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  1. #1
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    Exclamation Oh no....Evansville cops cause city to be sued!!




    http://global-lit.com/Press_Releases.html

    Info from the public press release:

    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 or for a copy of the Class Action Complaint, 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


    Discussion:
    http://ingunowners.com/forums/carry_...rs_rights.html

  2. #2
    Forum Member Lawdawg45's Avatar
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    Open carry for a civilian is a tactical blunder, but the reality is that Indiana issues a "license to carry" and not a CCW permit.

    LD
    "Did you bring any Gold or Silver with you Mr. Chisum?..........No, just lead"

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    I can't imagine the plaintiff filed a notice of tort claim and the city investigated and rejected the tort claim within the six days that elapsed between the incident and the filing. I'm also having trouble identifying any harm the guy suffered. It sounds like he did his best to get arrested for criminal trespass, which would make this a little more interesting, but the officers didn't fall for his real-world trolling.

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    Criminal Trespass on public property?

    ...in the petting zoo at the Mesker Park Zoo & Botanical Garden, owned and operated by the Evansville Department of Parks & Recreation....

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    Quote Originally Posted by Bluepelican31 View Post
    Criminal Trespass on public property?

    ...in the petting zoo at the Mesker Park Zoo & Botanical Garden, owned and operated by the Evansville Department of Parks & Recreation....
    Well he wasn't charged with that, but what is so odd about the concept of being arrested for criminal trespass on government-owned property?

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    Quote Originally Posted by CrashBandicoot View Post
    I can't imagine the plaintiff filed a notice of tort claim and the city investigated and rejected the tort claim within the six days that elapsed between the incident and the filing. I'm also having trouble identifying any harm the guy suffered. It sounds like he did his best to get arrested for criminal trespass, which would make this a little more interesting, but the officers didn't fall for his real-world trolling.
    This incident may be somewhat different than others. The specific language of the law allows people to sue the government entity which violates the rights of the person. The harm is that he was told he couldn't have his firearm, which is in conflict with the new state law. This same lawyer is representing two other clients in Lake County due to a municipality up there not removing the ordinance banning firearms from park areas. In addition, this same attorney is the current owner/operator of the entity that runs the Eagle Creek shooting range on the weekends (when it isn't under police control) for civilians to use. There was some talk about this as well:

    http://www.ogdenonpolitics.com/2011/...enue-from.html

    Here are some news articles about the lawsuit up in NW Indiana:

    http://www.nwitimes.com/news/local/l...94b08ddf9.html

    http://www.nwitimes.com/news/local/l...c037468bc.html

    http://www.nwitimes.com/news/opinion...2822b007a.html

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    Quote Originally Posted by Bluepelican31 View Post
    Criminal Trespass on public property?

    ...in the petting zoo at the Mesker Park Zoo & Botanical Garden, owned and operated by the Evansville Department of Parks & Recreation....
    Just because its public property doesn't mean you can't be charged with trespassing.
    For the cops out there: You are an adult. If you want to write someone, write them. If you don't want to write someone, then don't write them.

    "Jeff, you are the best cop on this board"-Anonymous Post

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    Quote Originally Posted by jeffIL View Post
    Just because its public property doesn't mean you can't be charged with trespassing.
    Possibly after hours, but a petting zoo ran by the city, probably open air; prosecutor and admin better be on board before I would make the arrest.

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    That's crazy. You don't have a right to be somewhere just because it's public. It's a business. We have a separate charge for Criminal Trespass to State Supported Property.
    For the cops out there: You are an adult. If you want to write someone, write them. If you don't want to write someone, then don't write them.

    "Jeff, you are the best cop on this board"-Anonymous Post

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    Quote Originally Posted by Dwntwn317 View Post
    This incident may be somewhat different than others. The specific language of the law allows people to sue the government entity which violates the rights of the person. The harm is that he was told he couldn't have his firearm, which is in conflict with the new state law.
    According to the press release, the officers merely asked the guy to cover his weapon. They never told him he couldn't have his weapon. It sounds like the noble citizen tried to educate the officers about his rights, they asked him to leave, and escorted him out after he refused to do so.

    EDIT: I think this attorney is just trying to drum up business with these cases. There is no need for those Lake County cities to rescind their ordinances because the new state law expressly voided them.

    IC 35-47-11.1-3
    Voidance of political subdivision ordinances, measures, enactments, rules, policies, and exercises of proprietary authority
    Sec. 3. 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.
    Last edited by CrashBandicoot; 09-18-2011 at 03:12 PM.

