Since possessing a firearm in public may be perfectly legal, more is required for a police stop.

In a victory for Second and Fourth amendment rights, the Indiana Supreme Court ruled this week that public possession of a handgun is not enough, by itself, to justify stopping and questioning someone. That conclusion is consistent with what the U.S. Supreme Court has said about the "reasonable suspicion" that police need to detain people.

The case, Pinner v. Indiana, began with a call to Indianapolis police by a taxi driver who reported that "a black male wearing a blue jacket," accompanied by a "black female with blonde hair," had dropped a gun as he was getting out of the cab. The driver said he had been afraid that he was about to be robbed, although the passenger never actually threatened him. Based on that report, two police officers accosted Thomas Pinner as he was sitting on a bench inside a Studio Movie Grill and asked him if he was carrying a gun. When he said no, one of the officers ordered him to "stand up and keep his hands up," which revealed the butt of a gun hanging from the front pocket of Pinner's pants. The police arrested Pinner and charged him with carrying a gun without a license, a misdemeanor that was elevated to a felony because Pinner had a felony record, meaning he was not allowed to own a gun at all.

While Pinner undeniably broke the law, the question was whether the officers had reasonable grounds to think he had, as required by Terry v. Ohio. In that 1968 case, the U.S. Supreme Court said the Fourth Amendment allows police to temporarily detain someone if they reasonably suspect "criminal activity may be afoot." But while the Indianapolis officers may have reasonably suspected, based on the cab driver's report and description, that Pinner was carrying a gun, they had no evidence he was doing so illegally. "Other than the taxi driver's claims of being fearful because he had a seen an individual matching Pinner's description 'drop a handgun,'" the Indiana Supreme Court notes, "there is no evidence in the record from which an inference of criminal activity can be drawn."

The court compares stopping Pinner to see if he had a carry permit to stopping a motorist to see if he has a driver's license. In the 1979 case Delaware v. Prouse, the U.S. Supreme Court said "stopping an automobile and detaining the driver in order to check his driver's license and the registration of the automobile are unreasonable under the Fourth Amendment" unless "there is at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law."

The Indiana Supreme Court also cites a SCOTUS decision that dealt specifically with guns. In the 2000 case Florida v. J.L., the Court said "an anonymous tip that a person is carrying a gun" is not by itself "sufficient to justify a police officer's stop and frisk of that person." Responding to Florida's argument that the reasonable suspicion requirement should be waived in light of the public safety threat posed by guns, the Court rejected "an automatic firearm exception to our established reliability analysis." It noted that "such an exception would enable any person seeking to harass another to set in motion an intrusive, embarrassing police search of the targeted person simply by placing an anonymous call falsely reporting the target's unlawful carriage of a gun."

The Indiana Supreme Court did not buy the state's argument that Pinner's nervousness, which manifested as hand wringing and "rocking back and forth," was enough to provide reasonable suspicion when combined with the report of a gun. "There is no crime in rocking back and forth and wringing one's hands," the court notes. Quoting the U.S. Court of Appeals for the 10th Circuit, it observes that "it is common for most people to exhibit signs of nervousness when confronted by a law enforcement officer whether or not the person is currently engaged in criminal activity."

The Indiana Supreme Court notes that state courts in Massachusetts, New Jersey, and Pennsylvania likewise have refused to recognize a "firearm exception" to the limits imposed by Terry. All three of those states, like Indiana, allow people to carry guns with permits, although getting a permit is harder in Massachusetts and New Jersey ("may issue" states, meaning law enforcement officials have broad discretion to withhold permits) than it is in Pennsylvania and Indiana ("shall issue" states, meaning anyone who meets objective criteria can obtain a permit).

Guy Relford, an Indiana attorney specializing in Second Amendment cases, argues that Pinner v. Indiana bolsters the case for doing away with the permit requirement altogether:

Proponents of Constitutional Carry, which would end the requirement that law-abiding citizens obtain a License to Carry Handgun in order to possess a handgun in public or in a vehicle in Indiana, argue that both the U.S. Constitution (through the Second Amendment) and the Indiana Constitution (through Article 1, Section 32) guarantee the right to bear arms. As a result, law-abiding Indiana residents should not have to pay a fee to the State and undergo a separate background check to prove that they are eligible to exercise a Constitutionally-protected right....

Some law enforcement officials (including the Indiana Sheriff's Association) have argued that the removal of Indiana's handgun licensing requirement would inhibit police officers' ability to investigate the legality of a person's possession of a gun. In the words of the ISA, Constitutional Carry "would negatively impact efforts to investigate individuals and determine if they are armed or not." However, this argument has now totally evaporated, as the Supreme Court has ruled unequivocally that police officers may not "investigate individuals" by detaining them for questioning or conducting a "stop and frisk" based only on a report that the person is in possession of a firearm.