I predict these things are going to pop up like mushrooms after a big rain. A few weeks ago, I commented on the gun ban lawsuit in Hammond. Mark Wilson, writing for the Evansville Courier Press, has an article on a new gun lawsuit in Evansville. The new lawsuit is based on an incident that happened at a zoo in Evansville which a police report describes as follows:
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.”
. . .
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.
The Evansville Courier Press provides a copy of the lawsuit here (pdf).
The General Assembly passed legislation, specifically IC 35-47-11.1 encouraging a lot of gun lawsuits this year. They created a private right of action and then awarded as damages, three times whatever you can get your attorney to spend prosecuting the lawsuit. So, the bill is designed to encourage attorneys to generate a lot of legal activity so their client can cash in.
The law prohibits a local unit of government from adopting or enforcing “an ordinance, a measure, an enactment, a rule, or a policy” regulating firearms.
This lawsuit is going to get muddy pretty fast (consequently generating a lot of legal fees) because from the facts alleged, it doesn’t look at all clear that the request that the guy cover up his gun because he was scaring people at the zoo was the enforcement of a local policy. The complaint alleges that the parks department had a policy to require patrons to conceal their weapons and to prevent lawful carrying of firearms. But, if the police were acting on probable cause to believe the individual was in violation of a state regulation, then this lawsuit against Evansville should fail.
Trouble is, the statute is designed to force local government to cave to lawsuits:
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.
Pretty much anybody who gets adverse treatment from a police officer while the person is carrying a gun is going to want to take a crack at getting some money under this statute.
Is the zoo privately owned? If so, this seems to be something that should be thrown out.
I’m all for the right to carry firearms, but I equally support a private owner to be able to say “No firearms” and for no law to overrule that.
Now, here you have a plaintiff who is “adversely affected.”
You can’t make any judgments from that story, it is too vague.
My reading of the story is that people felt threatened by the mere fact that the man had a holstered gun. Guess what? We have open carry in Indiana. People with carry permits are allowed to open carry, which I interpret to include walking around in a zoo with a holstered gun.
If the man had a holstered gun (nothing more), and the police hassled him because of it, I think we have a winnable lawsuit.
Now, if it turns out that the guy was handling the gun (say, aiming it at the monkeys or something stupid like that), the situation is different. But the story is not detailed enough to make that determination.
Fortunately, paying to settle all of these suits will be nothing but beneficial to municipal budgets.
IMHO this chap brought the gun to the zoo and probably brought it to Kroger, church, etc. in hopes of sparking just such a lawsuit.
I’m reminded of Brown County proudly saying that they had no laws about gun ownership and then its citizens being angry when the lack of zoning laws put in place to support guns meant that a shooting range got proposed to be placed next to a school.
What he was doing is less important to me, in the context of this story, than what the unit of local government was doing. Yes, it was local police at a (I believe) government run zoo; but the main question was whether the police asked him to conceal his weapon and/or leave the premises as a matter of enforcing a local policy or whether it there was some other law enforcement basis. In my mind, that’s going to determine whether there was a violation under this statute. Of course, the law is designed to create strong pressure for the municipal government to capitulate if there is even a hint of an argument that this was enforcement of local policy.
Doug, I understand what you are saying. I just wonder, if there was no statute specifically banning guns from the zoo, what basis did the police have to ask the man to conceal the weapon? And if the man was properly licensed, and fully within his rights to wear a holstered weapon, what can be done about a police officer hassling said person for no reason other than the open carrying?
IMHO this chap brought the gun to the zoo and probably brought it to Kroger, church, etc. in hopes of sparking just such a lawsuit.
Maybe. But you certainly make a statement when you openly carry. I don’t see it very often, but two of my buddies do it, and they are making a statement by doing so.
Other than those two bad apples ;) the only other folks I see with holsters are, I believe, off duty security officers. See them oftentimes at fast food joints near the boats.
Some quick observations:
1. The statute appears to refer to ordinances, rules and policies that are enforced. If a police officer asks a person to conceal the gun, it doesn’t appear to be rule based.
2. At this point, if the belligerence is factual on the part of the patron, then the police officer could contend that he asked the man to conceal his weapon as a courtesy, and the man then became confrontational. It was the confrontational reaction that caused escort from the park, not the open carry.
3. Even if #1 and #2 hold true, it can be argues that a uniformed officer is always acting under color of law and a request is truly an order to comply.
It seems to me that the facts, no matter how interpreted, make this a case that would be hard to call, which will usually go to the defendant on a settlement basis.
