Sheriff asks court to let him have a gun
Lake County Sheriff Oscar Martinez Jr. wants his gun back, and his attorneys say Indiana’s Constitution allows him to have it.
Martinez, though his attorneys, filed a complaint for declaratory judgment and injunctive relief in Lake Superior Judge John Sedia’s court Wednesday morning, claiming the Firearms Matters Law violates his rights under the Indiana State Constitution.
Authored by state Rep. Ben Smaltz, R-Auburn, and signed by Gov. Eric Holcomb in April, the Firearms Matters Law disallows people under indictment from carrying firearms, among other things.
Martinez was in indicted Jan. 6 with resisting law enforcement, a Level 6 felony, and misdemeanor reckless driving dating from a Sept. 18, 2021, incident.
Because of the law, he hasn’t been able to carry a firearm at any time since July 1, when the law went into effect.
Attorneys Paul Stracci, James Woods and Peter Fouts argued in the complaint that Martinez isn’t prohibited from possessing or carrying a handgun under federal law, and as such he’s presumed innocent “unless and until convicted.”
“However, because of the indictment in the presently pending criminal case — and only because of that indictment — the Firearms Matters Law prohibits Sheriff Martinez from carrying a handgun, both privately and in the course of his duties (as Sheriff ),” the attorneys wrote in the complaint.
Additionally, the Indiana Constitution, in both its 1816 and 1851 versions, states “the people shall have a right to bear arms, for the defense of themselves and the
State,” the attorneys wrote.
The U.S. Constitution, meanwhile, does prohibit certain people from carrying firearms, though it doesn’t specify “people under indictment,” they wrote.
“A declaratory judgment by this Court determining the constitutionality of the disputed parts of Indiana Code § 35-47-2-1.5 is necessary to resolve the existing dispute between Sheriff Martinez’ exercise of his right and the duties of the prosecuting defendants as provided by statute and prior court order,” the attorneys wrote.
“For these reasons, Sheriff Martinez respectfully requests that the Court declare the disputed portions of Indiana Code § 35-47-2-1.5 an unconstitutional infringement on his right to keep and bear arms for the defense of himself and the State.”
On Sept. 18, 2021, Crown Point police officers conducting a traffic stop at about 11:30 p.m. in the 9000 block of Taft Street saw a black SUV traveling northbound on Main Street “at what appeared to be at a speed well above the 45 mph posted limit.”
Court records state the SUV was ultimately seen making a right-hand turn onto eastbound U.S. 30 in Merrillville.
As officers were catching up to the vehicle, the driver activated emergency red and blue police lights, giving notice it was an unmarked police car.
In seeing the lights, officers stopped trying to catch up.
The indictment states Martinez “did knowingly or intentionally flee” from Crown Point police and “did recklessly operate a motor vehicle by driving at such an unreasonably high rate of speed as to endanger the safety or property of others.”
Stephanie Whitehead, an associate professor of Criminal Justice at Indiana University East, previously told the Post-Tribune that Martinez’s not being able to carry a gun come July 1 is “complicated” because statistics show that most officers won’t pull the trigger of their gun during their career, and since Martinez’s position as Sheriff is “mostly administrative,” he wouldn’t be in the field as much as other officers.
Stracci previously told the Post-Tribune that Martinez won’t carry a gun “if prohibited by law.”