INDIANA GUN LAWS FOR FELONS & OTHERS

We often receive questions about the Indiana Gun Laws for Felons and whether persons convicted of felonies in Indiana, including non-violent felonies (such as Theft or OWI) are prohibited from possessing or purchasing firearms in Indiana.  Generally, those without a felony or domestic battery conviction in Indiana do not have as difficult a time in obtaining a license to carry a handgun or questions regarding possessing firearms.  But to answer the questions about the Indiana Gun Law for felons, we need to understand the Indiana Gun Laws as a whole.  So, in this article we are going to briefly discuss the following:

1. Indiana Gun Laws vs. Federal Gun Laws;
2. Who can Possess a Firearm in Indiana;
3. Who cannot possess a firearm in Indiana;
4. Indiana’s License to Carry a Handgun;
5. The Penalties for Carrying a Handgun w/o a License in Indiana; &
6. The Restoration of Guns Rights in Indiana.

While this article will address these issues in summary, it is not complete, is for educational purposes only, and is NOT a substitute for legal advice.  If you are facing criminal charges in Indiana or seeking to restore your firearm rights, you should speak to a qualified attorney.  Every case is fact specific and it is important that you speak with an experienced attorney regarding your specific situation.

INDIANA GUN LAWS VS. FEDERAL GUN LAWS

Before we begin looking at the Indiana Gun laws for felons, one important thing to understand is that the possession of firearms is governed by both Indiana law and federal law.  There are several federal statutes that regulate the keeping and access to firearms and are enforced by the Federal Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”).  In addition to the federal statutes, all state governments, including Indiana, have their own laws regarding firearms.

In this article, we are mainly examining Indiana law but will also reference federal law where necessary as both Indiana law and federal law are involved in determining who can possess and be licensed to carry firearms in Indiana.

WHO CAN POSSESS A FIREARM IN INDIANA?

Overall, Indiana laws on purchasing, possessing, and owning firearms are some of the least restrictive in the country. The Indiana gun laws do NOT require you to have a license to purchase or possess a firearm or possess a rifle or shotgun. However, if you want to carry a handgun on your person or in your vehicle, you will need a license to carry a handgun.  That is discussed further below.  Also, if you want to purchase a firearm, you will need to pass a background check.

WHO CANNOT POSSESS A FIREARM IN INDIANA?

As we mentioned above, both the federal gun laws and the Indiana gun laws govern the right to possess a firearm.  So even if you are eligible to possess a firearm under the Indiana gun laws, the federal gun laws may still prohibit you from possessing or owning a firearm and vice versa.  So, let’s look at the relevant laws for both.

1. FEDERAL GUN LAWS – POSSESSION

Unless their federal firearm rights have been restored, under federal law, the Gun Control Act, 18 U.S.C. § § 921 et. seq., makes it unlawful for certain persons to ship, possess, or receive any firearm or ammunition if any of the following apply:

(g) It shall be unlawful for any person—

 (1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;

 (2) who is a fugitive from justice;

 (3) who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802));

(4) who has been adjudicated as a mental defective or who has been committed to a mental institution;

 (5) who, being an alien—

 (A) is illegally or unlawfully in the United States; or

(B) except as provided in subsection (y)(2), has been admitted to the United States under a nonimmigrant visa (as that term is defined in section 101(a)(26) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(26)));

(6) who has been discharged from the Armed Forces under dishonorable conditions;

 (7) who, having been a citizen of the United States, has renounced his citizenship;

 (8) who is subject to a court order that—

 (A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate;

(B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and

(C)

(i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or

(ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury; or

 (9) who has been convicted in any court of a misdemeanor crime of domestic violence,

 to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

The most common prohibition we encounter to possessing a firearm under federal law is under 18 USCS § 922(g)(1), regarding a person who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year.  It is important to note that in Indiana, only felony convictions are punishable by a term of imprisonment exceeding one year.  Also, notice that the statute uses the word “punishable”, not “punished”, meaning that even though a person convicted of a felony in Indiana may not have been actually sentenced to a term of imprisonment exceeding one year, they still could have been.  Therefore, under the federal gun laws, ANY Indiana felony conviction will prohibit you from possessing a firearm, regardless of the actual sentence received.  We will discuss how this can be restored below.