And I am with Jason – property ownership rights should trump handgun carry laws (though it doesn’t apply here – the zoo and park are municipal entities).
“…two of my buddies do it, and they are making a statement by doing so.”
If I may ask, what is the statement? I can think of several possibilities. If I ran into someone making a statement that way, I would really like to know for sure what they are stating. Is it Ok to just ask them?
By the way, it is a municipal zoo, and a pretty nice one for the size of the city.
I’d say that statement is something like: “I’m a badass; don’t screw with me.”
The statement is “the right of the people to keep and bear arms shall not be abridged”.
They’re both libertarians and gun enthusiasts.
And, yes, when they show up to even conservative or Ron Paul-er events and whatnot, they can make some people feel uncomfortable because they’re openly packing. Even 2nd Amendment supporters. I find people’s reactions very interesting.
I’d say that statement is something like: “I’m a badass; don’t screw with me.”
Well, we do live in Lake County. It’s a little rougher than your college towns.
And being a Republican in Lake County… it helps to be armed. Especially on election day in East Chicago.
Buzzcut:
I don’t doubt that (about needing a gun in Lake County on election day, I mean.) Not sure I’d call Indy a college town, though.
So, if they use a long gun, maybe they can make the entire statement:, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
Back in the late ’80’s, I worked as an asst. bank branch manager. One day we had a customer who insisted we hand over his auto title even though his loan was not paid off and the title was stored in a vault at the main office. He left angry. He returned later to see the manager. This time he was carrying a holstered gun. He was clearly making a statement. I don’t think it was about the 2nd amendment. I do think it was meant to scare the shit out of us, which he did. He also made our customers “uncomfortable” despite never taking the gun out of the holster.
We might all agree on the point that while excerising a right may be legally okay—sometimes common sense should trump legal.. We live in a world of ever present mass media thus every story about a “crazy” gets aired and as a result there are many nervous people as evidenced by parents keeping kids from school because of a non specific threat or people not going to work. In some cases a clerk in a municipal building may decide to start carrying a weapon since often face disgrudled people. The NRA and others would serve all well by adopting a stance that rights carry an obligation based on common sense.
I find it mildly amusing that people get so worked up over someone carrying a holstered pistol. For one thing, you ever really think about most of those holsters? Not exactly the quick-draw kind. Expecting that person to just whip it out at at the drop of a hat? I think not.
For another thing, how much TV/movie drama have most of us grown up with showing the main characters carrying one or more firearms? I would think we would be used to the idea. Really.
Most importantly, today with drugs, violence, a sucky economy and a general lowering of personal civility all around, why shouldn’t one carry a pistol if one feels the need to? The police can’t protect us, and were never really designed to do so in the first place anyway.
The government and the police don’t like it? Well, tough.
I wondered two things. First, why does anyone feel the need to bring a gun to the zoo? Is he afraid the monkeys would leap into the crowd and start flinging poo? I’m not asking the question legally. I just don’t understand the mindset that I have to be armed and ready wherever I go. That doesn’t seem like a very pleasant way to live.
Then I wondered, how come a guy from Evansville had to go all the way to Zionsville to get an attorney? Then I googled Guy Relford, and found out that, among other things, he owns a gun range (“Where Lethal Meets Legal”):
http://www.tactical-firearms.com/
And it turns out Relford is the attorney representing the plaintiffs in the gun ban suit against Hammond:
http://www.nwitimes.com/news/local/lake/hammond/article_a3d59265-2959-5b46-b3a0-ee5fbfccb775.html
His web site says he specializes in firearms-related civil suits:
http://global-lit.com/Home.html
Methinks the new Indiana law will make Guy Relford a very wealthy man, and possibly a cable news pundit.
ex, there’s lions and tigers and bears, oh my!
On another subject, I scored a ticket to see the President’s speech tomorrow along the Ohio River. Woot! Hope it isn’t lightning or pouring rain, though. Not allowed to bring umbrellas to it, and it’s outside.
exHoosier: First of all, it isn’t a “need” to bring a gun, it is a want. Second: the plaintiff may have brought the gun for the same reason that people in Arizona now bring guns to the grocery store more frequently. You never know.
For the record, I’m not saying I would make the same call, or would have liked to see a holstered gun while I was at the zoo with my family, but if the person would rather have their gun displayed, that appears to be their right in Indiana.
I don’t have a problem with open carry laws. My personal opinion is that you risk escalating situations that do not need to be escalated, so I wouldn’t do it. That said, I see no reason to ban people from doing it unless it is the property owner’s desire to do so.
