City of Evansville and The Evansville Department of Parks and Recreation, Appellants-Defendants,
Benjamin A. Magenheimer, Appellee-Plaintiff.
from the Vanderburgh Circuit Court The Honorable Carl A.
Heldt, Judge Trial Court Cause No. 82C01-1109-PL-476
ATTORNEYS FOR APPELLANTS Keith W. Vonderahe Robert L. Burkart
Ziemer Stayman Weitzel & Shoulders, LLP Evansville,
ATTORNEY FOR APPELLEE Guy A. Relford The Law Offices of Guy
A. Relford Carmel, Indiana
of the Case
The City of Evansville and the Evansville Department of Parks
and Recreation ("the City") bring this
interlocutory appeal from the trial court's denial of
their motion for summary judgment on a complaint filed by
Benjamin A. Magenheimer. This is the City's second
interlocutory appeal in this matter. See City of
Evansville v. Magenheimer, 37 N.E.3d 965 (Ind.Ct.App.
2015), trans. denied ("Magenheimer
I"). In the instant appeal, the City contends that
there is no genuine issue of material fact that would support
a private right of action under the Indiana firearm
preemption statutes, Indiana Code Chapter 35-47-11.1. But we
believe the dispositive issue is whether the law of the case
doctrine precludes our review of the City's arguments in
this appeal. We hold that it does, and, as such, we affirm
the trial court's denial of summary judgment.
and Procedural History
The facts relevant to this appeal were stated by this court
in Magenheimer I:
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. An employee of the park spotted Magenheimer
carrying the firearm and called the police. The police
arrived and ordered Magenheimer to leave the park.
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 successful plaintiffs to recover
either actual and consequential damages or liquidated damages
of treble attorney fees.
Id. at 966-67. The City sought a judgment on the
pleadings of Magenheimer's complaint, which the trial
On interlocutory appeal in Magenheimer I, we
discussed the law and facts underlying Magenheimer's
complaint as follows:
I. Indiana Code Chapter 35-47-11.1
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, ammunition,