self-defense is
provides
tion
our citizenry
desiring
asserted as the reason for
a fire-
Furthermore,
arms for their self-defense.
arms
is otherwise
*3
Matthews v.
qualified, the license cannot be withheld Court held that if it is determined under IC
upon
subjective
an administrative official’s
35-23-4.1—5 that the
has met the
superintend
conditions of the
determination of whether
the
the
ent has no discretion to withhold the
defending.
needs
license.
2. “A
be included
state,
of a free
carrying
weapons.
of concealed
2 Debates
Arms,
people
keep
and bear
shall not be
1850,
1385,
in Indiana Convention
at
1391.
infringed.”
stripped
5.When
of its invective this would be
originally proposed
3. The section was
and con-
by
position
the result of the
advanced
the dis-
20,
sidered as Article
Section 12.
It became
Any ordinary
applying
sent.
for license
citizen
finally reported
Section 32 as
out
“factually”
permit
could be
denied a
because
adopted
the Committee on Revision and
Thus,
actually
no
one had
threatened him.
1850, 873,
convention. Convention Journal
would have no “need” to defend himself. Simi-
880.
threatened,
larly,
permit
if
could be denied
Compare
the consideration of the Second
police agencies
on the basis that
the official
(1939),
Amendment in U. S. v. Miller
307 U.S.
capable
handling
that he
were
the matter so
59 S.Ct.
Joseph
applicant,
L.
does
empowered
ion
to evaluate the
that he
not have a
reason to be so li-
regarding Schubert’s claim that he
evidence
added.).
censed.” (Emphasis
pub-
firearm in
needed to
concealed
lic
himself.
because,
application
DeBard thus denied the
gained
reading
no
from a
doubt
that belief
factfinder,
in his role as
he determined that
1971, 35-23-4.1-5,
Ind.Ann.Stat.
support
the evidence
not
did
Ed.),
(Burns
wherein the
10-4751e
claim that
legislature expressly granted
pow-
him that
necessary
for his self-defense.
part:
er.
pertinent
The statute reads in
record,
nothing in
absolutely
There is
person desiring a license
“A
self-de-
indicate
DeBard considered
apply
police
shall
to the chief
obtaining
fense an
reason for
improper
corresponding
officer of the mu-
license,
Majority erroneously indi-
as the
he resides
nicipality
cates.
Without
question,
Section
[*]
[*]
[*]
[*]
[*]
[*]
gives
our citizens
the Indiana Constitution
officer to whom the
arms,
investigation
for the
into
“a
defense
shall conduct an
made
verify
Superintend-
applicant’s
official records
themselves.”
reiterate
applicant’s
rep-
thereby
otherwise. The
character and
ent DeBard did not find
utation,
verify
determine these facts
each individ-
and shall in addition
for
case,
ual
and unless such ministerial
accuracy the information contained
delegated
competent
duties
to some
infor-
application, and shall forward this
person,
authority
to execute the will
recommendation
mation
Legislature upon proper showing
approval
disapproval
and one [1]
facts,
such laws would become a nulli-
fingerprints
legible
set of
and classifiable
ty
machinery
because of a lack
applicant
to the
their enforcement.
make whatever further investi-
lyzed
thereof constituted an unconstitutional del-
in rejecting a claim that
cal version of the above
egation
gation he deems
fully possessed by
(Emphasis added.).
applicant has
so
either a
it
fact;
the function of
person
tive
dependent
“Whether the
appears
licensed,
Matthews
carry any handgun
the then
[******]
policy,
which the execution of the
of
to be so licensed’
power.
carrying pistol
to the
he shall issue to the
.
as
existing
Legislature may delegate
expressed
determining
The Court stated:
necessary
or an unlimited license
proper person
statutory
applicant.
are
virtually
handguns
in the
the substance
‘has a
questions
...
Court ana-
these facts
character
Ind.
suitable
scheme
legisla-
Act,
identi-
carry-
to be
law-
of
is
237 Ind. at
Court thus determined that
cant has a
fact.
lature’s directive that
the factual basis for
1971,35-23-4.1-5, supra,
with the
the conditions of the statute are
ent must determine
provides that the Superintendent of State
person,
issue the license.
if,
Police
it does not violate the Due
no unlawful
power in the statute here
footnotes
of the 14th Amendment of the United
Indiana Constitution.”
