Indiana machine gun law not unconstitutionally vague, COA affirms in appeal from man who altered pistol with ‘switch’ device

IL file photo

Indiana’s machine gun statute is not unconstitutionally vague, the Court of Appeals of Indiana ruled in affirming a lower court’s decision in a case involving a man who modified his semi-automatic pistol with a “switch” device to make it function as a fully automatic weapon.

In January 2022, Indianapolis police executed an arrest warrant for Anthony York on felony and misdemeanor charges in another case at the apartment where they believed he was located. When they told the occupants to exit, Devun York and two other men came outside.

Officers heard water running from a shower and entered to determine if Anthony or anyone else was in the apartment. Officers saw evidence of drug use on a kitchen counter and left the apartment to apply for a search warrant for drugs.

They saw firearms while executing the search for drugs, so they applied for another search warrant for firearms.

During that search, officers found a 9 mm caliber Glock 19 pistol with a loaded magazine holding 22 rounds of live ammunition under a mattress. One of the detectives was a Bureau of Alcohol, Tobacco, Firearms and Explosives liaison officer and noticed the gun had a switch installed, which converts the semi-automatic pistol to fire in a fully automatic mode.

York was charged with one count of Level 5 felony possession of a machine gun and one count of Class B misdemeanor possession of marijuana.

He filed a motion to dismiss, arguing at a hearing that the pistol would only fire semi-automatically with the switch removed and would not be a machine gun under Indiana law.

The Marion Superior Court denied the motion to dismiss, and York moved to certify the court’s order for interlocutory appeal.

On appeal, York argued that the facts alleged don’t constitute the offense of possession of a machine gun, and that the state’s machine gun statute is unconstitutionally vague.

The Court of Appeals disagreed with both arguments.

Indiana law defines a machine gun as a weapon that “(1) shoots; or (2) can be readily restored to shoot; automatically more than one (1) shot, without manual reloading, by a single function of the trigger.”

York argued his pistol is a handgun under Indiana law and the switch is classified as a firearms accessory.

He also argued that because the statutory definition of “machine gun” doesn’t contain terms such as “adapt” or “convert,” but instead includes language that it can be “readily restored,” the Legislature didn’t intend for the definition to include “devices that have been adapted or converted by accessories.”

In agreeing with the trial court’s conclusion that the charge states a crime, the Court of Appeals said it believes the straightforward language of the machine gun statute “focuses on what the gun can do.” The opinion cites the statute, noting the gun can shoot “automatically more than one (1) shot, without manual reloading, by a single function of the trigger.”

York cited another case, Brown v. State, 868 N.E.2d 464 (Ind. 2007), in arguing the language of the machine gun statute is vague because “there must be something in a criminal statute to indicate where the line is to be drawn. … It cannot be left to juries, judges, and prosecutors to draw such lines.”

York also suggested the statute allows the possibility that it authorizes “arbitrary or discriminatory enforcement.”

The court’s opinion notes the first Indiana case to address the possession of a Glock with a switch was A.W. v. State, 192 N.E.3d 227 (Ind. Ct. App. 2022). In that case, a juvenile didn’t dispute his possession of a weapon, but he disputed his knowledge that it was a machine gun.

The court held in that case that knowledge and intent are mental states and, absent an admission, are established by reasonable inferences drawn from the evidence.

The court’s opinion in the case at hand notes forensic testing of York’s gun established that the switch converts the semi-automatic pistol to fire in a fully automatic mode.

“The gun either fires more than one shot automatically without reloading, or it does not,” the opinion states. “Thus, the statute sufficiently provided notice to York that the gun was a machine gun and forensic determinations are not discretionary determinations nor are they arbitrarily applied.”

The court also addressed York’s argument that the statue is unconstitutionally vague because it doesn’t tell him using accessories to make a gun a machine gun is prohibited.

“However, the focus of the machine gun statute is on what the gun can do, not on how or when it is made,” the opinion states.

Senior Judge Randall Shepard wrote the opinion. Judges Rudolph Pyle and Elizabeth Tavitas concurred.

The case is Devun York v. State of Indiana, 22A-CR-2214.

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