IN: City of Evansville loses due to pre-emption

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ELB
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IN: City of Evansville loses due to pre-emption

Postby ELB » 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?
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Re: IN: City of Evansville loses due to pre-emption

Postby twjones » Wed Dec 16, 2015 9:34 pm

Good to read. Used to visit Evansville a lot growing up and at one point lived very close to it.

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Re: IN: City of Evansville loses due to pre-emption

Postby ELB » Thu Dec 17, 2015 10:56 am

OK, it appears I got it a bit wrong.

Evansville still has the option to challenge the pre-emption claim in court. They have used an outside law firm to argue on their behalf, no doubt at a substantial fee, and they are looking at paying some more substantial fees to the complainant and his lawyer. So since it is only taxpayer money the city is spending, there's probably a good chance they will go full retard and try to drive their costs even higher by continuing the litigation.
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Re: IN: City of Evansville loses due to pre-emption

Postby ELB » Fri Jul 28, 2017 3:36 pm

So it appears the City of Evansville keeps ignoring its previous losses in court and is still attempting to appeal the trial court decision on the same grounds that they have previously been told were insufficient. So they appealed again.

The lawyer for the trial plaintiff, now appellee, responded by, among other things, comparing the City of Evansville to the Black Knight in "Monty Python and the Holy Grail." You may recall the Black Knight as the one who got his arms and legs chopped off and still refused to recognize that he was defeated...

The brief is here:
https://public.courts.in.gov/Docket/Doc ... D=24311589
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Re: IN: City of Evansville loses due to pre-emption

Postby C-dub » Fri Jul 28, 2017 4:40 pm

Great analogy to the Black Knight.
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Re: IN: City of Evansville loses due to pre-emption

Postby WTR » Fri Jul 28, 2017 4:52 pm

Cities can be very arrogant. I was involved in a lawsuit which took a City from non-binding arbitration to the TX Supreme Court. The City loss in every court we appeared in . We won the suit and were awarded Attorney's fees. The fees exceeded our law suit amount. The City was
playing with tax payer money. They tried to spend us into the ground.

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Re: IN: City of Evansville loses due to pre-emption

Postby C-dub » Fri Jul 28, 2017 5:05 pm

WTR wrote:Cities can be very arrogant.

And stubborn with other peoples' money.
I am not and have never been a LEO. My avatar is in honor of my friend, Dallas Police Sargent Michael Smith, who was murdered along with four other officers in Dallas on 7.7.2016.


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