Another common prohibition to firearm possession under federal law is contained in 18 USCS § 922(g)(9), prohibiting possession of firearm by a person who has a misdemeanor conviction for domestic violence in any court.  This provision specifically addresses a misdemeanor conviction for domestic violence because as explained in the paragraph above, ANY felony (including a felony domestic battery conviction) already renders a person ineligible to possess a firearm under the federal gun laws.

2.  INDIANA GUN LAWS – POSSESSION

While Indiana allows a person to possess firearms without a license in certain locations, the Indiana gun laws do contain restrictions on who can even possess a firearm in the first place.  Specifically, the following are some of the persons who cannot possess a firearm under Indiana law:

1. A person convicted of domestic battery (whether misdemeanor or felony). Violation is a Class A misdemeanor.  Indiana Code 35-47-4-6;
2. A person who has been convicted of committing a serious violent felony. The list of crimes considered serious violent felonies are listed in this statute.  Violation is a Level 4 felony.  Indiana Code 35-47-4-5;
3. A person who is an illegal or unlawful alien in the U.S. Violation is a Level 6 Felony.    Indiana Code 35-47-4-8;
4. A person who has been found by a circuit or superior court in Indiana to be dangerous. Violation is a Class A Misdemeanor.  Indiana Code 35-47-4-6.5.

Now you may have noticed that the Indiana gun laws for felons prohibiting possession of a firearm is less restrictive than the federal gun laws for felons.  Specifically, the Indiana gun laws for felons only prohibits a person convicted of a serious violent felony from possessing a handgun while the federal gun laws prohibits a person convicted of any felony from owning a handgun.

Thus, a question we are often asked is whether a person convicted of a non-violent felony in Indiana (such as Felony Theft or Felony OWI) can own or possess a firearm under the Indiana gun laws for felons?  The answer, as seen here from the Indiana State Police, is NO since federal law prohibits a convicted felon from owning or possessing a firearm.

INDIANA LICENSE TO CARRY HANDGUN & EXCEPTIONS

Now if you are NOT eligible to possess a firearm under either federal or the Indiana gun laws as discussed above, then you cannot receive a license to carry a handgun in Indiana, often called a concealed carry license.  But even if you are not prohibited from owning or possessing a firearm under both the Indiana guns laws and federal gun laws, the Indiana gun laws still require a license for the concealed carrying of handguns.

The first place we look to under the Indiana Gun Laws to determine the law on concealed carry in Indiana is the Indiana Statute on Handguns. (A “Statute” is a written law passed by a legislative body.  In this case, it is the Indiana General Assembly.)

Indiana Code §35-47-2-1, titled “License Required to Carry Handgun – Exceptions”, states:

(a)     Except as provided in subsections (b) and (c) and sections 2 through 2.1 [IC 35-47-2-2through IC 35-47-2-2.1] 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.

However, the Statute further explains that while you need to have a license to carry a handgun on your person or in your vehicle is the default, there are exceptions where you do not need a license to carry a handgun, assuming you are even allowed to own or possess a firearm as discussed above.

Indiana Code §35-47-2-1(b) states:

(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:

 (A) unloaded;

(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:

 (A) unloaded;

(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).

So, for example, the Indiana Handgun Statute explains that if you have a handgun in your vehicle and you do NOT yet have a valid license to carry a handgun, your handgun needs to be unloaded, not readily accessible, and secured in a case.  It is very important that all three of these requirements are met. If you have a loaded handgun, even if it is secured in a case and in the trunk of your vehicle, you can still be arrested and charged with carrying a handgun without a license, which could be a Class A Misdemeanor in Indiana or higher (see below).  If you want to carry a handgun in your vehicle that is loaded, quickly accessible, and not secured in a case, you will need to apply for and be granted a license to carry a handgun in Indiana.

