PRESS RELEASE
City of Evansville Sued for Forcibly Removing Lawful Gun Owner from City Park Zoo
September 16, 2011.
For Immediate Release.
Today, the Law Offices of Guy A. Relford announced the filing of a lawsuit on behalf of Benjamin A. Magenheimer against the City of Evansville, Indiana, and the Evansville Department of Parks & Recreation. The lawsuit is based on the defendants' violation of Ind. Code 35-47-11.1-2, which generally prohibits the regulation of "firearms" and/or the "carrying . . . of firearms" by a unit of local government.
On September 10, 2011, Mr. Magenheimer, his wife and four-month old child were enjoying an afternoon in the petting zoo ot the Mesker Park Zoo & Botanical Garden, owned and operated by the Evansville Department of Parks & Recreation. Mr. Magenheimer was lawfully carrying a handgun at the time, with his Indiana License to Carry Handgun in his possession. After a zoo employee apparently called police, Mr. Magenheimer was approached by four members of the Evansville Police Department, who first ordered him to conceal his firearm (which he had no legal obligation to do), then ordered him to leave the zoo property. When Mr. Magenheimer attempted to explain to the officers that their actions were illegal, the officers forcibly removed him from the property.
The actions of the EPD and zoo personnel clearly violate Indiana law, by enforcing an illegal policy regulating "firearms" and/or the "carrying . . . of firearms" by a unit of local government. As such, both the City and the DP&R are liable to Mr. Magenheimer for damages, attorney's fees, declaratory relief and injunctive relief.
The suit was filed with the Clerk of the Circuit and Superior Courts of Vanderburgh County in Evansville, Indiana.
For more information, please contact the Law Offices of Guy A. Relford:
Law Offices of Guy A. Relford
4181 First Flight Circle
Zionsville, IN 46077
(317) 450-8252
grelford@global-lit.com
--------------------------------------------
Here is the First Amended Complaint filed on September 21, 2011:
BENJAMIN A. MAGENHEIMER,
Plaintiff,
v.
THE CITY OF EVANSVILLE, and
THE EVANSVILLE DEPARTMENT
OF PARKS & RECREATION,
Defendants.
FIRST AMENDED COMPLAINT
Plaintiff, Benjamin A. Magenheimer (“Plaintiff”), pursuant to §35-47-11.1-1, et seq., by and through his undersigned counsel, alleges and says as follows:
1. Plaintiff brings this action against the City of Evansville (“City”) and the Evansville Department of Parks & Recreation (“DP&R”) (“Defendants,” collectively), based on Defendants’ violation of Ind. Code §35-47-11.1-2, et seq., as more fully set forth below.
BACKGROUND
2. Indiana law has long prohibited most local regulation of firearms by political subdivisions, such as Defendants, in an attempt to ensure a uniform and consistent system of regulating firearms in Indiana. Otherwise, Indiana residents are at risk of unknowingly and unintentionally violating conflicting and inconsistent firearm regulations imposed by different political subdivisions throughout the State.
3. Prior to July 1, 2011, Ind. Code §35-41-11-2 (now repealed) identified two exceptions to the general rule that State law preempts local governments’ attempts to regulate firearms: a) a political subdivision could use its zoning powers to prevent the sale of firearms within two hundred (200) feet of a school under most circumstances; and b) a political subdivision could regulate firearms on land, in buildings or on other real property owned or managed by the political subdivision.
4. In recent years, the Indiana General Assembly recognized that different political subdivisions in Indiana were regulating firearms in widely varying ways on municipal property or in local government buildings, so that lawful Indiana gun owners remained in jeopardy of unknowingly and unintentionally violating conflicting and inconsistent ordinances in effect in different local jurisdictions throughout the State, which was directly inconsistent with the original intent of the preemption statute. As such, the General Assembly substantially amended the scope of the statute in 2011.
5. Effective July 1, 2011, the preemption statute, now codified as Ind. Code §35-47-11.1-1, et. seq., disallows most regulation of firearms on property or in buildings owned or managed by a political subdivision (although certain exceptions, including the zoning powers identified above, remain in place).
6. The new statute prohibits most local regulation of firearms, ammunition and firearms accessories, as follows:
Except as provided in section 4 of this chapter, a political subdivision may not regulate:
(1) firearms, ammunition, and firearm accessories;
(2) the ownership, possession, carrying, transportation, registration, transfer, and storage of firearms, ammunition, and firearm accessories; and
(3) commerce in and taxation of firearms, firearm ammunition, and firearm accessories.
Ind. Code §35-47-11.1-2.
