Leininger column: Is law too quick on the draw?

The News Sentinel ^ | 25 October, 2008 | Kevin Leininger

[marktwain]

It's been nearly two years since a jury of his peers acquitted Jim Grimes of threatening other people with his Smith & Wesson 9 mm automatic pistol.

So why can't he get his gun - or the license to carry it - back?

To the 50-year-old former Navy engineer, the issue is black and white.

He's been victimized twice: first by the habitually reckless driver who rear-ended his pickup in rural Noble County on April 27, 2006, and again by overzealous authorities who prosecuted the wrong man.

But to those same county and state officials, it isn't that simple at all. Grimes may not be legally guilty of misusing a deadly weapon, they say - but that doesn't make him fit to carry one.

It all started innocently enough. It was nearly 2 p.m., and Grimes was driving his 71-year-old mother, Donna, on County Road 900W from their home near Kimmel to visit his sister in Ligonier. Suddenly, his 1997 Silverado was hit from behind twice by a speeding car driven by 19-year-old Dustin Swartzlander, who lived and worked nearby.

According to Grimes, Swartzlander grabbed something from his front seat - Grimes thought it looked like an explosive device - and ran. Rather than allow Swartzlander to flee the scene of an accident with a possible weapon, Grimes pulled his gun and fired a single shot into the air. Not surprisingly, Swartzlander stopped and Grimes held him at gunpoint until a passerby called 911 and Ligonier and Noble County police began arriving minutes later.

But instead of arresting Swartzlander - who lacked both a driver's license and insurance as required by law - Grimes was handcuffed, put on the ground, taken to the Noble County Jail and later tried on two counts of “pointing a firearm,” a Class D felony.

A Noble Superior Court jury acquitted him 10 months later, after which foreman Phillip Sensibaugh wrote a 13-page letter of concern to Judge Robert Kirsch. Jurors agreed Grimes had shown poor judgment, but were not convinced he had pointed his gun at anyone. “(And we) believed that the police rushed to judgment and arrested the wrong person in their zest to go after the man with a gun who was posing no immediate threat, rather than disarming (Grimes) and finding out why the firearm was produced in the first place . . .

“The accident would never have occurred if (Swartzlander) had been obeying the law and not been operating a motor vehicle illegally.”

According to state law, “if a (firearm) license is suspended or revoked based solely on an arrest . . . the license shall be reinstated upon the acquittal of the defendant.” But neither his weapon nor license was returned after Grimes' trial and, after a hearing in Indianapolis in October 2007, a state administrative law judge rescinded Grimes' license for a completely different reason:

He had been declared “not a proper person to be licensed to carry a handgun.”

But how could Grimes - who was licensed to carry a gun for 28 years before the accident - be punished after having been declared innocent of a crime?

That's where this story becomes either more critical of state and local officials or more sympathetic, depending on your point of view.

Sensibaugh and the other jurors didn't know it at the time - because Prosecutor Steven Clouse wasn't allowed to introduce it as evidence - that Grimes had been involved in a similar incident once before.

According to a Noble County Sheriff's report, Grimes was driving on County Road 400S on Jan. 17, 2004 when he was rear-ended by a vehicle driven by Carl Liggett. “Grimes advised that Liggett was instigating a fight,” the report stated. “Grimes advised that he did have a gun in his hand which he removed from the glove box. Grimes advised that he did not point the gun at Liggett.”

Grimes insists he acted legally and rationally on both occasions: In 2004 he was prepared to protect himself against possible violence. Two years later, “I was jailed for trying to stop a crime.”

Clouse, Sheriff Gary Leatherman and Indiana State Police attorney Maj. Jerome Ezell interpret Grimes' willingness to pull a gun quite differently: as a sign of a potential threat to public safety they are sworn to prevent if possible.

“I filed charges (against Grimes) because I'm opposed to vigilante justice and took an oath to uphold the law,” Clouse said.

Added Leatherman: “As sheriff, one of my responsibilities to the citizens of Noble County is to forward to the State Police Section any information that could bring into question a person's privilege of being issued an unlimited license. I'm all for the Second Amendment. But the burden rests on the person who carries a gun to meet all the requirements.”