States Constitution
“When the statute here in
“For the
no
turn,
discretion
if it
“proper
684-85,
requires
omitted.).
meets these
reasons above
the
appears
Police
issue
reputation
delegation
Court
reason” is a
in the matter
that such
the
Superintendent. The
or Art.
whether
N.E.2d at 337. The
that he is of
stated
approved
qualifications
whether an
power
stated,
(Citations and
and a suitable
Process
4, 1,
Superintend-
*5
question
reason rests
to evaluate
§
legislative
but must
the
we find
not the
met,
Clause
appli-
to IC
legis-
good
of
expertise in the
Superintendent’s peculiar
Superintend-
“It is our
that the
area,
reasoned, justified the dele-
Police,
the Court
special
ent of
train-
finding power.
gation of fact
experience,
and with the facilities
securing
which he has at his command for
Superin-
Majority concludes that a
The
information,
capable
is
capacity to evaluate whether an
tendent’s
an
for a
determine whether
in fact needs to defend himself
pistol
‘proper
has a
essential nature of the
“contravenes the
therefor,
guarantee.”2
reason’
and whether he is a
In Matthews
constitutional
express-
person’
pistol
supra,
‘suitable
to have a
in his
the
Court
law.
rejected
very proposition possession
Legislature
ly
at will. The
could
appli-
power
legislature replaced
phrase
the factual basis for an
to evaluate
1. In
the
the
person”
person.”
“proper
“suitable
phrase “proper
self-defense. Matthews
cant’s
unchanged.
reason” remained
exists,
State, supra. When a factual basis
Acts
P.L.
§
course,
deny
the
cannot
that self-defense is not a
license on the basis
stated,
Simply
Majority’s
declaration of
Majority’s
Notwithstanding the
unconstitutionality
overly
reason.
As ex-
broad.
statement,
plained
text,
remain the
in the
has the
overbroad
these rules
precedent.
ment of law
no value
If
Writing
Majority,
Chief Justice
did, however,
Superin-
unequivocally:
Police
Bobbitt stated
the State
compelled
would be
licens-
tendent
“Appellant
asserts
further
per-
carry handguns
any “proper”
es to
Act
Art.
32 of the
Firearms
violates
§
for self-de-
simply alleged
a need
son
provides
Indiana Constitution
persons
suggest
“proper”
fense.
people
‘The
shall have a
hand,
those with
many; on the other
arms, for the defense of themselves and
need to
on their
State,’
genuine
it restricts the
because
or business may
outside their home
people
persons
to bear arms for their own
alleged
need for self-de-
very
defense.
be
few.
an
pistols, as
Act.
provide
interest of
pistols,
home or
not restrict
of firearms which
other
*6
of arms.
ther does such
defense
prohibit
that the
types
able to see
their homes
sideration, people
cealed,
without a
“Article
“The
“Since, under
[******]
[******]
of
Legislature
reasonable
people
‘fixed
firearms
they
wherein it
public safety
himself and the State. Nei-
nor
and fixed
as pistols
use of
from
other
Act
are defined in
of Art.
prohibit appellant
32, supra,
the Act
any
regulations
having
attempt
and other kinds and
specific
firearms other than
have a
§
of business’
contravenes
places
10-4736,
place,
carry pistols in
here under con-
be
.
power,
does not
§
to restrict
kind or
readily
pistol in
of
we are
welfare,
for the
.”