7. In addition, any attempt to regulate firearms by a political subdivision, in conflict with Ind. Code §35-47-11.1-2 above, is void and unenforceable:
Any provision of an ordinance, measure, enactment, rule, or policy or exercise of proprietary authority of a political subdivision or of an employee or agent of a political subdivision acting in an official capacity:
(1) enacted or undertaken before, on, or after June 30, 2011; and
(2) that pertains to or affects the matters listed in section 2 of this chapter;
is void.
Ind. Code §35-47-11.1-3.
8. The preemption statute provides a remedy to persons adversely affected by the illegal regulation of firearms by a political subdivision:
(1) declarative and injunctive relief; and
(2) actual and consequential damages attributable to the violation.
Ind. Code §35-47-11.1-5.
THE ILLEGAL ORDINANCE
9. City’s Municipal Code §2.45.070(C)(18) (“the Illegal Ordinance”) states the following:
Rules and Regulations. It shall be a violation for any person to do any of the following without the permission of the board:
* * *
18) Bring into or have in one’s possession in or on any park property any pistol, revolver, or object from which blank cartridges may be used, or any rifle, shotgun, BB-gun, airgun, spring-gun, slingshot, bow, or other weapon in which the propelling force is gunpowder or spring or air.
THE PARTIES
12. Plaintiff is a lawful resident of Vanderburgh County, Indiana and the City of Evansville, United States of America.
13. Plaintiff is a lawful owner of a firearm under the laws of the State of Indiana and holds a valid License to Carry Handgun issued by the Superintendant of the Indiana State Police in full compliance with Ind. Code §35-47-2-3.
14. City is a political subdivision within the meaning of Ind. Code §3-5-2-38 and §35-47-11.1-1 and is located in Vanderburgh County, State of Indiana.
15. DP&R is a political subdivision within the meaning of Ind. Code §3-5-2-38 and §35-47-11.1-1 and is located in Vanderburgh County, State of Indiana.
JURISDICTION AND VENUE
16. Jurisdiction and venue are proper in this Court for the following reasons:
A. Plaintiff is a resident of Vanderburgh County, Indiana.
B. City is a political subdivision located in Vanderburgh
County, Indiana.
C. DP&R is a political subdivision located
in Vanderburgh County, Indiana.
D. Plaintiff was subject to the Illegal Ordinance, and/or
subject to a policy and/or an exercise of proprietary
authority by agents and/or employees of Defendants
that violated Ind. Code §35-47-11.1-2, above, which
violation occurred in Vanderburgh County, State
of Indiana, as more thoroughly set forth below.
FACTUAL ALLEGATIONS
17. On Saturday, September 10, 2011, Plaintiff was lawfully present in the Mesker Park Zoo & Botanical Garden (“the Zoo”), located at 1545 Mesker Park Drive, Evansville, Indiana, with his wife and infant son. The Zoo is owned and operated by DP&R.
18. During his family’s visit to the Zoo, Plaintiff was lawfully carrying a firearm, with a copy of his valid License to Carry Handgun in his possession.
19. Based on information and belief, a currently-unknown agent or employee of the Zoo, acting in his or her capacity as an agent and/or employee of DP&R, called the Evansville Police Department to report the fact that Plaintiff was carrying a firearm and to request the Evansville Police Department to remove Plaintiff from the premises.
20. Four members of the Evansville Police Department, namely officers Green, Tooley, Minto and Knight, arrived at the Zoo and confronted Plaintiff regarding his lawful possession of a firearm. Officer Tooley, acting as an agent and/or employee of City and/or DP&R, demanded to see Plaintiff’s “permit” (more correctly a License to Carry Handgun), which Plaintiff produced to Officer Tooley.
21. Officer Tooley, acting as an agent and/or employee of City and/or DP&R, then ordered Plaintiff to conceal his firearm, which Plaintiff had no legal obligation to do.
22. The four Evansville Police Officers, acting as agents and/or employees of City and/or DP&R, subsequently ordered Plaintiff to leave the premises of the Zoo, due solely to Plaintiff’s lawful possession of a firearm on Zoo property.
23. The four Evansville Police Officers, acting as employees and/or agents of City and/or DP&R, then forcibly removed Plaintiff from Zoo property, due solely to Plaintiff’s lawful possession of a firearm on said property.
24. At no time did Plaintiff commit any act or omission that provided any lawful basis for his removal from Zoo property.
CAUSE OF ACTION
25. Plaintiff asserts a single cause of action in this matter: the statutory cause of action defined by Ind. Code §§35-47-11.1-5 through 35-47-11.1-7:
A person adversely affected by an ordinance, a measure, an enactment, a rule, or a policy adopted or enforced by a political subdivision that violates this chapter may file an action in a court with competent jurisdiction against the political subdivision for:
(1) declarative and injunctive relief; and
(2) actual and consequential
damages attributable to the violation.
