Lake County Sheriff Oscar Martinez Jr. wants his gun back, and his attorneys say the Indiana constitution allows him to have it.
Although Martinez was his attorneys, he filed a declaratory judgment and injunctive relief in the court of Lake Superior Judge John Sedia Wednesday morning, alleging that the firearms matters statute violated his rights under the Indiana state constitution. Written by State Rep. Ben Smaltz, R-Auburn, and signed by Gov. Eric Holcomb in April, the Firearms Matters Law, among other things, prohibits accused persons from carrying firearms.
Martinez was charged Jan. 6 with resisting prosecution, a Level 6 felony; and reckless driving misdemeanor from an incident dated September 18, 2021. Under the law, he has not been permitted 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 federal law does not prohibit Martinez from possessing or carrying a pistol, and as such he is presumed innocent “unless and until convicted.” .
“However, as a result of the charges in the currently pending criminal case — and solely as a result of those charges — the Firearms Matters Law prohibits Sheriff Martinez from carrying a pistol, both privately and in the course of his duties (as sheriff),” the attorneys wrote in the Complaint.
In addition, the Indiana Constitution, both in its 1816 and 1851 versions, states that “the people shall have the right to bear arms in defense of themselves and of the state,” the attorneys wrote. The United States Constitution, meanwhile, prohibits certain individuals from carrying firearms, although it does not specify “indicted individuals,” they wrote.
“A declaratory judgment by this court finding the constitutionality of the disputed portions of Indiana Code § 35-47-2-1.5 is required to resolve the existing dispute between Sheriff Martinez’s exercise of his right and the duties of bringing charges as provided by law 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 violation of his right to possess and bear arms in his own defense and that of the state.”
On September 18, 2021, Crown Point Police officers conducting a traffic stop at approximately 11:30 p.m. on the 9000 block of Taft Street saw a black SUV traveling northbound on Main Street “at a speed well in excess of the Appeared to be 45 mph set a limit.” Court records say the SUV was finally seen making a right turn onto eastbound US 30 in Merrillville.
When officers caught up with the vehicle, the driver activated the police red and blue emergency lights and announced that it was an unmarked police car. When officers saw the lights, they stopped catching up to them.
The indictment said Martinez “knowingly or intentionally fled” from Crown Point Police and “recklessly drove a motor vehicle by traveling at an unreasonably high speed as to endanger the safety or property of others.”
Stephanie Whitehead, associate professor of criminal justice at Indiana University East, previously told the Post-Tribune that it was “complicated” that Martinez was unable to carry a gun on July 1, as statistics show most officers wouldn’t pull the trigger weapon during her career, and since Martinez’s position as sheriff is “primarily administrative,” he would not be in the field as much as other officers.
Stracci previously told the Post-Tribune that Martinez will not carry a gun “where prohibited by law,” and separately appeared to agree with Whitehead’s assessment, saying the new law “will not affect his ability to perform the sheriff’s primary duties.” affect and does not require any form of recusal.”
Alexandra Kukulka contributed to this report.