Now, if you are NOT otherwise prohibited from possessing a firearm (under either Federal law or Indiana law), the Indiana Gun Laws explain that you do NOT need a license to carry a handgun on your person while you are in your home, apartment, or property that you own. For example, if you own a business and you need a handgun for your protection, you can possess the handgun on your business premises. However, keep in mind that if you transport that handgun between your home and business, you will need a valid license to carry a handgun in Indiana (unless your handgun is unloaded, not readily accessible, and secured in a case).

You also do NOT need a license to carry a handgun if you are at a shooting range, if you are attending a firearms instructional course, or you are engaged in legal hunting activity. But again, if you want to transport your handgun to any of these activities, you will need to comply with the requirements above.  And, again, this is assuming you are not otherwise prohibited from possessing or owning a firearm under both the Federal gun laws and the Indian gun laws.

 INDIANA LICENSE TO CARRY HANDGUN RESTRICTIONS

In addition to the laws prohibiting certain persons from possessing or owning a firearm, Indiana law also has several restrictions on who can be licensed to carry firearms.   First, Indiana Code § 35-47-2-3, titled the “Issuance of Licenses”, explains, among other things, who is NOT eligible for a license to carry a handgun in Indiana.  Specifically, Indiana Code § 35-47-2-3(h) states:

(h) A license to carry a handgun shall not be issued to any person who:

 (1) has been convicted of a felony;

 (2) has had a license to carry a handgun suspended, unless the person’s license has been reinstated;

 (3) is under eighteen (18) years of age;

 (4) is under twenty-three (23) years of age if the person has been adjudicated a delinquent child for an act that would be a felony if committed by an adult;

 (5) has been arrested for a Class A or Class B felony for an offense committed before July 1, 2014, for a Level 1, Level 2, Level 3, or Level 4 felony for an offense committed after June 30, 2014, or any other felony that was committed while armed with a deadly weapon or that involved the use of violence, if a court has found probable cause to believe that the person committed the offense charged; or

 (6) is prohibited by federal law from possessing or receiving firearms under 18 U.S.C. 922(g).

In the case of an arrest under subdivision (5), a license to carry a handgun may be issued to a person who has been acquitted of the specific offense charged or if the charges for the specific offense are dismissed. The superintendent shall prescribe all forms to be used in connection with the administration of this chapter.

Now, this Indiana statute only addresses who can be issued a license to carry a firearm in Indiana.  Remember, as explained above, there are other restrictions for those who can even own or possess a firearm in the first place under both the federal and Indiana gun laws.

WHAT ARE THE PENALTIES FOR CARRYING A HANDGUN WITHOUT A LICENSE IN INDIANA?

We already listed some of the penalties for possessing a firearm when prohibited under the Indiana gun laws and Indiana Gun Laws for Felons.  However, even if a person is NOT prohibited from possessing a firearm under the federal or Indiana gun laws, there are other criminal penalties in Indiana for carrying a handgun without a license.

If you are arrested for carrying a handgun without a license in Indiana, you can be charged with a Class A Misdemeanor. For more information on the potential punishments for Class A Misdemeanors in Indiana, see our previous article.

However, under the Indiana gun laws, you can be charged with Level 5 Felony if you carry a handgun without a license on school property, within five hundred (500) feet of school property, or on a school bus. Furthermore, you can be charged with a Level 5 Felony is you have a prior conviction for carrying a handgun without a license, a prior conviction for using a false handgun license, or have been convicted of any felony within the last fifteen (15) years.

A Level 5 Felony in Indiana carries a punishment of 1 year to 6 years in the Indiana Department of Correction and fine of up to $10,000.

RESTORATION OF GUN RIGHTS IN INDIANA

In order to restore the right to own or possess a firearm or be licensed to carry a firearm in Indiana, you must first determine the reason(s) you are prohibited from owning, possessing, or being licensed to carry a firearm in Indiana.  Then depending on the reason, you may have to complete one, or all, of the following:

1. Petition the Court for Restoration of Rights to Possess a Firearm;
2. Petition the Court for Expungement of Conviction Records; and/or
3. Petition the Court for Return Of Firearm After Hearing.

