Constitution-Making In Indiana - Notes

 First, I apologize for the roughness of what follows. When I put notes in the title, that is exactly what follows. I managed to get into Google Keep, saw these notes were still there, and got the wild idea of posting them here. 

Second, the following are the Google Scholar queries

•  "Constitution Making in Indiana".
• "Indiana's century old constitution".
•  “The Indiana Constitutional Convention of 1850-1851" carmony.

I end with excerpts from cases:

Redington v. State, 992 NE 2d 823 - Ind: Court of Appeals 2013 Price valid police power

Redington argues that, although facially valid, as applied to him Ind.Code § 35-47-14-1(a)(2) "is clearly not a rational or valid exercise of police power." Appellant's Brief at 21. He argues that he has never been convicted of a crime, he does not have a "mental illness" as described in the Act, and he dutifully takes his prescribed medication. Redington asserts that there is no evidence in the record that he presents a risk to anyone, and the court concluded that he was "dangerous" based upon "a hypothetical `concern' about [his] potential conduct in the future." Id. at 21-22. He contends that "the Act implicates a core value embodied in the Indiana Constitution," and accordingly "the only remaining question is whether the Act places a `material burden' on that core value." Id. at 22. He further argues that although the right to bear arms is not absolute, "as applied to Redington[] the Act clearly places a material burden on his right to bear arms in self-defense," and he states that "[n]ot only has the Act created a `material burden' on his constitutionally protected `right to bear arms' that right has been entirely eviscerated as to firearms." Id. at 23.

The State maintains that the Indiana Constitution "affirmatively recognizes the state's police power" and, through its police power, "the State may place reasonable restrictions on the possession of firearms without thereby violating Section 32." Appellee's Brief at 21. The State argues that "[t]here can be no serious dispute that [the Act] is rationally related to the State's interest in protecting the safety and welfare of the public and therefore constitutes a valid exercise of the police power." Id. at 22. The State contends that, to the extent Redington challenges subsection (a)(2), which deals with persons who may present a risk of physical injury to that person or another individual in the future, such a restriction "is just as rationally related to the protection of the community's safety and welfare as is restricting firearm possession where the danger is imminent" because such "danger can be likely to come to fruition even if it is not deemed `imminent,' and it will often be too late to prevent injury from occurring if the State cannot act ... until the person is pointing the gun at someone." Id. at 23.

The State further argues that the Act "does not materially burden the core value of self-defense that lies at the heart of Section 32" because the Act does "not completely prohibit the individual from possessing any and all types of arms that 832*832 could be used to defend themselves; they impact only the possession of firearms" and that, in any event, the Act does not necessarily deprive the individual permanently of his firearms. Id. at 24. Ind. Code § 35-47-14-8 provides that the individual may petition for the return of the firearms after 180 days and every subsequent 180 days thereafter. The State also asserts that, "more importantly, however, the right to bear arms must be balanced against the equally important right to life recognized by Article 1, Section[]1, and the fundamental interest of Hoosiers in public order, safety, and well-being" and that "[t]here is no material burden if the expression of the right at issue `threatens to inflict `particularized harm' analogous to tortious injury on readily identifiable private interests.'" Id. at 24-25 (quoting State v. Econ. Freedom Fund, 959 N.E.2d 794, 805 (Ind.2011) (quoting Whittington v. State, 669 N.E.2d 1363, 1370 (Ind.1996)), reh'g denied, cert. denied, ___ U.S. ___, 133 S.Ct. 218, 184 L.Ed.2d 43 (2012)). The State argues that this court has already determined that the legislature's decision to permanently prohibit the possession of firearms by a serious violent felon does not run afoul of Article 1, Section 32,[3] and that "[a]lthough the basis for considering the person to be dangerous is different, the same reasoning applies to individuals who fall within Indiana Code Section 35-47-14-1(a)(2)...." Id. at 25-26.

