Wednesday, July 17, 2013
Ind. Decisions - More on: Transfer list for week ending July 12, 2013
Included, unremarked, on the transfer list for the week ending July 12, 2013 (on p. 2, 3rd from the bottom) was the case of Samuel G. Dykstra and Michelle L. Bahus v. The City of Hammond (NFP - initially, but then changed to "for publication"). Transfer was denied, leaving the Court of Appeals opinion standing.
The ILB has had several entries on this case, including this one from Dec. 2, 2012, quoting a story in the Evansville Courier & Press:
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.This March 17, 2013 ILB entry is headed: "Appeals court upholds ruling Hammond gun ordinances", and was followed by this one on March 19th.
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. * * *
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.
The March 15th COA opinion in Dykstra v. City of Hammond concluded:
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.This evening Dan Carden reports on the July 11th transfer denial in the NWI Times, in a story headed "Indiana Supreme Court leaves invalid Hammond gun ordinances on books." The story begins:
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.
INDIANAPOLIS | The Indiana Supreme Court has rejected an appeal that sought to have Hammond's voided gun regulations deleted from the list of city ordinances.
In March, the Indiana Court of Appeals ruled 3-0 that Samuel Dykstra, who lives in Highland and attends college in Hammond, and Michelle Bahus, of Hammond, were not harmed when Hammond Mayor Thomas McDermott Jr. directed that city ordinances banning guns in parks and public buildings remain on the books, even though a 2011 state law pre-empted all local gun regulations and invalidated Hammond's ordinances.
The appeals court said Hammond is under no obligation to delete its superseded ordinances, so long as the city does not try to enforce them.