At opposite ends of the state, two cities are facing lawsuits over a revised Indiana gun law.
Zionsville attorney Guy Relford filed both suits – one in Evansville, on behalf of a man whom police removed from a city zoo after he refused to conceal his handgun. The other is a class action suit, Samuel G. Dykstra and Michelle L. Bahus, et. al. v. City of Hammond, No. 45D11-1108-PL-00086, which seeks relief for a grandmother, a college student, and all people “adversely affected” by Hammond’s local gun ordinances.
On July 1, 2011, Senate Enrolled Act 292 became effective as Public Law 152, preempting local firearms regulations. While the law does not say specifically that cities and towns must repeal local laws that conflict with PL 152, it does say they “may not regulate” possession and carrying of firearms, among other provisions. The law also allows plaintiffs to seek monetary damages if they are affected by local, contrary ordinances.
The Indiana Associ-ation of Cities and Towns posted this advisory on its website:
“We urge you to repeal all local laws that are in conflict with SEA 292. Even though SEA 292 declares all local laws in conflict as being void, the bill also states that a person has grounds to sue when he or she is subject to an ordinance, measure, enactment, rule or policy of the political subdivision simply by being present within the boundaries of the political subdivision. Damages that can be awarded to a prevailing plaintiff are severe to the violating entity.”
Hold-out in Hammond
Relford said that he knows some communities have worked quickly to change their local laws.
“I haven’t just run off and sued any municipality that appears to be lagging behind,” he said. But he said that Hammond Mayor Thomas McDermott’s “open defiance” of the state law is what motivated him to file suit.
McDermott, who is also a lawyer, signed an executive order ordering police to not enforce any of Hammond’s gun ordinances. But Relford said that order isn’t sufficient; as long as those local laws exist, people may still be “adversely affected” by them.
Relford said that people legally eligible to own a gun – even if they don’t own guns – who have been in Hammond at any time after July 1 could file suit against the city for its refusal to repeal its local laws.
At the Aug. 22 Hammond City Council meeting, councilwoman Kim Poland introduced a motion to repeal Hammond ordinance Chapter 132, Section 132.073, which bars guns in civil city public buildings. Poland told Indiana Lawyer that Hammond city attorney Kristina Kantar – who answers to the mayor – asked her to introduce the motion so the city would be compliant with state law.
At the meeting, the mayor expressed his opposition to the motion.
McDermott, facing the council, said: “I can tell you I have every intention (of) not signing this ordinance if we pass it. I don’t think it’s a good policy to set, and if it’s state law, then let’s let our legislators explain it, why they think it’s safe for us to carry weapons in city buildings.” He indicated that one of the problems in Hammond is gun violence, and said the message here is “let’s carry more guns.”
When Poland asked for Kantar to speak again, the mayor said, “No, we’re done here. I can speak on her behalf.”
Councilman Robert Markovich addressed the mayor, saying, “Mayor, even though you may not like it as it is, it’s a state statute, and that’s what they wanted. I mean, it seems like our hands are tied. You’re damned if you do, damned if you don’t on this one.”
But Markovich, along with six other members of the council, ultimately voted against repealing the local ordinance. Poland, the council’s lone Republican, voted in favor. At IL deadline, Poland said she intended to reintroduce the motion at the council’s Sept. 26 meeting. However, she said she did not expect the council members or mayor to be in favor of the motion.
“They won’t touch this with a 10-foot pole, because he told them not to,” she said.
Ejected in Evansville
In Benjamin A. Magenheimer v. the City of Evansville, et. al., No. 82C01-1109-PL-476, Benjamin Magenheimer claims that on Sept. 10, four city police officers forcibly removed him from Mesker Park Zoo & Botanical Garden when he refused to conceal his handgun.
Relford said that police later claimed Magenheimer caused a scene after being asked to conceal his weapon, but that it’s clear that police violated state law by telling him to conceal his gun.
Bryan Ciyou, attorney and author of the Indiana Firearms Reference Manual, said while Indiana law does not require handguns to be shielded from view, it is the generally accepted practice among gun owners.
“Among the people that are respected in the community that know anything about guns, they would say that 99 times out of 100, carrying it concealed is the right way to go about it,” Ciyou said. He said the obvious exception would be for security and law enforcement personnel, whom most people assume are carrying guns anyway.
“I suppose the unconcealed carry at the zoo could be for a reasonable purpose. However, if it was done to set up a suit, it is the type of ‘lawful behavior’ that empowers anti-gun camps,” he said. “Just because something is a legal right does not mean it should be exercised, or make its exercise right.”
Relford called the incident in Evansville “egregious,” which he said sets it apart from other innocent violations of state law that may naturally occur as a result of outdated local ordinances.
“I have been contacted by a number of potential clients who are complaining about other jurisdictions,” Relford said. He did not indicate if further suits would be filed in the immediate future.
Dryer attorney Kevin Smith also represents the city of Hammond. He said that because the Hammond City Council had not passed the motion to amend its ordinance, Mayor McDermott was not obligated to further explain why he said he wouldn’t sign it, if passed.
“At the end of the day, the issue is whether or not the city has violated state law, and I don’t think it has,” Smith said.
Ciyou said that in any Indiana community, issuing an executive order to halt enforcement of local gun ordinances could be seen as a short-term solution, until officials have time to figure out how to revise their laws.
“And practically speaking, that would have to work, because there was so little time between the passage of that bill and enforcement date,” Ciyou said.•