Experts: Local governments have limited legal options for gun violence
As Indiana is days away from becoming a permitless carry state, there are limited legal steps a local government can take to address gun violence, like utilizing the state’s red flag law or passing a resolution, but both options have limitations, law experts say.
Beginning July 1, anyone 18 or older can carry a handgun without a permit in public except for reasons such as having a felony conviction, facing a restraining order from a court or having a dangerous mental illness.
Indiana is becoming a very gun friendly state, said Monica Solinas-Saunders, associate professor in the School of Public and Environmental Affairs at Indiana University Northwest. In Indiana, 45% of the population has registered for a gun, she said.
Communities need to understand the root cause of violence and address it, Solinas-Saunders said. She pointed to Austin, Texas, which has began utilizing a harm-reduction approach to address gun violence, which has been recognized by the federal government and supported by grants.
“The problem is that we don’t have a fair grasp of what is going on,” Solinas-Saunders said.
Jody Madeira, professor of law at Indiana University Bloomington, said most gun owners will still likely get gun permits for the purpose of carrying guns in others states. But, permitless carry “will make things more difficult within Indiana,” she said, pointing to Indiana State Police Superintendent Douglas Carter’s initial concerns about a police officer’s ability to identify who can and cannot carry a gun.
“All permitless carry really does is it does away with the need for a permit. It does not change where firearms could be lawfully carried. It doesn’t change the preemption law that prohibits local governments from taking action,” Madeira said.
Legal options
There are few legal options a local council or board could take against carrying guns based on the permitless carry law and other gun laws the state legislature has passed, Madeira said.
Indiana has a red flag law, which allows police to confiscate guns from a person deemed dangerous to themselves or others, but the law has been criticized for having “loopholes,” Madeira said. One “critical loophole,” she said, is that the person whose gun is confiscated could purchase another gun.
The state’s red flag law was amended in 2019 to state that courts should make “a good faith effort” to hold a hearing within 14 days and requires authorities to file an affidavit with the court within 48 hours.
But, the success of the red flag law depends on local governments enforcing it and residents of a community reporting someone they are concerned about, Madeira said.
“It does have to happen in each community. This is something that’s initiated by law enforcement. It’s a statewide law, but it’s only as effective as local enforcement and local people as they are reporting,” Madeira said.
A local council or board could pass a resolution against gun violence or supporting common sense gun regulations, but it would unenforceable, Madeira said.
“(Resolutions) really are without force. They are just a position statement,” Madeira said.
The state legislature has passed previous legislation that states local governments cannot regulate firearms, ammunition or accessories, Madeira said. Local governments also cannot regulate firearm ownership, possession, carrying, transportation, registration,
transfer and storage of firearms or ammunition, she said.
Further, local governments cannot regulate the commerce or taxation of firearms and ammunition. As of 2014, local governments cannot establish a gun buy-back program using public funds, Madeira said.
Local governments can pass zoning or business ordinances that apply to firearms businesses as long as the ordinances apply to other businesses in the same way, Madeira said. Additionally, local governments can restrict possessing guns in buildings that have courtrooms and county hospitals, Madeira said.
Indiana law already prohibits guns at utility and chemical plants, daycare centers, group homes, domestic violence shelters, riverboat gambling sites and fairgrounds during state fairs, Madeira said.
“Except for those limited exceptions, the power to regulate firearms, ammunition and accessories belongs to the state legislature,” Madeira said.
Earlier this month, Lake County Councilman Charlie Brown, D-Gary, said he’d propose an ordinance for the July meeting banning sales of military-style guns at gun shows held at the Lake County Fairgrounds.
While Brown said he’s “not trying to take anybody’s guns,” he wants the council to approve such an ordinance after two back-to
back shootings in Gary: one following a graduation and the other at a nightclub.
“We get caught up on all these technicalities, but people are dying,” Brown said at the meeting.
Madeira said it’s likely such an ordinance would be unlawful because it would be a regulation of firearms, ammunition or accessories. The legal way to stop the sale of military-style guns would be if the operator of the gun show made that decision, she said.
Private businesses can restrict or prohibit guns on the premises, Madeira said, but only to an extent.
“The only thing that business owners have to be cognizant of is that signs prohibiting concealed weapons don’t have the force of law in Indiana. Basically, the employee or the property owner has to ask the gun owner to leave, and refusing to leave then constitutes as trespassing,” Madeira said.
Community efforts
Solinas-Saunders said gun violence disproportionally affects minority communities throughout the country, and it’s important to figure out the root cause: is it economic inequality, gangs, lack of housing, lack of substance abuse treatment, lack of mental health services or something else?
“It could be all of the above,” Solinas-Saunders said.
Cities and counties should push for data collection to understand the causes of gun violence, she said, which universities could partner with to help collect and analyze.
Solinas-Saunders has asked students why they need a gun, and the answers are stark: Minority students say they need it for protection while white students say it’s a right to carry a gun.
“I think we have a blanketed idea of why people want guns, but we don’t really understand the depth of it. There are different reasons in different communities of why people advocate for guns,” Solinas-Saunders said.
If data reveals that a large number of people are
carrying a gun for protection, she said, then the next step would be to figure out protection from what and to address the cause.
“People can tell you a lot about their communities. But I think we have not been courageous enough to really act locally,” Solinas-Saunders said.
Another element is domestic violence, Solinas-Saunders said. While domestic violence statistics are scarce, Solinas-Saunders said 2016 federal data indicated that about 40% of inmates in the U.S. are in prison because they either badly hurt or killed a family member or intimate partner.
“I’m not saying that by addressing domestic violence we can eliminate all homicides, but we can more effectively address about half of the homicides or assaults that happen,” Solinas-Saunders said.
In Austin, Texas, officials set up an Office of Violence
Prevention in 2021, Solinas-Saunders said, which implements targeted, contextualized, data-informed and community driven programs to address violence.
All communities should create such an office that works with the criminal justice system and the public health system to address violence, she said.
“Violence is a systematic issue,” Solinas-Saunders said. “Rather than fragmenting resources across the different departments, we need to talk to each other more and to consolidate our resources we have between the criminal justice system and the public health system.”
The key, Solinas-Saunders said, is local government officials, community leaders and members, schools and public service departments and organizations partnering together to address gun violence.
“I think there is a lot we can do,” Solinas-Saunders said.