Posted on 09/22/2011 8:45:20 AM PDT by marktwain
EVANSVILLE — A lawsuit has been filed against the city on behalf of a man Evansville Police Department officers physically escorted out of Mesker Park Zoo & Botanic Garden after police said he refused to cover up a gun he was carrying on his hip.
The lawsuit, filed in Vanderburgh Circuit Court on Friday by attorney Guy Relford of Zionsville, Ind., names Evansville and its Department of Parks & Recreation. It alleges the actions of zoo employees and police officers violated an Indiana law effective July 1 that pre-empts the regulation, with a few exceptions, of firearms by local governments.
The lawsuit seeks financial damages, including triple attorney fees; a court declaration finding the city’s actions were illegal; and an injunction preventing future actions by the city — all of which the state law spells out.
“It’s a clear violation of Indiana law,” Relford said. “As of July 1, the state law pre-empts local regulation of firearms, including the carrying of firearms.”
Relford said the police report supports the lawsuit’s claim that his client, who police identified as Benjamin A. Magenheimer of Evansville, was singled out by city employees because he was carrying a firearm.
The police report begins by saying that zoo staff confronted Magenheimer about carrying a gun and then called police to “try and ask him to leave the property.”
This is the second lawsuit filed against local governments since the state law was enacted, Relford said. On Aug. 29, Relford filed a similar lawsuit against Hammond, Ind.
The incident happened when Magenheimer went to the zoo with his wife and infant son on Sept. 10. According to a police incident report, zoo officials called police after several patrons complained about a man at the facility who was visibly carrying a handgun. When one of the officers asked him to conceal the weapon, the man refused and “started getting loud and causing a scene,” according to the report.
According to the report, officers asked the man to leave the zoo because he was frightening other patrons. He refused and police had to escort him out. After he left, according to the police report, zoo staff told the officers that Magenheimer’s attitude was intimidating and that he told them he could not be denied his right to bear arms.
Although the police report said Magenheimer was argumentative and not cooperative, Relford disputed that.
“At no point did he become disorderly in any way,” he said.
Relford said Magenheimer contacted him to file the lawsuit after seeing publicity about the lawsuit against Hammond. Relford said he has instructed his client not to discuss the lawsuit with media.
Indiana gun licenses are a license to carry a firearm and do not require concealment. The lawsuit notes that Magenheimer also was carrying with him a copy of his valid license to carry a handgun.
The lawsuit against Hammond filed by Relford in August on behalf of two residents there, came after its city council rejected an ordinance that would have squared the city and state laws. Earlier this month the city directed its police officers not to enforce Hammond’s ban on carrying firearms in municipal buildings, but the city’s law against carrying guns in public buildings and parks remains in place.
the settlement should also include a “continuing education” course for all Zoo employees to ensure this does not happen again.
—After he left, according to the police report, zoo staff told the officers that Magenheimer’s attitude was intimidating —
Was that before or after the staff and police told him to stop doing something that he had every right to do. Were they intimidating him first?
Go get `em Ben.
IC 35-47-11.1-5
Civil actions concerning political subdivision violations
Sec. 5. 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.
As added by P.L.152-2011, SEC.4.
IC 35-47-11.1-6
Civil actions; adversely affected persons
Sec. 6. 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:
IC 35-47-11.1-7
Civil actions; recovery of damages, costs, and fees
Sec. 7. 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.
As added by P.L.152-2011, SEC.4.
I fear the armed man who hides his weapon; far more than I fear the man with his weapon holstered, in plain view.
One man is a potential threat, the other a potential hero.
I’d like some “sensitivity training” for those members of the public that think their personal fear and trembling at boogeymen outranks a Constitutionally guaranteed right.
That’s what I’d like.
I wish we would go after the local officials responsible, and drive them into personal bankruptcy and get them jailed for civil rights violations. The NRA or GOA should announce a special, particularly aggressive legal defense fund for that purpose. Fines paid out of taxpayers’ money are not enough to dissuade the left-wing fascists.
:: When one of the officers asked him to conceal the weapon, the man refused and “started getting loud and causing a scene,” according to the report ::
Well, YEAH!
The officer asked this guy to violate the concealed carry rules in Indiana. I’d get obnoxious too!
Do these same city libtards go apeshiite when they see a police officer who is carrying unconcealed? Do they scream in dire fear if they see a police detective (who is typically dressed in street clothes) wearing an unconcealed fire arm?
