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Thursday, December 17, 2009
Ind. Courts - "Gun lawsuit misfires over clerical error"
The subheading of Jon Murray's story today in the Indianapolis Star is "Wrong amendment cited in man's case challenging city's gun-return policy; judge dismisses claim." From the story:
It was a simple clerical error that led a U.S. District Court judge to dismiss the suit.The typo was simple but pivotal. The lawyers for Grady Scott, who filed suit rather than submit to fingerprinting to retrieve two seized weapons, mislabeled a claim under the wrong constitutional amendment in the U.S. Bill of Rights.
Scott sued the Indianapolis Metropolitan Police Department, the city and Police Chief Michael Spears. The suit claimed the policy violated the Second Amendment's protections for gun owners and said it also denied Scott due process of law under the Fourth Amendment.
Make that the Fifth Amendment.
The error apparently went unnoticed until after a deadline for changes passed, even though the attorneys, who filed the suit in November 2008, had submitted an amended version with other modifications in June.
"The court will not rewrite the complaint merely because plaintiff mistakenly inserted the wrong constitutional provision," Judge Larry J. McKinney wrote in his order dismissing the case, issued Monday.
Attorneys Adam Lenkowsky and Paul Ogden said Wednesday that they had not decided their next step.
The dismissal might have been averted if not for a court ruling earlier this year that kept them from pushing the Second Amendment claim.
In June, in unrelated lawsuits challenging handgun bans in the cities of Chicago and Oak Park, Ill., the 7th U.S. Circuit Court of Appeals ruled that Second Amendment protections apply only to federal laws. The U.S. Supreme Court is reviewing that ruling.
In Scott's case, McKinney's dismissal of the federal claims left only a claim under the Indiana Constitution's gun-rights provision. But McKinney could not rule solely on a state claim.
The police policy, intended to keep seized guns from owners who might be a danger to the community, required Scott to fill out a form and be fingerprinted.
Posted by Marcia Oddi on December 17, 2009 09:41 AM
Posted to Ind Fed D.Ct. Decisions