Initially, we note that to the extent Redington argues that the Act is not a valid exercise of the state's police power, his arguments are essentially a challenge to the sufficiency of the evidence presented to show that he is "dangerous" as defined by Ind.Code § 35-47-14-1 which we address in Part II, infra. Moreover, we observe that the Indiana Supreme Court has instructed that "[t]he State may exercise its police power to promote the health, safety, comfort, morals, and welfare of the public." Price, 622 N.E.2d at 959. Although "the propriety of an exercise of the police power is a judicial question," we "accord considerable deference to the judgment of the legislature" because "the decision as to what constitutes a public purpose is first and foremost a legislative one," and on review, "[w]e [limit] ourselves to the narrow role of determining whether challenged state action has some reasonable relation to or tendency to promote the state's legitimate interests." Whittington, 669 N.E.2d at 1369 (footnotes omitted). Thus, questions of whether a statute constitutes a valid exercise of police power are typically reviewed under the rational basis review standard, which requires that the legislation bear a rational relation to a legitimate governmental purpose. See Price, 622 N.E.2d at 959; Hawkins v. State, 973 N.E.2d 619, 622 (Ind.Ct.App. 2012).

Here, we note that the United States Supreme Court has recently and repeatedly 833*833 recognized the legitimate governmental purpose of prohibiting the mentally ill from possessing firearms. See McDonald v. City of Chicago, Ill., ___ U.S. ___, 130 S.Ct. 3020, 3047, 177 L.Ed.2d 894 (2010); District of Columbia v. Heller, 554 U.S. 570, 626-627, 128 S.Ct. 2783, 2816-2817, 171 L.Ed.2d 637 (2008). The purpose of the Act is to provide a mechanism for the State to seize and retain firearms from persons it deems "dangerous," which as Section 1 describes above, are persons who, due to mental instability, present risk of personal injury to themselves or others, be it imminent or in the future. Accordingly, and giving deference to the legislative decision, we conclude that the Act is rationally calculated to advance this legitimate governmental interest.

Next, we address whether the Act materially burdens a core value. This court has previously recognized "the core value embodied by Section 32 is the right for law-abiding citizens to bear arms for self defense." Lacy, 903 N.E.2d at 490; see also Kellogg v. City of Gary, 562 N.E.2d 685, 694 (Ind.1990) (noting that the "right of Indiana citizens to bear arms for their own self-defense and for the defense of the state is an interest in both liberty and property," and "[t]his interest is one of liberty to the extent that it enables law-abiding citizens to be free from the threat and danger of violent crime"). Thus, we must decide whether the Act implicates this core value and, if so, whether the Act materially burdens this core value. In this regard, we hold that even assuming that the Act implicates this core value, the core value is not materially burdened by it.

In Lacy, we observed that "[m]aterial burden analysis involves no ... weighing nor is it influenced by the social utility of the state action at issue." 903 N.E.2d at 490 (quoting Price, 622 N.E.2d at 960 n. 7) (internal quotations omitted). "Instead, we look only at the magnitude of the impairment. If the right, as impaired, would no longer serve the purpose for which it was designed, it has been materially impaired." Id. (quoting Price, 622 N.E.2d at 960 n. 7). "[A] state regulation creates a material burden if it imposes a substantial obstacle on a core constitutional value serving the purpose for which it was designed; and ... in most circumstances, less than a substantial obstacle does not." Id. (quoting Clinic for Women, Inc. v. Brizzi, 837 N.E.2d 973, 984 (Ind.2005)).

However, "Indiana courts have already held that the right to bear arms is not absolute." Id. (citing Kellogg, 562 N.E.2d at 694). "The Indiana Supreme Court has determined that the `Legislature has the power, in the interest of public safety and welfare, to provide reasonable regulations for the use of firearms....'" Id. at 490-491 (quoting Matthews v. State, 237 Ind. 677, 686, 148 N.E.2d 334, 338 (1958) (rejecting an Article 1, Section 32 challenge to handgun legislation)). Also, as the Indiana Supreme Court recently observed, "state action does not impose a material burden on expression if either the `magnitude of the impairment' is slight or the expression threatens to inflict `particularized harm' analogous to tortious injury on readily identifiable private interests." Econ. Freedom Fund, 959 N.E.2d at 805 (quoting Whittington, 669 N.E.2d at 1370) (emphasis added); see also Price, 622 N.E.2d at 964 ("[T]reating as abuse political speech which does not harm any particular individual (`public nuisance') does amount to a material burden, but holding that sanctioning expression which inflicts upon determinable parties harm of a gravity analogous to that required under tort law does not.").