My personal opinion is that you risk escalating situations that do not need to be escalated,
Please explain. It’s not intuitively obvious.
Scenario 1 (without guns):
A: You’re ugly and your momma dresses you funny.
B: Whatever. [Goes on about business]
Scenario 2 (with guns):
A: You’re ugly and your momma dresses you funny.
B: Fuck you! I have a gun!
A: No, fuck *you*! *I* have a gun.
Shoot out, mass deaths. Fade to black.
Or, you know, something like that.
“mass deaths”? I stand in awe of your hyperbole, good sirrah. ;)
I seem to recall that the practice of extending one;s hand to another began as an indication that one was unarmed, hence tending to lower suspicion and hostility…..in other words, something considered progress in the history of civilization. The idea of seeing people brandishing their arms seems like a step in the other direction.
(There’s also a theory about penis symbolism/substitution but that’s for another day)
Doug’s scenario only happens in his mind.
Show me ONE example of this happening with conceal carry permit holders (not criminals with illegal guns). I defy any of you to find even one story along the lines of what Doug proposed.
My point is that there is irrational fear of guns in a significant portion of society. Open carry brings that fear to the surface. Maybe that’s the point of folks who do open carry. That’s why I have mixed feelings about the practice.
Should have put a disclaimer on the scenarios: (Scenarios meant for illustrative purposes only; may not have happened.)
So we should violate people’s rights because of some imagined scenario?
You were asking what MarcD meant by escalating situations; I gave you a cartoonish example to illustrate things. The general point is that, if armed, you’re probably less inclined to let an asshole ‘get away with it’ even if by not letting him get away with it, you’re turning a “sticks and stones” situation into something more serious.
Except that all evidence shows that that’s not the case. But don’t let that stop you.
Buzz, I think it is interesting that we get argumentative on something I would have expected us to agree on: no permit legal open carry.
As for the escalation, I was expressing a personal opinion (identified by the sentence beginning “My personal opinion is…”). It is like mortgage lending: it only takes about .75% of bad apples to turn a mortgage portfolio into a loser. Similarly, it takes only one asshole with penis envy to make the universe of responsible gun owners moot, if that happens to be the person across from you. I tend to be risk averse and so I would choose to eliminate that risk.
On an anecdotal note, one of my friends I grew up with is a CC permit holder. He is intelligent, a BA and JD, and he was dead wrong on whether an Ohioan can shoot an intruder without imminent threat to life (Castle laws). He thought in Ohio you need no reason other than the person in your home, which is incorrect. KY has such a law, as do many other states. The point being, if he is unclear on lawful use of a concealed firearm, what would a representative population look like?
On a statistical note, permit holders are less likely to commit a violent crime. I think that is mostly due to people who lawfully get permitted for anything are going to be more lawful people in general. Without the permitting process, I don’t know if that holds true. And that is part of the reason for my unease.
just one example, you say? how about three?
http://www.fox10tv.com/dpp/news/local_news/mobile_county/shooting-victim-in-critical-condition
http://blog.cleveland.com/metro/2011/08/many_dead_in_copley_township_w.html
http://cheneyairwayheights.kxly.com/news/crime/father-son-argument-leads-shooting-near-airway-heights/50654
such events actually happen all the time.
stAllio!,
Buzzcut was looking for an example of two people that got into a shooting match after carrying a legal pistol on their hip out in public. I don’t see evidence of this in what you listed, but I’m sure that has sometimes happened.
Guns do kill people, and sometimes crazy people go on a rampage. As I said before, if we’re taking a vote on if we can un-invent firearms, I’ll vote for that. However, since that can’t happen, I’d rather have 20 people with guns instead of one crazy person with 19 unarmed people.
“So, the bill is designed to encourage attorneys to generate a lot of legal activity so their client can cash in. ”
Or, you could say that the bill is designed to create an actual, substantive penalty to government units which would normally act with impudence, much as cities do (for instance) with police misconduct cases.
“Pretty much anybody who gets adverse treatment from a police officer while the person is carrying a gun is going to want to take a crack at getting some money under this statute. ”
If the officer has no actual probable cause to detain someone and is only doing so because the person is open carrying, the person should get something, and there should be a penalty to the police/local unit.
I am reminded of the days when white folks were scaered or annoyed by the sight of a darkie passing through their neighborhood. Sure, they have a right to ride on the taxpayer-supported local bus system, but can’t they sit in the back where they belong?
It’s exactly the same thing except for the part about skin color not being optional.