According to Lindsay Machak, writing for the Northwest Indiana Times, a lawsuit has been filed against the City of Hammond. Part of this previous year’s assault on local government by the Indiana General Assembly was a statute that encourages lawsuits by gun owners.
The plaintiffs are suing over a city gun ordinance that is apparently on the books but which has not been enforced.
IC 35-47-11.1-5 which creates standing for a citizen to file a lawsuit provides:
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[.]
This section became effective July 1, 2011. The first hurdle will be to establish that the ordinance was adopted or enforced after that date. They might argue that merely by having a statute remain on the books after July 1, 2011, a municipality violates the statute and they are adversely affected by it. But, I don’t know that that interpretation is entirely clear.
In any event, it’s a headache for the city. If they lose, the statute provides for attorney’s fees and liquidated damages in the amount of three times their attorney’s fees. So, the incentive for the plaintiff is to litigate as much as possible to increase the attorney fees and thereby increase the multiplier for their damage calculation. The corresponding incentive for the municipality is to capitulate as quickly as possible; pretty much regardless of the strength of their legal case.
I remember the Indianapolis council discussing this issue and I thought it was silly. How are you “adversely affected” by a statute that is not enforced or threatened enforcement? If the legislature intended to confer standing on someone just for living in that particular political subdivision they would have said so instead of using the phrase “adversely affected.”
The argument would probably go that it could be enforced so long as it’s on the books and so you felt like you couldn’t go into a public building with a firearm for fear of arrest and prosecution. And, therefore, you’re adversely affected.
Then, Doug, that would be back to being everyone in the political subdivision because everyone living there (or visiting that political subdivision) could have it enforced against them. In fact, that interpretation could give anyone the right to sue as anyone theoretically could visit that city or town or county and have the law enforced against him or her. There would be no reason to use the phrase “adversely affected” at all.
Obviously the “adversely affected” was intended to be a subcategory of a larger category of people. To interpret it to mean everyone is to defeat that intent.
The fact is there will be muni ordinances still on the books long after the law is passed invalidating local ordinances. The notion that the legislature intended to give people the right to sue if local government doesn’t act fast enought to repeal these invalidated laws that the local gov’t had no intention of enforcing is a reach to say the least.
I think you’d have to at least have a firearm, a license, and purport to have a desire to take it into a public building. I know plenty of people who wouldn’t fit into that grouping. I hope you’re right though.
The Hammond City Council had the opportunity to vote to repeal the ordinance. They chose not to repeal it. Thus the lawsuit.
It’s election season, and Mayor Tom McDermott said some extremely stupid things regarding the ordinance and guns in general. The lawsuit is payback.
I’m not sure if this is a winning issue for McDermott’s opponent (and I had a run-in with this opponent and his gun), but I hope so.
Good, It’s about time someone called these cops on their continued harassment of law abiding citizens exercising their civil rights. We will not be intimidated anymore and if the cops want to continue their antics it’s gonna cost them.