"Thus, determining whether a statute imposes a material burden ... may involve two components: `magnitude of the 834*834 impairment' analysis and `particularized harm' analysis." Econ. Freedom Fund, 959 N.E.2d at 806. In Econ. Freedom Fund, the Indiana Supreme Court discussed the test in examining Ind.Code § 24-5-14-5(b), part of Indiana's "Autodialer Law," imposed a material burden on the defendant's free speech rights under Article 1, Section 9 of the Indiana Constitution:

Under "magnitude of the impairment" analysis, we look at whether there has been a substantial obstacle on the right to engage in political speech. The important inquiry is whether the right to engage in political speech, as affected, no longer serves the purpose for which it was designed. If a substantial obstacle does not exist, there is no material burden on the right to engage in political speech. But if a substantial obstacle does exist, we also engage in "particularized harm" analysis: we look at whether the speaker's actions are analogous to conduct that would sustain tort liability against the speaker. If there is a "particularized harm," then we conclude that the state action does not impose a material burden on the right to engage in political speech. Conversely, a lack of "particularized harm" means there is a material burden. Ultimately, a material burden on political speech exists only in the presence of a substantial obstacle on the right and the absence of particularized harm caused by the speaker.

Id.

Here, Redington essentially argues that the Act poses a material burden because his right to bear arms under Article 1, Section 32 "has been entirely eviscerated as to firearms." Appellant's Brief at 23. We disagree and find that the Act, as applied to Redington, passes muster on both components of the material burden analysis.

First, regarding the "magnitude of the impairment," our task is to examine whether there exists a substantial obstacle on Redington's right to bear arms for self-defense. Although currently Redington is proscribed from owning any firearms, we note that the Act provides a mechanism whereby Redington may regain both his right to carry a handgun as well as recover his seized firearms. As noted above, Section 8 of the Act provides that Redington may petition for the return of the firearms 180 days following the court's order, and he may again petition the court every subsequent 180 days thereafter. Upon the filing of each petition, the court shall set a hearing date and hold a hearing, and Redington will be given an opportunity to prove by a preponderance of the evidence that he is not dangerous, and, if successful, the court shall order that his firearms be returned. Ind.Code § 35-47-14-8(b), -8(d)(2), -8(e). We also note that the Act does not preclude Redington from possessing other weapons he may own for self-defense.

Even were we to deem the magnitude of the impairment as substantial, however, we find that Redington's challenge fails on the second component; that is, we find that Redington continuing to own firearms threatens to inflict "particularized harm" analogous to tortious injury on readily identifiable private interests.[4] Indeed, the Act seeks to keep firearms from individuals it deems "dangerous" if and when they present a risk of personal injury to either themselves or other individuals. 835*835 On that score, we also observe that, as discussed below, the State bears the burden of proving that the individual is "dangerous" by a heightened clear and convincing evidence standard. Ind.Code § 35-47-14-6(a). We therefore conclude that the Act does not place a material burden upon the core value of Redington's right to defend himself and accordingly that the Act is not unconstitutional as applied to Redington.

Wells v. State, 848 NE 2d 1133 - Ind: Court of Appeals 2006 Price 

Finally, we address Wells's argument that his conviction for disorderly conduct violates Article 1, Section 9 of the Indiana Constitution.[8] Article 1, Section 9 states, "No law shall be passed, restraining the free interchange of thought and opinion, or restricting the right to speak, write, or print, on any subject whatever: but for the abuse of that right, every person shall be responsible." The portion of the disorderly conduct statute under which Wells was charged and convicted states, "A person who recklessly, knowingly, or intentionally... [m]akes unreasonable noise and continues to do so after being asked to stop 1148*1148... commits disorderly conduct...." Ind. Code § 35-45-1-3.

When reviewing whether the State has violated Article 1, Section 9, we first must determine whether state action has restricted a person's expressive activity. See U.M. v. State, 827 N.E.2d 1190, 1192 (Ind.Ct.App.2005). There is no question that Wells's conviction for disorderly conduct based on his yelling at Troopers Brown and Coryea satisfies this first requirement.

If, as here, state action has restricted a person's expressive activity, the court then must decide whether the restricted activity constituted an "abuse" of the right to speak. See id. In the ordinary case, the reviewing court is typically only required to find the State's determination of an "abuse" to be rational. See id. If, however, a claimant is able to show that the expressive activity was "political," the State must demonstrate that it did not "materially burden" the claimant's opportunity to engage in political expression. Id. The State does not "materially burden" "political" expression if the restricted speech "inflicted particularized harm analogous to tortious injury on readily identifiable private interests." Id. "Evidence of mere annoyance or inconvenience is not sufficient" to justify restricting political speech. Id.