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    I don't think the issue in this incident is going to be about the trespass. Its going to be about the right to carry a gun openly without having a cop tell someone it has to be covered up. Nowhere in the Indiana criminal code or on the LTCH does it say how it has to be carried, but since OC isn't widely practiced or accepted in Indiana many cops and people who don't carry guns are still unnerved by it. I'm sure the attorney is trying to get case law established so gun carriers can OC without having negative (or any) interactions with the police.

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    Quote Originally Posted by CrashBandicoot View Post
    According to the press release, the officers merely asked the guy to cover his weapon. They never told him he couldn't have his weapon. It sounds like the noble citizen tried to educate the officers about his rights, they asked him to leave, and escorted him out after he refused to do so.
    A political subdivision isn't allowed to regulate how one carries their handgun. So their merely asking appears on the surface to be in violation of the law.

    IC 35-47-11.1-2
    Political subdivision regulation of firearms, ammunition, and firearm accessories prohibited
    Sec. 2. 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.
    Quote Originally Posted by IMPDNE View Post
    Its going to be about the right to carry a gun openly without having a cop tell someone it has to be covered up. Nowhere in the Indiana criminal code or on the LTCH does it say how it has to be carried, but since OC isn't widely practiced or accepted in Indiana many cops and people who don't carry guns are still unnerved by it. I'm sure the attorney is trying to get case law established so gun carriers can OC without having negative (or any) interactions with the police.
    We shall see. If the plaintiffs are hell bent on collecting monetary damages, then it would seem to me the cases are more about money. If they settle the case for a removal of the ordinances, officer training, and a small amount to pay for the work of the attorney, then I would agree with you about wanting to set precedence, not just with open carry, but the new law itself.

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    A police officer asking an individual to cover up a gun isn't regulating carrying any more than a police officer telling an individual who is running around a city park with an unholstered gun in his hand, finger on the trigger, pointed at the ground, to put his gun in a holster.

  14. #14
    Forum Member Lawdawg45's Avatar
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    The article points out that the civilian had a valid LTCH permit and was either open carrying or poorly carrying concealed and that he was in a public venue, so I'm trying to figure what law/ordinance/code he violated and why he was asked to leave. For me, I'd be more concerned about home boy with a Tech 9 under his hoodie.

    LD
    "Did you bring any Gold or Silver with you Mr. Chisum?..........No, just lead"

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    Quote Originally Posted by CrashBandicoot View Post
    A police officer asking an individual to cover up a gun isn't regulating carrying any more than a police officer telling an individual who is running around a city park with an unholstered gun in his hand, finger on the trigger, pointed at the ground, to put his gun in a holster.
    Both cases are police officers regulating an individuals conduct, which in both examples includes the carrying of a handgun. If an officer tells another person to change their behavior, they are regulating that person's behavior.

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    Quote Originally Posted by Bluepelican31 View Post
    Possibly after hours, but a petting zoo ran by the city, probably open air; prosecutor and admin better be on board before I would make the arrest.
    No, it doesn't matter if its after hours, or if it's a petting zoo run by the city in open air. If an agent of that property (i.e. a manager or parks director) asks a person to leave, and that person refuses, they can be arrested for criminal trespass. I arrested a guy for trespassing in the front lobby of our police department once. He'd been asked to leave several times, and several times refused.
    Quote Originally Posted by K40 View Post
    To me, open carry is the equivalent of the couple making out and groping each other at the food court in the mall. Yeah, they are probably legal, as long as they don't start getting undressed. But they are still social retards.
    ‎"You go for a man hard enough and fast enough, he don't have time to think about how many's with him; he thinks about himself, and how he might get clear of that wrath that's about to set down on him." - Rooster Cogburn

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    Quote Originally Posted by CrashBandicoot View Post
    A police officer asking an individual to cover up a gun isn't regulating carrying any more than a police officer telling an individual who is running around a city park with an unholstered gun in his hand, finger on the trigger, pointed at the ground, to put his gun in a holster.
    Neither of those (open carry or carrying an unholstered weapon) are illegal. As such, the police in this case have a right to request it (as does any other person who wants to walk up and ask him to cover his weapon) but they have no right anymore to require that he do it, or face punishment. Simply put, any officer can ask a citizen to stop doing something that's not illegal, but when you're forcing somebody to quit doing something that's not illegal, that you are gonna get sued.