Below we will address when to use of each of the above methods, the procedure involved, and the requirements.

1. Petition for Restoration of Rights to Possess a Firearm in Indiana

As discussed above, a person convicted of domestic battery, either as a misdemeanor or felony, is prohibited from owning or possessing a firearm under the federal gun laws and Indiana gun laws. Also known as the Lautenberg Amendment, federal law prohibits any person who has been convicted in any court of a misdemeanor crime of domestic violence from possessing any firearm or ammunition. See 18 U.S.C. §922(g)(9).  Indiana law also specifically prohibits anyone convicted of domestic battery of possessing a firearm.  Indiana Code 35-47-4-6.

If convicted of domestic battery in Indiana (either misdemeanor or felony domestic battery) the restoration of the right to possess a firearm is governed by Indiana Code 35-47-4-7.  That statute explains that five (5) years after the date of conviction, a person convicted of a crime of domestic violence may petition the court for restoration of the person’s right to possess a firearm.

The Court may or may not hold a hearing on the issue to determine if that person is still a threat to the victim of the domestic violence conviction. It is very important you speak to a qualified attorney to discuss the type of evidence needed to present to the Court and to put in the Petition.  Each case is different, and you should discuss the specifics of your case with an attorney.  If the Court denies the petition, the person must wait one (1) year before filing again.

However, even if an Indiana Court approves the Petition to Restore firearm rights, that may not be the end of the story.  If that person also has a conviction for any felony, including the domestic violence conviction, then they must also file a petition to expunge their felony as detailed below.

2. Petition for Expungement of Conviction Records to Restore Firearm Rights in Indiana

As discussed above, a person convicted of any felony is prohibited from owning or possessing a firearm under federal law and the Indiana gun laws for felons.  However, if that Indiana felony conviction is expunged under the Indiana expungement law, then that person will have their rights to possess a firearm restored, assuming that they have no other felony convictions in other jurisdictions (or one of the other restrictions described above under both federal and Indiana law prohibiting possession of a firearm).

As seen here, the Indiana Attorney General’s office has issued an opinion stating that an Indiana expungement does restore an individual’s right to purchases and possess a firearm under both federal and Indiana law.  Therefore, this will be the most common way to have gun rights restored under the Indiana Gun laws for felons.

We have written about the Indiana expungement law before.  In short, to qualify for expungement in Indiana, the following waiting periods apply (absent prosecutorial consent to an early expungement):

• Misdemeanor Convictions – Five (5) years from the date of conviction AND no other convictions in the last five (5) years from date of filing expungement petition.
• Felony Convictions– Eight (8) years from the date of conviction AND no other convictions in the last eight (8) years from date of filing expungement petition.

For example, if a person was convicted on January 8, 2000 of Class D Felony Theft, that person would be become eligible on January 8, 2008 for expungement of that felony (if all other requirements met).  However, if that same person was also later convicted on May 8, 2015 of Class A Misdemeanor OWI, then they would not be eligible until May 8, 2023 because the eight-year waiting period starts over upon a new conviction.

In addition to the waiting periods, to be eligible for expungement in Indiana, a person must pay all the fines, fees, court costs, and restitution obligations associated with their convictions and must have no pending criminal cases.

There are other requirements for certain felonies depending on the nature and level of the felony conviction.  Also, not all convictions/offenses are eligible to be expunged, including, but not limited to, the ones listed in Indiana Code § 11-8-8-5.

It is very important you speak to an experienced Indiana Expungement Lawyer to discuss the type of evidence needed to present to the Court and to allege in the expungement Petition and at a Court hearing, if necessary.  Each case is different, and you should discuss the specifics of your case with an attorney.  The Indiana Gun Laws for Felons do provide a way for those convicted of a felony to restore their firearm rights and you should consult with an attorney to make sure it is being completed properly.