The difficult question in this case is whether Wells's tirade following the stop by Trooper Brown constituted political speech. Expressive activity is political if its point is to comment on government action, including criticizing the conduct of an official acting under color of law. Whittington v. State, 669 N.E.2d 1363, 1370 (Ind.1996). "In contrast, where an individual's expression focuses on the conduct of a private party—including the speaker himself or herself-it is not political." Id. Courts judge the nature of expression by an objective standard, and the burden is on the claimant to demonstrate that his or her expression would have been understood as political. Id. "If the expression, viewed in context, is ambiguous, a reviewing court should find that the claimant has not established that it was political and should evaluate the constitutionality of any state-imposed restriction of the expression under standard rationality review." Id.

In Price v. State, 622 N.E.2d 954 (Ind. 1993), our supreme court first set forth the special protection afforded political speech under Article 1, Section 9 of the Indiana Constitution and reversed the disorderly conduct conviction of a defendant who had yelled loudly and profanely at police officers. Initially, the defendant was yelling with respect to the officers' treatment of a third party whom they had arrested, but after her own arrest the defendant began yelling, "F* * * you. I haven't done anything." Noting that it was clear that the defendant's tirade "was a protest about the legality and appropriateness of police conduct," our supreme court concluded that the defendant's expressive activity was political speech and stated, "When a citizen's protest is occasioned by the conduct of government actors and regards a matter of public concern, it is squarely within the public pale." Price, 622 N.E.2d at 961.

Price, by itself, might support the conclusion that Wells's tirade, in part directed toward Troopers Brown and Coryea and indirectly toward Sergeant Maxwell, was political speech. In fact, our supreme court later clarified that portions of the Price defendant's tirade were not political in Whittington v. State, 669 N.E.2d 1363 (Ind.1996). Chief Justice Shepard, who also authored Price, wrote for the majority, "where an individual's expression focuses on the conduct of a private party— including the speaker himself or herself— it is not political." Id. at 1370. He noted that in Price, the defendant was protesting 1149*1149 police treatment of another citizen before being warned to be quiet, at which time her expression shifted to a defense of her own conduct. Id. The Chief Justice then concluded, "It was the State's reliance on Price's pre-warning political expression to prove an essential element of the offense that was fatal to the conviction." Id. (emphasis added). Additionally, Whittington clarified that a defendant has the burden of establishing that particular speech is political, and if there is ambiguity about the nature of certain speech, courts should err on the side of concluding that it is not political. Id.

The particular facts of Whittington were that the defendant loudly protested police investigation of a domestic complaint, which led to his arrest and conviction for disorderly conduct. The majority had "little difficulty concluding that his expression was not political" where the defendant merely was protesting that he had not done anything and that the other witnesses were lying. Id. at 1370-71. Later, in Johnson v. State, 719 N.E.2d 445 (Ind. Ct.App.1999), this court addressed the defendant's disorderly conduct delinquency adjudication after he loudly protested that he was not going to adhere to his probation conditions. We concluded that the statements were at best ambiguous and, therefore, not political. Id. at 449. We reasoned,

Although it is not implausible that Johnson was criticizing the State for imposing unfair probation conditions, it is equally plausible that Johnson was simply commenting on his own conduct and intentions. Johnson merely stated that he was not going to attend the required classes. This comment could be construed to reflect nothing more than Johnson's opinion that he can do what he wants, when he wants.

Id.

Additionally, in Shoultz v. State, 735 N.E.2d 818, 827 (Ind.Ct.App.2000), trans. denied, we held that words directed at a policeman about the treatment of another person were political speech. We acknowledged, however, that a "speaker's defense of his or her own conduct to a police officer is not political . . . ." Shoultz, 735 N.E.2d at 826. What invalidated the disorderly conduct conviction in that case was that it was based in part on the defendant's protests regarding a police officer's alleged "hassling" of a fellow motorcyclist, not solely upon any later attempt by the defendant to protest his innocence. Id. at 827. Similarly, in the U.M. case, what was held to be political speech was the defendant's complaints to a police officer regarding his forcing one of the defendant's companions to keep his arms up. See U.M., 827 N.E.2d at 1193. There was no indication that the disorderly conviction was based solely on the defendant's protestations of his own innocence; as we noted, "U.M. was expressing himself regarding the legality and appropriateness of police conduct toward his companion." Id. (emphasis added).

Here, Wells was not protesting police treatment of a third party. He was angry that an officer had stopped him for a relatively minor seat belt violation. Wells also was quick to inform the officer that, because of local political machinations, he believed he had been "set up."[9] However, 1150*1150 no one forced Wells to drive after he had consumed alcohol, and it was his failure to fasten his seat belt that occasioned the stop.