    As is the case here.
    Quote Originally Posted by K40 View Post
    To me, open carry is the equivalent of the couple making out and groping each other at the food court in the mall. Yeah, they are probably legal, as long as they don't start getting undressed. But they are still social retards.
    ‎"You go for a man hard enough and fast enough, he don't have time to think about how many's with him; he thinks about himself, and how he might get clear of that wrath that's about to set down on him." - Rooster Cogburn

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    Quote Originally Posted by PtlCop View Post
    No, it doesn't matter if its after hours, or if it's a petting zoo run by the city in open air. If an agent of that property (i.e. a manager or parks director) asks a person to leave, and that person refuses, they can be arrested for criminal trespass. I arrested a guy for trespassing in the front lobby of our police department once. He'd been asked to leave several times, and several times refused.
    Just curious, did you get a conviction on that arrest?

    LD
    "Did you bring any Gold or Silver with you Mr. Chisum?..........No, just lead"

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    Quote Originally Posted by Lawdawg45 View Post
    Just curious, did you get a conviction on that arrest?

    LD
    Different place and state, but I arrest people all the time for trespassing at a mass transit station after they have previously been banned and they all get convicted.
    For the cops out there: You are an adult. If you want to write someone, write them. If you don't want to write someone, then don't write them.

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    In the county I worked we have a major homeless/transient problem and never once could any of the 95 officers I worked with make an arrest in the city parks for all the squatters. Must have been the liberal county in which I worked, I guess.

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    Quote Originally Posted by Bluepelican31 View Post
    In the county I worked we have a major homeless/transient problem and never once could any of the 95 officers I worked with make an arrest in the city parks for all the squatters. Must have been the liberal county in which I worked, I guess.
    There is at least one appeals court ruling on this issue:

    http://www.in.gov/judiciary/opinions....html#Footnote

    Basically a Kokomo PD officer placed an individual on a trespass list from a city park. The court concluded that state law doesn't give officers the authority to put people on a trespass list, so state law didn't back the actions. The court then looked at Kokomo municipal code. The municipal code said that officers (may have said "agents", not sure) of the city could remove people for violating park rules, but there was no mention of issuing trespass warnings. As such, the court found that the KPD officers lacked the authority to issue trespass warnings for city owned parks. So even though the officers are agents of the city, since the municipal code didn't give them authority to issue trespass warnings, the case was thrown out.

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    Quote Originally Posted by Lawdawg45 View Post
    Just curious, did you get a conviction on that arrest?

    LD
    Yes.
    Quote Originally Posted by K40 View Post
    To me, open carry is the equivalent of the couple making out and groping each other at the food court in the mall. Yeah, they are probably legal, as long as they don't start getting undressed. But they are still social retards.
    ‎"You go for a man hard enough and fast enough, he don't have time to think about how many's with him; he thinks about himself, and how he might get clear of that wrath that's about to set down on him." - Rooster Cogburn

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    Quote Originally Posted by Dwntwn317 View Post
    There is at least one appeals court ruling on this issue:

    http://www.in.gov/judiciary/opinions....html#Footnote

    Basically a Kokomo PD officer placed an individual on a trespass list from a city park. The court concluded that state law doesn't give officers the authority to put people on a trespass list, so state law didn't back the actions. The court then looked at Kokomo municipal code. The municipal code said that officers (may have said "agents", not sure) of the city could remove people for violating park rules, but there was no mention of issuing trespass warnings. As such, the court found that the KPD officers lacked the authority to issue trespass warnings for city owned parks. So even though the officers are agents of the city, since the municipal code didn't give them authority to issue trespass warnings, the case was thrown out.
    That's roughly the way our prosecutor's office looks at it. They want the trespass notice issuing party to be an employee or agent of the property, or there to be express instructions on who else is allowed to issue a trespass notice. For instance, for our parks, we've received guidance from the Parks Director, and it's in our code, that we're allowed to issue trespass notices for city parks. The only catch is that it is restricted to certain situations (drugs, fights, gang activity, etc). We can't just issue one because somebody litters.

    The prosecutor's office here will file our charges on an case, but won't file neighboring agencies cases on the exact same thing...because they're not permitted to issue the trespass notices.
    Quote Originally Posted by K40 View Post
    To me, open carry is the equivalent of the couple making out and groping each other at the food court in the mall. Yeah, they are probably legal, as long as they don't start getting undressed. But they are still social retards.
    ‎"You go for a man hard enough and fast enough, he don't have time to think about how many's with him; he thinks about himself, and how he might get clear of that wrath that's about to set down on him." - Rooster Cogburn

  25. #25
    Forum Member Lawdawg45's Avatar
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    Quote Originally Posted by PtlCop View Post
    Yes.
    Interesting. Were there any mitigating factors such as alcohol, threats, etc, or did he just refuse to leave?

    LD
    "Did you bring any Gold or Silver with you Mr. Chisum?..........No, just lead"

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