Tuesday, April 15, 2014
Ind. Law - "Marion County's gun rule stands ... for now"
That is the headline to a fascinating story this morning, reported by John Tuohy in the Indianapolis Star. Some quotes:
The City-County Council voted Monday to let residents in outlying Marion County continue to discharge weapons recreationally, fearing that banning it would violate state law.ILB: Indianapolis has not always suffered from this fear of lawsuit - recall, for example, the various adult bookstore ordinances.
Corporation Counsel Andy Seiwert said passing a ban could open the city up to lawsuits because a 2011 gun bill passed by the Indiana General Assembly prohibits cities from passing their own, tougher ordinances.
"The risk of enacting a ban has a great downside," Seiwert said before the meeting.
But a ban has been on the books in Indianapolis since at least 1975. It prohibits target practice, hunting and random shooting of guns. Violators are subject to a fine.
City lawyers discovered that the ordinance was actually "void," or unenforceable, because of the state law. Councilwoman Angela Mansfield pressed ahead anyway with an ordinance that would expand the ban to the outer county. She said those once-rural areas are now developed and populated and it was dangerous to allow guns to be discharged there.
Councilman Will Gooden said state law allows citizens to sue municipalities that pass their own gun laws.
"My concern is we are exposing ourselves to extreme consequences, extreme liability and extreme costs," Gooden said.
Councilman Ben Hunter called the state law "an affront to home rule" but agreed it was too chancy to challenge it.
Proponents of expanding the ordinance said residents near the White River and Keystone Avenue have been terrified by duck hunters in recent years. They argued it is only a matter of time until someone is struck by gunfire.
Councilwoman Christine Scales, an ordinance proponent, said after the meeting the council had put money ahead of safety.
"We are talking about people's lives, and we are concerned about cost," she said.
It was not immediately clear whether the city needs to repeal its ban to comply with state law.
This same question has been considered in Hammond, and perhaps Evansville. The Court of Appeals, in Dykstra v. City of Hammond, considered a case where the city was sued to remove gun ordinances from its books. The ILB has a number of posts on the case, including this one from March 17, 2013, which quoted from a NWI Times story:
HAMMOND | The Indiana Court of Appeals upheld a ruling Friday that two area residents are not adversely impacted by city gun restrictions now voided by state law.See also this ILB post from March 19, 2013, which comments on the fact that the Hammond opinion had been designated as NFP (it was later changed to FP, and subsequently the Supreme Court denied transfer), and on the fact that the City of Evansville was facing a similar lawsuit in trial court, but the judge had postponed his decision until the Court of Appeals ruled in the Hammond case. Unfortunately, the ILB does not know the outcome of the Evansville case, because the Evansville Courier & Press at about that time went behind a total paywall.
Samuel Dykstra, who lives in Highland and attends college in Hammond, and Michelle Bahus, of Hammond, had sued the city, alleging their rights were violated because gun regulations are still present in city code. * * *
“We feel like the city of Hammond, and Mayor (Thomas) McDermott specifically, intentionally want to leave the ordinances on the books, so they influence people's behavior,” said Guy Relford, the residents' attorney.
The appeals court found that, regardless of whether the ordinances were still in code, the restrictions were voided by a 2011 state law that essentially bars local governments from regulating firearms except in courtrooms.
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.