Sunday, December 02, 2012
Ind. Courts - "COA decision could have impact on local case involving armed zoo patron"
Mark Wilson reported yesterday in the Evansvile Courier & Press:
EVANSVILLE — The outcome of another case before the Indiana Court of Appeals could be the deciding factor in a lawsuit that claims an Evansville ordinance that prohibited firearms in city parks violated a state law barring local gun regulation.ILB: For background, see the four ILB entries listed here.
Benjamin Magenheimer filed the lawsuit after Evansville police officers responding to a call about a man openly wearing a gun removed him from Mesker Park Zoo & Botanic Garden on Sept. 10, 2011.
Both the city and Magenheimer's attorney, Guy Relford of Indianapolis, have filed motions asking Vanderburgh Circuit Court Judge Carl Heldt to rule in their favor, based on different grounds.
However, Heldt postponed a decision until after the Court of Appeals rules on a similar lawsuit against the city of Hammond, Ind. Relford, who also filed that lawsuit, is an Indianapolis attorney interested in gun rights who filed the Hammond lawsuit.
Magenheimer's lawsuit claims police were enforcing a city ordinance barring firearms from park properties when they removed him and that he had a license to carry a gun. His lawsuit also claims that the city ordinance in question violated the state law, which had been in effect for more than two months at the time he was removed.
That law, which took effect July 1, 2011, prevents local governments from regulating firearms on property or in buildings which they own or manage, with a few exceptions such as zoning to prevent selling firearms within 200 feet of a school; in buildings with courtrooms; and in municipal buildings occupied by private businesses or residential tenants (such as entertainment venues).
The law also exempts schools, public hospitals, courts and other public buildings.
In court Thursday, Relford argued that even though the state law includes language saying that it voids local ordinances, Evansville and other cities should have acted to repeal such regulations and not simply leave them on the books even though they couldn't be enforced.
He said the state law includes language allowing a person adversely affected by enforcement of local regulations to file a lawsuit. He said local governments, including Evansville, were warned of the possibility of lawsuits by the Indiana Association of Cities and Towns before the law took affect.
City attorney Robert Burkart disagreed that the city should have repealed the law.
"We think it is a silly argument," he said. "What that essentially means is there is some hidden liability the legislature didn't intend. Their argument would create a field day for plaintiff lawyers."
But Relford said he believes that is exactly what lawmakers intended. He called Magenheimer's case "a poster child" for that interpretation of state law.
"Had the city repealed it and communicated that to employees this incident wouldn't have happened," Relford said.
Posted by Marcia Oddi on December 2, 2012 12:58 PM
Posted to Indiana Courts