But that's just the point, according to Grimes and Fort Wayne attorney Robert Vegeler, who represented him in the hearing before Administrative Law Judge Douglas Shelton: To Vegeler, Grimes' acquittal means he does meet all legal requirements, and should get both his gun and license back. What's more, Grimes said, he was not even charged with a crime in connection with the 2004 accident - and police wouldn't know he had pulled his gun at all if he hadn't volunteered the information.

None of that matters, said Ezell, who presented the state's case before Shelton. “It's like the O.J. Simpson case,” he said, alluding to a civil judgment against Simpson after his acquittal on murder charges. “The prosecutor has one burden (guilt beyond reasonable doubt), and administrative law has another - is something more likely than not?”

Using that standard, Shelton ruled on Oct. 30, 2007, that Grimes is not a “reasonable person” to have a license to carry a firearm - something state law also seems to allow under certain conditions. In this case, Shelton concluded, Grimes was not justified to fire his weapon, “displayed an inappropriate suspicion of others” and had “demonstrated a propensity for violence and emotionally unstable conduct.”

Even in today's terror-conscious climate, you and I might have responded to either accident by drawing a weapon or suspect the presence of a bomb in rural Indiana. But the actions of officials should be subject to at least equal scrutiny.

During Grimes' license hearing, Swartzlander acknowledged he couldn't really tell if Grimes was pointing a weapon in his direction. Swartzlander also admitted to having been involved in four cases of driving with a suspended license and that he was moving an estimated 65 miles per hour - “cooking” - on a two-lane country road when he collided with Grimes. He also admitted to having been charged with possession of a false license and driving uninsured, meaning he could not pay for the $7,000 in damages done to Grimes' truck or the medical bills for Grimes' mother, who suffered a neck injury and a bump to the head.

And yet, as recently as this month, both Clouse and Leatherman seemed relatively uninformed and unconcerned about Swartzlander's driving record. “Did he have a suspended license? I don't remember,” said Clouse. “And Grimes couldn't have known that, anyway.”

Maybe not, but that would have been - or should have been - one of the first things responding officers discovered.

Noble County officials should be commended for trying to protect the public from improper use of handguns, so long as that is done within the law. But Grimes, whose legal bills are $20,000 and rising, makes a good point: Aren't reckless, unlicensed drivers a threat, too?

[marktwain]

This is a classic case of why law enforecement should not have *any* discretion about who gets a permit to carry.

[stevie_d_64]

I would expect to see more and more cases like this occur, just because...

The scrutiny and mis-trust of elected officials and “some” Law Enforcement (I said some, few, not all) against those of us who actually do train, and regularly keep up with the law and the mindset behind your right to keep and bear arms in all aspects, and your self-defense will increase over the next 4 years...

That, along with a renewed vigor to make firearm ownership much more expensive will be a very real threat to our overall rights...

Jsut get used to it folks...The next battle is coming...Just know that the war will never end...

Just ask yourself this question...

What are you prepared to do about it, and what are you prepared to sacrifice?

I’m sure there are some people in this country that believe the people who got this country started, just sat around the fireplace at night and played video games...

[Travis McGee]

Never brandish, if at all possible. The law will screw you over.

[Gilbo_3]

...person's privilege of being issued an unlimited license. I'm all for the Second Amendment. But the burden rests on the person who carries a gun to meet all the requirements.”

just damn, whodathunk that you could legislate a Right into 'prove your innocence' licensing scheme for a 'priveledge' ???

Brandish and fire in the air are no-no's...but that really isnt the 'Right' question in the first place...

[Mobilemitter]

A vehicle, IMHO, can certainly be qualified as a weapon of deadly force. So, reaching for the one weapon you have in order to defend yourself should not be a crime.

I don't know of a single officer who would hesitate to do the same thing.

Firing in the air? Don't think that was terribly brilliant on his part. Should he loose his license? Maybe a suspension or a term of probation would have been the better judgement.

[School of Rational Thought]

Added Leatherman: “As sheriff, one of my responsibilities to the citizens of Noble County is to forward to the State Police Section any information that could bring into question a person’s privilege of being issued an unlimited license. I’m all for the Second Amendment. But the burden rests on the person who carries a gun to meet all the requirements.”

This is a dangerous attitude. What country does he suppose he is in?

[Travis McGee]

The tyrants turn rights into priviliges....they don’t know about the blowback they might be uncorking.

[Gilbo_3]

they don’t know about the blowback they might be uncorking.

unfortunately, I have come to believe that they know exactly what theyre doing as the pieces have been put in place and the rules constantly 'changed'over time...

