Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

City of Evansville v. Magenheimer

Court of Appeals of Indiana

June 24, 2015

City of Evansville and the Evansville Department of Parks and Recreation, Appellants-Defendants,
v.
Benjamin A. Magenheimer, Appellee-Plaintiff

Appeal from the Vanderburgh Circuit Court. The Honorable Carl A. Heldt, Senior Judge. Cause No. 82C01-1109-PL-476.

ATTORNEYS FOR APPELLANTS: Keith W. Vonderahe, Robert L. Burkart, Ziemer Stayman Weitzel & Shoulders, LLP, Evansville, Indiana.

ATTORNEYS FOR APPELLEE: Guy A. Relford, Craig A. Relford, The Law Offices of Guy A. Relford, Carmel, Indiana.

Baker, Judge. May, J., and Barteau, S.J., concur.

OPINION

Page 966

Baker, Judge.

[¶1] The City of Evansville (Evansville) appeals the trial court's denial of its motion for judgment on the pleadings. Benjamin Magenheimer filed a complaint alleging that Evansville violated Indiana Code chapter 35-47-11.1, which generally bars political subdivisions from regulating firearms, when it enforced a provision of its municipal code that prohibited the carrying of firearms in public parks against Magenheimer. Magenheimer brought suit pursuant to Indiana Code section 35-47-11.1-5, which creates a private right of action for individuals to enforce the statute's provisions. Evansville maintains that Magenheimer is effectively bringing a tort claim and that, therefore, his claim is barred for failure to comply with the Indiana Tort Claims Act[1] (ITCA). Finding that the ITCA does not govern Magenheimer's claim, we affirm the trial court's denial of Evansville's motion for judgment on the pleadings.

Facts[2]

[¶2] On September 10, 2011, Magenheimer visited the Mesker Park Zoo and Botanical Garden, a city park, with his wife and son. While at the park, Magenheimer was openly carrying a firearm. Magenheimer was licensed to carry this firearm and had a copy of the license in his possession. At the time, the Evansville municipal code contained a provision prohibiting firearms in city parks.[3] An employee of the park spotted Magenheimer carrying the firearm and called the police. The police arrived and ordered Magenheimer to leave the park.

[¶3] Magenheimer filed an initial complaint on September 16, 2011, and an amended complaint a few days later. Magenheimer's complaint alleged that Evansville had violated Indiana Code chapter 35-47-11.1, which generally bars political subdivisions from regulating firearms. Magenheimer filed his complaint pursuant to a provision that gives individuals a private right of action to enforce the statute. Magenheimer's request for relief tracked the language of the statute, which allows

Page 967

successful plaintiffs to recover either actual and consequential damages or liquidated damages of treble attorney fees.

[¶4] Evansville filed a response and, shortly thereafter, filed a motion for summary judgment. The trial court denied this motion pending the outcome of a similar case in this Court-- Dykstra v. City of Hammond, 985 N.E.2d 1105 (Ind.Ct.App. 2013), trans. denied. Following the decision in that case, both parties filed motions for summary judgment, which the trial court denied. On May 20, 2014, Evansville moved for judgment on the pleadings, alleging that Magenheimer had failed to serve proper notice pursuant to the ITCA. The trial court denied that motion as well. However, pursuant to Indiana Appellate Rule 14(B), the trial court granted a motion for discretionary interlocutory appeal to this Court on September 2, 2014. This appeal followed.

Discussion and Decision

[¶5] Evansville appeals the trial court's denial of its motion for judgment on the pleadings. We review de novo a trial court's ruling on a motion for judgment on the pleadings. Consol. Ins. Co. v. Nat'l Water Servs., LLC, 994 N.E.2d 1192, 1196 (Ind.Ct.App. 2013), trans. denied. We accept as true the well-pleaded material facts in the complaint and base our ruling solely on the pleadings. Id. A motion for judgment on the pleadings is to be granted only where it is clear from the face of the complaint that no relief could be granted under any circumstances. Id.

I. Indiana Code Chapter 35-47-11.1

[¶6] It is the general policy of this state that local governments shall be granted all powers " necessary or desirable in the conduct of [their] affairs." Ind. Code § 36-1-3-4. However, local governments only retain a power " to the extent that the power is not expressly denied by the Indiana Constitution or by statute." I.C. § 36-1-3-5. In 2011, our legislature determined that the public interest would be best served by denying local governments the power to regulate firearms. Indiana Code chapter 35-47-11.1 was passed to effectuate this new policy. It provides that, subject to certain exceptions:

[A] political subdivision may not regulate:
(1) firearms, ammunition, and firearm accessories;
(2) the ownership, possession, carrying, transportation, registration, transfer, and storage of firearms, ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.