§
business,
type
con-
un-
say
use
do
the limitations
fense was all
our citizens
The Court
served the
As the Court
practical
ity’s approach,
tive to
fare. Matthews v.
firearm —the
attempted to
essary only
proof
criminal acts —
tation
at-issue on
not in
thews,
—was
legislation
positive
of mental
on the
the home
de-regulation
purposes,
purpose
emphasized that
within the restricted
public
Court
would
licensing requirement
effect on the
void
citizenry’s right
“readily
which the
were it
carry a
was thus a
basis of their
explained,
or fixed
incompetency
safety
justified
derives from
qualify
could not —
State, supra.
upshot of the
application.
given
handguns.
necessary,
and welfare:
Firearms Act
concealed”
safety and wel-
only
reasonable limi-
the restrictions
for the
the limitations-
public’s safety.
effect,
narrow
except upon
its
of business.
one
category,
preroga-
has here
previous
In Mat-
most of
license;
type
impose
For
Major-
public,
hand-
arms.
scope
nec-
all
degree
of control
(Citations
achieve maximum
Indiana Constitution.”
uses of certain
omitted.).
over criminal and careless
footnotes
firearms,
same
types of
while at the
time
685-687,
1345
Report
Ed.);
to the National Commission on
ex
rel. Sacks Bros. Loan Co. v.
Violence,
Causes and Prevention of
Messrs.
(1978), Ind.App.,
DeBard
Zimring
Newton and
concluded that “no
1971, 4-22-1-18,
Pursuant
to IC
Ind.Ann.
data exist which would establish the value
(Burns
Ed.),
Stat.
63-3018
we
can-
of firearms as
against
a defense
attack on
not reverse
Super-
the determination of the
street;” rather,
empirical
their
research
supported
intendent unless it is not
by sub-
led them
ready
to conclude that “the
acces-
stantial
In
evidence.
our assessment of the
sibility
guns
significantly
contributes
evidence,
personal
we cannot substitute our
the number
unpremeditated
homicides
judgment
Superintendent.
for that of the
and to the
many
seriousness of
assaults.” Department
of Financial
Inst. v. State
G. Newton
Zimring,
and F.
Firearms and
Bank of Lizton
Life,
Violence in
p.
American
62-67 [Staff
Supreme
250-51. As the
Court
Report
to the National Commission on the
Bank of Lizton :
Violence,
Causes and
“ ‘
Prevention of
7No.
* * * We,
judges,
subjected
as
response
In
Report,
Staff
].
to the same natural desires and to the
National Commission recommended that
same weaknesses that all men have to
“determinations of
handgun]
need
own a
[to
personal judgment
substitute our
for that
limited to
officers and
others,
guard against
and we must
guards, small
high
businessmen in
crime
inclinations. Where the
areas, and others with
special
fact-finding body
experts
has created a
self-protection.”
Report,
Final
National
government,
another branch of the
Commission on the Causes and Prevention
their
findings
decision or
should not be
(1969).
Violence
findings
These
lightly overriden and set aside because
underscore
Court’s decision in
we,
judges might
as
contrary
reach a
Matthews
public safety
and welfare
long
on the same evidence. So
justify
considerations
statutory limitations
experts
act within the limits of the
on
to carry
given
discretion
them
short,
to bear arms is not
* * *
their decision is final.
absolute,
Majority
as the
apparently feels.
177-78,
Furthermore, HARRIS, explain failed to Arthur Lewis why attempted Defendant-Appellant, he had never to contact his brother, regarded whom he as the source of fears, in an reach an amicable effort to Indiana, Plaintiff-Appellee. STATE resolution of their Collective differences. No. 3-777A184. ly, justify these circumstances the conclu perceived sion that Schubert!s Indiana, Court of Appeals of carry a handgun Third District. real; Superintend psychological more than Jan. justified denying ent DeBard was Schu application. bert’s Rehearing Denied March I note that has decried the
subjectivity in the determination involved question whether an fact beyond to defend It is dis-
needs himself. Superintendent, as is the
pute that case finders,
with all fact must exercise his sub-
jective analytical in processing abilities
handgun applications. subject In the area us, is the
before subjectivity
best suited invoke neces- applicant quali-
sary to resolve whether an a handgun
fies to Mat- Ind.
thews 337-38. violence, recognize patterns
trained to
just dangers as he is well-versed expertise, handguns.
inherent His
gained experience training from his respected “lightly
should over- Court, lacks sig-
ridden” degree subject expertise
nificant Department
matter at hand. of Financial Lizton, Here, supra.
Inst. v. Bank
unfortunately, supplanted personal equally subjective
its evalua- Superin-
tion of the facts for that
tendent, is far more to decide before us.
I dissent.