Click here to download the courts final instruction for carrying a hand gun for necessity.
Maybe. One consistent part of life, reflected in the evening news and reality television, is strange, weird, and odd things are not an exception to daily affairs, but an ordinary part of it. This is true with firearms and the legal issues they sometimes raise as well.
This hypothetical this blog presents should not occur. Simply put, a person who does not have a license to carry a handgun, or is prohibited from possession, such as a felon, should never find himself/herself in such a situation. But Ciyou & Dixon, P.C. advocates, who handle firearms legal issues as a part of their practice, finds it does and sometimes is defensible.
To stress, a key point Ciyou & Dixon strives for is to provide useful educational information–this post should not be taken to mean the law should be tested in this regard. That said, a case a fellow attorney tried this week to an Indiana jury resulted in a not guilty to the charge of carrying a handgun without a license–this very legal issue.
Before this blog turns to this actual case, it is helpful to understand Indiana’s appellate courts have decided this in the past decisional law and reached the same conclusion. A key case on point is Patton v. State.i In Patton, the defendant observed a handgun fall from a street vendor who was in a fight with his brother. Fearing for his brother’s life, he retrieved the handgun.
Ultimately, Patton was arrested and charged with carrying a handgun without a license. At his jury trial, he requested the court instruct the jury on the legal defense of necessity. The trial court refused, and he was convicted of carrying a handgun without a license.
Finding the self-defense instruction was inadequate, and distinguishable from necessity, the Court of Appeals reversed, reiterating the rule that a “defendant in a criminal case is entitled to have the jury instructed on any theory or defense which has some foundation in the evidence.”ii
In the actual case tried in the week of Monday, January 9, 2011, the instruction of necessity being provided, and a jury acquitted Defendant X, a prior felon, of carrying a handgun without a license. The factual basis was similar to that in Patton, and someone handed Defendant X the handgun during an altercation where it could have been used defensively. The jury instruction tendered to the jury is a part of this blog.
By these examples, it is clear Indiana’s position on the law. In the factually complicated and legally complex arena of firearms, necessity may be a legal defense to carrying a handgun without a license. At Ciyou & Dixon, P.C. we hope this blog post increases your base knowledge about firearms and carrying a handgun. Ciyou & Dixon, P.C. attorneys practice throughout the State. This blog was written by attorney Bryan L. Ciyou.