If the Court grants the expungement petition, then a felony conviction will no longer prohibit that person from possessing or purchasing a firearm under both the Indiana gun laws and federal gun laws.  However, remember that even if a conviction for misdemeanor domestic battery in Indiana is expunged, it will not restore a person’s right to possess or purchase a firearm unless that person also filed a Petition for Restoration of Firearm Rights as described above and it is granted by the Court.

3.  Petition the Court for Return Of Firearm After Hearing in Indiana

Finally, as discussed above, another way a person’s firearm rights can be taken away is through “Indiana’s Red Flag law.”  Indiana is one of only a few states that have a Red Flag law.  Indiana’s red flag law can be found in Indiana Code 35-47-14. A red flag laws allows law enforcement officers to seize firearms from individuals who are deemed to be a dangerous to themselves or others.  See Indiana Code 35-47-14-1 for the statute’s definition of “dangerous.”

Indiana’s red flag law is designed to balance two concerns: limiting a dangerous person’s access to firearms and protecting the rights of individuals, specifically the 2^nd, 4^th and 5^th Amendments to the United States Constitution.

How does Indiana’s red flag law work? Typically, a police officer receives a report that someone is threatening to harm themselves or someone else.  In general, the police officer then has two options at this point:

1) the police officer can file for a search warrant to search for and seize firearms in possession of that individual. If Court grants the search warrant, then the police officer will seize all firearms and file a search warrant return with the court detailing all firearms that were seized; or

2) the police officer can seize the firearms without a warrant signed by a Judge. However, the police officer must file an affidavit with the Court within 48-hours detailing how many and the type of firearms that were seized and why the police officer believes the individual is a dangerous person.

Once the Court receives a search warrant return or an affidavit, the Judge will decide.  If the Judge determines that no probable cause exists that a person is dangerous, the Judge will order the police officer to return all seized firearms no later than 5 days. However, if the Court finds that probable cause exists that a person is dangerous, the Court will set this matter for a hearing, typically within 14 days of the seizure.

At the hearing, the Indiana County’s Prosecutor’s Office (where the seizure took place) has the burden of proving by clear and convincing evidence that an individual is a dangerous person. If the Judge determines that an individual is dangerous after the hearing, the Court will enter a written order stating that and individual is dangerous, order the police officer to retain the firearms, suspend the individual’s license to carry a handgun, and prohibit the individual from owning or possessing a firearm.

After this hearing, a person must wait six (6) months to petition the Court to return the seized firearms. Depending on how much time has passed since the Court’s order after the hearing, determines who has the burden of proof.  If less than a year has passed, the person who petitions the Court to return the seized firearms must convince the Judge that they are no longer dangerous by a preponderance of the evidence (more likely than not). If more than a year has passed since Court’s order, the burden of proof is on the prosecutor to prove by clear and convincing evidence that the person is still dangerous.

If the Court denies the petition, the person must wait another six (6) months to file another petition. If the Court grants the Petition to Return Seized firearms after a hearing, this will no longer prohibit a person from possessing or purchasing a firearm under Indiana law (unless they have other restrictions on possessing or owning a firearm as discussed above).

It is very important you speak to a qualified attorney to discuss the type of evidence needed to present to the Court, to represent you at the hearing, and to put in the Petition.  Each case is different, and you should discuss the specifics of your case with an attorney.

CALL NOW AND SCHEDULE A FREE CONSULTAITON WITH AN INDIANA GUN RIGHTS ATTORNEY TODAY!

As we stated before, while this article regarding the Indiana attempts to provide an overview of Indiana Gun law for felons and others, this article is NOT comprehensive and is NOT a substitute for speaking to an Indiana attorney to discuss the specifics of your case.  Each case is unique and fact sensitive, so it is important that you speak with an attorney to discuss the specific facts of your case.

Avnet Law understands the issues, the law, and can advise you on the Indiana Gun Laws for felons and others.   Avnet Law represents clients seeking to restore their gun rights throughout Indiana.

Call 1-877-77-AVNET to Schedule a Free Consultation with an Indiana gun rights attorney today or contact us below with any questions you may have about your firearm rights.