* * *
A person is "adversely affected" for purposes of section 5 of this chapter if either of the following applies:
(1) The person is an individual who meets all of the following requirements:
(A) The individual lawfully resides within the United States.
(B) The individual may legally possess a firearm under the laws of Indiana.
(C) The individual is or was subject to the ordinance, measure, enactment, rule, or policy of the political subdivision that is the subject of an action filed under section 5 of this chapter. An individual is or was subject to the ordinance, measure, enactment, rule, or policy of the political subdivision if the individual is or was physically present within the boundaries of the political subdivision for any reason.
A prevailing plaintiff in an action under section 5 of this chapter is entitled to recover from the political subdivision the following:
(1) The greater of the following:
(A) Actual damages, including
consequential damages.
(B) Liquidated damages of three
(3) times the plaintiff's
attorney's fees.
(2) Court costs (including fees).
(3) Reasonable attorney's fees.
26. As set forth in Paragraphs 17 through 24, above, Defendants, by and through the Evansville Police Department, exercised their proprietary authority and enforced illegal policies upon the Plaintiff, and/or enforced the Illegal Ordinance upon Plaintiff, specifically:
A. Defendants enforced an illegal policy that required Plaintiff to conceal his firearm, an act which Plaintiff had no legal obligation to perform. In addition, Defendants enforced an illegal policy that prevented Plaintiff from lawfully possessing a firearm on property owned and/or managed by DP&R, in violation of Plaintiff’s specific legal right to do so. (“Illegal Policies,” collectively.)
B. Defendants enforced the Illegal Ordinance, prohibiting Plaintiff from possessing a firearm on the property of DP&R.
27. The Illegal Policies and the Illegal Ordinance each constitute the regulation of “firearms” and/or the “carrying of firearms” in violation of Ind. Code §35-47-11.1-2, above.
28. Plaintiff has been adversely affected by Defendants’ Illegal Policies and/or the Illegal Ordinance, as defined by Ind. Code §35-47-11.1-6. Specifically, Plaintiff was “subject to” the Illegal Policies, inter alia, by being ordered to conceal his firearm and being forcibly removed from the Zoo through City’s and/or DP&R’s enforcement of said Illegal Policies. In addition, Plaintiff was “subject to” the Illegal Ordinance, as defined in Ind. Code §35-47-11.1-6, by being physically present within the boundaries of the City.
29. As a result of the above, Plaintiff has incurred actual damages and/or is entitled to liquidated damages.
NO CAUSE OF ACTION IN TORT IS ALLEGED
30. Plaintiff does not assert any cause of action based on any theory of tort, however named, on behalf of himself or any other person. Plaintiff’s sole cause of action is based on City’s and DP&R’s violation of Ind. Code §35-47-11.1-2, et seq.
RELIEF REQUESTED
31. WHEREFORE, Plaintiff requests judgment on his behalf, and against City and DP&R, awarding the following relief:
(A) The greater of the following:
(1) actual damages, including consequential
damages, or
(2) three (3) times Plaintiff’s’ attorney’s fees as
liquidated damages.
(B) Declaratory relief, in the form of a Declaratory Judgment findig the Illegal Policies and the Illegal Ordinance to be void and unenforceable under Ind. Code §35-47-11.1-2, et. seq.
(C) Injunctive relief, ordering City to refrain from enforcing the Illegal Policies, the Illegal Ordinance or any other “ordinance, measure, enactment, rule, or policy or exercise of proprietary authority” that violates Ind. Code §35-47-11.1-2, et. seq.
(D) Attorneys’ fees, as authorized by Ind. Code §35-47-11.1-7.
(E) Costs of this action, including fees, as authorized by Ind. Code §35-47-11.1-7.
(F) Such other relief as the Court deems just and proper in the premises.
/S/Guy A.Relford
Guy A. Relford
Attorney No. 6450-49
Attorney for Plaintiff, Benjamin A.
Magenheimer
Law Offices of Guy A. Relford
4181 First Flight Circle
Zionsville, IN 46077
(317) 450-8252
(317) 873-9193 (facsimile)
CERTIFICATE OF SERVICE
The undersigned hereby certifies that the foregoing First Amended Complaint was served, by hand delivery, on David L. Jones, Corporation Counsel for the City of Evansville, 420 Main Street, Suite 1600, Evansville, IN, 47706, this 21st day of September, 2011.