Fricking IDIOTS!
“An armed society is a polite society.” ~ Robert A. Heinlein
Likely a shallow phony attempt to justify their illegal actions. Good luck with that claim.
LAW OFFICES OF GUY A. RELFORD
September 27, 2011
An Open Letter from Guy A. Relford,
Attorney for Benjamin A. Magenheimer
A lot has been said and written about my client, Ben Magenheimer, since he was physically thrown out of the Mesker Park Zoo in Evansville on September 10, 2011.
The City of Evansville, through the mayor’s office and the City Attorney, has certainly said a lot about
Ben and the circumstances that led to his ejection from the park. The purpose of this letter is not to argue the merits of our lawsuit against the City of Evansville and the Department of Parks & Recreation – those issues will be resolved in the Circuit Court of Vanderburgh County. I write this letter only in an attempt to bring things into perspective and correct some rather dramatic misperceptions that exist about Ben and the events of September 10.
The list of insults that have been hurled at Ben by people who have no idea of who he is or what happened at the zoo is long. Words like “idiot,” “paranoid,” “irresponsible,” “disorderly,” and “combative” have been used to describe Ben with a lot of frequency. I can tell you that anyone who knows Ben, myself included, can only laugh at those comments, because they certainly don’t apply to him in any way. Ben is very intelligent, he has a great job, and he is a devoted husband and a loving father to his four-month-old son. He is very calm, very rational and very respectful of everyone around him.
Ben has also made the decision and the commitment to enable himself to protect his family and himself at all times. For that reason, Ben owns firearms. But he didn’t just “go buy a gun.” He has invested a tremendous amount of time and expense to train and educate himself in the use of firearms. The list of Ben’s firearm training experiences is long, but he has earned the designation of “Marksman” in two pistol categories with the International Defensive Pistol Association and he has completed private training courses with the former firearms training coordinator of the Evansville Police Department.
Ben has also intently studied the laws of the United States and the State of Indiana that relate to the ownership and possession of firearms. He has always recognized the need to be a law-abiding gun owner.
(In fact, I can tell you that Ben Magenheimer understands the gun laws of Indiana much better than the Evansville police officers who were involved in the incident on September 10.)
Page 2
Under any rational description, Ben is a responsible gun owner. And for that reason, no one on this planet needs to fear Ben Magenheimer or a gun in Ben’s possession except a criminal attempting to harm Ben, Ben’s family or an innocent third party.
So what happened at the zoo on September 10? Only Ben and the other people who were actually there know for sure.
I wasn’t there, but I know two things: I believe my client, and I have personally confirmed that there are security cameras at the zoo that likely captured all of the events that are now in dispute. I also know that EPD should have recorded the original call to EPD from the zoo manager that led to multiple officers being dispatched to the zoo. And if any EPD officer had an open microphone during their confrontation with Ben, that audio should have been recorded as well.
So I won’t argue with anyone about what happened in Mesker Park Zoo on September 10 –
those facts will be proven in court. But I will ask a question: Why hasn’t the City of Evansville or the Evansville Police Department publicly released the security video of the incident, or the EPD audio tapes? If my client was truly ejected from the park for being “disorderly” or “causing a scene” as alleged by the City (instead of simply exercising his legal right to carry a firearm to protect himself and his family) that should be clearly visible and audible in the security video and EPD tapes that are in the City’s possession right now.
I have formally demanded that the Evansville City Attorney take steps to preserve all of that evidence, but I won’t have access to it until the discovery phase of the litigation commences.
But it is all public information, and the City can release it any time it wants.
So, let’s see it.
Guy A. Relford
Attorney at Law
Interesting letter. That last part about releasing the videos reminds me of the guy that was shot and killed outside a Costco in Arizona. The witnesses (and there were a lot of them) said the guy was not doing anything threatening, contradicting the cops testimony, and the cops gunned him down.
And all those cameras at Costco at the time were apparently useless. Apparently the video system was “down” or in some other way unable to record the event.
Yeah, sure. Especially considering that an allegedly over zealous Costco employee caused the whole thing, making costco at least partly responsible if it turns out the police action was illegal or clearly over the top.
And now they are trying to stop us from making our OWN recordings of the events. It is almost laughable - if it were not so serious.
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.
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