IN: City of Evansville loses due to pre-emption
Posted: Wed Dec 16, 2015 9:30 pm
Some years back Indiana passed a pre-emption law to prevent local governments from regulating firearms, I think with a few minor exceptions. This law included provision for a private cause of action for individuals affected by any local government's attempt to illegally regulate firearms.
On 10 Sep 2011 a man took his family to a city park in Evansville, Indiana. He possessed a License to Carry Handgun (LTCH) and open carried a handgun (which was and is legal in Indiana). A park employee saw the handgun, called the cops, and because the City did have an ordinance against having guns in city parks, told the man he had to leave.
Six days later the man filed a complaint in court. After some initial legal skirmishing, the trial court put the case on hold while another case was being decided. That second case was resolved in 2013. Based on it, both the complainant and the City filed for summary judgments, both of which were denied.
The City then filed for dismissal of the case on the grounds that it was really a tort action, and should have been filed under the Indiana Tort Claims Act instead of under the pre-emption law. It would be handy for the City if the judge agreed, because the ITCA has a deadline of six months after the event that caused a tort to file a complaint.
This was interesting because the City apparently was at least tacitly acknowledging that their ordinance was in fact illegal and they would not win on merits -- so they attacked the process.
The trial court did not bite and denied their motion. The City filed an interlocutory appeal to the Court of Appeals -- and lost again. Then they applied to "transfer" (I guess Indiana legalese for "appeal") to the Indiana Supreme Court.
Just a couple days ago the ISC took the opportunity to not take on the case and denied the transfer. So as I understand it, that's the end of the line for the City of Evansville, they aren't or can't go further.
Except:
Now the matter goes back to the trial court to sort out damages and attorney fees to be paid to the complainant, which may be expensive for the City.
If anyone is interested in this at all, the complainant and his attorney are both members of the Indiana Gun Owners forum. There's a 100+ page thread about the whole thing here: http://ingunowners.com/forums/carry-iss ... ights.html. The complainant goes by the screen name "Titanium Frost" and the attorney, Guy Relford, goes by "Tactical Firearms Training." (I guess lawyering is not enough for him, he also runs gun classes). Obviously they did not comment "before hand", but after major events they would post what happened. The short course is to go to the last page of the thread and work back a bit, the final opinions are posted near the end.
It's not our state, but I am always interested in seeing the 2A advance wherever it might be.
And as litigious as Texas is, it's interesting that we don't have some "private cause of action" provisions in our 2A laws. Is there a reason for that?
On 10 Sep 2011 a man took his family to a city park in Evansville, Indiana. He possessed a License to Carry Handgun (LTCH) and open carried a handgun (which was and is legal in Indiana). A park employee saw the handgun, called the cops, and because the City did have an ordinance against having guns in city parks, told the man he had to leave.
Six days later the man filed a complaint in court. After some initial legal skirmishing, the trial court put the case on hold while another case was being decided. That second case was resolved in 2013. Based on it, both the complainant and the City filed for summary judgments, both of which were denied.
The City then filed for dismissal of the case on the grounds that it was really a tort action, and should have been filed under the Indiana Tort Claims Act instead of under the pre-emption law. It would be handy for the City if the judge agreed, because the ITCA has a deadline of six months after the event that caused a tort to file a complaint.
This was interesting because the City apparently was at least tacitly acknowledging that their ordinance was in fact illegal and they would not win on merits -- so they attacked the process.
The trial court did not bite and denied their motion. The City filed an interlocutory appeal to the Court of Appeals -- and lost again. Then they applied to "transfer" (I guess Indiana legalese for "appeal") to the Indiana Supreme Court.
Just a couple days ago the ISC took the opportunity to not take on the case and denied the transfer. So as I understand it, that's the end of the line for the City of Evansville, they aren't or can't go further.
Except:
Now the matter goes back to the trial court to sort out damages and attorney fees to be paid to the complainant, which may be expensive for the City.
If anyone is interested in this at all, the complainant and his attorney are both members of the Indiana Gun Owners forum. There's a 100+ page thread about the whole thing here: http://ingunowners.com/forums/carry-iss ... ights.html. The complainant goes by the screen name "Titanium Frost" and the attorney, Guy Relford, goes by "Tactical Firearms Training." (I guess lawyering is not enough for him, he also runs gun classes). Obviously they did not comment "before hand", but after major events they would post what happened. The short course is to go to the last page of the thread and work back a bit, the final opinions are posted near the end.
It's not our state, but I am always interested in seeing the 2A advance wherever it might be.
And as litigious as Texas is, it's interesting that we don't have some "private cause of action" provisions in our 2A laws. Is there a reason for that?