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As a subscriber you can listen to articles at work, in the car, or while you work out. Subscribe NowAn Evansville man suing the city for enforcing a local law prohibiting firearms in public parks is not effectively bringing a tort claim, as the city argued in its motion on the pleadings. The Court of Appeals affirmed denial of the city’s motion, finding the claim is being brought pursuant to I.C. 35-47-11.1-5, which creates a private right of action for individuals to enforce that statute’s provisions.
Benjamin Magenheimer was ordered to leave the Mesker Park Zoo and Botanical Garden in September 2011 after a zoo employee saw him carrying a handgun. He was licensed to carry it and had a copy of the license in his possession. Evansville had a local ordinance in place prohibiting firearms in city parks.
He then sued the city, alleging it violated I.C. 35-47-11.1, which generally bars political subdivisions from regulating firearms. He filed the complaint pursuant to a provision that gives individuals a private right of action to enforce the statute. Evansville sought summary judgment, which was denied; it then moved for judgment on the pleadings in 2014. The city alleged that Magenheimer had failed to serve proper notice pursuant to the Indiana Tort Claims Act. This issue is before the COA on interlocutory appeal.
In City of Evansville and The Evansville Department of Parks and Recreation v. Benjamin A. Magenheimer, 82A01-1409-PL-398, the Court of Appeals rejected Evansville’s claim that the lawsuit is barred for not complying with the ITCA and that Magenheimer’s lawsuit is effectively a tort claim in disguise. Magenheimer made clear in his complaint that he was bringing his action solely pursuant to I.C. 35-47-11.1.
The judges disagreed with Evansville’s contention that even if it were possible for Magenheimer to bring his claim as a tort, that he should be required to do so. It also did not accept the city’s apparent argument that the ITCA should govern all claims in which a plaintiff alleges that state authorities have deprived a person of any right at all.
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