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Tuesday, March 19, 2013

Ind. Decisions - More on "Appeals court upholds ruling Hammond gun ordinances"

This ILB entry from Sunday concerned the Court of Appeals decision March 15th in Samuel G. Dykstra and Michelle L. Bahus v. The City of Hammond. In that case the City of Hammond was sued because it did not remove from its books "city gun restrictions now voided by state law. ... The ordinances had restricted guns from city buildings or at any city board or commission meeting.

"The appeals court stated the city had not adopted or enforced an ordinance in violation of the state law since it took effect in July 2011. The law was meant to curb future gun restrictions or future enforcement of ordinances in place prior to the state law taking effect, the ruling states." (quotes from the NWI Times story)

The March 15th COA opinion concludes:

The Ordinances were in effect before July 1, 2011, indicating that the City of Hammond could not have adopted the Ordinances at a time in which they would be in violation of Indiana Code section 35-47-11.1-2. The Firearm Owners have also failed to designate any evidence that the City of Hammond made any attempt to enforce the void ordinances; on the contrary, the only evidence presented was that the mayor issued two executive orders prohibiting the enforcement of the void ordinances. Appellant’s App. p. 102-03. Therefore, the Firearm Owners have not shown that they have been “adversely affected by an ordinance . . . adopted or enforced” in violation of Indiana Code section 35-47-11.1-2, so they have failed to show that they have any valid claim under Indiana Code section 35-47-11.1-5.

We hold that the trial court did not err in denying the Firearm Owners’ motion for summary judgment and granting summary judgment in favor of the City of Hammond.

Interestingly, however, the COA designated the opinion as "Not for Publication." This although Appellate Rule 65(A) provides that a Court of Appeals opinion shall be published if it "involves a legal or factual issue of unique interest or substantial public importance."

What is the significance of a NFP designation? Under Rule 65(D): "Unless later designated for publication, a not-for-publication memorandum decision shall not be regarded as precedent and shall not be cited to any court ..."

Today Mark Wilson has a story in the Evansville Courier & Press headed "Indiana Court of Appeals ruling could negate part of local gun-related lawsuit." Some quotes:

EVANSVILLE — An Indiana Court of Appeals opinion siding with the city of Hammond, Ind., against a lawsuit by gun owners there could negate part of local gun owner Benjamin Magenheimer’s lawsuit against Evansville.

However, attorney Guy Relford, who represents both Magenheimer and the Hammond gun owners, said on Monday he still expects a trial in Vanderburgh Circuit Court.

The lawsuits argue a 2011 state law preventing local governments from regulating guns requires cities to officially repeal local gun ordinances and not just stop enforcing them. The Court of Appeals opinion said it doesn’t matter because the state law made local ordinances void.

Magenheimer filed a lawsuit in Vanderburgh Circuit Court after Evansville police officers removed him from Mesker Park Zoo & Botanic Garden in September 2011 in response to a zoo employee’s 911 call about a man openly wearing a gun.

The lawsuit claims Evansville 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.

Two months before the incident at the zoo, a state law took effect in Indiana preventing local governments from regulating firearms on property or in buildings that 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 story also states, somewhat ambiguously IMHO:
The Hammond opinion was marked not for publication, meaning it cannot be cited as legal precedent in other cases. However, it leaves the door open for Senior Judge Carl Heldt to rule on the city of Evansville’s motion for a judgement in its favor and for a jury trial on remaining issues in Magenheimer’s lawsuit.

Posted by Marcia Oddi on March 19, 2013 09:10 AM
Posted to Ind. App.Ct. Decisions