Weve been sittin around askin 'is it time YET ???'

theyve been sayin the same thing as well, and the way the commie snowball has been gaining speed over the last few years, and especially the last several months, I really dont doubt that bHUSSEIN0 is convinced that the stage is set...

i think both sides may get the obvious answer very shortly...

May God have mercy on our kids is about all i can say today...

[hiredhand]

Yeah...the "blowback". What they're unaware of are those who will provide the blowback, and not so much that it's liable to happen. The actual "act" isn't what they SHOULD be aware of, but rather those who will perpetuate it. These folks don't exactly hide in secret places, but rather they're hidden in plain sight. They're very hard to discern from most other people in fact. They're quiet and peaceful right now. They're restrained through great effort right now in order to do no harm. They'll even suffer a certain degree in order to keep "peace". But at some point, they will COMMIT, and when they do the left will be very much surprised! The left will think that for certain they had already confiscated all the guns from all of those who post their "plans" on conservative website forums, and those who willingly handed them over as a result of the ATF Form -1173 records searches. At that point, the left will know that they've made a dreadful mistake. Once this group commits, they won't turn back. At that point, they will switch from being organized/defensive to organized/aggressive. Of course the rest of the world will get the MSM version of the story as "genocide" is reported and possibly "ethnic cleansing". It's hard to tell what they'll call it, but I think I've got the general idea correct. They're fairly predictable about these sorts of things...at least with respect to how they'll report it.

But in order for what I mentioned above to happen, the group that I'm referring to must commit. They aren't quite there yet. They are restrained...I believe by God Himself. But every day that the stress, tension, and minor hostilities escalate, they come closer, and closer, and when they do commit, they'll not be easily dissuaded to stop.

The left should "take a hint" and back off NOW. But they're like a drunken whore who is anticipating the part of the party where things get really fun for her, and she's not going to be cheated out of missing that! But what she doesn't realize is that she's been pissing off the (usually) peaceful and quiet neighbors for many years now and at this very moment, they're considering burning down her house while she's in it!

...and for the unintuitive, yes I AM suggesting civil conflict at some level and intensity. Anybody who views current events in America as a whole is a fool to think that we're heading into anything other than a civil conflict...at least currently. Right now, it's in a "cold" phase, but seems to have a high potential of going "hot", and if it does things will catalyze and shift very quickly. Far too many people on the right view the problem at hand as a "moral issue", and that in itself is enough to commit to! Or, the entire mess could be averted somehow, to the satisfaction of one side or the other, or both, with no or minimal violence. I don't know. But I do know that based on everything I've seen, heard, and read that we're headed into a civil conflict if things don't change.

[Skibane]

A 9MM automatic pistol, eh?

[Travis McGee]

The left won’t back off. After Odingo becomes POTUS, with a lock on Congress and many leftist judges coming, they will be drunk on power.

[hiredhand]

Well said. They do NOT back off...but they “should” this time.

[Travis McGee]

Try telling a 350 pound 18 year old drunk (with a 75 IQ, who just won the lottery and whose father is the town Sheriff), not to throw his weight around because he might piss people off.

That’s where we will be under POTUS Odingo.

[Gilbo_3]

problem is that theyve got history on their side...

the concentration of force doctrine has worked so well in the twentieth century [100 million +] by demonizing/demoralizing the 'criminals' and forcing surrender or slaughtering them individually...

they KNOW theyre outgunned en masse, but they also believe that their pieces are 'enough and in place for the same ole song and dance...

VERY dangerous scenario...

[Travis McGee]

Very dangerous. Maybe more so than 1861-5, when some notions of civility prevented mass slaughter of civlians.

[muawiyah]

The situation in Noble County Indiana should not be taken as a portent of things to come in general throughout the country.

As you might imagine this is a rather heavily German settled part of the state (which has an average of 43% German background), and there are some folks, e.g.Schwarzlander here, who simply aren't yet assimilated.

Unfortunately an Administrative Law Judge in Indianapolis, where there's something like a 75% German origins background (and where courts used to be held in German), exacted revenge on this "Grimes" guy.

I think this is more of an ethnic conflict than anythingelse. The State Police would be better advised to go in there and take away their beer ~

[hiredhand]

Ping...as we were saying...:-)