Wells's loud diatribe was only about himself and his predicament. Although we now know that Wells's political adversaries had called his situation to the attention of law enforcement, Wells did not know that with certainty at the time of his tête-à-tête with Trooper Brown. Moreover, Wells was not "set up" in the sense of having evidence against him fabricated; he actually did commit the infraction of driving without a fastened seat belt and the crime of operating a vehicle while intoxicated.

We conclude that at best, Wells's speech in this situation was ambiguous as to whether it was political speech. Thus, we must err on the side of concluding that it was not political. See Whittington, 669 N.E.2d at 1370. In one sense, Wells's speech could be seen as "political" because he was alleging impropriety in the conduct of certain public officials. On the other hand, the speech reasonably can be viewed simply as an attempt by Wells to "talk his way out of" a ticket or further investigation by the police into whether he was operating while intoxicated. Wells was not coming to the defense of a third party whom he believed was being treated unfairly by the police or other public officials. Under Whittington and Johnson, such speech is not political.

Having concluded that Wells's speech was not political, the constitutionality of his conviction for disorderly conduct is evaluated "under standard rationality review." Id. A conviction for disorderly conduct that does not involve political speech is constitutional if it is reasonable to conclude that the defendant's expressive activity "was an `abuse' of the right to speak or was, in other words, a threat to peace, safety, and well-being." Id. at 1371. Here, there is no doubt that Wells's diatribe met this standard. The loudness and anger of his diatribe compelled a nearby resident, Chanvisanuruk, to call 911 because Wells was disturbing his ability to complete a school assignment and because he feared for the safety of Trooper Brown. Clearly, Wells's speech posed a threat to peace, safety, and well-being. Wells's conviction for disorderly conduct does not violate Article 1, Section 9 of the Indiana Constitution.

Cantrell v. Morris, 849 NE 2d 488 - Ind: Supreme Court 2006 

This Court has never considered whether Article I, Section 9 of the Indiana Constitution affords public employees any protection at all from termination for political affiliation or activity or for expressions of fact or opinion.[1] Determination of rights under the Indiana Constitution may involve "the language of the text in the context of the history surrounding its drafting and ratification, the purpose and 492*492 structure of our constitution, and case law interpreting the specific provisions." Boehm v. Town of St. John, 675 N.E.2d 318, 321 (Ind.1996) (internal quotation marks omitted). Claims of First Amendment rights of public employees have arisen in a wide variety of contexts and have been held to depend on several different factors, including the nature of the statements made or activities conducted by the employee, the position held by the employee, and others.[2] We need not explore whether any similar rights are conferred by Article I, Section 9, and if so under what circumstances. For the reasons given below, we conclude that whether or not Article I, Section 9 of the Indiana Constitution affords any protection to public employees under some circumstances, a terminated employee has no private right of action for damages that arises under that Section.

We can resolve a few preliminary issues. First, Article I, Section 9 limits only governmental actions, not the acts of private citizens. A termination by a private employer, therefore, can have no Section 9 implications. Second, we do not agree that legislation is the only activity subject to Section 9. Just as the First Amendment to the United States Constitution provides that "Congress shall make no law" abridging the right of free speech, Article I, Section 9 provides that "No law shall be passed" restraining free speech. 493*493 Based on this language, the State argues that a violation of Section 9 requires the passage of a statute, so there can be no violation of this provision for terminating employment. We have held, however, that the executive branch is subject to Section 9. Whittington v. State, 669 N.E.2d 1363, 1370 (Ind.1996) (an individual's right to speak was not violated when he was arrested for speaking loudly toward a private individual, not the police officers during a reported domestic dispute investigation); Price v. State, 622 N.E.2d 954, 960 (Ind. 1993) (police officers cannot materially burden an individual's opportunity to engage in political expression). Third, the termination in this case is by a judicial officer, but the challenged action is as an employer. As such it is subject to the same legal framework as an action of the executive branch, and is not entitled to the absolute immunity afforded judicial acts. See Forrester v. White, 484 U.S. 219, 229-30, 108 S.Ct. 538, 98 L.Ed.2d 555 (1988) (in a suit for damages under § 1983, a state court judge was not entitled to absolute judicial immunity for his decision to demote and discharge a subordinate court employee because such employment decisions are administrative.) "[I]t [is] the nature of the function performed, not the identity of the actor who performed it," that controls the degree of immunity given to the function. Id. at 229, 108 S.Ct. 538.

Harris v. State, 985 NE 2d 767 - Ind: Court of Appeals 2013 Price

Although Harris contends that the statute has restricted his political expression, he must show that the "actual operation of the statute at issue" restricted his expression. Price v. State, 622 N.E.2d 954, 958 (Ind.1993). He has not met this burden. Harris was charged with failing to provide those email addresses he used or intended to use. The registration requirement in I.C. § 11-8-8-8(a)(7) does not restrict his ability to use email, nor does it limit his use of social networking websites or instant messaging and chat room platforms.

Even assuming that Harris has shown the statute to be a restriction on his expressive activity, Harris has not met his burden regarding the second prong, i.e., that the State could not reasonably conclude that the restricted expression was an abuse. First, to the extent that Harris argues that the registration requirement restricts his anonymous expression, we have previously noted that the right of anonymity expression applies when anonymity is a catalyst for speech. See Shurtleff, 628 F.3d at 1225. Providing registration information therefore does not curtail his ability to express anonymously in the first instance. Although Harris argues that "no abuse was alleged" by the State as a result of Harris's failure to register the email addresses and user names, we find this argument insufficient to meet his burden. (Appellant's Br. p. 22). The only speech involved here is identification information; Harris was not convicted for any expression extending beyond that. To the extent that Harris's activity was expressive, the State contends that it was an abuse of his right to expression, insofar as it constitutes a "threat to public safety and the general welfare" falling "within the police power of the State." (Appellee's Br. p. 23). As the supreme court has noted, INSORA promotes public safety and "registration systems are a legitimate way to protect the public from repeat offenders." Wallace v. State, 905 N.E.2d 371, 383 (Ind.2009). Accordingly, under these facts, Harris's conviction under I.C. § 11-8-8-8(a)(7) does not contravene 783*783 his right to free expression as guaranteed by Article I, Section 9 of the Indiana Constitution.

III. Ex Post Facto Provision of the Indiana Constitution

Harris's final constitutional challenge is that I.C. § 11-8-8-8 is unconstitutional as applied to him in that the statute is an ex post facto law and therefore violates the Ex Post Facto Clause of the Indiana Constitution.[7] The Indiana Constitution states that "No ex post facto law [...] shall ever be passed." Ind. Const. art. 1, § 24. This provision forbids, in pertinent part, the passage of any law "which imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed." Healey v. State, 969 N.E.2d 607, 611 (Ind.Ct.App. 2012), trans. denied (quoting from Weaver v. Graham, 450 U.S. 24, 28, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981)). The underlying purpose of the Ex Post Facto Clause is to give effect to the fundamental principle that persons have a right to fair warning of that conduct which will give rise to criminal penalties. State v. Pollard, 908 N.E.2d 1145, 1149 (Ind.2009).

In Wallace, the supreme court concluded that ex post facto claims under the Indiana Constitution are evaluated by application of the "intent-effects" test. Pollard, 908 N.E.2d at 1149. Under the first prong of this test, we determine what type of scheme the legislature intended the statute to establish. Id. If the legislature's intention was to impose punishment, the inquiry ends and an ex post facto violation is found. Id. If, however, the legislature's intention was regulatory or civil in nature, then the court must move to the second prong of the inquiry to determine whether the effects of the statute are so punitive as to transform the regulatory scheme into a criminal penalty. Id.

Harris's ex post facto challenge fails. Although Harris alleges that I.C. § 11-8-8-8 constitutes an ex post facto violation in the heading of his brief and the last sentence of his argument, he makes no attempt to analyze the statute under the intents-effects test. As a result, we find that Harris has failed to make a cogent argument and has therefore waived this particular claim. See Wingate v. State, 900 N.E.2d 468, 475 (Ind.Ct.App.2009).[8]

State v. Virtue, 658 NE 2d 605 - Ind: Court of Appeals 1995 price 

 n his motion to dismiss, Virtue conceded that this court has previously determined that the distribution of obscene material is not protected by the Indiana Constitution and that the Distribution Statute is constitutional on its face. Fordyce v. State (1991), Ind.App., 569 N.E.2d 357, 360. Instead, Virtue alleges that the Distribution Statute is unconstitutional and violates his rights under Article I, § 9 of the Indiana Constitution when it is applied to the distribution of videotapes.

In reviewing a statute based upon a constitutional challenge, we are required to presume the statute is constitutional, Van Sant v. State (1988), Ind.App., 523 N.E.2d 229, 233, and must interpret the statute so as to preserve its constitutionality. U.S. Steel Corp. v. Northern Indiana Pub. Serv. Co., Inc. (1985), Ind.App., 486 N.E.2d 1082, 1085, trans. denied. Additionally, we are required to follow prior decisions of this court and our Supreme Court in making our determination.

***

Pursuant to this clause, the legislature may not impair the flow of ideas; instead, its sole authority over expression is to sanction individuals who commit abuse. Price v. State (1993), Ind., 622 N.E.2d 954, 958. Abuse is found in expression which injures the retained rights of individuals or undermines the State's efforts to facilitate their enjoyment. Id. at 959. Once the legislature determines that an expression constitutes an abuse, the State is permitted to use its police power to promote the health, safety, comfort, morals, and welfare of the public. Id. The State, however, is not permitted to punish expression when doing so would place a material burden upon a core constitutional value. Id. at 960.

Wilder v. State, 91 NE 3d 1016 - Ind: Court of Appeals 2018 Price 

I. Article 1, Section 32

Wilder contends that the challenged probation condition, as applied to him, also violates Article 1, Section 32 of the Indiana Constitution, which states: "The people shall have a right to bear arms, for the defense of themselves and the State." Claims under that provision are analyzed differently than Second Amendment claims. As we have most recently held, we apply both a rational basis review and a material burden analysis to such claims. Redington, 992 N.E.2d at 832-35. That is, we first apply rational basis review to a restriction on firearms to determine if it is a valid exercise of "police power to promote health, safety, comfort, morals, and welfare of the public." Id. at 832 (citing Price v. State, 622 N.E.2d 954, 959 (Ind. 1993)). If the restriction passes rational basis review, we proceed to determine whether it "materially burdens" a "core value." Id. at 833.

Rational Basis Review

The firearm law at issue in Redington was Indiana Code Section 35-47-14-1, et seq., which authorized the State to seize, pursuant to a warrant, firearms of a person who the State proved by clear and convincing evidence met the statutory definition of "dangerous." Id. at 830-31. We held that law was "rationally calculated to advance" the State's legitimate governmental purpose of prohibiting possession of firearms by those "dangerous" persons who "present a risk of personal injury to themselves or others." Id. at 833. This was so even though the defendant had never been convicted of a crime and claimed not to have a mental illness, where the State had nevertheless proven that he was dangerous as defined by statute. Id.

Here, the challenged firearm restriction passes rational basis review for the same reasons it passed an intermediate level of scrutiny under the federal constitution. The State proved, beyond a reasonable doubt, that Wilder committed a violent crime. The probation condition prohibiting him from possessing firearms is rationally calculated to advance the legitimate government interest in keeping firearms out of the hands of those who have shown a propensity for violence by committing a violent crime.

Material Burden Analysis

As we noted in Redington, the core value implicated by firearms restrictions is the "right for law-abiding citizens to bear arms for self-defense." Id. 1028*1028 (citing Lacy v. State, 903 N.E.2d 486, 490 (Ind. Ct. App. 2009), trans. denied).[8] However, our courts have recognized that the right to bear arms is not absolute. Lacy, 903 N.E.2d at 490 (citing Kellogg v. City of Gary, 562 N.E.2d 685, 694 (Ind. 1990)). "[S]tate action does not impose a material burden on [a core value] if either the `magnitude of the impairment' is slight or the [exercise of the right] threatens to inflict `particularized harm' analogous to tortious injury on readily identifiable private interests." Redington, 992 N.E.2d at 833 (quoting State v. Econ. Freedom Fund, 959 N.E.2d 794, 805 (Ind. 2011)). To determine the magnitude of the impairment, we look at whether the government action creates a "substantial obstacle" to the exercise of the right. Id. If not, then the law does not impose a material burden on the exercise of the right. Id. If so, we must then determine whether the defendant's exercise of that right would threaten to cause "particularized harm." Id.

Here, as in Redington, the challenged restriction does not impose a substantial obstacle on Wilder's right to bear arms for self-defense because the restriction is temporary, lasting only while Wilder is serving his one-year probation. See id. at 834 (finding no substantial obstacle on the right to bear arms when the statute provided a mechanism for regaining the right to carry a firearm within 180 days).

Moreover, again as in Redington, even if we found the magnitude of the impairment on the right to bear arms was substantial, Wilder's challenge would still fail on the second component of the material burden test because his possession of firearms during probation would threaten to inflict "particularized harm" on others. See id. at 834-35 & n.4 (emphasis in original) (noting "we need only find that a threat analogous to tortious injury on readily available private interests exists regarding the `particularized harm' component"). The State proved beyond a reasonable doubt that Wilder committed the violent crime of battery against Turpen, repeatedly banging Turpen's head on the ground and causing him injury. If Wilder possessed firearms, he would pose an even greater threat of violence. See id. (finding sufficient evidence of "particularized harm" where the state proved, by clear and convincing evidence, that the defendant was dangerous as defined by statute).

Because Indiana Code Section 35-38-2-2.3(a)(9), as applied to Wilder, has a rational basis and does not impose a material burden on Wilder's right to bear arms, it does not violate Article 1, Section 32 of the Indiana Constitution.

Legitimate Needs of Law Enforcement

Finally, as noted above, the challenged probation condition is meant to keep dangerous weapons out of the hands of those who — like Wilder — have shown a propensity for violence, and that is a legitimate and important government purpose. See, e.g., Yancey, 621 F.3d at 683-84; see also, Redington, 992 N.E.2d at 833. Moreover, as the State points out, law enforcement has a legitimate need to protect probation officers from being shot by a violent probationer. Probation officers often engage in home visits and searches of probationers' homes in order to monitor and ensure compliance with the terms of probation. I.C. § 35-38-2-2.3(a). Indeed, "probation searches `are necessary to the promotion of legitimate [state] interests.'" 1029*1029 State v. Vanderkolk, 32 N.E.3d 775, 779 (Ind. 2015) (quoting Samson v. California, 547 U.S. 843, 849, 126 S.Ct. 2193, 165 L.Ed.2d 250 (2006)); see also, e.g., Bonner v. State, 776 N.E.2d 1244, 1249 (Ind. Ct. App. 2002) (discussing the ability to engage in warrantless probation searches as "an extremely valuable aid in rehabilitation" and the supervision and monitoring of probationers as a tool that facilitates the goals of genuine rehabilitation and protection of the public), trans. denied.

McBride v. State, Ind: Court of Appeals 2018 price 

Reviewing the constitutionality of an application of a statute generally requires a two-step inquiry. See Whittington, 669 N.E.2d at 1367. First, a reviewing court must determine whether state action has restricted a claimant's expressive activity. Id. Second, if it has, the court must decide whether the restricted activity constituted an "abuse" of the right to speak. Id. "[I]n reviewing the state's determination that expression is an `abuse,' we will `typically require only that [the conclusion] be rational.'" Id. at 1369 (quoting Price, 622 N.E.2d at 959). "[I]f a claimant demonstrates that the right to speak clause is implicated, he or she retains the burden of proving that the State could not reasonably conclude that the restricted expression was an `abuse.'" Id.

***

Id. at 211. Based on the record, we conclude that McBride's statements viewed in context were at least in part a comment on his own behavior and ambiguous as to whether his speech was political in nature. See Anderson v. State, 881 N.E.2d 86, 90 (Ind. Ct. App. 2008) (holding that because the police were "only" doing what the company who called the police wanted done, removing the defendant from the premises, the defendant's comments were "[i]n essence . . . about the company's decision to make him leave and not so much about the officers' conduct and thus was asserting a right to be where he was, which is a comment on his own behavior"); Blackman v. State, 868 N.E.2d 579, 586 (Ind. Ct. App. 2007) (holding that defendant's comments were of a "dual nature" and thus ambiguous because the "comment that `she had every right to be there, that she did not have to leave the scene,' constituted expression focused on the conduct of a private party"), trans. denied. Accordingly, we apply rationality review in determining whether the State could reasonably have concluded that McBride's expressive activity was an abuse of the right to speak or was, in other words, a threat to peace, safety, and well-being. See Whittington, 669 N.E.2d at 1371 (holding that the evidence did not support an assertion that Whittington's expression was political and holding that "we must apply rationality review in determining whether the state could reasonably have concluded that Whittington's expressive activity, because of its volume, was an `abuse' of the right to speak or was, in other words, a threat to peace, safety, and well-being").

"Rationality inquiry under § 9 has historically centered on whether the impingement created by the statute is outweighed by the public health, welfare, and safety served." Price, 622 N.E.2d at 960 n.7. The evidence reveals that McBride's trespass occurred in the Prosecutor's office.

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